MISSISSIPPI LEGISLATURE
2011 Regular Session
To: Judiciary, Division B
By: Senator(s) Dearing
AN ACT TO AMEND SECTION 97-41-16, MISSISSIPPI CODE OF 1972, TO ENACT THE "MISSISSIPPI DOG AND CAT PET PROTECTION LAW OF 2011"; TO CLARIFY AND REVISE THE CRIME OF CRUELTY TO A DOG OR CAT; TO AMEND SECTIONS 97-41-1, 97-41-3, 97-41-5, 97-41-7, 97-41-9, 97-41-17, 97-41-21 AND 97-41-23, MISSISSIPPI CODE OF 1972, IN CONFORMITY TO THE PROVISIONS OF THIS ACT; TO AMEND SECTION 97-41-2, MISSISSIPPI CODE OF 1972, TO CLARIFY AND REVISE THE AUTHORITY OF A LAW ENFORCEMENT OFFICER TO SEIZE AN ANIMAL THAT IS ALLEGED TO BE ABUSED AND NEGLECTED; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. The intent of the Legislature in amending Section 97-41-16 is to provide only for the protection of domesticated dogs and cats, as these are the animals most often serving as the loyal and beloved pets of the citizens of this state. Animals other than dogs and cats are specifically excluded from the enhanced protection described in Section 97-41-16 for dogs and cats. The provisions of Section 97-41-16 do not apply, and shall not be construed as applying, to any animal other than a dog or cat.
SECTION 2. Section 97-41-16, Mississippi Code of 1972, is amended as follows:
97-41-16. (1) (a) If a person * * * shall mischievously or recklessly kill, maim, wound, * * * injure, beat, poison, deprive of adequate shelter, food and water, or carry or confine in a cruel manner any dog or cat, or cause any person to do the same, then he shall be guilty of the offense of simple cruelty to a dog or cat.
(i) A person who pleads guilty or nolo contendere to, or is convicted of, a first offense of simple cruelty to a dog or cat shall be guilty of a misdemeanor and fined not more than One Thousand Dollars ($1,000.00) or be imprisoned not more than ninety (90) days, or both.
(ii) A person who pleads guilty or nolo contendere to, or is convicted of, a second or subsequent offense of simple cruelty to a dog or cat, the offenses being committed within a period of five (5) years, shall be guilty of the felony of aggravated cruelty to a dog or cat and punished as provided for such offense in paragraph (b) of this subsection (1).
(b) If a person intentionally, maliciously, or out of a spirit of revenge or wanton cruelty, shall kill, maim, seriously wound, seriously injure, beat, poison, deprive of adequate shelter, food and water, or carry or confine in a cruel manner any dog or cat, or cause any person to do the same, then he shall be guilty of the felony offense of aggravated cruelty to a dog or cat, and upon conviction, shall be fined not more than Ten Thousand Dollars ($10,000.00) or imprisoned for not more than five (5) years, or both.
(c) For purposes of this section, one or more alleged acts of the offense of simple cruelty to a dog or cat that is committed against more than one (1) dog or one (1) cat, or any combination thereof, shall constitute a single offense if the alleged acts occurred at the same time.
(2) In addition to the fine or imprisonment which may be imposed, the court may order that restitution be made to the owner of such dog or cat. The measure for restitution in money shall be the current replacement value of such loss and the actual veterinarian fees, medicine, special supplies, loss of income and other costs incurred as a result of actions in violation of subsection (1) of this section.
(3) (a) The court may order a person who pleads guilty or nolo contendere to, or is convicted of the offense of aggravated cruelty to a dog or cat, to:
(i) Receive a psychiatric or psychological evaluation and counseling or treatment for a length of time as prescribed by the court. The cost of any evaluation, counseling and treatment shall be paid by the offender upon order of the court, up to a maximum amount that is no more than the jurisdictional limit of the sentencing court.
(ii) Perform community service for a period not exceeding the applicable maximum term of imprisonment that may be imposed for conviction of the offense.
