Stream access laws in New York and Montana

The public’s right to access streams and other flowing waters is different in every state, depending on each jurisdiction’s particular combination of constitutional, statutory, and judicial public trust rules. These laws impact not only public use, but also the private property rights of riparian owners, and they can have far-reaching effects on conservation measures and economic development related to recreational tourism. To illustrate the breadth of these rules, consider the very different stream access laws in New York and Montana. Continue reading

Criminalizing attendance at cockfights doesn’t violate the First Amendment, court rules

A Connecticut court ruled this week that a law criminalizing attendance at animal fights doesn’t violate the First Amendment rights of free assembly and free association.

The defendant in the case had $900 in cash on him when he was arrested at a cockfight in Waterbury. He was charged with a general gambling offense and two counts of animal cruelty—the first for acting as a spectator and the second for wagering on the cockfight. Not content to accept these charges, he filed a lawsuit claiming that the spectator law violated his constitutional rights under the First and Fourteenth Amendments.

The right of peaceable assembly is just as fundamental as the First Amendment rights of free speech and free press, but its protection doesn’t extend to every assembly of people, and it obviously excludes assemblies that are intended to incite violence or promote crime. The defendant contended that he wasn’t partaking in an unlawful activity by attending the cockfight, but merely assembling with others who may or may not have been actively involved in the cockfight. The court didn’t buy this argument though, concluding that, “as a spectator at a cockfight, an individual is engaged in promoting and facilitating the existence of the unlawful conduct.”

The right of association protects intimate relationships and expressive activities encompassed by the First Amendment (e.g., speech, assembly, and religious exercise). Attending a cockfight didn’t fall within either of these protections, the court held. It didn’t share any of the traditional markers of intimate associations, like being limited to a relatively small number of people, being highly selective, or excluding others from critical aspects of the relationship. Nor did it involve any expressive association protected by the First Amendment, as the spectators weren’t engaged in some broader public discourse about cockfighting.

The defendant also claimed that the law was unconstitutionally “overreaching,” but the court dismissed this argument because it only applied to people who knowingly acted as spectators at animal fights. The law was generally valid, the court continued, because it was rationally related to the state’s objective of eliminating animal cruelty. After all, “without the knowing presence of spectators, much of the ‘sport’ of cockfighting would be eliminated.”

In his final claim, the defendant argued that the law violated his right to equal protection because it punished spectators at cockfights but not spectators of other illegal conduct. The court disagreed, reiterating that the law had a rational relationship to the state’s interest in preventing animal cruelty and that it only had to be reasonable to survive the defendant’s equal protection challenge.

State v. Bonilla, 2011 Conn. App. LEXIS 469 (Sep. 13, 2011).

Courts in Colorado, North Carolina, and Tennessee have also upheld laws criminalizing attendance at animal fights. People v. Bergen, 883 P.2d 532 (Colo. App. 1994); State v. Arnold, 147 N.C. App. 670 (2001), State v. Tabor, 678 S.W.2d 45 (Tenn. 1984).

Seventh Circuit approves warrantless taxidermy searches

The Seventh Circuit held last week that the Fourth Amendment permits warrantless searches of taxidermy businesses. The case, United Taxidermists Association v. Illinois Department of Natural Resources, was commenced in 2005 after a taxidermist who was frustrated with the state’s periodic warrantless inspections formed the United Taxidermists Association and persuaded 30 other Illinois taxidermists to join his cause (although more than 600 declined his invitation).

The taxidermists challenged the Illinois Wildlife Code in particular, which requires them to be licensed and to keep detailed written records regarding all animals and animal parts that they receive. These records must also correspond to tags attached to each animal in their possession, and all “taxidermy records” must be open to inspection at all times by officials from the Department of Natural Resources.

The Seventh Circuit agreed with the state that these provisions are constitutional under the Supreme Court’s holding in New York v. Burger, which allows reasonable warrantless inspections of closely regulated commercial businesses. A search is considered reasonable under Burger if it meets three requirements:

  1. there must be a substantial government interest in the regulatory scheme;
  2. the warrantless inspection must be necessary to further that scheme; and
  3. limitations on the inspection must ensure a constitutionally adequate substitute for a warrant.

