Crimes Against Nonhuman Animals and Florida’s Courts: 1889 – 2001

By Craig I. Scheiner

Florida Bar Journal, Vol. 75, No. 10   November 2001   Pg 52

Since the 19th century, Florida’s appellate courts have issued countless published opinions, and yet, only a handful of these opinions speak to offenses committed against nonhuman animals (hereafter “animals”). ¹ This conspicuous paucity of case law reflects several criminal justice shortcomings, all of which reduce the opportunity or need for appellate review, to wit: the infrequent arrest, prosecution, conviction, and proper sentencing of human beings who harm and kill animals “unlawfully.” ² The fact that Florida—and every other jurisdiction in the United States—treats animals as “lifeless” entities, as property or things, sheds light on why the legal system subordinates, and in most cases ignores entirely, animals’ interests. While it may be said that during the past few decades Florida’s judiciary has come a long way in protecting animals, irrefutably, the journey is far from completion. Long overdue is the following encapsulation of Florida’s animal cruelty jurisprudence.

Early on, Florida realized the need for local governments to pass ordinances protecting animals. ³ In 1968, the Florida Supreme Court declared: “However, in a more civilized society, it is now generally recognized that legislation which has for its purpose the protection of animals from harassment and ill-treatment is a valid exercise of the police power. . . . ” ⁴ But not all appellate opinions advocate animals’ interests. See, e.g., In the Interest of M.S., 455 So. 2d 557 (Fla. 4th DCA 1984) (per curiam) (Glickstein, J., concurring in part and dissenting in part): “It is no secret that the historical sensitivity of this nation to children is not shown in a flattering light when one learns that there was a Society for the Prevention of Cruelty to Animals before a similar Society for the Prevention of Cruelty to Children.” Id. at 561. ⁵ From the early to middle part of the 20th century, the key Florida law protecting children from mistreatment was included in a chapter called “Cruelty to Children and Animals.” ⁶
The timing of the 19th century’s legal movements that advanced the cause of animals and that of children is not indicative of animals’ current status. Although children are no longer treated as property, animals continue to be. Since 1860, Florida’s appellate courts have published a number of decisions involving the theft ( i.e. , the unlawful taking of property ) of cows. The first such case was Atzroth v. State,
10 Fla. 207 (Fla. 1860). The prevailing notion that animals are property was reaffirmed recently in Bass v. State, 2000 Fla. App. LEXIS 15954, *3 (Fla. 4th DCA 2000). ⁷

What Is an “Animal”? What Is “Cruelty”?
In the 1981 case of Wilkerson v. State, 401 So. 2d 1110 (Fla. 1981), a unanimous Florida Supreme Court held that F.S. §828.02, the law defining the words “animal” and “cruelty,” is not unconstitutionally vague.⁸ For the first time, the court interpreted the term “animal,” which is defined statutorily as “every living dumb creature.”⁹ To date, no published decisions involve nonmammalian animals, but it is conceivable that other sentient animals, such as reptiles, amphibians, birds, and fish—irrespective of the animals’ size and “cuteness”—also are the intended beneficiaries of the anti-cruelty laws.¹⁰ The Wilkerson court claimed additionally that F.S. §828.12 (the misdemeanor and felony animal cruelty law), like §828.02, is not unconstitutionally vague.¹¹ Though §828.12(1) permits the “necessary”¹² mistreatment or killing of animals, the court held—without discussing the facts surrounding the defendant’s torture of a raccoon—that Wilkerson’s actions were not “necessary,” and therefore were criminal.¹³
In 2001, in Reynolds v. State, the First DCA held that §828.12(2), the felony animal cruelty provision, requires only general, not specific, intent to commit an act resulting in the cruel death or excessive or repeated infliction of unnecessary pain or suffering, while the Second DCA, inthe 1999 case of State v. Simbach, ruled that felony animal cruelty requires proof of specific intent.¹⁴ Perhaps the Florida Supreme Court eventually will address this conflict.
In Kiper v. State, 310 So. 2d 42 (Fla. 1st DCA 1975), the appellate court reversed the lower court’s ruling, thereby permitting to stay in business a training school for racing dogs.¹⁵ The court suggested that even if the training school’s abuse of rabbits violated the §828.12 prohibition against animal cruelty, such maltreatment does not rise to the level of a public nuisance.¹⁶ Here is an excerpt from Judge McCord’s imagery-laden dissenting opinion:

