Animal Replevin and Animal Custody

The Complexities of Considerations of Animal Law in Other Areas of Law Practice

by: Mark J. Bamberger, PhD, Esq.

Interdisciplinary planning for the care of pets and other animals can implicate itself in many practices of law other than core animal law. Areas such as estate planning, domestic relations (family law), criminal,  property, and

Interdisciplinary planning for the care of pets and other animals can implicate itself in many practices of law other than core animal law. Areas such as estate planning, domestic relations (family law), criminal law, property law, and environmental law must contemplate what happens to animals. Indeed that topic can generate passion and potential controversy in already contentious legal situations.

Click to review as published by the Ohio State Bar Association

Who Represents the Animals

pit-bull

First, what is animal law? In general, it relates to the legal protection and/or regulation of all non-human animals. For example, I am the general counsel for a few animal shelters in Ohio. Issues such as corporate formation of animal-related LLCs, implementation of proper insurance to protect those involved with the animal concern, and law suits filed by visitors and vendors to animal protection facilities are common issues that must be handled. There are also more large-scale animal concerns such as ranches, farms, and endangered species that involve animal, as well as more general environmental legal issues.

All of the animal law work we at TMBC do is pro bono (without charge). This is due to the fact that the people who bring cases like this are not cash-rich. The greater reason is that I love animals, especially wolves and dogs. I do some legal work for Wolf Creek Wolf Habitat & Rescue in Brookville, Indiana. They are good people doing wonderful work in the protection and raising of wolves that would otherwise most likely be killed.

At an Ohio Bar Association in Cleveland, Ohio, I gave a presentation on animal law and how it effects other legal practices, including corporate, criminal, family, and general environmental law. Many, if not most, legal practitioners, at one time or another, will encounter an animal law case. Examples here include divorce with custody disputes over the family pet, the scary link between animal abuse and serial murder, dog bite law suits, and the Endangered Species Act of 1973.

More and more, society in general is turning on to the concerns of factory farms, slaughter houses, puppy mills , and other abusive situations. There will never be a day when non-humans have the same legal rights as we humans, but it would be nice if a little more understanding of and respect for the plight of animals was commonplace in our culture.


1 TMBC has offices in Tipp City, Enon, West Chester, and Spring Valley, Ohio. Check us out and contact us through www.bambergerlaw.com
2 Check them out at wolfcreekhabitat.org. They operate on donations and visitor fees alone. For a fee, you can go “sit with the wolves’; a definite bucket-list experience.
3 The Endangered Species Act (16 U.S.C. §1531 et seq. (1973) is under constant attack by some in Congress and around the nation.
4 A little-known fact: The Amish communities are some of the worst violators of still-weak puppy mill laws.

Guns, Deadly Force, and Your Rights

guns-deadly force-rights

You own a gun and have your Ohio Concealed Carry Weapon (“CCW”) Permit. So far, so good. But what if you have to use that gun one night?  Having ridden in a motorcycle club comprised almost solely of cops and ex-cops and having numerous friends who are cops, here is a little advice. If you brandish a weapon, be prepared to use it. The data are clear that when a person defending him or herself has a gun, the odds escalate dramatically that there will be shot fired. You do not want to brandish a gun just for show or fun.

 

For one thing, in Ohio there is a mandatory one- or two-year gun specification added to any crime. If you accidentally commit a punishable offense, you might serve one or two years consecutively to another offense (meaning added to any sentence you get, not concurrently).[1] For another thing, when you show a gun in the presence of a “bad guy” who has a gun, chances are the bad guy knows how to use his or her gun better than do you, so you are in trouble.

 

It is romantic to say you have gun for the protection of family and household, but sadly the data are clear there as well. People who have a gun in their homes are 40-170% more likely to be victims of gun violence than a hero using the gun for protection.[2]  Despite what the National Rifle Association (“NRA”) tells people, this has been true for decades.[3]  It is true that Ohio has a “castle rule” that says that you do not have to flee your own home if there is a home invasion. But happily, armed home invasions are exceedingly rare in most areas of Ohio and the statutes also say that you can use deadly force only where deadly force was threatened against your family or yourself.  You cannot shoot someone simply for entering your home uninvited.

 

If you are in your car and stopped with your gun/s on-board, always tell the officer when s/he approaches that you are carrying and have a valid CCW (which should always be on your person).  If the weapon is in an unlocked compartment of the vehicle, odds are good the officer can search and look at the gun, should they choose. If the gun is in a locked compartment, you do not have to allow them to search the weapon, though you may and often should allow them to do so to avoid any additional legal encumbrances.[4]

If one fateful night you must use your weapon, immediately call the local police and report the incident afterwards, have your CCW available for inspection, and contact your lawyer as soon as you can.[5]  As in most incidents, say as little as possible without your lawyer present, and do not tamper with or alter the “crime scene”.

