IN THE MUNICIPAL COURT OF GALLIPOLIS, onto STATE OF OHIO Plaintiff Case No. 14 CRB 157 AIL -vs- JASON 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 and defendant presented evidence. The defendant is charged with 12 counts of violating Section 959.131(C) which alleged that the defendant did negligently administer an intramuscular injection of a solution of sodium pentobarbital to said companion animal, by which unnecessary and/or unjustifiable pair and suffering was caused, permitted or allowed to continue against the said companion animal, when there was a reasonable 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 1
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 2
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 3
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. 4
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." 5
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. 6
-..- 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 lapse from due care) when this was the standard practice of his supervisor, the norm, the usual does not equal a substantial 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 7