2007 Regular Session
By: Representative Smith (39th)
AN ACT TO REVISE THE CRIME OF ANIMAL CRUELTY; TO DEFINE CERTAIN TERMS RELATING TO THE CRIME; TO PROVIDE EXEMPTIONS FOR CERTAIN ACTIVITIES FROM THE APPLICATION OF THE CHAPTER PERTAINING TO THE CRIME OF ANIMAL CRUELTY; TO AMEND SECTION 97-41-1, MISSISSIPPI CODE OF 1972, TO INCORPORATE ELEMENTS OF OFFENSES FOUND ELSEWHERE IN CHAPTER 41, AND TO DISTINGUISH BETWEEN MISDEMEANOR AND FELONY DEGREES OF THE OFFENSE; TO AMEND SECTION 97-41-2, MISSISSIPPI CODE OF 1972, TO ALLOW ANIMALS IN IMMEDIATE DANGER BECAUSE OF A NATURAL DISASTER OR EMERGENCY TO BE LAWFULLY SEIZED; TO REVISE THE PROCESS BY WHICH AN ANIMAL MAY BE LAWFULLY SEIZED; TO AMEND SECTION 97-41-3, MISSISSIPPI CODE OF 1972, TO REVISE THE PROCESS BY WHICH AN ANIMAL MAY BE LAWFULLY DESTROYED AND TO GRANT IMMUNITY TO THOSE ACTING UNDER THE SECTION IN GOOD FAITH; TO AMEND SECTION 97-41-19, MISSISSIPPI CODE OF 1972, TO REVISE PROVISIONS REGARDING DOG FIGHTS; TO CREATE THE MISDEMEANOR CRIME OF INTERFERING WITH ANY ACTIVITIES EXEMPTED BY THIS ACT; TO REPEAL SECTIONS 97-41-5, 97-41-7, 97-41-9, 97-41-13, 97-41-16 AND 97-41-17, MISSISSIPPI CODE OF 1972, WHICH CONSTITUTE CERTAIN MISDEMEANOR OFFENSES AND PENALTIES FOUND IN THE CHAPTER OF LAW PERTAINING TO THE CRIME OF ANIMAL CRUELTY; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. For the purposes of this act, the following words and phrases shall have the meanings ascribed unless the context clearly requires otherwise:
(a) "Animal" means any nonhuman mammal, bird, reptile or fish.
(b) "Minimum care" means the provision of necessary sustenance and environment to maintain the health of an animal, including an adequate quality and quantity of food, potable water, shelter that provides protection from the elements of adverse weather such as heat, cold, rain and wind, that is age, health and species appropriate, and veterinary care to maintain health and prevent suffering or distress.
(c) "Physical injury" means physical trauma, impairment of condition or inflicted pain, except for that which is necessary for relief of injury or veterinary treatment.
(d) "Pain" is an awareness of acute or chronic discomfort occurring in varying degrees of severity resulting from potential or actual injury, disease or emotional distress and evidenced by biological or behavioral changes, or both. Acute pain results from traumatic, surgical or infectious events of abrupt onset. Chronic pain results from long-standing physical disorder or emotional distress that is usually slow in onset and long in duration. Distress is an aversive state of physical or mental stress resulting from pain, anxiety or fear to which an animal is unable to adapt.
(e) "Stress" is the effect produced by external physical or environmental events or internal physiologic or psychologic factors which induce an alteration in an animal's biologic equilibrium. Physiologic stress can be the result of injury, disease, starvation or dehydration. Psychologic stress is the result of fear, anxiety, boredom, loneliness or separation. Environmental stress is the result of restraint, noise, odors, unfavorable habitat, chemicals, pheromones or exposure to incompatible animals.
(f) "Torture" means an act primarily committed to inflict pain or suffering.
(g) "Torment" means an act primarily intended to cause distress, fear or suffering.
SECTION 2. (1) Any and all of the activities associated with or incidental to the lawful practices and activities enumerated in this section will not be violations of this chapter or any other state law pertaining to the criminal offense of animal cruelty. Those exempt activities include:
(a) Hunting or trapping of wildlife;
(c) Herding of domestic animals;
(d) Accepted animal husbandry practices including slaughter;
(e) Destruction of diseased or imperiled livestock, poultry or fish that have been abandoned, or constructively abandoned, due to calamity;
(f) Accepted handling and training practices;
(g) Accepted veterinary practices;
(h) Humane euthanasia of animals performed by trained persons;
(i) Accepted pest control practices;
(j) Accepted animal handling practices at livestock shows;
(k) Accepted equine activities;
(l) Rodeo practices accepted by the Professional Rodeo Cowboy's Association; or
(m) Activities carried on for teaching or for scientific or medical research governed by the Federal Animal Welfare Act or recommended by the American Veterinary Medical Association.
