Scope and Parameters of Animal Seizures by Private Entities under Maryland Code, Criminal Law Article Section 10-615

In January 2017, Attorney Rebekah Lusk, argued Rohrer v. Humane Society of Washington County, in front of the Maryland Court of Appeals. A decision was issued in June 2017. Rohrer v. Humane Society of Washington County, No. 32, September Term, 2016, is the first case in Maryland to interpret Maryland Code, Criminal Article, §10-615, which provides authority to “an officer, the humane society or public official” to seize and remove an animal to protect the animal from cruelty or if necessary for the health of the animal. Rohrer v. Humane Society involves the scope of the civil removal process within the criminal code, the interplay with a concurrent criminal prosecution, and ownership rights when animals have been removed by a private entity, such as the Humane Society.

Rebekah Lusk started representing Mr. Rohrer in December 2014, after the Washington County State’s Attorney with assistance from the Humane Society, seized 95 of Mr. Rohrer’s animals from his farm, pursuant to a warrant, for alleged animal cruelty. Mr. Rohrer is a meat producer and the State seized cows, sheep and goats. After the seizure of the animals, Mr. Rohrer was charged with over 300 counts of animal cruelty. In January 2015,  while the criminal case was pending,  the Humane Society issued a notice under §10-615, that the Humane Society was “removing” Mr. Rohrer’s animals, the same animals that had already been seized and removed from his farm, pursuant to the warrant.

Maryland Code, Criminal Law Article Section 10-615 requires the “owner or custodian” to file a petition for the return of the animal(s) in District Court within 10 days after the removal. Mr. Rohrer timely filed his petition and a two-day civil hearing was held in the District Court in February and March of 2015, prior to Mr. Rohrer’s criminal trial.  The District Court Judge denied Mr. Rohrer’s petition, stating that the “best interest of the animals” would be served by remaining in the care of the Humane Society “at this particular stage…particularly between now and the hearing on [the criminal animal cruelty charges]”. At the conclusion of the hearing, Mr. Rohrer asked for clarification regarding if he still retained ownership of the animals and the court stated the statute provided no guidance on that point.  Mr. Rohrer appealed the decision to the Circuit Court.

While the appeal in Circuit Court was pending, a three-day bench trial was held on the criminal charges. Prior to the trial on the criminal charges, the State dismissed 288 counts.  At trial, of the remaining counts, Mr. Rohrer was acquitted or found not guilty on all but 5 counts, for which he received probation before judgment. The Court also released all the animals from the warrant and implemented a farm management plan.

Following the conclusion of the criminal trial in July 2015, Mr. Rohrer requested the return of his animals from the Humane Society.  The Humane Society refused to return them, citing that Mr. Rohrer’s §10-615 petition had been denied. Mr. Rohrer immediately obtained an emergency order to prevent any disposal of the animals and then filed a separate replevin action for their return.  In a separate legal action, Mr. Rohrer was granted the return of the animals in October 2015, however by then, the Humane Society had already disposed of half of the animals.

In December 2015, a hearing was held on Mr. Rohrer’s District Court appeal and the Circuit Court affirmed the decision of the District Court. Mr. Rohrer then requested certiorari to the Court of Appeals asking 1) Can the Humane Society seize animals already in the possession of the State, 2) Do the factors and conditions that permit removal, have to exist at the time the notice of removal is given to the owner, and 3) If a petition is denied, does the owner lose ownership of the animals.

The Court of Appeals ruled that once an animal has been removed from an owner pursuant to a criminal search and seizure warrant, the humane society may not exercise its authority under §10-615 to seize the animal from the state’s custody, but can give notice of intent to exercise such authority once the criminal case has been concluded. The Court also ruled that the temporal relationship between the alleged circumstances of abuse or neglect and the time the humane society takes possession of the animals is relevant to a determination of whether the actions were “necessary to protect the animal”, however, the conditions of the warrant can be sufficient to take possession upon release from the warrant. Lastly, the Court held that denial of a petition for return of the animal does not divest the owner of ownership interest in the animal, but the right to possess the animal reverts back to the owner when possession by the humane society is no longer “necessary to protect the animal from cruelty” or “necessary for the health of the animal”.

Attorney Rebekah Lusk represented Mr. Rohrer during all aspects of the criminal and civil trials. Rohrer v. Humane Society is a seminal case, as Section §10-615 is used regularly by Humane Societies and other animal control agencies to seize or take possession of animals where there are allegations of abuse, and then divest the owner of ownership, prior to a criminal trial. Rohrer v. Humane Society for the first time provides guidance to the Court regarding the burden of proof, the standard of review, and parameters for handling these petitions in conjunction with a concurrent criminal hearing. It also ensures there is no civil forfeiture and that only through the criminal process, can there be a determination as to ownership of the animals, while at the same time allowing the humane society to maintain possession temporarily of the animal if “necessary to protect the animal from cruelty.” Attorney Rebekah Lusk is the owner of Lusk Law, LLC, based in Frederick, MD. She practices in the area of civil litigation, landlord/tenant, business law, equine/animal law, family law, and real estate.

View Rebekah Lusk’s oral arguments in front of the Court of Appeals.

View Rebekah Lusk’s presentation on the Rohrer v. Humane Society of
Washington County at the Maryland School of Law.

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