To train the dogs, appellants engage in two training operations. In one, appellants release live rabbits in an enclosure from which they cannot escape. Greyhounds are then turned into the enclosure where they run the rabbits down and chew them to pieces. The other training operation consists of attaching live rabbits to mechanical lures. The lure and rabbit are then propelled around a racetrack with the dogs in hot pursuit with a mechanical device emitting a wailing sound. The testimony was that during the course of the trip the rabbit’s eyes bulge and his mouth is open. The dogs are allowed to catch the rabbit and thereafter, if enough life is left in him, he is given another run around the track on the mechanical arm.

Id. at 44.
Did the fact that a substantial number of dog-racing tracks were—and continue to be—located in Florida affect the Kiper court’s decision? ¹⁷ If the results of recent ballot initiatives in states such as Massachusetts are a strong indication, the elimination of dog racing in the United States is not likely to occur anytime soon. ¹⁸

In contrast to its apathy toward the plight of racing animals, the Sunshine State has long been an opponent of animal baiting and fighting, especially cock fighting, dog fighting, and bull fighting. ¹⁹ In some cases, nonracing dogs have failed to elicit sympathy from the criminal justice system. For instance, in 1977, in Daniels v. State, 351 So. 2d 749 (Fla. 2d DCA 1977), the court reversed the conviction of a man who shot a dog in the leg unlawfully. ²⁰ Perhaps in an effort to secure a more appropriate punishment, the prosecutor elected to charge the defendant, Daniels, with a violation of then-existing §828.07, the felony maiming law, rather than with a violation of former §828.12. ²¹ Unlike the current version of §828.12, which has both misdemeanor and felony components, the older version of §828.12 prescribed only a misdemeanor penalty. ²² Because of its narrow interpretation of legislative history, the court concluded that dogs were not covered by then-existing §828.07, which, in effect, spared the defendant from punishment.

In the 1988 case of C.W. v. State, 528 So. 2d 66 (Fla. 3d DCA 1988), the court upheld a juvenile’s adjudication of delinquency for resisting arrest. The arresting officer was informed by an eyewitness that C.W. shot a BB-gun at animals. ²³ Evidently, the officer believed the BB-gun jeopardized the animals’ safety. The officer’s genuine appreciation of the hazards of BB-guns was further illustrated by the fact that, at the time of the arrest, Florida law did not permit warrantless arrests for misdemeanor animal cruelty not committed in the officer’s presence. ²⁴ And because §828.12 was but a misdemeanor-only statute at the time of the case, C.W. was not adjudicated a delinquent for committing cruelty to animals. ²⁵

Much to the detriment of cats and dogs living in the neighboring state of Alabama, the Alabama Legislature disagrees with the C.W. arresting officer’s assessment of the dangers of BB-guns. Alabama’s felony animal cruelty law exempts the use of BB-guns to shoot cats and dogs who are merely answering nature’s call on the shooter’s property. ²⁶

Firearms are not the only means of injury about which society ought to be concerned. In Cannada v. State, decided in 1985, the court was dismayed by the fact that “Cannada grabbed [the K-9] by its choke collar, lifted the [police] dog over his head and slammed it onto the ground, thereby injuring the dog.” ²⁷ Of course, acts of cruelty are not limited solely to unnecessary “actual” batteries—“constructive” batteries also generally suffice. ²⁸ For example, delivering an intoxicating and/or poisonous substance to a nonconsenting victim is a constructive battery. ²⁹ In 1996, in M.C.L. v. State, the court remarked that “ML’s crime against the animal involved forcefully holding a bag over the head of a small household pet, breathing marijuana smoke into the bag, and then tossing the pet back and forth between juvenile codefendants.” ³⁰ For both humans and nonhumans, the ingestion of several types of controlled substances can be lethal. In light of the dangers of certain controlled and noncontrolled substances, most, if not all, states, including Florida, have passed laws prohibiting people from exposing animals to poison. ³¹