(iii) Submit to periodic unannounced visits by a law enforcement officer, or an employee of an agency or department of a political subdivision that is charged with the control or welfare of dogs or cats within its jurisdiction, to inspect the care and condition of any dog or cat that is in the care, custody or possession of the offender, for a period of up to one (1) year, which period may be extended by the court upon motion made by the state.
(b) The court may enjoin a person who pleads guilty or nolo contendere to, or is convicted of, the offense of aggravated cruelty to a dog or cat from being employed in any position that involves the care of a dog or cat, or in any place where dogs or cats are kept or confined, for a period the court deems appropriate.
(4) (a) Nothing in this section shall be construed as prohibiting a person from:
(i) Defending himself or herself or another person from physical or economic injury being threatened or caused by a dog or cat.
(ii) Injuring or killing an unconfined dog or cat on the property of the person, if the unconfined dog or cat is believed to constitute a threat of physical injury or damage to any animal under the care or control of such person or to any wildlife that is found on the person's property.
(iii) Acting under the provisions of Section 95-5-19 to protect poultry or livestock from a trespassing dog that is in the act of chasing or killing poultry or livestock.
(iv) Engaging in practices that are licensed or lawful under the Mississippi Veterinary Practice Act, Section 73-39-51 et seq., or engaging in activities by any veterinarian licensed in Mississippi while following accepted standards of practice of the profession within the State of Mississippi, including, but not limited to, the euthanizing, spaying or neutering, ear cropping, ear tipping, tail docking, declawing or debarking of a dog or cat.
(v) Rendering emergency care, treatment, or assistance to a dog or cat that is abandoned, ill, injured, or in distress related to an accident or disaster, if the person rendering the care, treatment, or assistance is acting in good faith.
(vi) Performing accepted agricultural and animal husbandry practices with regard to livestock or poultry, including those activities which involve:
1. Using dogs in such practices;
2. Raising, managing and using animals to provide food, fiber or transportation.
3. Butchering animals and processing food.
(vii) Training for, or participating in, a rodeo, equine activity, dog show, event sponsored by a kennel club or other bona fide organization that promotes the breeding or showing of dogs or cats, or other competitive event which involves the lawful use of dogs or cats.
(viii) Engaging in accepted practices of dog or cat identification.
(ix) Engaging in lawful activities that are regulated by the Mississippi Department of Wildlife, Fisheries and Parks or the Mississippi Department of Marine Resources, including, without limitation, hunting, trapping, fishing and wildlife and seafood management.
(x) Performing scientific and medical activities undertaken by research and education facilities or institutions that are:
1. Regulated under the provisions of the Animal Welfare Act, 7 USCS 2131 et seq., as in effect on July 1, 2011;
2. Regulated under the provisions of the Health Research Extension Act of 1985, Public Law No. 99-158; or
3. Subject to any other applicable state or federal law or regulation governing animal research as in effect on July 1, 2011.
(xi) Disposing of or destroying certain dogs under authority of Section 19-5-50, 21-19-9 or 41-53-11, which allow counties, municipalities and certain law enforcement officers to destroy a dog running at large without proper identification indicating that the dog has been vaccinated for rabies.
(xii) Engaging in professional pest control activities, including those activities governed by the Mississippi Pesticide Law of 1975, Section 69-23-1 et seq.; professional services related to entomology, plant pathology, horticulture, tree surgery, weed control or soil classification, as regulated under Section 69-19-1 et seq.; and any other pest control activities conducted in accordance with state law.
(b) If the owner or person in control of a dog or cat is precluded, by natural or other causes beyond his reasonable control, from acting to prevent an act or omission that might otherwise constitute an allegation of the offense of simple cruelty to a dog or cat or the offense of aggravated cruelty to a dog or cat, then that person shall not be guilty of the offense. Natural or other causes beyond the reasonable control of the person include, without limitation, acts of God, declarations of disaster, emergencies, acts of war, earthquakes, hurricanes, tornadoes, fires, floods or other natural or man-made disasters.
(5) The provisions of this section shall not be construed to:
(a) Apply to any animal other than a dog or cat.
(b) Create any civil or criminal liability on the part of the driver of a motor vehicle if a dog or cat is accidentally injured or killed as a result of being hit by the vehicle.
