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«THE BIG BOOK OF WOOF TABLE OF CONTENTS ABOUT THIS HANDBOOK INTRODUCTION CHAPTERS I. DOG IMMUNIZATION AND LICENSING IMMUNIZATION LICENSING 1. ...»

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These grants of authority enable the reach of your ordinance. For example, your ability to prohibit dogs running at large emanates from the grant of authority the state provides you for the “leashing” of dogs. Others are less obvious, such as requiring a person in control of a dog to remove the animal’s fecal material from public or private property and dispose of it in a sanitary manner. Your ability to enact such a provision originates from your authority to define a public nuisance and compel action to redress it.10 Abraham Lincoln famously said that “law without enforcement is just good advice.” As with all other enabling regulatory authority, ordinances need to correlate to either 24 V.S.A. §§ 1974 (civil) or 1974(a) (criminal) to import violations from the state’s statutory framework. You can cite either provision when designating your ordinance as civil or criminal, but not both. 11 And the route you choose instructs what punishment may be imposed and which court of law will have jurisdiction over the alleged violation. The penalty for civil ordinances is monetary, is capped at $800, and is brought before the Vermont Judicial Bureau. The Judicial Bureau can also order that a violation stop, but it otherwise cannot grant injunctive relief.12 If a town seeks to command an action –e.g., that an owner have his or her dog neutered – or if it wanted to impose a monetary penalty for continuing violations in excess of $800, the town would need to work with the town attorney to initiate an enforcement action in the Criminal Division of the superior court.13 The shortcomings inherent in the Judicial Bureau’s lack of jurisdictional authority to order injunctive relief can be made up for in part through a town’s authority to provide for the “impoundment” of dogs. 24 V.S.A. § 2291(10). In other words, because towns can impound a dog for a particular offense, it can set the terms and conditions that must be satisfied before that dog is released. (VLCT’s Model Dog Control Ordinance is in Appendix H.) Most towns elect to go with a civil rather than criminal dog ordinance due to the ease of the civil enforcement process – especially now that failure to pay Judicial Bureau penalties can result in referral to collection agencies – and the type and frequency of the regulatory problems involving dogs. But a criminal designation is still an option. If a town is having a particularly hard time bringing about compliance with the ordinance it enacts (as evidenced by a high recidivism/repeat offender rate or a high volume of violations in general), it may want to make certain violations of its dog ordinance criminal. Attaching criminal liability to serious offenses or repeat offenders by designating violations of your ordinance as criminal misdemeanors may impress upon offenders the seriousness of the violations and the need to take remedial action. The threat of a prison sentence (not to exceed one year) is often more persuasive than a monetary fine alone. 24 V.S.A.

§ 1974(a). Even those who typically don’t take their ownership responsibilities seriously won’t “[T]o be considered a public nuisance, an activity must disrupt the comfort and convenience of the general public by affecting some general interest[.]” Napro Development Corporation v. Town of Berlin, 135 Vt. 353, 376 A.2d 342.

“A municipality may adopt, amend, repeal and enforce ordinances or rules for any purposes authorized by law....

An ordinance or rule adopted or amended by a municipality under this chapter or under its municipal charter authority shall be designated as either criminal or civil, but not both.” 24 V.S.A. §§ 1971(a),(b).

“A court order commanding or preventing an action.” Black’s Law Dictionary (8th ed. 2004).

“If the penalty for all continuing civil ordinance violations is greater than $800.00, or injunctive relief, other than as provided in subsection (c) of this section, is sought, the action shall be brought in the criminal division of the superior court.” 24 V.S.A. § 1974a(b).

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Spot takes the witness chair Prosecutor: State your name for the record, please.

Spot: Spot.

Prosecutor: And Mr. Spot, where were you on the afternoon of March 1, 2013 at 2:00 pm?

Spot: I was on my owner’s premises at 25 School Street, minding my own business.

Prosecutor: Minding your own business, you say? Interesting. (Waves a photograph of a mailman’s face with a bite mark on it in front of Spot) And does this look like the injury that would occur to someone from a dog just minding his own business?!.

Spot: (agitated) It wasn’t me, you see! Alright, it was me, I did it, I bit the mailman. But I didn’t mean to. I couldn’t control myself!

Prosecutor: What do you mean, you couldn’t control yourself?

Spot: The mailman called me over. Everything was going great. He’s a nice guy. We’ve never had problems before. He started out patting my head and scratching behind my ear. And then he tried to take my ball out of my mouth. I gave him a growl to let him know that I didn’t like that, but he kept on trying. Well, when he finally yanked it away from me, I gave him a nip on his muzzle to let him know that I was getting frustrated.

Prosecutor: On his muzzle?

Spot: Yes, on his face. That’s how we dogs tell each other to back off. I didn’t mean to hurt him.





His face is much more sensitive than a dog’s. I’m innocent! (whimpering) I swear it!