(2) Nothing in this chapter shall be construed as prohibiting a person from injuring or killing an animal, except those animals otherwise protected by state or federal law, reasonably believed to constitute a threat of injury or death to humans, livestock, poultry or other domestic or lawfully kept exotic animals.
SECTION 3. Section 97-41-1, Mississippi Code of 1972, is amended as follows:
97-41-1. (1) A person shall * * * be guilty of simple animal cruelty who knowingly, intentionally or recklessly:
(a) Abandons or leaves an animal at a location without providing for or arranging for the animal's continued sustenance;
(b) Fails to provide minimum care for an animal;
(c) Causes physical pain, stress or injury to an animal including, but without limitation, overriding, or overdriving to the point of exhaustion, kicking, hitting, tormenting or inhumanely carrying or transporting an animal in a manner that restricts the animal from normal postural adjustments or causes hyperthermia or hypothermia, confining or tethering an animal in a manner that restricts the animal from normal postural adjustments, access to food, water or shelter, or poses or causes damage or injury; or
(d) Causes any act listed in this subsection (1) to be done.
(2) A person shall be guilty of the felony of aggravated animal cruelty who knowingly, intentionally or maliciously starves or dehydrates, tortures, poisons or beats, burns, shoots or otherwise mutilates or kills an animal.
(3) (a) (i) A first conviction of simple animal cruelty shall be a misdemeanor punishable by a fine of not more than One Thousand Dollars ($1,000.00), imprisonment in jail not to exceed six (6) months, or both.
(ii) A second conviction of simple animal cruelty shall be a misdemeanor punishable by a fine of not less than Two Hundred Fifty Dollars ($250.00) nor more than One Thousand Dollars ($1,000.00), imprisonment in jail not less than one (1) nor more than six (6) months, or both.
(iii) A third or subsequent conviction of simple animal cruelty shall constitute a felony.
(b) A conviction of a felony under this section shall be punishable by a fine of not more than Five Thousand Dollars ($5,000.00), imprisonment in the custody of the Department of Corrections not to exceed five (5) years, or both.
(c) For purposes of this section, each incident of cruelty and each animal treated cruelly shall constitute the basis for a separate offense.
(d) For any conviction under this section, the court may order restitution to the animal's owner as well as to law enforcement agencies or animal control or humane societies for the costs of investigation, sheltering, transporting, rehabilitation and other costs related to securing the conviction.
(e) A person convicted under this section may be enjoined from possessing an animal or animals or from residing or working where animals are kept.
(f) A person convicted under this section, in addition to any other punishment that may be imposed, may be ordered to perform community service, to participate in professional counseling, or both.
SECTION 4. Section 97-41-2, Mississippi Code of 1972, is amended as follows:
97-41-2. (1) (a) If an animal is in immediate danger because of a natural disaster or emergency such as a hurricane, tornado, flooding, or other disaster or emergency causing destruction of the animal's shelter or enclosure, or if the animal poses a threat to the safety of the community because of like causes, a law enforcement officer may seize or cause to be seized such animal without the necessity of a court order. If possible, such law enforcement officer shall make an attempt to contact the owner or custodian of the animal to alert them of the danger, and if contact is not made, the officer must prominently post a note or notice as to what action has been taken and who to contact with regard to the location of the animal.
(b) The law enforcement agency or any agent engaged by law enforcement for the seizure of animals or the temporary repair to an enclosure, such as a downed or broken fence, may seek fair reimbursement for associated costs.
(2) All courts in the State of Mississippi may order the seizure of an animal by a law enforcement agency, for the animal's care and protection upon a finding of probable cause to believe the animal is being cruelly treated, neglected or abandoned. Such probable cause may be established upon sworn testimony of any person who has witnessed the condition of the animal. The court may appoint an animal control agency, agent of an animal shelter organization, agent of a humane society duly registered with the Mississippi Secretary of State, veterinarian or other appropriate person or agency as temporary custodian for the * * * animal, pending final disposition of the animal pursuant to this section. Such temporary custodian shall * * * be responsible for directly contracting for or administering any care rendered to the animal * * *. Upon seizure of an animal, the law enforcement agency responsible for removal of the animal shall serve notice upon the owner of the animal, if possible, and shall also post prominently a notice to the owner or custodian to inform such person that the animal has been seized. Such process and notice shall contain a description of the animal seized, the date and time of seizure, the name of the law enforcement agency seizing the animal, the name of the temporary custodian, if known at the time, and shall include a copy of the order of the court authorizing the seizure.
