Right, But For The Wrong Reason
An Animal Rights Article from All-Creatures.org

FROM

Scott Heiser, Director of Animal Legal Defense Fund (ALDF) Criminal Justice Program
July 2010

Due to South Dakota’s consistent low rating in ALDF’s annual State Animal Protection Laws Rankings, I read with interest a June 23, 2010 opinion that came down from the Supreme Court of South Dakota: State v. Fifteen Impounded Cats. While the Court’s ultimate ruling is a desirable one, I take issue with the underlying reasoning used to get there.

The facts are simple. On a hot August night in 2009, Patricia Edwards was in the midst of a substantial road trip with 15 cats (and most of her other worldly possessions) packed in her car. She stopped at a convenience store in Pierre, South Dakota, where a police officer responded a short time later to a complaint “about a car parked in the parking lot occupied by a woman and a large number of cats.” When the officer rolled up, Ms. Edwards almost backed her car into the patrol officer’s vehicle. After a chat with Ms. Edwards, the officer noted that the car was crammed full of boxes, coolers, blankets, two-liter bottles full of water, books, cooking utensils, a big bag of cat food and a large and exceptionally dirty litter box. After photographing these conditions, the officer also noted that “there was a strong odor of ammonia emanating from the car.” Ms. Edwards was not in possession of any kennels, carriers or other means to confine the cats while she drove. Moreover, she was unable to provide vet records documenting that any of the cats had been spayed or neutered—offering instead the “dog ate my homework” excuse that the cats themselves had destroyed those records.

Based on his observations of Ms. Edwards’ car, along with his concern over her inability to safely operate her car with fifteen free-roaming cats in the passenger compartment, and his concern for the welfare of the cats, the officer impounded the cats and placed them with a local shelter. The officer did so under authority of SDCL § 40-1-5, which states that:

Any peace officer, agent of the board, or agent or officer of any humane society finding an animal inhumanely treated, as defined in § 40-1-2.4, shall, pursuant to a warrant or court order, cause the animal to be impounded or otherwise properly cared for, and the expenses of such impoundment or care shall be a lien on the animal to be paid before the animal may be lawfully recovered.

However, a warrant or court order is not necessary if the animal is severely injured, severely diseased, or suffering and any delay in impounding the animal would continue to cause the animal extreme suffering or if other exigent circumstances exist. If any animal is impounded or subjected to other action under this section without a warrant or court order, the officer or agent shall subsequently show cause for the impoundment or other action to the court, and the court shall issue an order ratifying the impoundment or action; or, if sufficient cause for the impoundment or action is not shown, the court shall order the return of the animal to the owner or other appropriate remedy. (Emphasis added).

Six days later, the trial court held a hearing on the propriety of the officer’s conduct and ultimately entered an order ratifying the warrantless impound of the cats as justifiable under the exigent circumstances exception as codified in the above-quoted statute.

In an effort to secure the return of the cats, Ms. Edwards appealed the court’s finding, arguing that these 15 cats were not neglected or otherwise cruelly confined and that the officer’s decision to impound them was a violation of her constitutional and statutory rights.

The Chief Justice of the Court wrote the majority’s opinion and held that the officer’s seizure of the cats was properly done as an exigency as contemplated under SDCL § 40-1-5. So far, so good. However, the majority went on to rule that the exigency was the risk of dangerous driving conditions (what with the 15 cats roaming around inside the car) rather than the conditions of confinement in what is otherwise an obvious animal hoarding case. In so holding, the Court took particular pains to emphasize the limited scope of the opinion by stating that, “In reaching this conclusion, the distinction is emphasized between the safety risk in this case and that in more typical situations involving the transportation of a pet. In that regard, the significant factors are the large number of animals involved here and the fact that they were seen running loose and climbing in a jam-packed vehicle and clearly interfering with the driver’s ability to see and focus on her driving task…”

Now, to be fair, the majority may have been paying homage to the trial court’s underlying rational for its ruling. However, the factual record was clear and undisputed—recall that there are photographs—not to mention the: strong odor of ammonia; 15 cats crammed in an already packed vehicle; hot August weather; lack of any vet records; a less than credible explanation for the lack of vet records. These are the relevant factors that triggered the application of SDCL § 40-1-5, not the corollary driving hazards that come with these conditions.

Nevertheless, I was pleased to read Justice Konenkamp’s concurring opinion wherein he succinctly defined the issues as:

(1) did the officer have “sufficient cause” to believe that a cross-country trip with fifteen cats loose in an over-packed car was inhumane treatment of animals? and (2) were there exigent circumstances justifying impoundment of the cats without a warrant or court order? The only statute cited to justify the officer’s seizure and the circuit court’s ratification of that seizure was SDCL 40-1-5, dealing with mistreatment or neglect of animals. Whether pedestrians, motorists, or the general public may have been endangered is not germane to these questions. The circuit court found that the “living conditions of the animals were neglectful,” and focused on “visibility” and “safety.” If safety was the basis for the decision, then only the safety of the cats was subject to inquiry.

Bravo, Justice Konenkamp! While it is heartening that the majority reached the correct result in this case (e.g., the impound was lawful), it is disappointing that they did so for the wrong reason—by analyzing this case from the “traffic safety” perspective rather than from the humane perspective.

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