The taxidermists conceded that the warrantless inspection of written taxidermy records was supported by the state’s substantial interest in protecting wildlife, but they argued that there was no corresponding interest supporting the search of taxidermy tags. As the court explained, however, Burger’s first prong requires a substantial government interest in the regulatory scheme as a whole. Accordingly, there was no basis for requiring separate justifications for searching written records as opposed to taxidermy tags, and the state’s interest in protecting wildlife was sufficient to satisfy the first Burger requirement.

The taxidermists’ next argument was that warrantless searches failed the third prong of the Burger test because the statute didn’t define exactly which “taxidermy records” were subject to inspection and, as a result, failed to give sufficient notice of the property to be searched. But the court found this interpretation to be overly narrow and explained that if the Illinois legislature had intended the term “taxidermy records” to mean only written records, it would have explicitly said so in the statute. The court also pointed out that the taxidermists’ interpretation was inconsistent with the statute’s organization and that “removing the tagging requirement from the breadth of inspections also would frustrate the purpose of the Code: regulating the capture and possession of wildlife.”

Finally, the court rejected the taxidermists’ claim that the statute gave inspectors too much discretion because it allowed “any peace officer” to conduct searches. Although broad, the court found this provision to be reasonable and noted that equally broad inspection regulations have been upheld in other jurisdictions.

Washington court refuses to find a bailment in stray cat case but accepts claims based on conversion, trespass to chattels, and fraud

Damiano v. Lind, 2011 Wash. App. LEXIS 2000 (Aug. 25, 2011), involved “a dispute between next door neighbors over the disappearance of a cat named Boo.” The cat’s owner, Ms. Damiano, heard Boo meowing from the vicinity of Mr. Lind’s garage on the morning of the its disappearance but when she confronted Mr. Lind, he denied seeing the cat. He later admitted to a police officer, however, that he had trapped a cat meeting Boo’s description in a live trap under his porch and later released it. He explained that he used the trap to catch skunks and that he didn’t know that the cat belonged to Ms. Damiano when he released it. Boo was never found.

The Damianos filed a lawsuit against the Linds, alleging claims of bailment, negligence, malicious injury to a pet, trespass to chattels, conversion, outrage, gross negligence, and fraud. The trial judge dismissed all of the charges on summary judgment. On appeal, the court affirmed dismissal on most of the counts but held that it was error to dismiss the claims for conversion, trespass to chattels, and fraud.

Regarding the bailment claim, the court held that in Washington (unlike Vermont), a person who finds a stray pet is under no obligation or involuntary bailment requiring him to return the pet instead of releasing it. Nor is there any general duty of care to return a stray pet such that the Linds could have been held negligent for failing to reunite Boo with his owners. The court also rejected the Damianos’ claim of malicious injury to a pet because there was no proof of either mailce or injury, as well as their claim of outrage, because the evidence was insufficient to prove either extreme and outrageous conduct or an intention to inflict emotional distress.

Because the neighbor admitted that he had trapped the cat and released it, however, the court held that the Damianos had raised sufficient questions of fact to merit a trial on their claims of conversion and trespass to chattels. Both of these torts, the court explained, require an act of willfull interference with a chattel, without any justification, that deprives the owner of possession or use. The court emphasized that these claims do not require a showing of bad faith or an intent to deprive, and held that Mr. Lind intentionally interfered with the Damianos’ right of possession by trapping Boo. Mr. Lind’s asserted justifications were found to be insufficient, as he failed to provide evidence that cats in general, or Boo in particular, were “specially injurious” to his property such that they could be considered abatable public nuisances, and he did not have the necessary state permits for trapping skunks or other wild animals.

The court also found that there was sufficient evidence to support the Damianos’ cause of action for fraud, as Mr. Lind falsely denied seeing a cat when Ms. Damiano confronted him about hearing Boo in his garage. The court held that Ms. Damiano had a right to rely on Mr. Lind’s statement that he not seen Boo and that she did, in fact, rely on this statement during the following weeks as she continued to search for her lost cat.

