Rohrer v. Humane Soc'y of Wash. Cnty., 32, Sept. Term, 2016

• Court: Court of Special Appeals of Maryland
• Citation: 454 Md. 1,163 A.3d 146
• Docket Number: No. 32, Sept. Term, 2016,32, Sept. Term, 2016
• Parties: Daniel ROHRER v. HUMANE SOCIETY OF WASHINGTON COUNTY
• Decision Date: 27 June 2017

454 Md. 1
163 A.3d 146

Daniel ROHRER
v.
HUMANE SOCIETY OF WASHINGTON COUNTY

No. 32, Sept. Term, 2016

Court of Appeals of Maryland.

June 27, 2017

Argued by Rebekah D. Lusk (Thienel & Lusk, LLC, Frederick, MD), on brief, for Petitioner.

Argued by Adam D. Greivell (Greivell & Garrott Johnson, LLC, Hagerstown, MD), on brief, for Respondent.

Argued before: Barbera, C.J., Greene, Adkins, McDonald, Watts, Hotten, Getty, JJ.

McDonald, J.

454 Md. 5

This case concerns the application of a State statute designed to remedy mistreatment of animals. In particular, we must construe Maryland Code, Criminal Law Article ("CR"), § 10–615 which, among other things, authorizes an officer of a humane society to take possession of an animal from its owner "if necessary to protect the animal from cruelty" or "if necessary for the health of the animal." Pondering laws that regulate the treatment of animals by people can provoke profound questions concerning the nature of human beings and their relationship to the natural world.¹ A statute that deputizes an officer of a private entity to seize an animal belonging to another without prior judicial process and that provides only cryptic direction concerning the consequences of that seizure raises serious constitutional questions under the Fourth Amendment, the Due Process Clause, and their analogs in the Maryland Constitution.²

454 Md. 6

We will not resolve those questions. Our task is more mundane. We must determine whether the circumstances under which a humane society exercised its authority under CR § 10–615 to take possession of a farmer's animals based on allegations of animal cruelty were consistent with that statute in two respects. We must also decide how that action may have affected the

163 A.3d 149

farmer's ownership interest in the animals. The resolution of those issues in this case turns in part on the existence of a parallel criminal prosecution and the execution of a criminal search and seizure warrant involving the same animals.

In late 2014, officers of the Respondent Humane Society of Washington County ("Humane Society"), together with other law enforcement officers, executed a criminal search and seizure warrant at the farm of Petitioner Daniel Rohrer. The search and seizure warrant, which was based on an affidavit of a Humane Society officer alleging abuse and neglect of animals at the farm, resulted in the seizure and removal of nearly 100 animals from Mr. Rohrer's farm. Acting as an agent of the State, the Humane Society placed the animals with foster farms while the animals remained in State custody.

In early 2015, the Humane Society decided that, regardless of the outcome of the criminal animal cruelty charges pending against Mr. Rohrer, the seized animals should not be returned to him. Invoking its authority under CR § 10–615, the Humane Society notified Mr. Rohrer of its intent to "seize/remove" those animals. Pursuant to the same statute, Mr. Rohrer petitioned the District Court for their return. The District Court denied Mr. Rohrer's petition in light of the pending criminal charges.

Ultimately the vast majority of the animal cruelty charges against Mr. Rohrer were disposed of by dismissal or acquittal.

454 Md. 7

The District Court found him guilty of five misdemeanor counts related to three animals, sentenced him to probation before judgment, released all of the animals from seizure under the warrant, and required him to implement a farm management plan under the supervision of the Humane Society. Although the disposition of the criminal charges released the animals from the warrant, the Humane Society retained possession of the animals, relying on the District Court's earlier denial of Mr. Rohrer's petition for their return under CR § 10–615.

Mr. Rohrer appealed the District Court decision denying his petition for return of the animals to the Circuit Court for Washington County. He argued that possession of the animals by the Humane Society did not satisfy the standards set forth in CR § 10–615 and that, in any event, the Humane Society had failed to follow that statute's procedures. The Circuit Court rejected those challenges and affirmed the District Court decision.