 

The bottom line is this. If you choose to own a handgun, get the training for your CCW[6], go the range on at least a semi-regular basis (preferably with a trainer or more experienced friend), and know your limitations. And always keep the weapon/s and ammo far away from access by children, untrained teens, and family members or friends who might have suicidal tendencies. Once again, if you own a gun and brandish, be prepared to use it.


[1] We had one homicide case at TMBC where our client brandished a gun and shot at his wall to back off his drugged-out son. The bullet went through the wall and killed the son’s girlfriend. She was dead before she hit the ground.  We got a good deal for him on the homicide charge, but he had to serve the mandatory gun spec time, regardless of the other deal.

[2] www.slate.com/articles/health_and_science/medical_examiner/2…

[3] http://smartgunlaws.org/guns-in-the-homesafe-storage-statistics/

[4] As a general rule, cops can stop you for almost any reason they choose and search an open vehicle as they choose.  Case law allows them far more flexibility to search a vehicle without a warrant than a house or other fixed structure, since houses can’t drive away and hide as easily. See another many examples Illinois v. Caballes (2014), 543 U. S. 405, 407.

[5] As a close cop friend told me, anyone who owns a gun and does not have a good lawyer on speed dial is either foolish or naïve.

[6] Most states, except Illinois and those in New England, have reciprocity with Ohio, meaning your CCW in Ohio is valid in those states as well.

Your Rights Once Arrested

rights-once-arrested

Increasingly, I am asked what I should do if and when I am arrested. This is a complicated issue, but let me explain the primary concepts; regardless of whether you are white or a person of color. This article is more detailed than most of my others, so take your time and read it thoroughly. Your freedom might depend on it! In short, KNOW YOUR RIGHTS.

Initial Actions

When stopped by a police officer, keep your hands in plain site; preferably on the steering wheel. Take a deep breath as the cop arrives at the window and be as courteous as you can be. Cops are trained to be friendly on these stops and most are, so provide that respect back. Do not be sarcastic or mean when asked why you were stopped.[1]  If you have a gun or hunting knife in your vehicle, announce clearly when the cop arrives at the window that you have the weapon and in the case of a gun, a valid CCW Permit[2]. Hopefully this is true.

Plan ahead for this and have your ID, proof of insurance, and car registration readily accessible.  If you go to the glove compartment to retrieve these items, move slowly and narrate your actions to the cop as you go so there are no surprises. If you lack of one these documents, explain to the officer why.  If you license is under suspension, hopefully you will have a good reason why you are on the road, e.g., going to hospital due to a family emergency, etc.

The 4th Amendment

If the officer asks you to exit the vehicle, exit the vehicle. Need be you can attack the constitutionality of this request later. For now, do what is being asked. Case law is clear that government representatives generally have wide ranging rights to inspect or search your vehicle since vehicles can be driven away and hidden. Any part of the vehicle that is not considered a separate and locked compartment can be easily searched.  If you have a separate, locked safe or compartment in the vehicle, the cop must impound the vehicle and get a search warrant based on probable cause to access the locked compartment. You can ALWAYS challenge the constitutionality of the search under the 4th Amendment of the Constitution, administered to Ohio via the 14th Amendment. DO NOT try to argue this matter while at your vehicle. It will not end well and chances are the police officer will not be equipped to deal with the legality at that moment anyway, even though they are trained in this area at the Academy (we hope).

Search and Seizure and Terry Stops

If evidence is seized from the vehicle, it is important whether you are arrested or not.  Search and seizure incident to an arrest is easier for the State to defend than an “expedition mission” without an arrest.

As for your person, cops are always allowed to do a Terry Stop[3]. The search must be “reasonable” as legally defined, and limited to safeguarding the police officer/s. Excessive searches can lead to suppression of any weapons or other evidence searched and seized in a latter hearing.

Miranda Warnings

As for questioning, you can be arrested without being “Mirandized”.[4]  However, once you are “in custody”, you must be read your rights BEFORE being questioned.  If not, whatever you say can and should be suppressed and thrown out. Furthermore, any evidence found or produced after an illegal, custodial interrogation (be it at the car, in their car, or at their station)[5] can be challenged as “fruit from the poisonous tree”[6] and suppressed as well.

