There has never been a consensus on animals. Taxonomists differ in applying the title. Individuals differ in their sympathies and empathies. It is no surprise, therefore, that there is no clear or singular message that can be divined from the New York State Agriculture and Markets Law. This law, or more specifically Article 26 of this law, houses various crimes that are often generally lumped under the vague commonplace heading of “animal cruelty offenses;” a heading which does not do the Article justice. If you wanted to find the provisions that prohibit you from unjustifiably running a horse on a plank road,1 displaying fowl that have been imparted an artificial color,2 or bartering baby rabbits under two months of age “in any quantity less than six,”3 look to this Article. As much and as often as I look to Article 26 in my role as a prosecutor, what I have discovered is that the vast majority of New York State Legislature’s animal cruelty laws give way to the public’s animal cruelty “rules.” These rules continuously evolve, transcend statutes, and frustrate the formulaic application of criminal law.
With the exception of self-defense, there is little, if any, public disagreement that murder is wrong. Robbery is wrong. Rape is wrong. Arson is wrong.
Killing an animal is wrong, unless. Harming an animal is wrong, unless. Mutilating an animal is wrong, unless. Only rarely is the “unless” actually written;4 more often the Legislature chose – as was presumably necessary to enact any law where public sentiment was unfathomable – to couch the societal ambiguity into the word “unjustifiable.”5 The presence and choice of that term in animal crimes statutes will always serve as automatic grounds for a motion to dismiss, no matter how well the charges are written or how timely the prosecution. Still, on its own, that term is not too debilitating. Its combination, however, with other societal X-factors is what may randomly, inconsistently and unpredictably nullify the law.
“Animal,” for New York criminal law purposes, “includes every living creature except a human being.”6 It does not discriminate by species – whales, hornets, worms, dogs, elephants, ants, and oysters are all equally protected from unjustified killings, injuries, and mutilations under Article 26. Yet, this purported equality, codified in law, more often than not cedes to society’s ever-evolving, un-codified rules.
As a hypothetical, assume that a police officer on patrol observes a person squash a spider. Further assume that the police officer stops to further investigate the situation. The officer inquires of the person as to his justification for squashing the spider and the person cannot provide one, but freely admits to squashing it. The Agriculture and Markets Law provides that a “police officer must … arrest … any person offending against any of the provisions of article 26 ….”7 The officer has just observed an unjustified killing of an animal and has elicited a confession. Must the officer now arrest? If the officer does not, what would be his reason for this dereliction of duty?
While the full import of this hypothetical might be easy to brush aside, it is a scenario that an animal cruelty prosecutor must seriously contemplate and an animal law professor would be well within his or her rights to place on a final examination. It is meant to demonstrate that, with animal cases in particular, before there can be a decision to arrest and prosecute on the law, there practically (though not legally) must be a decision as to what society’s rules are with respect to that particular species of animal and what the local demographic conventions are as to particular conduct. More often than not, this decision is subconscious, instantaneous, and never reconsidered. It is also regional – a Nassau County jury pool’s concept of justifiable conduct towards a given animal will be much different from a Washington County pool, with each concept sounding equally absurd when presented to the other group.8 With such a variance between urban, suburban, and rural viewpoints, not to mention the four centuries of an agrarian-based economy in this country, it is no wonder why the New York State Legislature cannot achieve great specificity when legislating crimes against animals.
The notion that we have laws to protect animals is technically accurate, but practically fraudulent. The laws do not serve to protect animals; they serve to protect the animals that warrant our sympathies at any given time in any given place. They protect humans and human emotions. In reality, it is jury nullification – not the law – which arises as the standard of prosecution.
Every person, village, town, county, and region of New York will have different “rules” which will serve as benchmarks for jury nullification. Combining these rules with legal protections and other societal conventions can cause quite a headache. If you dare to think critically about your own views, you will likely find that you are even inconsistent with yourself. In an effort to illustrate the befuddling discord between these laws, conventions, and rules, a list of 8 Guiding Principles are produced below. This article does not voice any support or disdain for these principles, nor does this article comment on the practices upon which they are based. Rather, the Principles are merely a satirical attempt to characterize the current, prevalent, yet invisible mores that seem to govern the breadth of animal cruelty statutes.