(6) (a) Except as otherwise provided in Section 97-35-47 for the false reporting of a crime, a person, who, in good faith and acting without malice, reports a suspected incident of simple or aggravated cruelty to a dog or cat to a local animal control, protection or welfare organization, a local law enforcement agency, or the Mississippi Department of Public Safety, shall be immune from civil and criminal liability for reporting the incident.
(b) A veterinarian licensed in Mississippi or a person acting under the direct supervision of a veterinarian licensed in Mississippi, who in good faith and acting without malice, participates in the investigation of the alleged offense of cruelty to a dog or cat, or makes a decision or renders services regarding the care of a dog or cat that is involved in the investigation, shall be immune from civil and criminal liability for those acts.
(7) Nothing in this section shall limit the authority of a municipality or board of supervisors to adopt ordinances, rules, regulations or resolutions which may be, in whole or in part, more restrictive than the provisions of this section, and in those cases, the more restrictive ordinances, rules, regulations or resolutions will govern.
SECTION 3. Section 97-41-1, Mississippi Code of 1972, is amended as follows:
97-41-1. (1) Except as otherwise provided in Section 97-41-16 for a dog or cat, if any person shall intentionally override, overdrive, overload, torture, * * *, unjustifiably injure, deprive of shelter, food, or drink; or cruelly beat or needlessly mutilate; or cause or procure to be overridden, overdriven, overloaded, tortured, unjustifiably injured, tormented, or deprived of shelter, food or drink; or to be cruelly beaten or needlessly mutilated or killed, any living creature, every such offender shall, for every offense, be guilty of a misdemeanor.
(2) For purposes of this section:
(a) "Torture" is the act of doing physical injury or causing death by the infliction of gross physical abuse meant for no reason other than to cause intense or prolonged pain or serious physical injury, with the intent of increasing or prolonging the pain of the animal.
(b) "Mutilate" is to seriously injure an animal by irreparably damaging the body parts of the animal or to render useless any part of the body of the animal. "Mutilate" does not include spaying, neutering, ear cropping, ear tipping, tail docking, declawing, or debarking.
SECTION 4. Section 97-41-3, Mississippi Code of 1972, is amended as follows:
97-41-3. (1) Any sheriff, constable, policeman, or agent of a society for the prevention of cruelty to animals may kill, or cause to be killed, any animal other than a dog or cat found neglected or abandoned, if in the opinion of three (3) respectable citizens it is injured or diseased past recovery, or by age has become useless.
(2) After all reasonable attempts have been made to locate the legal owner of a dog or cat that is found maimed, wounded, injured or diseased, the dog or cat may be euthanized in a humane manner, or caused to be euthanized in a humane manner, by:
(i) A law enforcement officer;
(ii) A veterinarian licensed in Mississippi;
(iii) An employee of an agency or department of a political subdivision who is charged with the control or welfare of dogs or cats within the subdivision; or
(iv) An employee or agent of an organization who has the purpose of protecting the welfare of or preventing cruelty to dogs or cats and that possesses nonprofit status under the United States Internal Revenue Code.
The provisions of this subsection (2) shall not be construed to prevent the immediate euthanasia by the persons enumerated in this subsection or by any other person, if it is necessary to prevent unrelievable suffering of the dog or cat. A method of killing approved by the most recent American Veterinary Medical Association Guidelines in Euthanasia in effect at the time shall be presumed to be humane.
SECTION 5. Section 97-41-5, Mississippi Code of 1972, is amended as follows:
97-41-5. If any person shall carry, or cause to be carried by hand or in or upon any vehicle or other conveyance, any creature other than a dog or cat in a cruel or inhuman manner, he shall be guilty of a misdemeanor.
SECTION 6. Section 97-41-7, Mississippi Code of 1972, is amended as follows:
97-41-7. If any person shall confine, or cause to be confined, in any stable, lot, or other place, any living creature other than a dog or cat, without supplying the same during such confinement with a sufficient quantity of good and wholesome food and water, he shall be guilty of a misdemeanor.