In the 1985 case of State v. Wilson, 464 So. 2d 667 (Fla. 2d DCA 1985), the court concluded that §828.13, the confinement and abandonment statute, is not unconstitutionally vague. ³² Wilson was charged with a violation of §828.13 because she had caged 77 poodles in the back of her van without food, water, and sufficient air. Because the lower court only decided the case on the vagueness issue, the appellate court indicated that it was ruling on the validity of §828.13, not the applicability of §828.13 to the facts of the case. In the event that Wilson -type cases are not prosecuted successfully under the confinement law, §828.12(1) may be an effective alternative: “A person who. . . carries in or upon any vehicle, or otherwise, any animal in a cruel or inhumane manner.” ³³ If the placement of 77 dogs in the back of an unventilated van is inhumane, it is not much of a stretch to suppose that Wilson could have been prosecuted under §828.12(1).

A quick examination of §828.13(3) reveals an illogical omission. This “default” abandonment provision is restricted expressly to those who abandon “any animal in a street, road, or public place without providing for the care, sustenance, protection, and shelter of such animal. . . . ” What about the abandonment of animals on private property? ³⁴ Even if the courts do not consider private-property abandonment to be within the purview of §828.13(3), such wrongdoing may be covered by §828.12(1), which punishes any offender who “unnecessarily. . . deprives animals of necessary sustenance or shelter.…” ³⁵

Seizure of Cruelly Treated Nonhuman Animals
In 2000, in Brinkley v. County of Flagler, 769 So. 2d 468 (Fla. 5th DCA 2000), the court of appeal upheld the trial court’s approval of the seizure of 358 abused and neglected animals from an elderly married couple. In one of the most graphic descriptions of the mistreatment of animals ever to appear in a Florida judicial opinion, the Brinkley court relayed the nightmarish scene discovered by investigators. The following is but a short excerpt of the facts:

• As they stood by the front gate, they were overwhelmed by the nauseating smell of animal waste; indeed, the front yard was covered with animal feces. . . . Approaching the farmhouse they could see that the front porch was also covered with animal feces along with the decaying carcass of a dog on top of a stack of small pet carriers and fluid from the carcass was dripping onto a live poodle inside one of the carriers. The poodle’s cramped quarters lacked food and water and the dog could not straighten its legs when it was later released.

³⁶

For the first time in a published animal cruelty opinion by a Florida appellate court, the Fourth Amendment was addressed squarely. ³⁷ After deciding that the statutorily-authorized civil forfeiture of the 358 abused and neglected dogs constituted a Fourth Amendment “seizure,” the unanimous three-judge panel went on to hold that the need to make haste in rescuing the imperiled animals was a sufficient exigent circumstance to overcome the Fourth Amendment’s warrant requirement. ³⁸

The emergency exception to the Fourth Amendment was articulated in Warden v. Hayden, 387 U.S. 294 (1967): “The Fourth Amendment does not require police officers to delay in the course of an investigation. . . if to do so would gravely endanger their lives or the lives of others. ” ³⁹ Id. at 298–99 (Brennan, J.). (Emphasis added.) According to Black’s Law Dictionary, “Following an enumeration of particular classes ‘other’ must be read as ‘other such like,’ and includes only others of like kind or character.” ⁴⁰ Since the enumerated class in Warden consists of police officers ( i.e., human lives), then apparently the Brinkley court, by applying the exigent circumstance doctrine, implied that dogs are of like kind or character to police officers. Meanwhile, less than two months later, in Bass v. State, another Florida appellate court held that “[t]he trial court is not correct that police dogs receive the same treatment as a police officer. . . as much as dogs are loved and cherished by their owners, they are not persons or ‘individuals’ for purposes of the criminal law. . . . ” ⁴¹ Do Florida’s appellate courts relegate dogs to the realm of semi-persons (or semi-property)?