(3) Within five (5) days of seizure of an animal, the owner or custodian of the animal may request a hearing in the court ordering the animal to be seized to determine whether the owner or custodian is able to provide adequately for the animal and is fit to have custody of the animal. The court shall hold such hearing within fourteen (14) days of receiving such request. The hearing shall be concluded and the court order entered thereon within twenty-one (21) days after the hearing is commenced. Upon requesting a hearing, the owner shall have three (3) business days to post a bond or security with the court clerk in an amount determined by the court to be sufficient to repay all reasonable costs sufficient to provide for the animal's care, including, but not limited to, transporting, feeding, essential grooming, providing hoof care and medical care that may include treatment, vaccinations or tests required by the temporary custodian or attending veterinarian. Failure to post such bond within three (3) business days from the request for the hearing shall result in forfeiture of the animal to the court. If the temporary custodian has custody of the animal upon the expiration of the bond or security, the animal shall be forfeited to the court unless the court orders otherwise.
(4) In determining the owner's or custodian's fitness to have custody of an animal, the court may consider, among other matters:
(a) Testimony from law enforcement officers, animal control officers, animal protection officials or agents, and other witnesses as to the condition the animal was kept in by its owner or custodian.
(b) Testimony and evidence as to the type and amount of care provided to the animal by its owner or custodian.
(c) Expert testimony as to the proper and reasonable care of the same or like type of animal.
(d) Testimony from any witnesses as to prior treatment or condition of this or other animals in the same custody.
(e) Violations of laws relating to animal cruelty that the owner or custodian has been convicted of prior to the hearing.
(f) Any other evidence the court considers to be material or relevant.
(5) If the court determines that an animal was properly seized, and upon proof of costs incurred as a result of the animal's seizure, including, but not limited to, costs of transporting, boarding or providing medical or veterinarian treatment of the animal, the court shall order that the animal's owner or custodian reimburse the temporary custodian for such costs. A lien for authorized expenses is hereby created upon all animals seized under this section, and shall have priority as to any other lien on such animal.
(6) If the court finds the owner of the animal is unable or unfit to adequately provide for the animal, or that the animal is severely injured, diseased, or suffering, and, therefore, not likely to recover, the court may order that the animal be permanently forfeited and released to an animal control agency, animal welfare or protection organization, veterinarian or other agent appointed as temporary custodian to * * * be sold at public auction in the manner now provided for judicial sales; any proceeds from such sale shall go first toward the payment of expenses and costs relating to the care and treatment of such animal and court costs, and at the court's discretion, any excess amount may be paid to the owner of the animal or directed to be revenue for the involved law enforcement agency, or the municipal, county or state jurisdiction in which the offense occurred.
(7) Upon notice and hearing as provided in this section, or as a part of any proceeding conducted under the terms of this section, the court may order that other animals in the custody of the owner that were not seized be surrendered and further enjoin the owner from having custody of other animals in the future.
(8) If the court determines the owner or custodian is able to provide adequately for, and have custody of, the animal, the court shall order the animal be claimed and removed by the owner or custodian within seven (7) days after the date of the order.
(9) Nothing in this section shall be construed to prevent or otherwise interfere with a law enforcement officer's authority to seize an animal as evidence or require court action for the taking into custody and making proper disposition of animals as authorized in Sections 21-19-9, 41-53-1, 41-53-11, 97-3-45, or other municipal, county or state-mandated ordinances or laws, nor be construed to prevent the immediate euthanasia of an animal or animals determined to be ill or injured beyond recovery as provided for in Section 97-41-3.
* * *
SECTION 5. Section 97-41-3, Mississippi Code of 1972, is amended as follows:
97-41-3. Any law enforcement officer, animal control officer, veterinarian or agent of a society for the prevention of cruelty to animals may euthanize, or cause to be euthanized, in a humane manner, any stray animal found neglected, injured or abandoned if it is injured, diseased or severely debilitated past reasonable recovery. Anyone acting in good faith pursuant to this section shall not be held liable either criminally or civilly for that action.
SECTION 6. Section 97-41-19, Mississippi Code of 1972, is amended as follows:
97-41-19. (1) If any person (a) shall sponsor, promote, stage or conduct a fight or fighting match between dogs, or (b) shall wager or bet, promote or encourage the wagering or betting of any money or other valuable thing upon any such fight or upon the result thereof, or (c) shall own or have possession or custody of a dog or dogs with the intent to willfully enter it or them or to participate in any such fight, or (d) shall train or transport a dog for the purposes of participation in any such fight, he shall be guilty of a felony and, upon conviction, shall be punished by a fine of not less than One Thousand Dollars ($1,000.00) nor more than Five Thousand Dollars ($5,000.00), or by imprisonment in the State Penitentiary for a term of not less than one (1) nor more than three (3) years, or by both such fine and imprisonment, in the discretion of the court.