SECTION 7. Section 97-41-9, Mississippi Code of 1972, is amended as follows:
97-41-9. If any person be the owner or have the custody of any living creature other than a dog or cat and unjustifiably neglect or refuse to furnish it necessary shelter, food, or drink, he shall be guilty of a misdemeanor.
SECTION 8. Section 97-41-17, Mississippi Code of 1972, is amended as follows:
97-41-17. Every person who shall willfully and unlawfully administer any poison to any horse, mare, colt, mule, jack, jennet, cattle, deer, * * * hog, sheep, chicken, duck, goose, turkey, pea-fowl, guinea-fowl, or partridge, or shall maliciously expose any poison substance with intent that the same should be taken or swallowed by any horse, mare, colt, mule, jack, jennet, cattle, * * * hog, sheep, chicken, duck, goose, turkey, pea-fowl, guinea-fowl, or partridge, shall, upon conviction, be punished by imprisonment in the Penitentiary not exceeding three (3) years, or in the county jail not exceeding one (1) year, and by a fine not exceeding Five Hundred Dollars ($500.00).
SECTION 9. Section 97-41-21, Mississippi Code of 1972, is amended as follows:
97-41-21. (1) An individual shall not do either of the following:
(a) Willfully and maliciously assault, beat, harass, injure, or attempt to assault, beat, harass or injure, a dog that he or she knows or has reason to believe is a guide or leader dog for a blind individual, a hearing dog for a deaf or audibly impaired individual, * * * a service dog for a physically limited individual, or a support dog for a mobility impaired person as described in Sections 43-6-151 through 43-6-155.
(b) Willfully and maliciously impede or interfere with, or attempt to impede or interfere with, duties performed by a dog that he or she knows or has reason to believe is a guide or leader dog for a blind individual, a hearing dog for a deaf or audibly impaired individual, * * * a service dog for a physically limited individual, or a support dog for a mobility impaired person as described in Sections 43-6-151 through 43-6-155.
(2) An individual who violates subsection (1) is guilty of a misdemeanor punishable by imprisonment for not more than ninety (90) days or a fine of not more than Five Hundred Dollars ($500.00), or both.
(3) In a prosecution for a violation of subsection (1), evidence that the defendant initiated or continued conduct directed toward a dog described in subsection (1) after being requested to avoid or discontinue that conduct or similar conduct by a blind, deaf, audibly impaired, physically limited or mobility impaired individual being served or assisted by the dog shall give rise to a rebuttable presumption that the conduct was initiated or continued maliciously.
(4) A conviction and imposition of a sentence under this section does not prevent a conviction and imposition of a sentence under Section 97-41-16 pertaining to the offense of cruelty to a dog or cat, or any other applicable provision of law.
(5) As used in this section:
(a) "Audibly impaired" means the inability to hear air conduction thresholds at an average of forty (40) decibels or greater in the individual's better ear.
(b) "Blind" means having a visual acuity of 20/200 or less in the individual's better eye with correction, or having a limitation of the individual's field of vision such that the widest diameter of the visual field subtends an angular distance not greater than twenty (20) degrees.
(c) "Deaf" means the individual's hearing is totally impaired or the individual's hearing, with or without amplification, is so seriously impaired that the primary means of receiving spoken language is through other sensory input, including, but not limited to, lip reading, sign language, finger spelling or reading.
(d) "Harass" means to engage in any conduct directed toward a guide, leader, hearing or service dog that is likely to impede or interfere with the dog's performance of its duties or that places the blind, deaf, audibly impaired or physically limited individual being served or assisted by the dog in danger of injury.
(e) "Injure" means to cause any physical injury to a dog described in subsection (1).
(f) "Maliciously" means any of the following:
(i) With intent to assault, beat, harass or injure a dog described in subsection (1).
(ii) With intent to impede or interfere with duties performed by a dog described in subsection (1).
(iii) With intent to disturb, endanger or cause emotional distress to a blind, deaf, audibly impaired or physically limited individual being served or assisted by a dog described in subsection (1).
(iv) With knowledge that the individual's conduct will, or is likely to, harass or injure a dog described in subsection (1).