The Brinkley court also ruled, inter alia, that 1) the post-seizure hearing afforded the Brinkleys adequate due process and 2) the animal seizure statute’s core elements are not unconstitutionally vague or overbroad. ⁴² Do remorseless animal cruelty offenders like the Brinkleys have a slim chance of being reformed? ⁴³ Importantly, the court noted: “[The investigator and deputy] were standing on the porch when Henry Brinkley appeared and commented that if he had been given a few days’ notice of the inspection, the conditions would not have been discovered.” ⁴⁴

While the policy justifying the government’s (and its appointed agents’) seizure and impoundment of mistreated animals is well-intentioned, it appears that the impounding agencies’ responsibilities to the animals are not satisfied invariably. For instance, consider Kohn v. City of Miami Beach, 611 So. 2d 538 (Fla. 3d DCA 1992), a case in which the court affirmed the dismissal of a pro se litigant’s lawsuit. The plaintiff’s 11 dogs were seized after they were found unattended in the plaintiff’s
camper on the Fourth of July. ⁴⁵ “His 11 dogs were returned to him after 10 days. Upon being returned, some of the dogs were in poor health and eventually died.” ⁴⁶ To be fair, it should be acknowledged that the seizure of the endangered dogs, and the resultant deaths, might have been the lesser of two evils in the sense that had the dogs not been rescued, they all might have died of heat stroke. ⁴⁷ In any case, without exception, impounded dogs should be given the best care possible. ⁴⁸

One might expect a discussion of a century’s worth of jurisprudence regarding any legal issue to fill scores of pages. As the length of this article illustrates, offenses against animals, by and large, do not appear to have been a priority for Florida’s criminal justice system. Will this disappointing trend continue? The facts do indicate that anti-cruelty case law is growing, though at a slow rate. Notably, more appellate judicial opinions have been handed down in the 20-year period since 1981 than in the 92-year period preceding 1981. If recent cases are any indication, more justice and compassion may be on the horizon for Florida’s nonhuman residents. ⁴⁹