How to fight criminal charges when you get caught with a crocodile in your bathtub

While I can’t say for sure, I’m guessing that there aren’t too many cases out there that involve a missing child, his father’s ex-boyfriend, a well-secured house in one of the richest towns in the country, a suspicious couch, a suspicious cot, and a six foot crocodile being kept in the bathtub.

Unfortunately, State v. Ryder isn’t nearly as interesting as it sounds. The majority opinion of the Connecticut Supreme Court held that there was no objectively reasonable basis for the police officer to believe that an emergency was taking place, and so his warrantless search of the house was illegal and the evidence he discovered—a crocodile in the bathtub—was fruit of the poisonous tree and had to be suppressed. Meanwhile, the dissent argued that the majority got it all wrong and omitted important facts that proved how the police officer’s claim of emergency circumstances was actually quite reasonable.

Even more unfortunately, neither of the opinions provided any answers regarding most important question in the case—why was there a freakin’ crocodile in the bathtub in the first place?!?!

The surprisingly interesting jurisprudence of weed ordinances

Lawns are one of the most ubiquitous landscapes in the United States and one of the most potent symbols of American suburbia. They serve as an ideal backdrop to the single family home,  providing just enough space to instill a feeling of privacy, and just enough greenery to foster a connection with nature. Lawns have unified the landscape and transcended social, political, racial, and religious divides like few things can. Michael Pollan, in this regard, compared their influence to the the interstate highway system, fast food, and even television. This deep cultural identification with lawns, he says, also explains “why lawn care is regarded as such an important civic responsibility.”

There’s another reason why lawns and lawn care have become imbued with such strong moral and civic qualities: the antithesis of a well-maintained lawn—the unkempt, uncontrolled, and overgrown yard—is as potent a symbol of failure and decay as the lawn is a symbol of hope and idealism. Few things can conjure feelings of abandonment, neglect, disinvestment, and dispair like a house being slowly consumed by the underbrush.

With symbolism this entrenched and powerful, it’s no wonder that conflicts over lawn maintenance incite people to file complaints, cut their neighbors’ lawns themselves, and even resort to violence.

Weed ordinances were developed long ago as a solution to these sorts of lawn problems, just as spite fence laws evolved to mediate boundary conflicts between vengeful neighbors. Although the earliest weed laws were agricultural measures, they were quickly adapted for use in cities and towns, where they were used to mandate minimum lawn care standards and prevent the growth of nuisance vegetation. The basic mechanism used in these ordinances—a maximum height limit for nonornamental vegetation, usually set somewhere around eight or twelve inches—has hardly changed over the last century.

In addition to protecting neatly maintained neighborhoods from the scourge of overgrown yards, weed ordinances have become the subject of a surprisingly interesting body of lawn care jurisdprudence. Given their widespread use and long historical pedigree, it’s not surprising that most courts uphold weed ordinances with little hesitation. But weed laws aren’t immune from constitutional attacks, and property owners sometimes win. So for the benefit of lawn enthusiasts and weed lovers alike, I now present to you an overview of the Law of Weeds.

Continue reading

The growing urban coyote problem and local management strategies

* This post is adapted from a longer article that can be accessed here.

Coyotes have been viewed as pests and a threat to livestock since American settlers first encountered them, and this hostility supported early government policies that usually focused on eradication. But despite decades of hunting, poisoning, and trapping programs, Canis latrans has proliferated and expanded its range, both geographically and ecologically. Once confined primarily to the plains and prairies of the West and Southwest, coyotes now inhabit urban, suburban and rural habitats throughout Alaska and the lower 48 states, as well as much of Canada and Mexico. In rural areas where larger predators such as wolves have been more successfully eradicated, coyotes have taken their place as apex predators, and in developed areas their intelligence and adaptability has allowed them to create new ecological niches in the urban and suburban landscape. “We consistently underestimate how adaptable coyotes are,” says Stanley Gehrt, one of the nation’s premier urban coyote biologists. “We’ve seen them sitting on the side of the highway. We think they’re listening and looking.”

Continue reading