Vicious Animal at Large

The following represents one lawyer's poor attempt at humor in legal analysis. If you are facing criminal prosecution, please contact us directly to see how an experienced criminal defense attorney can make a difference in your case. Even misdemeanor charges in Utah can have serious consequences.

Posted September 15, 2017.

Reading the Law to Avoid Absurdity

A question was raised recently about how the statutory language of Utah Code 76-9-304 should be properly interpreted. The statute purports to establish criminal penalties that may imposed when a vicious animal gets loose or when an animal causes injuries to another animal or to a human. But the statute is drafted in a way that is confusing. The relevant language of the statute is as follows:

Any owner of a vicious animal, knowing its propensities, who willfully allows it to go at large or who keeps it without ordinary care, and any animal, while at large, or while not kept with ordinary care, causes injury to another animal or to any human being who has taken reasonable precaution which the circumstances permitted, is guilty of a class B misdemeanor. . . .

Reading the statute as close to literally as possible and with tongue firmly in cheek, one could argue that it establishes two separate crimes.

The first crime applies to "[a]ny owner of a vicious animal [who] know[s] its propensities [and] who willfully allows it to go at large or who keeps it without ordinary care" is guilty of a class B misdemeanor.

The second crime is more interesting, and applies to "any animal, [that] while at large, or while not kept with ordinary care, causes injury to another animal or to any human being who has taken reasonable precaution which the circumstances permitted" is also guilty of a class B misdemeanor.

The first is a crime committed by the owner. The second is a crime committed by the animal.

Arguments certainly could be made that the animal's due process rights are violated by prosecuting the animal under this section, as the due process "notice" requirements cannot be met where the animal (presumably) is incapable of reading or understanding the language of the statute. The animal's inability to communicate with the court or with counsel also creates questions on the issue of the required "opportunity to be heard" and basic competency elements. Even with these legal issues, there are still occasional reports of judges who impose capital punishment against an animal who has violated this statute.

But on a more serious note. . . .

Challenging Vague or Ambiguous Statutory Language

Judges normally try to interpret a statute in a way that avoids absurdity. So the analysis above is likely to be rejected by most courts.

The language of Utah Code 76-9-304 leaves something to be desired in terms of clarity and grammar. Laws that are unclear can be challenged as being void for vagueness. In order to successfully challenge a law as being unconstitutionally vague, one must generally demonstrate that the language is so unclear that it does not allow an ordinary person to understand who the law applies to and what conduct is prohibited. Another basis for holding a statute to be unconstitutionally vague is found when a statute is so broadly written that it invites arbitrary enforcement.

A prosecutor facing a vagueness challenge would likely argue that the statute should be read as applying to "[a]ny owner" of two classes of animals. The first class of animals would include "a vicious animal" with propensities known to the owner, that is allowed by the owner to go at large or that is kept by the owner without ordinary care. The second class of animals would include "any animal [whether or not known to be vicious], [that] while at large, or while not kept with ordinary care, causes injury to another animal or to any human being who has taken reasonable precaution which the circumstances permitted." But the "or" in the second class of animals is significant as it seems to further invite arbitrary prosecution.

With the "or" in place, the statute can be read as covering "any owner" of "any animal" that injures another animal "while at large" - regardless of the level of care exercised by the owner and regardless of what or who caused the animal to be at large. Recklessness is the default mens rea requirement when a statute doesn't clearly indicate strict liability and doesn't indicate another mental state requirement. Here, it could be argued that criminal negligence is sufficient where the statute refers to "ordinary care." But it could also be argued that strict liability applies where the legislature drafted the statute to include times when any animal is "not kept with ordinary care" or is simply "at large."

Strict liability in this context is problematic, but there are prosecutors and police officers who seem to believe that strict liability can be appropriately applied to this statute. Under strict liability, if a dog gets out and bites someone, the owner is automatically criminally liable - regardless of why or how the dog got out.

In order for strict liability to apply, the statute needs to clearly indicate a legislative intent to impose strict liability. This doesn't meant that the legislature has to use the words "strict liability." But the intent still has to be clear.

Here, the statute's reference to a standard of "ordinary care" suggests that the legislature is not intending to impose strict liability. But if the "any animal, while at large" language of the statute is read as imposing strict liability, then other problems arise.

Assume that a hypothetical dog is placed by its owner into the backyard, chained securely to a post, with a fence that is tall and strong, and a gate that is closed and locked. Assume next that some bad actor climbs the fence, unchains the dog, lifts the dog over the fence, sets the dog free, and then watches as the dog runs across the street and inflicts fatal injuries on the neighbor's baby.

If the statute is read as imposing strict liability ("any animal, while at large . . . [and] the animal causes the death of a human being") then the dog owner is guilty of a third-degree felony even though there was no volitional act committed by the owner. Not only is there no mens rea, not only is there no actus reus (guilty act), there is no act at all on the part of the owner (other than the act of owning a dog). The problematic acts committed in this hypothetical are committed only by the dog itself and by the unknown bad actor who let the dog out of the fence. Imposing felony liability in this context could implicate substantive due process (fundamental unfairness) concerns.

A More Reasonable Interpretation

The statute could also be read in a way that does not divide the world into two classes of animals ("vicious" animals and "any" animals). This is also a more narrow reading which would punish only owners of vicious animals that actually cause injury.

If the words "and any" are changed to "if that" then the meaning of the statute changes significantly. Here the statute would only impose criminal penalties on a certain class of animal owners ("[a]ny owner of a vicious animal, knowing its propensities, who willfully allows it to go at large, or keeps it without ordinary care") and only if certain conditions are met ("[if that] animal, while at large, or while not kept with ordinary care, causes injury to another animal or to any human being. . . .").

This reading perhaps makes the most sense, because it avoids the substantive due process issues involved with imposing strict liability, it provides a clear class of persons who are governed by the statute, it provides more clear mens rea requirements, and it more clearly sets forth what conduct is prohibited. It also avoids the absurdity of pursuing criminal prosecution against cats and dogs.

Still, a problem remains with the statute because in order to get to this reading of the statute, the words of the statute be changed. If a statute has to be rewritten in order to make sense, there is a problem.

But at least the current language of the statute keeps the door open for constitutional challenges to be made by defense attorneys.

*Note that while many local ordinances relating to animals at large are based on the state code, some of these local ordinances may have been modified in a way that clarifies the ambiguities in the state code. A careful analysis of the specific statutory language must be made prior to mounting a challenge to the statute. The assistance of an experienced criminal defense attorney is highly recommended.

Finding a Criminal Defense Lawyer in Utah

Caring for animals is a matter that should be taken seriously. Even ignoring potential criminal penalties, failing to provide an animal with proper care and protection can have serious consequences for the neglected animal, for other animals, and for other people as well.

If you have been contacted by a police officer or other government investigator or if you have been charged with a crime, the assistance of an experienced criminal defense attorney can be key to ensuring that your rights are protected. Contact us today to see what the right attorney can do for you.