¹ This article does not cover any judicial opinions handed down after September 2001. Florida’s first animal cruelty law, the antecedent to §828.13 (abandonment and improper confinement), was enacted in 1889. Florida was the 43d state to enact an anti-cruelty law. Emily S. Leavitt & Diane Halverson, The Evolution of Anti-Cruelty Laws in the United States, in Animals and Their Legal Rights: A Survey of American Laws From 1641-1990 1, 4 (Animal Welfare Institute, 4th ed. 1990). The U.S. Supreme Court’s decision in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) (striking down a city ordinance prohibiting the ritual sacrifice of nonhuman animals), though confronting an issue involving Florida’s nonhuman inhabitants, is not discussed in this article because the case is given sufficient treatment by Gary L. Francione, acclaimed author and legal counsel for the City of Hialeah, Florida, in the Church of the Lukumi Babalu Aye, Inc. case. See Gary L. Francione, Animals, Property, and the Law 158–60 (1995). The reader should keep in mind that it was it was not until 1957 that Florida’s intermediate appellate court system (currently consisting of five district courts of appeal) was established to share the growing caseload of the Florida Supreme Court’s appellate jurisdiction. See First District Court of Appeal, History of the Court (visited Dec. 31, 2000) <http://www.1dca.org/history.html>.
² When one takes into account the magnitude of institutionalized cruelty (i.e., the abuse, torture, and killing of more than 9 billion animals each year for food, fashion, vivisection, entertainment, labor, etc.) in America, it becomes clear that, at the present, nearly 100 percent of all cruelty to animals is “lawful.”
³ See Porter v. Vinzant, 49 Fla. 213, 216 (Fla. 1905) (upholding the City of Jacksonville’s authority to enact an animal cruelty ordinance).
⁴ C.E. America, Inc., v. Antinori, 210 So. 2d 443, 444 (Fla. 1968). See also Fla. Stat. §828.27(2) (local animal control or cruelty ordinances).
⁵ Although Justice Glickstein’s comment is rooted in genuine concern for children, one may criticize the Justice’s speciesistic suggestion that society should feel guilty about having started earlier in reducing the suffering experienced by animals.
⁶ See Kama v. State, 507 So. 2d 154, 158 (Fla. 1st D.C.A. 1987).
⁷ See Brinkley v. County of Flagler, 769 So. 2d 468, 471 (Fla. 5th D.C.A. 2000) (“It is undisputed that the animals seized in the instant case were considered the Brinkleys’ personal property.”); and Helmy v. Swigert, 662 So. 2d 395, 397 (Fla. 5th D.C.A. 1995) [“Under Florida law, a dog is considered to be personal property.” See Bennett v. Bennett, 655 So. 2d 109 (Fla. 1st D.C.A. 1995); County of Pasco v. Riehl, 620 So. 2d 229 (Fla. 2d D.C.A. 1993), aff’d, 635 So. 2d 17 (Fla. 1994) (per curiam); Levine v. Knowles, 197 So. 2d 329 (Fla. 3d D.C.A. 1967), reh’g denied]; and Young v. Broward County, 570 So. 2d 309, 310 (Fla. 4th D.C.A. 1990) (per curiam) (Hersey, C.J., dissenting) (“A dog is more than mere property to most dog owners. But regardless, a dog is property.”). See also Barrow v. Holland, 125 So. 2d 749, 751 (Fla. 1960); and State v. Lee, 41 So. 2d 662, 663 (Fla. 1949). The thinghood status of animals is implied in other judicial opinions. See, e.g., Jones v. Butterworth, 701 So. 2d 76, 87 (Fla. 1997) (per curiam), reh’g denied (Shaw, J., dissenting) (capital punishment case) (“only four governments in the entire world. . . impose electrocution exclusively; as a postscript—both the Humane Society of the United States and the American Veterinarian Medical Association condemn electrocution as a method of euthanasia for animals.”). See also Justice Anstead’s separate dissent in Jones: “In fact, as Justice Shaw notes, we are doing to human inmates today what we would not do, for humane reasons, to animals.” Id. at 88. See Provenzano v. Moore, 744 So. 2d 413 (Fla. 1999) (per curiam), cert. denied, 528 U.S. 1182 (2000) (Shaw, J., dissenting and Anstead, J., dissenting).
The Florida Supreme Court dealt a blow to animal cruelty offenders in Florida Board of Bar Examiners Re: P.K.B., 753 So. 2d 1285 (Fla. 2000) (per curiam) (holding, inter alia, that P.K.B.’s unlawful killing of his fiancee’s father’s dog was a factor underlying the court’s approval of the Bar’s recommendation that P.K.B not be admitted to the Bar at the time in question). “The killing of his fiancee’s father’s dog and damaging the father’s property raise very serious doubts about P.K.B.’s respect for the rights of others and for the law.” Id. at 1287.