“Mens Rea.” It’s a Latin term meaning “guilty mind.” The prosecution must prove that a defendant had this state of mind (criminal intent or recklessness) when committing a crime to secure a conviction. Mens rea is only one component of a crime – you can’t have mens rea without actus rea, or the criminal act itself. In order to establish criminal liability, our system of justice requires that one committed a criminal act (the physical component of the crime) and did so with a criminal mind. But does the same hold true for dog bite cases? When a dog bites someone off of its owner’s premises, is it enough that the selectboard establish that the act was committed, or must it also prove that the dog had a “criminal mind?” If so, how does one prove beyond a reasonable doubt that a dog that bit someone had the requisite mens rea to deem it vicious? Doesn’t the vicious act prove a vicious mind? A selectboard can’t very well put a dog on the stand and subject it to cross-examination, can it? You may be surprised to learn that at one time, this was the process.. In fact it was quite common to afford animals the legal protections of due process and a trial that we’ve established for human criminal defendants. Western jurisprudence has a long and rich history of treating four-legged transgressors (including pigs, cows, bulls, horses, oxen, goats, sheep, and dogs) of the law as criminal defendants. Secular tribunals to prosecute animals for attacking people or causing a public nuisance or even a person’s death were held as far back as Ancient Greece and until as recently as the 1920s when a chimpanzee, arrested for smoking a cigarette in public, was put on trial, found guilty, and ordered to pay a five-dollar fine. Attributing moral agency to animals extended to their demeanor as their grunting or squealing while in the courtroom was interpreted as purposefully disrespectful and held against them in sentencing. This is really not much different from what we

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Although in Vermont we still hold public hearings to judge dogs for their actions, they differ drastically from hearings of earlier times in that the rights afforded are unique to their owners and not the offending animal. It is the owner who is the party to the proceeding, who has a right to be represented by counsel, who has the right to appeal, and who must comply with the protective order cast down by the selectboard. This view is consistent with how Vermont and other jurisdictions have traditionally viewed dogs, which is as a form of personal property.15 As property, it is not the dog but the dog’s owner who is given notice of the hearing and an opportunity to be heard.

Returning to our current system of canine justice, some of the confusion as to what we are trying to ascertain, the occurrence of a vicious act, or the vicious nature of the dog comes from the title of the statute itself: “Investigation of vicious domestic pets or wolf-hybrids; order.” This title implies that an order can only be rendered upon a finding that a domestic pet (the definition of which includes dogs) or wolf-hybrid is “vicious.” On the other hand, all that the statute sets forth as a prerequisite to making such order is to find that the dog bit the victim without provocation.

In reality, the statute doesn’t even give selectboards the option of not making such an order, as it mandates that selectboards “shall” make such order for the protection of persons as the facts may require. But let’s set Spot’s fate aside for the moment and provide some instructions about what the law is clear about.

1. Bad Dog or Bad Owner?

As far as the laws governing towns are concerned, not all dog bites are created equal. Depending on where they occur and if accompanied by a request from the victim, dog bites can trigger a statutory obligation on behalf of a town to conduct an investigation and a vicious dog hearing within a fairly narrow timeframe. Other dog bites only call into service an officer of the state who works at the local level: the town health officer. The public policy rationale behind this Up until the 18th century, the practice of prosecuting animals was widespread across Europe. By all accounts, these animals were treated like people in the eyes of the law. “(C)ourts took these proceedings very seriously and strictly adhered to the legal customs and formal procedural rules that had been established for human criminal defendants. The community, at its own expense, provided the accused animals with defense counsel, and these lawyers raised complex legal arguments on behalf of the animal defendants. In criminal trials, animal defendants were sometimes detained in jail alongside human prisoners. Evidence was weighed and judgment decreed as though the defendant were human.” Like people, animals were seen as capable of exercising the free will to make choices and hence could act with criminal intent. Take the trial of a sow and her six piglets in 1457 Savigny-sur-Etang, France for the murder of a five-year-old boy. The sow was found guilty but the piglets were acquitted due in part to the poor example set by their mother but also because of their immaturity, which left them poorly positioned to be able to make appropriate choices. Animals were incorporated into our human system of justice to the point of being appointed defense attorneys, given public hearings, incarcerated at the same cost as people, given appeal rights, and provided notice of their hearings. Bartholomew Chassenée, who was appointed legal counsel for the rats of Autun, which were accused of destroying the province’s barley crop, successfully argued that his clients were not issued a proper summons to appear in court because they all lived in different locations. Jen Girgen, “The Historical and Contemporary Prosecution and Punishment of Animals”, 9 Animal L. 97 (2003).

“In holding with the traditional view that the law recognizes animals as a type of property, we are not blind to the special place they hold in our lives. Indeed, pets occupy a legal realm somewhere between chattel and children.” Scheele v. Dustin, 210 Vt. 45 at 17 (2010).

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