Completely Legal

This case has gone to the dogs.

A Mamaroneck man who told a cop that he kept his dog in a locked car for up to six hours — then sued the government over being charged with animal cruelty — was muzzled by a county judge who threw out the man’s complaint on Friday.

According to court papers, the legal barking began on Nov. 4, 2008, when Mamaroneck Town Police Officer Daniel Smith responded to a call about a dog being locked inside of a parked lot. When the owner, Steven M. Schwartz, returned, the officer asked him how long the pooch was parked. Schwartz replied, “I don’t know, four, five, maybe six hours. I do it all the time.”

The officer charged Schwartz with animal cruelty, a misdemeanor, and a misdemeanor complaint was filed by the Westchester County District Attorney’s office One problem: the DA’s office filed it in the wrong court. The Town Court said it should have been filed with the Village Court, and dismissed the charge for lack of jurisdiction.

Schwartz, not satisfied that he got out of a criminal charge, sued the Town of Mamaroneck for false arrest and malicious prosecution in 2009. He never denied leaving the dog for hours, but claimed he checked on the dog and left water for him in the back seat, court papers stated. Schwartz also accused the officer of charging him after they argued. The officer, in his report, described Schwartz as “agitated, abusive, irate, and belligerent.”

Acting state Supreme Court Justice Nicholas Colabella dismissed the complaint, saying the officer had probable cause to charge Schwartz with animal cruelty.

A Yonkers man who admitted to slashing a so-called “racist dog” and causing the dog to lose an eye was sentenced today to serve 15 months in jail.

The sentence for 59-year-old Andrew Owens was part of a July 15 agreement in which he pleaded guilty to a felony charge of aggravated cruelty to animals.

He declined an offer to make a statement before Westchester County Judge John Colangelo carried out the sentence.

Owens used a 9-inch knife to attack his neighbor’s companion animal, a 4-year-old German shepherd named Jenna, who was leashed outside her home at 705-707 Nepperhan Ave.

The knife left a deep gash in Jenna’s face, and her right eye had to be removed.

The SPCA of Westchester County, which investigated the case, determined the slashing was unprovoked. An SPCA detective said Owens taunted the barking dog and charged at her. Owens later claimed that Jenna bit him a year earlier and told authorities he cut the animal in retaliation.

The day after Jenna was slashed, her owner, Paul Tocco, told The Journal News that Jenna had it in for Owens — and other minorities, for that matter.

“The dog reacts to black people, Hispanics, anyone who is not white,” Tocco said. “She always barked at him (Owens). He was well aware the dog didn’t like him, and he knew to stay away from her.”

After Tocco’s comments were published, he was bombarded by interview requests and calls from friends and customers. In the face of criticism, he backed off his initial statements, saying the dog does not dislike minorities. Others who know and love Jenna came to her defense, saying she’s no racist and, in fact, has many black and Hispanic friends.

Owens, a handyman at Valley Oil on Nepperhan Avenue, will serve his sentence at the Westchester County jail in Valhalla rather than state prison because the incarceration is for a definitive amount of time and not a range of time.

Owens is under a permanent court order to have no contact with Tocco, and by proxy Jenna.

While SCOTUS ponders free speech as it pertains to videos of dog fights, check out this ruling, courtesy of the U.S. Humane Society:

Federal Court Orders Postal Service To Reconsider Mailing of Illegal Animal Fighting Magazines

WASHINGTON (April 23, 2009) — A federal judge has ordered the U.S. Postal Service to reconsider whether the mailing of certain animal fighting magazines should be banned by the Postal Service because they violate the federal Animal Welfare Act. The ruling comes in response to a case brought by The Humane Society of the United States challenging the Postal Service’s denial of The HSUS’ 2006 legal petition seeking to block the mailing of advertisements for illegal fighting animals, knives and other animal-fighting paraphernalia. 

“We are delighted the Court has ordered this review of the Postal Service’s bizarre open-door policy for the animal-fighting industry,” said Jonathan Lovvorn, vice president & chief counsel of animal protection litigation for The HSUS. “The advertisement and sale of fighting animals and weapons is a federal felony, and American taxpayers should not have to subsidize animal cruelty.”

The magazines at issue are frequently packed with advertisements for fighting birds and the implements of illegal fighting such as gaffs and knives (sharp instruments strapped to the birds’ legs). Although illegal in all 50 states, cockfighting remains a multi-million dollar business in the United States, thanks in large part to these publications that facilitate the commerce of the illicit industry.

Magazines like The Feathered Warrior are regularly sent in the U.S. mail to subscribers across the country, and at a special reduced rate subsidized by American taxpayers. Not only do these magazines frustrate federal law enforcement officials’ efforts to enforce laws against cockfighting, but they also plainly violate the newly enhanced provisions of the Animal Welfare Act.

Section 2156 of the Animal Welfare Act bans the use of the mail service “for purposes of advertising an animal, or an instrument described in subsection (e) [cockfighting knives and gaffs], for use in an animal fighting venture, promoting or in any other manner furthering an animal fighting venture.” In the course of strengthening this provision in 2007, Congress noted that the “animal fighting industry continues to thrive within the United States” and that “[n]umerous nationally circulated animal fighting magazines still promote these cruel practices, and advertise fighting animals and the accouterments of animal fighting.”  

In its decision, the Court noted that “[p]ublications like The Feathered Warrior are recovered in seventy-five percent or more of law enforcement raids of illegal animal fights,” and that The HSUS is entitled to challenge the Postal Service’s continued mailing of these materials because “[t]he Humane Society has spent decades trying to reduce illegal animal fighting in the United States,” and “the need to care for animals on an emergency basis is increased by USPS’s circulation of The Feathered Warrior . . . .”

The U.S. Supreme Court has agreed to hear arguments in an animal cruelty case that has First Amendment implications. Click here to check out the story from Reuters.

At issue is this question: Is having or selling dog-fighting videos free speech? Feel free to post your thoughts here.