Recent federal decision suggests defects
in New York Ag. & Mkts. law

Provisions similar to NY law found unconstitutional

In early October, 2009 the U. S. District Court 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”, because the forfeiture provision “threatens to deprive pet owners of their property rights without a finding of guilt (emphasis added).”

A copy of Judge Simpson’s entire Order and Memorandum Opinion is available here. To quote his discussion of the section of the Louisville 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?

As was the case in Louisville, existing 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.

The relevant section of Agriculture and Markets Law Article 26, §373(6)(a), setting out seizure and subsequent forfeiture proceedings reads:

. . .[U]pon arraignment of charges the duly incorporated society for the prevention of cruelty to animals, humane society, pound, animal shelter or any authorized agents thereof, hereinafter referred to for the purposes of this section as the "impounding organization", may file a petition with the court requesting that the person from whom an animal is seized or the owner of the animal be ordered to post a security.

Note that 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) continues:

"If the court orders the posting of a security, the security shall be posted with the clerk of the Court within five business days of the hearing provided for in subparagraph one of this paragraph. The court may order the immediate forfeiture of the seized animal to the impounding organization if the person ordered to post the security fails to do so. Any animal forfeited shall be made available for adoption or euthanized subject to subdivision seven-a of section one hundred eighteen of this chapter or section three hundred seventy-four of this article.” (emphasis added)

These provisions mean that if the defendant has the money to pay the bond (often thousands and tens of 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 thousands and tens of thousands of dollars per month, he will immediately forfeit his animals - his property – prior to any action being taken in his defense.

Equally disturbing is that security bond petitions are civil matters; defendants relying on a publically-provided attorney will not have the benefit of counsel during the security bond hearing, a civil matter. Public defenders represent defendants in criminal matters in New York.

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 – the seized animals (property). This provision is antithetical to the provisions of state law, which clearly places the onus for maintaining seized property on the courts and the agencies which have custody.

Criminal procedure law reads (emphasis added):

§ 690.55 Search warrants; disposition of seized property.
1. Upon receiving property seized pursuant to a search warrant, the court must either:

(a) Retain it in the custody of the court pending further disposition thereof pursuant to subdivision two or some other provision of law; or

(b) Direct that it be held in the custody of the person who applied for the warrant, or of the police officer who executed it, or of the governmental or official agency or department by which either such public servant is employed, upon condition that upon order of such court such property be returned thereto or delivered to another court.

Under this section of the law, the court, the search warrant applicant, police officer that executed the search warrant or the government or official agency that employs that public servant are responsible for the care of evidence once seized and in its custody. Period.

Defendants cannot be divested of their property -- property no longer in their possession -- because the cost of maintaining evidence is not being covered by the courts. This is a clear violation of the defendant’s right to due process. It is unconstitutional and must be repealed.

As an alternative to costly seizures and impoundments, Agriculture & Markets Law provides for what can be referred to as a “seize in place.” AML § 373(7) provides that animals may be left in the care of the owner, with court-ordered supervision by authorities to guarantee their welfare, pending adjudication of charges against the owner.

Erroneous deprivation here and now

Private, not-for-profit corporations acting as complainants, and ultimately as impounding organizations, benefit through their participation in New York’s pre-adjudication forfeiture proceedings because they receive either the monies from the security bonds , or the valuable animals forfeited. Such animals are transferred to the impounding organization almost immediately following the defendant’s arrest and, with little or no monetary investment from the organization, may soon be sold by the organization.

These are clear financial incentives to seizure and subsequent forfeiture of animals in New York. Consequently the troubling, corrupt pattern of pre-adjudication forfeiture is well established.

Louisville and you

In Louisville, Judge Simpson wrote that “we must hold that the portion of [the Louisville ordinance] that would permanently deprive a pet owner of his property, absent a finding of guilt, is unconstitutional.”

We believe that all responsible owners of animals share a concern for the well being of pets and livestock. Under the law, we are explicitly required to provide for their welfare and should be held accountable if we fail. However, our concerns cannot drive us to surrender the protections of our civil liberties that the U. S. and New York Constitutions afford.

We are innocent until proven guilty.