Collision Course: Civil Rights vs. Animal Rights
In early October 2009 the U. S. District Court for the Western District in Louisville, Kentucky, struck down parts of a municipal ordinance which were substantially similar to existing New York law governing forfeiture of animals in animal cruelty cases. The federal court enjoined the City of Louisville from enforcement of § 91.101 of Metro Louisville’s controversial “Animal Ordinance” (http://www.louisville-pets.com/Louisville_Animal_Ordinance_Final.pdf), because it “threatens to deprive pet owners of their property rights without a finding of guilt .”
Judge Simpson’s Order and Memorandum Opinion is available at http://www.scribd.com/doc/21749661/Louisville-Decision. Regarding a section of Louisville’s ordinance allowing animals to be seized and forfeited prior to adjudication of charges if the defendant fails to post a security bond to guarantee the cost of maintaining the animal(s) during proceedings, the court reasoned:
“It is perfectly possible for a judge to find probable cause that a person has committed an offense, but for the person to later be found innocent. Under the scheme set up [in Louisville] if a person was unable to put up $450 immediately upon the probable cause finding, his pet is forfeit and he has no apparent recourse for its recovery, even if he is ultimately found innocent of the underlying charge. There is thus a high risk of erroneous deprivation.” (emphasis added)
Does New York law support erroneous deprivation?
Like Louisville, New York State law allows similar onerous financial requirements to be placed upon defendants at arraignment by the filing of civil petitions for security bonds requesting the cost of maintaining animals seized while charges are pending.
Agriculture and Markets Law Article 26, §373(6)(a), sets out seizure and subsequent forfeiture proceedings. In New York, unlike Louisville, beneficiary impounding organizations are private, not for profit corporations or authorized agents, and not a municipal agency. Forfeited property (animals) goes to the private impounding organization, not the State of New York. Agriculture and Markets Article 26, §373(6)(b)(2) allows the court to order immediate forfeiture of seized animals if security bond requirements are not met within five business days, and allows impounding organizations to sell or euthanize forfeited animals.
These provisions mean that if the defendant has the money to pay the bond (often many thousands of dollars per month), the animal owner is disbursing money prior to discovery, pre-trial motion hearings, prior to trial, and obviously, prior to a verdict on the alleged charges. Conversely, if the defendant does not have the finances to pay the bond, he will immediately and permanently forfeit his animals - his property – prior to any action being taken in his defense.
Disposition of seized property in New York
Estimated costs to be born by an impounding organization with custody of seized animals are cited as justification for security bonds. In essence, New York’s forfeiture provisions make the defendant responsible for preserving the evidence. This is antithetical to the provisions of CPL § 690.55, which clearly places the onus for maintaining seized property on the courts and the agencies which have custody. Defendants cannot be divested of property no longer in their possession because of the cost of maintaining it. This is a clear violation of the defendant’s right to due process.
Erroneous deprivation here and now Private, not-for-profit corporations acting as complainants and impounding organizations, benefit from participation in New York’s pre-adjudication forfeiture proceedings. They receive either the security bonds , or the valuable animals forfeited. These clear financial incentives for seizure and forfeiture of animals yield a troubling, corrupt pattern of pre-adjudication forfeiture.
In Louisville, Judge Simpson struck down a provision that would permanently deprive a pet owner of his property, absent a finding of guilt.