⁸ See Fla. Stat. §828.02 (definitions), which in significant part, reads: “In this chapter, and in every law of the state relating to or in any way affecting animals, the word ‘animal’ shall be held to include every living dumb creature; the words ‘torture,’ ‘torment,’ and ‘cruelty’ shall be held to include every act, omission, or neglect whereby unnecessary or unjustifiable pain or suffering is caused, except when done in the interest of medical science, permitted, or allowed to continue when there is reasonable remedy or relief.”
⁹ Id.
¹⁰ There is no evidence compelling one to conclude that the Florida Legislature crafted §828.02’s definition of “animal” with only mammals in mind. See Wilkerson, 401 So. 2d at 1112 (“People of common intelligence are able to discern what are and are not animals. There can be no doubt that the legislature intended for raccoons to be included in this definition.”). But later in the opinion, the court left open the possibility that its interpretation of “animal” may conflict with the one intended by the legislature. “[W]e concede that our literal interpretation of the definition of animal may include certain life forms not contemplated by the legislature. . . . Appellant has raised some difficult questions concerning the applicability of this statute to hunters, fishermen, and pest exterminators. We believe that these hypothetical questions are more properly addressed to the legislature than to the courts.” Id.
If they continue to be termed “pests,” will sentient beings such as rodents be granted legal protection? Justice Alderman, concurring specially in the court’s decision, was concerned about the scope of §828.02 (“Numerous situations may arise under the statute where purely innocent conduct is proscribed in view of the all-encompassing definition of animal as ‘every living dumb creature. . . . ’”). Id. at 1113. A growing number of legal scholars subscribe to the notion that laws should protect all sentient beings, that is, beings who can experience pain and pleasure. See, e.g., Gary L. Francione, Introduction to Animal Rights: Your Child or the Dog? 5 (2000). Cows are sentient beings. See King v. State, 125 Fla. 316 (Fla. 1936) (affirming defendant’s conviction for shooting and killing a steer). Compare Jones v. State, 20 So. 2d 901 (Fla. 1945) (reversing defendant’s conviction for shooting and killing a steer because of an error in the prosecutor’s information). See State v. McClain, 8 So. 2d 392 (Fla. 1942); and Parker v. State, 169 So. 2d 411 (Fla. 1936).
¹¹ Fla. Stat. §828.12 (cruelty to animals), in part, provides:
“ (1) A person who unnecessarily overloads, overdrives, torments, deprives of necessary sustenance or shelter, or unnecessarily mutilates, or kills any animal, or causes the same to be done, or carries in or upon any vehicle, or otherwise, any animal in a cruel or inhumane manner, is guilty of a misdemeanor of the first degree, punishable as provided in §775.082 or by a fine of not more than $5,000, or both.
“(2) A person who intentionally commits an act to any animal which results in the cruel death, or excessive or repeated infliction of unnecessary pain or suffering, or causes the same to be done, is guilty of a felony of the third degree, punishable as provided in §775.082 or by a fine of not more than $10,000, or both.”
The Wilkerson court, in rejecting the defendant’s claim that §828.12’s term “necessary” was unconstitutionally vague, noted that “[t]he particular words complained of, ‘unnecessarily or excessively,’ are not vague when considered in the context of the entire statute and with a view to effectuating the purpose of the act.” See Wilkerson,401 So. 2d at 1112. Note that §828.12’s (and see §828.13) prescribed first-degree misdemeanor fine of $5,000 is much higher than the $1,000 fine authorized for most first-degree misdemeanors. See Fla. Stat. §775.083(1)(d). Also, the prescribed third-degree felony fine of $10,000 is much higher than the $5,000 fine authorized for most third-degree felonies. See Fla. Stat. §775.083(1)(c). As of 1999, Florida was one of only 31 states with a felony animal cruelty law on the books. Joseph G. Sauder, Enacting And Enforcing Felony Animal Cruelty Laws To Prevent Violence Against Humans, 6 Anim. L. 1, 8 (2000).
¹² It must be pointed out that §828.12’s necessity defense, as applied to human-against-animal criminality, differs from the way the necessity defense is applied to human-against-human criminality. Stated simply, humans who kill animals “humanely” for supposedly necessary purposes such as food, fashion, vivisection, and entertainment are spared from criminal prosecution, whereas humans who kill humans “humanely” for identical purposes are not. See also supra note 2.
¹³ See Wilkerson, 401 So. 2d at 1112.
¹⁴ See Reynolds v. State, 784 So. 2d 509, 510 (Fla. 1st D.C.A. 2001); and State v. Simbach, 742 So. 2d 365, 366 (Fla. 2d D.C.A. 1999); see also Aaroe v. State, 788 So. 2d 340 (Fla. 5th D.C.A. 2001).