In this Court, Mr. Rohrer again raises questions about the authority of the Humane Society to act under CR § 10–615, as well as the legal status of animals seized under that law.

We hold that, while the statute does not provide for seizure of an animal that is already in State custody in connection with a criminal proceeding, an officer of a humane society may notify the animal's owner or custodian of an intent to take possession of the animal upon the animal's release from State custody in the criminal case. In addition, seizure of an animal under the statute need not occur contemporaneously with the alleged mistreatment of the animal. However, the temporal remoteness of the alleged mistreatment is relevant to whether it is "necessary to protect the animal from cruelty" or "necessary for the health of the animal" for the humane society to take—and retain—possession of the animal. The statute gives a humane society the authority to temporarily possess an animal when those standards are satisfied, although that

454 Md. 8

authority expires when the necessity ends. The statute does not purport to determine ownership of the animal.

163 A.3d 150

I

Background

A. Animal Cruelty Law and Procedure

Maryland Animal Cruelty Laws

Under the common law, farm animals, such as horses, cattle, sheep, and pigs, were treated as a form of personal property. See City of Hagerstown v. Witmer , 86 Md. 293, 300–01, 37 A. 965 (1897) ; 3B C.J.S. Animals § 3. Mistreatment of animals had legal significance only to the extent that it interfered with someone's property interest in the animal. See S. M. Wise, The Legal Thinghood of Nonhuman Animals , 23 B.C. Envtl. Aff. L. Rev. 471, 525–28 & n.372 (1996) ; see also Maryland Code, Article 27, §§ 80–81 (1914); cf. Hurd v. State , 190 Md.App. 479, 988 A.2d 1143 (2010) (affirming conviction for malicious destruction of property based on shooting of pet dog).

During the mid-nineteenth century, legislatures began to enact animal protection laws that were not based primarily on the protection of a property interest. C.E. Friend, Animal Cruelty Laws: The Case for Reform , 8 U. Rich. L. Rev. 201 (1974). In Maryland, local governments took the lead in passing ordinances that barred abuse of animals. In 1890, the General Assembly enacted a statewide law prohibiting "torture or cruelty" with respect to animals, and classified a violation of that law as a misdemeanor.³ Chapter 198, Laws of Maryland 1890, then codified at Article 27, §§ 63–64; see State v. Falkenham , 73 Md. 463, 466, 21 A. 370 (1891) (holding that new statewide law superseded a local law on animal cruelty). That law defined "torture or cruelty" to "include everything whereby unjustifiable physical pain, suffering or

454 Md. 9

death is caused." It defined "animal" to include "every living creature except men."

The State animal cruelty law has been amended and refined over the years. It is currently codified in Maryland Code, Criminal Law Article ("CR"), § 10–601 et seq. A key provision of this subtitle is CR § 10–604, which prohibits abuse or neglect of an animal. Among other things, that statute defines criminal sanctions both for the intentional infliction of "unnecessary suffering or pain on an animal" as well as for the failure to provide the animal with sufficient food, water, space, and shelter.⁴ See Silver v. State , 420 Md. 415, 23 A.3d 867 (2011) (upholding a conviction for animal cruelty under CR § 10–604). An individual who is convicted of a charge of animal cruelty may be prohibited from "owning, possessing, or residing with an animal." CR §§ 10–604(b)(3), 10–606(b)(3).

Role of Humane Societies in Enforcement of Animal Cruelty Law

Since 1900, Maryland law has authorized members of humane societies to serve as

163 A.3d 151

animal control units and to help carry out the State's laws concerning the protection of animals from abuse or neglect. Chapter 456, Laws of Maryland 1900, then codified at Article 27, § 46T (authorizing "any officer or agent of the Maryland Society for the Prevention of Cruelty to Animals or of any [similar] society" to take charge of abandoned, diseased, or disabled animals). The animal cruelty law

454 Md. 10

currently defines "humane society" as "a society or association incorporated in Maryland for the prevention of cruelty to animals." CR § 10–601(d). Although a humane society is a private entity,⁵ the criminal statutes concerning animal cruelty...