It is never a bad idea to provide NO answers as to the evidence or alleged offenses while you formally and audibly, yet respectfully, request a lawyer. This is your legal right and does not indicate that you are guilty of anything. An elderly family member once told me “…if I have nothing to hide, why should I not just answer questions right away”. Though innocence is presumed, not all cops are honest and they can openly lie to you to gain insight into a case. Sadly, as a defense attorney, I tell my clients to assume that the cops are not your friends in these specific instances and to SHUT UP until we get involved. Plus, though our Constitution is under attack right now, we must know and defend the Bill of Rights and our protections under the law.

This is but a thumb nail sketch of your rights and our suggestions on your expected behavior.  Be courteous, know your rights, and protect those rights so that your lawyer can provide the most effective representation to you down the road. We will add more detail in future articles. Feel free to contact me directly or chat with my staff on-line at www.bambergerlaw.com.



[1] Realize that a cop can stop you for pretty much any reason they choose; speeding, driving erratically, broken light, etc.  Your chances of getting charges thrown out merely on the probable cause for a stop is unlikely.

[2] In Ohio, you can transport a gun in your vehicle without a CCW, but in that case the ammo and gun must be kept in separate parts of the vehicle and not in easy access to the driver.

[3] This right is based on the seminal case of Terry v. Ohio, 392 U.S. 1 (1968), which allows government representatives to search your person reasonably to protect themselves against potential ambush or attack. This is in contrast to such programs as New York City’s Stop and Frisk, which was deemed discriminatory based on racial bias.

[4] Miranda v. Arizona, 384 U.S. 436 (1966) mandated the reading or your rights to remain silent and to legal counsel prior to formal custodian questioning.

[5] The concept of being “in custody” is a complex one, but as a very general rule, if a reasonable person would not feel the ability to simply walk away from the government agent/s, that person should consider him or herself “in custody” and therefore due related constitutional rights under the 5th and 14th Amendments. Custody in this context is synonymous with restraint of liberty and does not necessarily mean actual physical imprisonment.

[6] There is an extension of the exclusionary rule established in Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920). This doctrine holds that evidence gathered with the assistance of illegally obtained information must be excluded from trial. Thus, if an illegal interrogation leads to the discovery of physical evidence, both the interrogation and the physical evidence may be excluded, the interrogation because of the exclusionary rule, and the physical evidence because it is the “fruit” of the illegal interrogation. This doctrine is subject to three of important exceptions. The evidence will not be excluded (1) if it was discovered from a source independent of the illegal activity; (2) its discovery was inevitable; or (3) if there is attenuation between the illegal activity and the discovery of the evidence. Wong Sun v. United States, 371 U.S. 471 (1963) is the seminal case that allowed “poisonous fruit” evidence to be suppressed.

How to Find a Competent Attorney

find-competent-attorney

There are literally thousands of lawyers within a stone’s throw of most of our clients, but finding a competent attorney is not so simple. There are massively large law firms with hundreds of lawyers, law firms with folks who have been in the practice for 40 years, solo practitioners who specialize in certain areas of law. So with all those options, why would someone choose my law practice?

We’ve found that there are only a few grounding principles needed to master the practice of law:

  1. Be competent;
  2. Look people straight in the eyes;
  3. Tell clients the truth; be it good, bad, or ugly; and
  4. Put yourself in your client’s shoes

You’d be amazed at how many lawyers fail at one if not all of these basic rules. Large law firms only take large clients since their overhead is so high and firms who specialize in one area or another are often incapable of walking clients through the various complexities in their lives. While they may actually have compassion for your situation, they really don’t have the time to deal with that complexity.

There are fancier law firms than TMBC. Their marble and mahogany offices with piles of outdated law journals shimmer and impress visitors and clients alike. The specializing firms do well; but only in their specialized areas. Our experience has taught us that often a client filing bankruptcy is also going through a divorce, or has a criminal matter, or has an employment concern, or might be fighting for custody of a child or grandchild. Though we do have four offices to serve our clients from Hamilton to Champaign Counties in Ohio, they are basic. Our overhead is very low so we can keep our rates equally low. Yet we have the experience and training to handle many areas of law people need. Besides tax law, Medicaid/Medicare law, and probate law, there is not much we have not competently and completely handled.

At the end of the day, we can help you in the areas in which we practice, we look clients in the eye and tell them the truth, even if they might not be thrilled with the answers, and our clients have told us often that we seem to empathize with their concerns. Choose your attorney wisely. Your life or livelihood might indeed depend on this important decision.