¹⁵ Kiper, 310 So. 2d at 43. The court failed to provide any factual analysis to support its conclusion that the training college was not a continuing public nuisance. Recognizing the need to protect rabbits from such maltreatment, Fla. Stat. §828.122 (fighting or baiting animals) prohibits the use of live animals in the training of racing greyhounds.
¹⁶ Kiper, 310 So. 2d at 44.
¹⁷ See Humane Society of the United States, Greyhound Racing Facts. In fact, 17 of the 49 dog racing tracks in the United States are located in Florida.
¹⁸ In November 2000, the voters of Massachusetts approved, by a bare majority, of dog racing. See the Humane Society of the United States, Initiatives 2000.
¹⁹ See Mikell v. Henderson, 63 So. 2d 508, 509 (Fla. 1953); and Fla. Stat. §828.122 (fighting or baiting animals). See C.E. America, Inc., v. Antinori, 210 So. 2d 443, 446 (Fla. 1968); and Fla. Stat. §828.121 (conduct of simulated bullfighting exhibitions). See also Bennett v. State, 686 So. 2d 810 (Fla. 4th D.C.A. 1997) (per curiam) (affirming the defendant’s conviction for animal fighting). But see Bonilla v. State, 579 So. 2d 802 (Fla. 5th D.C.A. 1991). In spite of the statutory prohibition against dog fighting, it remains an activity in which a shocking number of Floridians engage. In-person interview with Laura Bevan, Director of the Southeast Regional Office of the Humane Society of the United States (Nov. 30, 2000).
²⁰ 351 So. 2d 749 (Fla. 2d D.C.A. 1977) (discussing briefly the evolution of several animal cruelty statutes).
²¹ Id. at 749.
²² Id. at 750. See also §828.12 supra note 11.
²³ Id.
²⁴ Id. at 67 (“[T]he offense of cruelty to animals delineated in §828.12 is a first-degree misdemeanor which must be committed in the presence of the arresting officer.”). See also Fla. Stat. §901.15(1). More than a century ago, the Florida Supreme Court ruled that “cruelty to an animal, though a statutory misdemeanor, is not such an offence as authorizes arrest without warrant.” Roberson v. State, 42 Fla. 223, 229 (Fla. 1900). But Fla. Stat. §828.17 (law enforcement officers are permitted to make a warrantless arrest of animal cruelty offenders, but the officers must secure a warrant while detaining the offenders) replaced the Roberson rule.
²⁵ But remember, C.W. was adjudicated a delinquent for resisting arrest. C.W., 528 So. 2d at 67. Compare B.S. v. State, 661 So. 2d 19 (Fla. 2d D.C.A. 1994) (per curiam) (affirming an adjudication of delinquency for a violation of §828.12(2), the felony animal cruelty law).
²⁶ Ala. Code §13A-11-246(4) (excluded persons and institutions).
²⁷ 472 So. 2d 1296, 1298 (Fla. 2d D.C.A. 1985) (affirming a conviction under Fla. Stat. §843.19(2), which states: “Any person who knowingly and willfully and without lawful cause or justification inflicts bodily harm, permanent disability, or death upon a police dog, fire dog, SAR dog, or police horse commits a felony of the third degree. . . . ”). See also Craig I. Scheiner, “Cruelty to Police Dog” Laws Update, 7 Anim. L. 141 (2001), and Craig I. Scheiner, Statutes With Four Legs to Stand On?: An Examination of “Cruelty to Police Dog” Laws, 5 Anim. L. 177 (1999).
²⁸ Wayne R. Lafave, Criminal Law §7.15(b) (3d ed. 2000).
²⁹ “[A] battery may be committed by administering a poison. . . . ” Id. at 738. LaFave also cites the Model Penal Code’s proscription against indirect impairment of physical condition by “nontherapeutic administration of a drug or narcotic.” Id. at n.11.
³⁰ 682 So. 2d 1209, 1210 (Fla. 1st D.C.A. 1996) (upholding the adjudication of delinquency).
³¹ See, e.g., Fla. Stat. §828.08 (penalty for exposing poison). See also Fla. Stat. §403.413(4) (littering prohibited).
³² Fla. Stat. §828.13 (confinement of animals without sufficient food, water, or exercise; abandonment of animals) provides:
“As used in this section: (a) ‘Abandon’ means to forsake an animal entirely or to neglect or refuse to provide or perform the legal obligations for care and support of an animal by its owner. (b) ‘Owner’ includes any owner, custodian, or other person in charge of an animal. (2) Whoever: (a) Impounds or confines any animal in any place and fails to supply the animal during such confinement with a sufficient quantity of good and wholesome food and water, (b) Keeps any animals in any enclosure without wholesome exercise and change of air, or (c) Abandons to die any animal that is maimed, sick, infirm, or diseased, is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or by a fine of not more than $ 5,000, or by both imprisonment and a fine. (3) Any person who is the owner or possessor, or has charge or custody, of any animal who abandons such animal to suffer injury or malnutrition or abandons any animal in a street, road, or public place without providing for the care, sustenance, protection, and shelter of such animal is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or by a fine of not more than $5,000, or by both imprisonment and a fine.”
