Was it a rescue––or a theft?

From ANIMAL PEOPLE, March 1994:

samoyed/chow paced the dark garage. A
broken chain, wired together, cut into his
neck. He suffered from heartworms. His
overgrown toenails curled downward, and
his fur was matted with feces. Feeding and
watering were irregular. His mother had
died the year before in that same garage.
Brian Gilligan, 36, felt com-
pelled to act. Frustrated with “weak state
laws that humane officers must follow,” he
says, he took the dog in January 1993.
Veterinary records document the
dog’s condition. His “overall appearance
was poor because of neglect,” according to
Larry Markley, DVM, who performed an
examination and provided treatment.

Gilligan placed the dog in another
home. The new owner had him neutered.
Eight months later, Gilligan’s former girl-
friend reported the rescue to police.
Gilligan is now charged with felony bur-
glary and theft.
The case, likely to be tried in
June, may test the constitutionality of Ohio
Revised Code 1717.13, entitled “Any per-
son may protect animal.” It reads in part:
“When, in order to protect any
animal from neglect, it is necessary to take
possession of it, any person may do so.
When an animal is impounded or confined,
and continues without necessary food,
water, or proper attention for more than 15
successive hours, any person may, as often
as is necessary, enter any place in which
the animal is impounded or confined and
supply it with necessary food, water, and
attention, so long as it remains there, or, if
necessary or convenient, he may remove
such animal; and he shall not be liable to
an action for such entry. In all cases the
owner or custodian of such animal, if
known to such person, immediately shall be
notified by him of such action.”
ORC 1717.13, usually invoked to
authorize humane society animal rescues, is
not unusual in most of its basic elements.
But it differs from otherwise similar laws in
effect in many states in the breadth of
authority it grants to private citizens.
Elsewhere, the phrase “any person” is typi-
cally amended with language to the effect
of, “any person when acting as the duly
authorized agent of a body incorporated for
the purpose of prevention of cruelty to ani
mals.” Individual rescuers may still act, but
only under qualified supervision––a protec-
tion against the possible misuse of such a
law by vigiliantes and people engaged in
vendettas. Most such laws also require prior
notice to the custodian of the animal: typi-
cally a warning to correct the abusive or
negligent conditions within 24 hours.
Fourth Amendment
As ORC 1717.13 stands, says
Mike Burgwyn, retired president of the
National Animal Control Association and
author of the NACA Training Guide chapter
on seizure, “It’s easy to run afoul of the
Fourth Amendment with it.”
The Fourth Amendment to the
U.S. Constitution bars unreasonable search-
and-seizure, and is the basis of the require-
ment that peace officers may not enter pri-
vate premises without a warrant, except
under dire circumstances, e.g. to save
human life in imminent danger. Courts
have held that the Fourth Amendment
applies to anyone purporting to enforce the
law, thereby acting as a de facto agent of
government, whether or not the person
actually is a peace officer. Examples
include humane officers without official
powers of arrest, volunteer firemen, private
security guards, and volunteer assistant
deputy game wardens.
ORC 1717.13 is “a good law,”
Burgwyn says, “like the good Samaritan
laws most states have to protect well-mean-
ing citizens from being held liable should
they do something wrong when assisting an
injured person.” But, Burgwyn adds, ORC
1717.13 should properly be invoked only
when an animal is apparently near death.
Otherwise, standard notification and seizure
rules should be followed.
Attorney Shawn Thomas, of
Springfield, Ohio, specializes in animal-
related cases. He believes ORC 1717.13
has not previously been used to defend a
private citizen, and could be jeopardized by
the publicity attending the Gilligan case.
Both Thomas and Gilligan’s attorney, Steve
Bailey, aver that the Fourth Amendment
does not apply to ORC 1717.13. They
claim a private citizen cannot violate consti-
tutional rights, which in their view exist
only in relations between government and
citizens, not between citizens.
Bailey has not stated outright that
he plans to invoke ORC 1717.13 in
Gilligan’s defense, but does say, “Our
position is, there’s no way this was an act
of burglary.”
Because Gilligan apparently did
not comply with the notice requirement of
ORC 1717.13, Thomas believes he cannot
invoke it successfully in his defense,
regardless of the constitutional issue.
Gilligan pleaded not guilty on
January 7 in Medina County Common Pleas
Court. If convicted, he faces a maximum
sentence of four to 15 years.
The dog’s present situation is
unknown. He was removed from his adop-
tive home, and may have been returned to
his former owners, who have left the area.
––Donna Robb
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