Lawyering and Life

What is it like to be a lawyer? Well, it can suck. Alcohol and substance abuse among attorneys is among the highest of any profession.[1] The fact is that in so many cases it is hard to divorce ourselves (pardon the pun) from the pain and suffering of our clients. So many attorneys take that pain home with them and self-medicate. I am one of the few attorneys who would probably benefit from drinking more, but all joking aside this is a serious problem. Not only are lives ruined by such addiction, but the quality of representation to our clients can suffer. There is an entire branch of most bar associations to confidentially help attorneys with addiction.[2]

One of the most important skills your attorney can have is the ability to compartmentalize. I am occasionally asked how I can represent alleged rapist and thieves, people going through a contested divorce or custody dispute or disastrous bankruptcy. The answer is that I can usually compartmentalize. My wife Lynne and my daughters are happy for this. Many testimonials on our web site (www.bambergerlaw.com) talk about my compassion and demonstrated concern for client problems and worries. That is great to hear, but is also quite true. I do honestly care and those are not just words, but shown again and again by my staff and my actions.

Not all lawyers do care. Many get into the business for personal gain; to grab that corner office doing only transactional law and never see the inside of a courtroom. Others literally do ‘chase ambulances’ and feast on others’ misfortunes. These are the attorneys that give this incredibly noble profession its bad name. Yet, attorneys and their management of the common law is the foundation of our society. When Shakespeare wrote. “The first thing we do, let’s kill all the lawyers”,[3] he was not disparaging the profession, but in context saying that attorneys are the basis on which cordial and regulated society works. I take that stuff seriously.

As many of you know, law is my second career. I was an environmental geologist for 18 years before going to law school. I went to law school evenings while teaching at two colleges during the day and helping to raise three daughters. For me, it was never about money, though getting paid for my time and expertise is nice too. Seeing the tears of joy in client’s eyes when they realize their debt problems are behind them, an ugly divorce is over, a criminal mistake is not going to end their life, or their horrid employment issue is handled brings me satisfaction and joy.

On The Blue Mistress, my beloved 2000 Honda Goldwing motorcycle, I try vigorously not to think about work (sorry folks). However, when I do, I see the faces and expressions of the clients TMBC has been able to help. It makes me smile as the hundreds of motorcycle miles fly by.

MJB, Dayton, Ohio 3/2017

[1] See for example http://www.brooklyneagle.com/articles/lawyers-struggle…, March 22, 2013

[2] In Ohio, the State Bar Association has the Lawyers Assistance Program (www.ohiolap.org).

[3] shakespeare.mit.edu/2henryvi/2henryvi.4.2.html, cited from Henry VI, Part 2, Act 4, Scene 2

 

But He’s Guilty, Right?

Handcuffs

Mark J. Bamberger, Esq., Owner/Attorney and Counselor at Law
The Mark Bamberger Co., LLC

One of the most challenging, yet most satisfying areas of my practice is criminal law. I have been asked more than once, and even by family members, how can I defend a suspected murderer, rapist, drug offender, or intoxicated vehicle operator when I know (or at least strongly suspect) s/he is guilty. Admittedly there are times when it is difficult, but two tenants of our common law legal system are:

  1. the presumption of innocence; and
  2. the right to competent legal counsel. Everyone, even the most loathsome among us, deserves a competent, compassionate criminal defense and a just and non-discriminatory sentence.

In many cases, though the dispositive evidence against them is overwhelming, our clients come to us simply to explain and then guide them through the legal system. Many clients openly admit their offense/s, but just want “a fair shake”. My experience has been that the vast majority of our clients are truly contrite about their transgression. They know they have done wrong and my job is to get them a reasonable sentence or reduced charge so that they can become a meaningful contributor to society again.

The bottom line is this – crime should be punished. But in most cases, there is another end than one’s life being ruined by a mistake or bad choice. We are here to make sure that our clients get the best possible outcome from a difficult situation and, where possible, move forward into a brighter future.

MJB, 1/17

The Nicest Part About Being a Lawyer

nicest day

The practice of law can be stressful, challenging, and at time down right painful. The rate of alcohol and other substance abuse in the legal practice is among the highest of any profession. Those who have practiced more than a few months know why. The good attorney cares deeply and passionately about each client. The smarter one finds ways to cope with all that pain and suffering by compartmentalizing the pain so that s/he can lead decent personal lives.

Yet, with the pain can come great satisfaction and even joy. Over the course of a year, we perform hundreds of bankruptcies, divorces and dissolutions, custody, and criminal defense cases. We often see people at the darkest and lowest point of their lives; dealing with massive debt, depression, and/or heart ache. That said, I have long ago lost track of the number of clients who hugged me, often in tears, when they realized that the debt, horrible marriage, lost time with children, or nervousness of dealing with the court system, was over. They could start a new life with more hope and plans for the future.