The Wilson court recognized the impossibility of crafting a law which would cover expressly every instance of unlawful abandonment or confinement. See Wilson, 401 So. 2d at 668. It seems that cases of animal hoarding are not uncommon in Florida. See, e.g., Brinkley, 769 So. 2d 468.
³³ Fla. Stat. §828.12(1) (emphasis added).
³⁴ Should §828.13 be applicable to intentionally or unintentionally neglected adopted “outdoor” animals such as cats? Should abandonment require proof of intent, or should recklessness or negligence suffice?
³⁵ See also supra note 11.
³⁶ Brinkley, 769 So. 2d at 469.
³⁷ Curiously, neither the U.S. Supreme Court nor the Florida Supreme Court has heretofore decided a Fourth Amendment case involving the search for or seizure of animals as of the date this article went to press.
³⁸ For the Brinkley court’s application of the exigent circumstances doctrine to the case at bar, see id. at 471–72.
³⁹ See also Fla. Const. art. I, §12; State v. Bauer, 379 N.W. 2d 895, 899 (Wis. 1985), rev. denied, 388 N.W.2d 185 (Wis. 1986); and Tuck v. U. S., 477 A. 2d 1115, 1120 (D.C. 1984).
⁴⁰ Black’s Law Dictionary 1101 (6th ed. 1990). See also the “ejusdem generis” rule: “where general words follow an enumeration of persons. . . by words of a particular and specific meaning, such general words are not to be construed in their widest extent, but are to be held as applying only to persons. . . of the same general kind or class as those specifically mentioned” Id. at 517.
⁴¹ 2000 Fla. App. LEXIS 15954, *2-3 (Fla. 4th D.C.A. 2000).
⁴² See Brinkley, 769 So. 2d at 472. Two of the core elements at issue derive from the phrases “able to provide adequately for the animal” and “is fit to have custody of the animal.” Florida’s animal seizure law, Fla. Stat. §828.073 (animals found in distress; when agent may take charge; hearing; disposition; sale) in part, reads: “Any law enforcement officer or any agent of any county or of any society or association for the prevention of cruelty to animals appointed under the provisions of s. 828.03 may: (a) Lawfully take custody of any animal found neglected or cruelly treated by removing the animal from its present location, or (b) Order the owner of any animal found neglected or cruelly treated to provide certain care to the animal at the owner’s expense without removal of the animal from its present location.” See also Fla. Stat. §828.03 (governmentally appointment agents may investigate animal cruelty). Several Florida cases address issues pertaining to the seizure of animals. See, e.g., Putnam County Humane Society, Inc. v. Woodward, 740 So. 2d 1238 (Fla. 5th D.C.A. 1999); Mason v. State, 698 So. 2d 914, 914 (Fla. 4th D.C.A. 1997); Hillsborough County v. Lovelace, 673 So. 2d 917 (Fla. 2d D.C.A. 1996); Helmy v. Swigert, 662 So. 2d 395 (Fla. 5th D.C.A. 1995); Pet Fair, Inc. v. Humane Society of Greater Miami, 583 So. 2d 407 (Fla. 3d D.C.A. 1991), reh’g denied; Standifer v. Metropolitan Dade County, 519 So. 2d 53 (Fla. 3d D.C.A. 1988) (per curiam); and Crawford v. State, 378 So. 2d 822 (Fla. 2d D.C.A. 1979).
⁴³ See Brinkley, 769 So. 2d at 470.
⁴⁴ Should offenders ever be allowed to have custody of animals? What about the serious concern that animal cruelty offenders will exact revenge upon new or returned animals? If an offender does not want to care for the animals, is there not a big risk that he or she will kill or abandon the animals and then claim falsely to officials that the animals simply ran away?
⁴⁵ Kohn, 611 So. 2d at 539.
⁴⁶ Id.
⁴⁷ See, e.g., Fla. Stat. §828.13(2)(b). See also Code of Ordinances, City of Tallahassee, Florida §5-37(a).
⁴⁸ Those who disapprove of an impounding agency’s treatment of animals may choose to express their concerns to their local governing body. See, e.g., Demby v. English, 667 So. 2d 350 (Fla. 1st D.C.A.1995) (per curiam), reh’g denied.
⁴⁹ The establishment of an Animal Law Section of The Florida Bar would draw more attention to the legal status of animals, attention with the potential to affect positively the lives of all sentient beings.

Craig I. Scheiner received a B.S. from the University of Florida in 1994, a J.D., cum laude, from the Seattle University School of Law in 1997, an LL.M. from the Southern Methodist University School of Law in 1998, and an M.S. from Florida State University School of Criminal Justicein 2001. He may be reached via e-mail at cis7563@garnet.acns.fsu.edu.