Tuesday, May 25, 2010

Robeson News~ Animal lawsuit to move to trial

LUMBERTON — District Court Judge J. Stanley Carmical on Monday delivered mixed success to animal rights lawyer Calley Gerber and County Attorney Hal Kinlaw: He made a restraining order preliminary, extending it until trial, but he dismissed two of three items in a complaint against the county, leaving one item to be addressed at trial.

“What I have to look at is whether those practices deviate from state law, not whether it’s what people prefer,” Carmical said. “It boils down to, ‘the shelter’s following the law, but we don’t think that’s good enough.’”

A trial date has not been set.

Following two months of contentious negotiations over Robeson County Animal Shelter policy between animal rights advocates and county officials, Gerber, of Gerber Animal Law Center in Raleigh, on April 29 filed a lawsuit that alleges shelter employees regularly engage in animal cruelty. The suit was filed on behalf of Susan Barrett, a Forsyth County resident who has been active in rescues at the shelter.

That day District Court Judge Jeff Moore granted ex parte — without the defendants’ presence or knowledge until they were served — a temporary restraining order that kept shelter staff from “causing unjustified pain, suffering and death” by euthanizing animals that individuals or rescue groups had reserved, and banned employees from “engaging in animal cruelty.” Eight days later, Carmical extended the order to give the attorneys time to file briefs.

The preliminary injunction granted Monday forbids shelter employees from euthanizing animals that are “reserved” by groups or individuals.

Carmical instructed Gerber to write an order that includes two stipulations: Reservations must be made by fax so there’s traceable evidence, and rescue groups or individuals must pick up the animal within 24 hours after the county’s mandatory 120-hour hold period expires.

The order is deliberately absent of an injunction against “engaging in animal cruelty,” which was in the original restraining order but has yet to be proven, Carmical said.

Kinlaw said the restraining order “the way it’s worded now, is in no way a burden.” He said the main concern will be ensuring shelter employees receive the notices to reserve, but that’s “not going to affect operations at all.”

While the injunction was extended because it prevents “irreparable, irreversible harm,” Carmical said, it only applies to the one item in the complaint that was not dismissed. The claim alleges specific cases of abuse, both physical and procedural. Several items claim that Jeff Bass, the shelter manager, handled animals roughly or didn’t go through proper euthanasia procedures, and other items say shelter employees lied to potential adopters and inhibited rescuers’ efforts.

Kinlaw argued the claim should be dismissed because of governmental immunity. Carmical allowed the claim to proceed since it is essentially a check on governmental power; he said if the principal were taken to its logical extreme, it would be like permitting a lawsuit if a police officer killed someone.

“These allegations are of instances, which if they’re true, would appear to be unlawful,” Carmical said. “These are specific acts of cruelty to specific animals, not how you’re doing business.”

Carmical approved the county’s motion to dismiss two other claims that allege improprieties with state law since the shelter wasn’t actually breaking laws.

The first claim said that because the county doesn’t use a fostering law, which allows animals to stay with foster homes until they’re adopted, the shelter needlessly euthanizes animals, which is cruel. Carmical said the law allows fostering but does not mandate it, so the shelter is not breaking the law by not using it.

The second claim said that because the shelter euthanizes animals to keep half its kennels open, it is unnecessarily killing animals. County officials say the kennel space is a matter of state Department of Agriculture rules that require animals to be moved out of their kennels during cleaning; animal rights advocates say that is not common elsewhere. Carmical determined the practice does not violate state law.

“Even though the judge didn’t agree with me that it’s unjustified killing, it still raised awareness in the community, and that’s an intricate part of animal advocacy,” Gerber said, adding “we were pleased the judge recognized the validity of the claim that alleges willful and wanton acts at the shelter.”

Despite the two-thirds win, Kinlaw said he was disappointed in the outcome.

“It takes a lot of resources to try a case like this, and the county hasn’t got a lot of resources,” Kinlaw said.

He has 30 days to file a response to Gerber’s complaint, then must begin preparing for trial.

Read more:The Robesonian - Animal lawsuit to move to trial

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