My long-held personal mantra is “the best reward for a job well done, is more work”. We continue to get referrals and new clients who see that we care and try to guide them through the worst times of their lives into a brighter age. That indeed is the nicest part of being a lawyer!

MJB, Spring Valley, 2016

When NOT to File Bankruptcy

At the Mark Bamberger Company my staff and I have successfully completed hundreds of Chapter 7 and Chapter 13 bankruptcies over the better part of the last decade. Bankruptcy, though never a thrilling experience, has allowed millions of people to start over (as in Chapter 7 cases) or to reorganize their debt (as in Chapter 13 cases). I have lost track of the number of former clients who have broken into tears and hugged me when they realize they can stop “robbing Peter to pay Paul” and can finally start thinking about the future; perhaps in a new house or car.

However, being an ethical attorney, I have sent some people away with the advice that they should avoid bankruptcy. Generally there are four reasons for this:

  • Not enough debt – in some cases, the price of even the cheaper Chapter 7 case makes filing for some clients unnecessary. In those cases we can often represent folks and haggle settlement offers from creditors for the clients to pay off; without having a bankruptcy on their record.
  • Too little time – in some cases, clients have filed previous bankruptcies and cannot yet file another. That ranges from eight (8) years between Chapter 7 cases to as little as two (2) years between Chapter 13 cases.
  • Too recent debt – for Chapter 7 and some 13 cases, if a client has very recently used credit cards or purchased an expensive item, there would be reason for an objection to the case or even sanctions for abuse of the bankruptcy code if someone incurs significant debt, then turns around and files bankruptcy. In 2005 the federal bankruptcy code changed a lot to make it harder for people to “game the system” when they in fact could pay back at least some of their debt. Those Chapter 7 cases have since been funneled into 13 cases where debtors have to commit to paying back something. For that we are all thankful, as bankruptcy was contemplated by the Founding Fathers to be a step up, not a hand out.
  • Too little money – in some instances where the client has too much household income, has filed a Chapter 7 too recently, or else has a house in jeopardy, we recommend filing for a Chapter 13 reorganization. However, if the household income is too little to sustain a monthly payment plan, that is a recipe for default and other problems that can make filing anything problematic.

In general, folks can file a form of bankruptcy that assists them in dealing with their financial problems. But an ethical attorney will know when not to file as well as when to file. Find one of them!

7 Is Smaller than 13, Right?

Mark J. Bamberger, Ph.D., J.D., Owner/Attorney and Counselor at Law
The Mark Bamberger Co., LLC

It’s a simple fact of math. Seven is smaller than 13. But in considering bankruptcy, (Chapter) 7 might not be better than (Chapter) 13. In simple terms, a Chapter 7 (“BK7”) is a full, start over from scratch, bankruptcy option for individuals and/or small businesses. They are generally cheaper and faster than a Chapter 13 “(“BK13”).

A BK13 is a personal (or small business) reorganization program whereby you propose to pay back a percentage of your unsecured (and 100% of your secured) debt to the trustee of the court for his or her systematic distribution to your creditors. That percentage can range from 0% to 100%. Typically a personal BK13 payment plan ranges between 2% and 50%. BK13s are generally more expensive since your attorney has to shepherd the case from filing through confirmation to discharge and closure. BK13s last between three (3) and up to five (5) years.

The decision as to which option to pursue is far more complex than a short article here can handle. There are some general rules of thumb, but you should seek legal counsel before making the decision:

  • If you have relatively minor unsecured debt and do not have real estate in jeopardy, you may be able to get away hiring us to haggle settlement offers for your unsecured debt and avoid bankruptcy altogether;
  • If only one spouse has debt in his or her name, you may consider having that one spouse file bankruptcy alone;
  • If you do not own real estate, have not filed a BK7 within the past eight (8) years, and have a household income under what is termed the “Means Test”, a BK7 might be best;
  • If you own a home that is in foreseeable jeopardy of defaulting and you want to try to keep the property, a BK13 is probably best for you and your family; and
  • If your household income is above the Means Test and/or you have filed a BK7 within the past eight (8) years, consider a BK13.

Needless to say, there are many more considerations to be made and I would be happy to schedule a free, no obligation consultation to explore your particular situation. Mind you, you do have the legal right to file your case by yourself (pro se), but bankruptcy law under 11 U.S.C. can be complex and unforgiving, so professional assistance is often strongly recommended.