Friday, December 09, 2011

Keep your dog on your own property

Michael J. Giardine won in State v. Montgomery, No. 105,328 (Kan. App. Dec. 2, 2011)(unpublished), affirming Judge Hampton's dismissal of a Ford County felony cruelty to animal prosecution at preliminary hearing.  Mr. Montgomery had killed a chihuaua that had come on to his property and acted aggressively toward him and his dog.  The state asserted that he had acted unreasonably in killing the chihuaua.  The COA held that reasonableness is not an element of the exception for killing an animal located off its property:
Based on the unambiguous language of K.S.A. 2012 Supp. 21-4310, a person is generally guilty of animal cruelty if that person intentionally kills a dog and performs the act with evil-mindedness or without a reasonable justification or excuse. Again, however, a person may kill a dog without violating K.S.A. 2010 Supp. 214310 if the dog is not on its owner's or custodian's property and is found injuring or posing a threat to any person, farm animal, or property. The term “reasonable” is simply not present in the relevant statutory provisions.

Because there was no evidence that the threat perceived by Mr. Montgomery was "imaginary, unrealistic, or that it otherwise did not actually exist," the COA held that the charges were properly dismissed at preliminary hearing.

[Update: the state did not file a PR and the mandate issued on January 5, 2012].

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