1. An animal that is loved by a human will merit enhanced protection.
You hear a lot about “Doggie Heaven” and, to a lesser extent, “Kitty Heaven.” You never hear much about Crustacean Heaven, Chameleon Heaven, or Cattle Heaven. The amount of legal and practical protection afforded to an animal directly correlates with the degree to which an average human identifies with it and/or recognizes a soul within it that is capable of transcending into an afterlife. Consequently, in 1999, the State Legislature gave felony protection to these “companion animals,” an honorary title that automatically includes dogs and cats and extends further to essentially any animal taken in as a pet, regardless of species.9 This was illustrated in People v. Garcia,10 where a family’s beloved pet goldfish merited protection as a “companion animal.” Thus, while extreme cruelty to a pet turtle will merit a felony arrest, the burning and stabbing of a wild turtle confined in a milk crate can only, by law, merit a misdemeanor arrest.11
2. Palatable species are exempted from protection.
As a prosecutor, I have received hundreds of complaints regarding multiple dogs that are kept crammed together in crates, either in a home, puppy mill, or pet store. Yet, I have never received a complaint regarding multiple lobsters that are kept crammed together in a tank at a restaurant or supermarket. The palatability of a particular species of animal is a cultural and regional choice – the term “palatable” rather than “edible” is used as any non-poisonous animal flesh, including that of a horse, dog, or cat, is technically edible. (As an aside, section 96-h of the Agriculture and Markets Law prohibits the selling or bartering of dog and cat meat, but has no prohibition against eating it). If New York society has adjudged an animal to be tasty or otherwise salubrious, then slaughtering that animal for consumption will be “justifiable” conduct for purposes of the animal cruelty statutes. However, note that this designation does not release the custodian of the commercial animal from criminal prosecution if the animal is otherwise abused or neglected while it is alive.12
3. Nuisance species are exempted from protection.
Section 11-0523(1) of the Environmental Conservation Law provides that homeowners, their family, or agents, may “take…unprotected wildlife …when such wildlife is injuring their property or has become a nuisance thereon. Such taking may be done in any manner, notwithstanding any provision of the Fish and Wildlife Law…the Penal Law or any other law.” “Take” has many meanings under the statute, and includes “kill.”13 Thus, a homeowner, after making a subjective determination that such animals have become a nuisance on her property, should be able to kill cotton-tail rabbits, squirrels, raccoons, skunks, opossums, and foxes using any methodology he or she deems fit without any consequence from Agriculture and Markets Law. This is with the caveat that the subjective determination must be genuine (or at least perceivable as genuine).14
4. Rodents are exempted from protection, unless fluffy, placed in a pet tank, or bearing a fuzzy tail.
As discussed above, any gerbil, hamster, or chinchilla with a loving owner is protected by the animal cruelty laws – possibly even to the tune of a felony charge. Any non-cherished member of the Rodentia order of mammals, however, will face commercial-grade poisons, back-breaking traps, suffocation traps, and sticky traps – legally sold and available at any local grocery store or pharmacy.
5. Animals with exoskeletons are exempted from protection, unless they are commercial property.
Society accepts and encourages massive poisoning operations, undertaken in partnership with a corporate sponsor such as Terminix or Raid. It also accepts inventions such as fly-swatters, fly-paper, and bug-zapping-lights for killing animals with exoskeletons on an as-needed, one-at-a-time basis. However, it is not recommended to pursue extermination of “valuable” insects, such as farmed honey-bees or medical leaches, not so much because an individual bee or leach compels particular respect as an “animal” from society-at-large for Agriculture and Markets purposes, but because their commercial value compels respect as property for Penal Law purposes.15
6. Microscopic animals are exempted from protection.
As a general rule, as the size of the animal decreases, the level of its medical and hygienic nuisance to humans increases. Therefore, despite the law, society has all but denied protection for nature’s smallest animals. To my knowledge, the District Attorneys of New York City were not consulted before a campaign to aggressively eliminate bed-bugs began in 2010. Likewise, the extermination of all dust mites from the country would not draw much public protest, except perhaps from scientists with concerns about the national ecosystem.
7. Select wild animals may be exempted from protection in the state’s discretion.
Recreational hunting, and efforts to reconcile it with animal cruelty laws, will forever plague the State Legislature. Judge Margarita L. Pez Torres, in a written opinion, noted that hunting was “arguably the ultimate form of cruelty … justified by the need of some people to engage in killing animals as a recreational activity.”16 From a prosecutor’s perspective, the quandary is not over the ethics of the practice, but the boundaries of criminal law. Recently, in State v. Kuenzi,17 the Wisconsin Court of Appeals grappled with the issue of whether two defendants, on a hunting trip, violated the state’s cruelty provisions by chasing the deer with snowmobiles and killing them by running the deer over and doing “burn outs” on top of the bodies. A similar issue presented in New Mexico’s State v. Cleve,18 where a man was charged for animal cruelty for using wire snares to capture deer. In New York, like these other states, hunting permits can be obtained by the state and acting within those permits will shield the hunter from criminal liability. The question that lingers is whether a regularly-practicing hunter that knowingly kills an animal one day, one week, or one month out of season should be prosecuted under the Environmental Conservation Law for a regulatory infraction or should be prosecuted under the Agriculture and Markets Law for an “unjustified killing” of an animal.
