Harris Case - Defendant`s Motion to Dismiss After

IN THE MUNICIPAL COURT OF GALLIPOLIS,
onto
STATE OF OHIO
Case No. 14 CRB 157 AIL
Plaintiff
-vsJASON HARRIS
Defendant
MEMORANDUM
OF DEFENDANT,
JASON HARRIS
Pursuant to this Court's Order, Defendant, Jason Harris, files this memorandum:
I. Motion to Dismiss
Defendant, at the conclusion of the City's presentation
of evidence, moved to dismiss
the charges against the Defendant.
The Court took the motion under advisement
The defendant
did negligently administer
solution of sodium pentobarbital
an intramuscular
injection of a
to said companion animal, by which unnecessary
pair and suffering was caused, permitted
said companion
evidence.
is charged with 12 counts of violating Section 959.131(C) which
alleged that the defendant
unjustifiable
and defendant presented
animal, when there was a reasonable
and/or
or allowed to continue against the
remedy or relief available.
The state, or city in the instant cause, has the burden to provide each element of a
crime beyond a reasonable
doubt
u.s. v. Cooper, 2014,
739 F.3d 873; State v. Bondurant
(2012) 982 N.E. 2d 1261; State v. Dutton (1965)3 Ohio App. 2d 118.
The record is devoid of any evidence of pain and suffering by these companion
animals, an essential element of the city's case. While the City's expert and the Defendant's
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expert agreed on very little, the one thing that they agreed upon was that each dog is
different in pain tolerance or reaction.
Further, section 959.131(F)ORC provides: "Divisions (8), (C), (D), and (E) of this
section to not apply to any of the following:
(3) Dogs being used or intended for use for hunting or field trial purposes, provided
that the dogs are being treated in accordance with usual and commonly accepted practices
for the care of hunting dogs;
(4) The use of common training devices, if the companion animal is being treated in
accordance with usual and customary accepted practices for the training of animals;
(5) The administering of medicine to a companion animal that was properly
prescribed by a person who has been issued a license, temporary permit, or registration
certificate under chapter 4741. of the Revised Code."
It is acceptable under the statute to shock a dog to cause a cessation of barking, to
shock a dog in the training as to an underground fence, to cause a dog discomfort and pain
if commonly accepted practice for a hunting dog, but not to euthanize a dog with
medication obtained from a veterinarian.
In the case State ex.reI. Ohio Society for the Prevention of Cruelty to Animals, Inc. v.
Board of Commissioners, et al. November 21,2011, WL 5840269 (7th Dist. Harrison Co.) No.
lOHA2, the Plaintiff filed a mandamus action seeking an order forcing the Harrison County
Commissioners and Dog Warden to comply with the request for public records and to
comply with the requirements in the Ohio Revised Code for operating a dog pound. This
case dealt with record keeping, operation of the pound, redemption, etc.
What is noteworthy about this decision is the Court's statement in a headnote on
mandamus and criminal prosecutions: "Even if criminal provisions of animal cruelty
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statutes applied to county dog warden and to county board of commissioners
..." The
implication is these statutes are not applicable to dog wardens.
The city's expert testified that euthanizing a dog by an inter muscular injection of
sodium pentobarbital is not an acceptable method. No authority has been provided by the
City that this method is illegal.
In the case at bar, the dogs were not euthanized by intermuscular injection. The
dogs were euthanized by a heart stick once the dogs were sedated.
The city has failed to prove each and every element of the crime charged.
Based on the foregoing the Court should grant Defendant's Motion to Dismiss.
II. ORC Section 955.16 vs. Phelps Decision
Section 955.16 (F) provides:
"No person shall destroy any dog by the use of a high altitude decompression chamber or
by any method other than a method that immediately and painlessly renders the dog
initially unconscious and subsequently dead".
In State ex. Rei. Phelps v. Columbiana County Commissioners, et al. 125 Ohio App. 3d
414(1998), a taxpayers suit was initiated alleging that the carbon monoxide method of
euthanasia utilized by the county was in violation of Section 955.16 (F) ORC.
The trial reviewed the language of the statute and the testimony provided. The trial
court found if the statutory language was given its normal and customary meaning the
euthanizing of dogs would be prohibited in its entirety, stating "no method has been
proposed by the parties or that has been suggested in the record as common practice
would be determined to be legal under the statute".
The trial court went on to state:
"The record reflects that no concrete studies have been able to opine that the carbon
monoxide method of euthanizing a dog causes any amount of pain. On the contrary, the
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record reflects that in regard to injecting the dog with Sodium Pentobarbital, the dog will
inevitably experience a minimal amount of pain when the syringe is inserted. Additional
pain and/or anxiety may occur when the dog is restrained and/or muzzled in giving the
injection."