(v) With knowledge that the individual's conduct will, or is likely to, impede or interfere with duties performed by a dog described in subsection (1).
(vi) With knowledge that the individual's conduct will, or is likely to, disturb, endanger or cause emotional distress to a blind, deaf, audibly impaired or physically limited individual being served or assisted by a dog described in subsection (1).
(g) "Physically limited" means having limited ambulatory abilities and includes, but is not limited to, having a temporary or permanent impairment or condition that does one or more of the following:
(i) Causes the individual to use a wheelchair or walk with difficulty or insecurity.
(ii) Affects sight or hearing to the extent that an individual is insecure or exposed to danger.
(iii) Causes faulty coordination.
(iv) Reduces mobility, flexibility, coordination or perceptiveness.
SECTION 10. Section 97-41-23, Mississippi Code of 1972, is amended as follows:
97-41-23. (1) It is unlawful for any person to willfully and maliciously taunt, torment, tease, beat, strike, or to administer, expose or inject any desensitizing drugs, chemicals or substance to any public service animal. Any person who violates this section is guilty of a misdemeanor, and upon conviction thereof shall be fined not more than Two Hundred Dollars ($200.00) and be imprisoned not more than five (5) days, or both.
(2) Any person who, without just cause, purposely kills or injures any public service animal is guilty of a felony and upon conviction shall be fined not more than Five Thousand Dollars ($5,000.00) and be imprisoned not more than five (5) years, or both.
(3) For purposes of this section, the term "public service animal" means any animal trained and used to assist a law enforcement agency, public safety entity or search and rescue agency.
(4) A conviction and imposition of a sentence under this section does not prevent a conviction and imposition of a sentence under Section 97-41-16 pertaining to the offense of cruelty to a dog or cat, or any other applicable provision of law.
(5) Any person guilty of violating subsection (2) of this section shall also be required to make restitution to the law enforcement agency or owner aggrieved thereby.
(6) The provisions of this section shall not apply to the lawful practice of veterinary medicine.
SECTION 11. Section 97-41-2, Mississippi Code of 1972, is amended as follows:
97-41-2. (1) All courts in the State of Mississippi may order the seizure of an animal by a law enforcement agency, for its care and protection upon a determination that probable cause exists to believe that a crime under this chapter has been or is being committed against that animal. The court may appoint an animal control agency, agent of an animal shelter or rescue organization, veterinarian or other person as temporary custodian for the said animal, pending final disposition of the animal pursuant to this section. Such temporary custodian shall directly contract and be responsible for any care rendered to such animal, and may make arrangements for such care as may be necessary. 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 seized, 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.
(2) Within five (5) days of seizure of an animal, the owner of the animal may request a hearing in the court ordering the animal to be seized to determine whether the owner is able to provide adequately for the animal and is fit to have custody of the animal until court proceedings are concluded. 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. * * *
(3) In determining the owner'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, 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 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.
(4) If a defendant is found guilty of a violation of this chapter, and upon proof of reasonable and necessary costs incurred as a result of the animal's seizure, including, but not limited to, animal medical and boarding, the court may order that the animal's owner 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 to any other lien on such animal.
(5) If the court finds the owner of the animal is guilty of a violation under this chapter, * * * the court may order that the animal be permanently forfeited and released to an animal control agency, animal protection organization or to the appropriate entity to be euthanized or the court may order that such animal be sold at public sale 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 any excess amount shall be paid to the owner of the animal.
(6) If the court finds the owner guilty of a violation under this chapter, 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 as a condition of any probationary or parole term imposed.
(7) If the court determines the owner is able to provide adequately for, and have custody of, the animal, until court proceedings are included or the court finds the owner innocent of a violation under this chapter, the court shall order the animal be claimed and removed by the owner within seven (7) days after the date of the order.
(8) 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 and 41-53-11.
(9) For the purposes of this section, the term "animal" or "animals" means any feline, exotic animal, canine, horse, mule, jack or jennet.
SECTION 12. The provisions of Section 1 of this act shall be known and may be cited as the "Mississippi Dog and Cat Pet Protection Law of 2011."
SECTION 13. This act shall take effect and be in force from and after its passage.