(2) If any person shall be present, as a spectator, at any location where preparations are being made for an exhibition of a fight between dogs with the intent to be present at such preparations, or if any person shall be present at an exhibition of a fight between dogs with the intent to be present at such exhibition, he shall be guilty of a felony and, upon conviction, shall be punished by a fine of not less than Five Hundred Dollars ($500.00) nor more than Five Thousand Dollars ($5,000.00), or by imprisonment in the State Penitentiary for a term of not more than one (1) year, or by both such fine and imprisonment, in the discretion of the court.
(3) Any law enforcement officer making an arrest under subsection (1) of this section may lawfully take possession of all dogs and all paraphernalia, implements, equipment or other property used in violation of subsection (1) of this section. Such officer shall file with the circuit court of the county within which the alleged violation occurred an affidavit stating therein (a) the name of the person charged, (b) a description of the property taken, (c) the time and place of the taking, (d) the name of the person who claims to own such property, if known, and (e) that the affiant has reason to believe, stating the ground of such belief, that the property taken was used in such violation. He shall thereupon deliver the property to such court which shall, by order in writing, place such dogs, paraphernalia, implements, equipment, or other property in the custody of a licensed veterinarian, the local humane society or other animal welfare agency, or other suitable custodian, to be kept by such custodian until the conviction or final discharge of the accused, and shall send a copy of such order without delay to the district attorney of the county. The custodian named and designated in such order shall immediately assume the custody of such property and shall retain same, subject to order of the court.
Upon the certification of a licensed veterinarian or officer of the humane society or animal welfare agency that, in his professional judgment, a dog which has been seized is not likely to survive the final disposition of the charges or that, by reason of the physical condition of the dog, it should be humanely euthanized before such time, the court may order the dog humanely euthanized. The court shall make its finding of whether to issue such an order within seven (7) days from the certification by the veterinarian or officer of the humane society or animal welfare agency. The owner of a dog which is euthanized without an order of the court with such certification of a licensed veterinarian or officer of the humane society or other animal welfare agency shall have a right of action for damages against the department or agency by which the arresting or seizing officer is employed. Upon conviction of the person charged with a violation of subsection (1) of this section, all dogs seized shall be adjudged by the court to be forfeited and the court shall order a humane disposition of the same. In no event shall the court order the dog to be euthanized without the certification of a licensed veterinarian or officer of the humane society or other animal welfare agency that, in his judgment, the dog is not likely to survive or that, by reason of its physical condition, the dog should be humanely euthanized. In the event of the acquittal or final discharge without conviction of the accused, the court shall direct the delivery of the property so held in custody to the owner thereof. All reasonable expenses incurred by the custodian of seized dogs and property shall be charged as costs of court, to be taxed against the owner or county in the discretion of the court.
(4) Nothing in subsection (1) or (3) of this section shall prohibit any of the following:
(a) The use of dogs in the management of livestock, by the owner of such livestock or other persons in lawful custody thereof;
(b) The use of dogs in lawful hunting; * * *
(c) The training of dogs for any purpose not prohibited by law; and
(d) The euthanasia of a dog pursuant to Section 97-41-3.
SECTION 7. Section 97-41-5, Mississippi Code of 1972, which provides that carrying any creature in a cruel or inhumane manner is a misdemeanor, is repealed.
SECTION 8. Section 97-41-7, Mississippi Code of 1972, which provides that confining any living creature without sufficient food and water is a misdemeanor, is repealed.
SECTION 9. Section 97-41-9, Mississippi Code of 1972, which provides that a custodian of any living creature who fails to provide sufficient food and drink is guilty of a misdemeanor, is repealed.
SECTION 10. Section 97-41-13, Mississippi Code of 1972, which provides penalties for certain acts of cruelty to animals, is repealed.
SECTION 11. Section 97-41-16, Mississippi Code of 1972, which provides that malicious or mischievous injury to a dog or cat is a misdemeanor, is repealed.
SECTION 12. Section 97-41-17, Mississippi Code of 1972, which provides that administering poison to an animal is a misdemeanor, is repealed.
SECTION 13. Sections 1 and 2 of this act shall be codified within Chapter 41, Title 97, Mississippi Code of 1972.
SECTION 14. This act shall take effect and be in force from and after its passage.