The Court further states:
"Each individual provided testimony that established that carbon monoxide cause
unconsciousness to occur rapidly with minimal distress. Additionally, testimony was
provided that while the actual injection of Sodium Pentobarbital to euthanize dogs
produces unconsciousness rapidly, the preparation of the animal for the injection can be
extremely stressful for the dog. Further Appellant was unable to provide any solid proof
that any amount of pain was being experienced by the dogs when they were euthanized at
the county pound through the use of carbon monoxide."
The record before this Court, like the record in Phelps, Id., is devoid of any evidence
any dog suffered pain.
III MENTAL STATE OF NEGLIGENCE
The mental state of negligence as it relates to criminal activity was discussed in
State v. Self1996, 112 Ohio App. 3d 688.
In Self, Id. the Court stated: "Negligence within the criminal context is defined in
R.C.2901.22 CD) as follows:
'A person acts negligently when, because of a substantial lapse from due care, he
fails to perceive or avoid a risk that his conduct
*** may cause
a certain result or may be of
a certain nature.'
The standard described in R.C.?901.22 CD) is a higher degree of negligence than
ordinary negligence because it requires a substantial lack of due care. State v. Owens
(1974),44 Ohio App. 2d 428, 430-431, 73 0.0.2d 540, 541-542, 339 N.E.2d 853, 855-856.
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The determination of whether a lapse of due care is substantial is a question for the trier of
fact. Id. At 432, 730.0. 2d at 542-543, 339 N.E. 2d 853, 855-856; Middletown v. Campbell
(1990),69 Ohio App. 411,418,590
N.E. 2d 1301, 1305-1306. 'substantial' is a synonym of
'material', which is defined as 'being of real importance or great consequence: Webster's
Third New International Dictionary (1981 Ed.) 1392, 2280."
How can the Defendant be held to have had a substantial lapse from due care, when
his supervisor employed the same practices and the record is devoid of any evidence that
unnecessary or unjustifiable pain and suffering was caused.
IV SCOPE OF EMPLOYMENT
The Gallia County Commissioners are mandated under Section 955.15, O.R.C.to
"provide humane devices and methods for destroying dogs."
The dog warden was the individual authorized to purchase the euthanasia drugs
utilized at the dog pound.
The Defendant had no authority to purchase the drugs nor establish policy at the
dog pound.
Due to a lack of case law in the criminal area, the undersigned looked to general
agency law.
If one reviews the Restatement 3d of Agency, it provides:
Section 7.03 "liability should be allocated to the employer in a better position to take
measures to prevent the injury suffered by the third party. An employer is in that position
if the employer has the right to control the employee's conduct."
7.05 "A principal who conducts an activity through an agent is subject to liability for
harm to a third party caused by the principals negligence in selecting, training, retaining,
supervising or otherwise controlling the agent."
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7.07 "An employer is subject to vicarious liability for a tort committed by its
employees acting within the scope of employment. An employer acts within the scope of
employment when performing work assigned by the employer or engaging in a course of
conduct subject to the employer's control.
In the case before the court, the dog warden was the supervisor. He was aware of
the manner in which the Defendant euthanized dogs, he was aware that Defendant was
going to euthanize dogs, he provided the drugs with which to euthanize dogs.
The Defendant cannot be found to have acted negligently or outside the scope of his
employment under these facts.
V TRAINING
Does the failure of the Defendant to seek training impact negligence?
Defendant had been assigned to the dog pound by the commissioners. The
Defendant usually worked four days a week at the pound and another day elsewhere in the
county system.
The Defendant believed the training he had received in 2007 did not require a
recertification, but was valid during his lifetime.
In view of this belief and the fact that he used the same procedures as his
supervisor, both during this time period and his prior period of employment as assistant
dog warden, his action could not be considered negligent as that term in defined for
criminal purposes.
VI SUPERVISOR USE OF SAME PROCEDURE
The evidence before the Court is that Defendant's supervisor and the prior dog
warden used the same procedure to euthanize dogs. Standard practice of the dog kennel.
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-
. .-
Standard practice is defined as "something that is usually or regularly done, often as
a habit, tradition or custom." Cambridge Dictionary.
To argue that defendant's
actions were negligent (substantial
when this was the standard practice of his supervisor,
substantial
lapse from due care)
the norm, the usual does not equal a
lapse of due care.
COLE KIRBY & ASSOCIATES, LLC
ATTORNEYS FOR DEFENDANT
William S. Cole (0004938)
227 E. Main Street, PO Box 427
Jackson, Ohio 45640
Telephone:
740-286-5460
Facsimile:
740-288-2161
co)e@co)ckirby)aw.com
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was forwarded by hand
delivery tqd}t!arn R. Salisbury, Gallipolis City Solicitor, 518 Second Avenue, Gallipolis, Ohio
45631 thi'~
day of December, 2014.
.
William S. Cole
Attorney at Law
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