8. One animal will merit more protection than many.
If a defendant is found to be in possession of one severely neglected animal, then public sentiment – steadfastly represented in a jury pool – will turn against that individual without much goading. Likewise, if a defendant is found to have murdered in excess of 30 victims, or robbed in excess of 30 banks, public sentiment will greatly turn against that individual without passionate overture. Yet, animal hoarders, made trendy by television, are often perceived to have different mental culpability than other large-scale offenders. Therefore, if a defendant is found to be in possession of 30 severely neglected animals, public perception – extending to judicial perception – will often conclude mental infirmity to the point of vitiating criminal culpability.
There likely never will be a consensus on animals, and each individual’s viewpoint will continue to seem frustratingly overreaching to another individual’s opposing viewpoint. The Legislature, which repeatedly catches invective for its failure to produce viable, modern, and clear laws to protect animals, is not as culpable as it is often made out to be. In reality, it is merely acting as intended – as a mirror of societal indecision.
Jed Painter is a Nassau County Assistant District Attorney and Chief of the NCDA Animal Cruelty Unit.
1. NYS Agriculture and Markets Law (AML) § 364. This only begs the question about when running is justifiable.
2. AML § 354(2).
3. AML § 354(3).
4. For example, under AML § 377 (Disposal of dead animals), animal carcasses must be buried at least three feet below the ground, unless they were used for experimental purposes. Another example, under AML § 353, anti-cruelty provisions may, in some instances, give way to “properly conducted scientific tests,” monitored by the state commissioner of health.
5. See, e.g., AML § 353 (criminalizing conduct that “unjustifiably injures, maims, mutilates, or kills any animal”); AML § 353-a (criminalizing conduct of a person who, “with no justifiable purpose…intentionally kills or intentionally causes serious injury to a companion animal….”); AML § 360 (criminalizing conduct of a person who “unjustifiably administers any poisonous or noxious drug or substance to an animal.”); AML § 361 (criminalizing conduct of a person who “willfully or unjustifiably…injures…any…domestic animal used for purposes of…breeding….”).
6. AML § 350(1).
7. AML § 371. This is in addition to the arrest mandates contained in Article 140 of the Criminal Procedure Law.
8. By way of illustration on this point, I once received a complaint from a concerned Nassau citizen that her neighbor was keeping chickens out during the night and that this conduct was surely criminal. I received another complaint from another Nassau citizen that she suspected that her neighbor was raising cows with intent to later slaughter them for personal consumption and that this individual needed to be prosecuted.
9. See AML §§ 350(5); 353-a.
10. 3 Misc.3d 699 (Sup. Ct. N.Y. Co. 2004), aff’d 29 A.D.3d 255 (1st Dept. 2006).
11. See, e.g., Druin-Keith, Teens Charged with Burning, Stabbing Turtle in Bellport, Newsday (June 13, 2010), available at http://www.newsday.com/long-island/suffolk/teens-charged-with-burning-stabbing-turtle-in-bellport-1.2016796.
12. See, e.g., People v. Paragallo, 2011WL1160150 (3d Dept. 2011); People v. Richardson, 15 Misc.3d 138(A) (App. Term 9th & 10th Dists. 2007).
13. See Environmental Conservation Law § 11-0103(13).
14. See People ex rel. Thomas v. Suffolk County District Attorney, 2010 WL 2802679 (Sup. Ct. Suffolk Co. 2010) (upholding jury conviction, despite ECL provisions, in case where defendant was alleged to have killed squirrels without intent to hunt or preserve his property).
15. See Alexander, U.S. Fears over Honey Bee Collapse, BBC News. http://news.bbc.co.uk/2/hi/science/nature/7312358.stm (last updated March 25, 2008).
16. People v. Arroyo, 3 Misc.3d 668, 676 (N.Y. City Crim. Ct. 2004).
17. 2011WL659380 (Wis.App. 2011).
18. 124 N.M. 289 (NM App. 1997).
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