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
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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
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