Open Field Doctrine And How It Can Be Used Against Animal Ownership

4th Amendment of the US Constitution

Open Field Doctrine and How It Can Be Used Against Animal Ownership

The Fourth Amendment of the Constitution of the United States of America states that, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The Open Field Doctrine – Your Rights To Privacy Are Not What Most Think

While open fields are not protected by the Fourth Amendment, the curtilage, or outdoor area immediately surrounding the home, may be protected. Courts have treated this area as an extension of the house and as such subject to all the privacy protections afforded a person’s home (unlike a person’s open fields) under the Fourth Amendment. An area is curtilage if it “harbors the intimate activity associated with the sanctity of a man’s home and the privacies of life.” However, this right is being manipulated by animal extremist groups in legislation they have pushed and are continuing to push in a number of states across the country.

What Is The Open Field Doctrine In North Dakota?

Gary Dassinger, a rancher in North Dakota last year suffered a great injustice over an “Open Field Doctrine” that was originally pushed by HSUS. The North Dakota legislation allows for intrusion on property regardless of fencing or “no trespassing” signs. In North Dakota these lands have been excluded from the fourth amendment rights and expectation of privacy isn’t considered reasonable nor legitimate.

The over-reaching doctrine allows for an actionable claim to be made, against a person for animal abuse and neglect, by anyone. This includes someone from out of state who has never been on the property. As the law reads, there is no liability for the accuser and the State’s Attorney can seize animals, write up a bill of sale and arrange for the animals to be sold to other parties, all without having to notify the owner and without holding a hearing. Under the law, Title 36, Livestock. Chapter 36-21.1. Humane Treatment of Animals, a claim can be made against any person and they will automatically be considered guilty without the opportunity to prove their innocence. The law was purposely left vague and puts all animal owners at risk.

Risks to Farmers and Ranchers

While the entire language is vague and a major cause for concern for farmers and ranchers, here are some we find most concerning:

36-21.2-10. Veterinarian- If upon examining an animal a licensed veterinarian determines that there is reasonable cause to believe an animal has been neglected, abused, treated cruelly, or subjected to any act or omission in violation of this chapter, the veterinarian may retain custody of the animal and shall immediately notify law enforcement officials regarding the determination. Note: Shall means must. Therefore, by law the veterinarian must immediately notify law enforcement.

36-21.2-05. Seizure of animal–Court order 1. A law enforcement officer may petition the court for an order directing the seizure of any animal believed to have been neglected, abused, treated cruelly, or subjected to any act or omission in violation of this chapter. 2. The court may act without notice to the animal’s owner or to the person having custody or control of the animal and may rely solely on testimony or an affidavit in considering the petition. 3. In the order for seizure, the court may direct that a veterinarian humanely destroy an animal if the veterinarian, upon examining the animal, determines that the animal is experiencing excruciating pain or suffering and that the animal’s pain or suffering is not likely to be alleviated using reasonable medical interventions.

36-21.1-14. Assumption of custody – Immunity from liability. Any sheriff, police officer, licensed veterinarian, investigator, or person who has custody of an animal under this chapter and who is acting in an official or professional capacity and making a good-faith effort to comply with this chapter is immune from any civil or criminal liability for acts taken or omitted while attempting to comply with this chapter. Note: The term investigator is not defined, so that could mean anybody.

Dassinger’s Case

Due to an out of state report, the unethical behavior of a veterinarian, and an overzealous Sheriff, Gary Dassinger faced the seizure and sale of his livestock, criminal charges and 20 years in prison for what essentially amounted to false claims. Here’s a high-level overview of the history of Gary’s case:

  • Measure 5, an initiated state statute was pushed by the Humane Society of the United States and the Humane Society Legislative Fund. It was defeated by the people of North Dakota, however an amended version became law in 2013.
  • Law enforcement in North Dakota was trained by the Humane Society of the United States on how to go about seizing animals and the enforcement of this new law.
  • A disgruntled employee that was not following through with his responsibilities of caring for the livestock was behind the claim of neglect and abuse. Even though his behavior was unethical, he became a witness with immunity.
  • An out of state accuser.
  • A veterinarian with a grudge and a previous defamation judgment against her (she slandered one of her associates over hearsay to the entire veterinary community) to the tune of over a quarter of a million dollars.
  • A Sheriff’s Department with Deputies that have little to no experience with animals, especially livestock.
  • A State’s Attorney’s office that clearly has no ranching or livestock background.
  • Two independent veterinary assessments, proving that the out of state claims and the report by the unethical veterinarian were not based on factual observations or science, were disregarded.

For a more in-depth look into Dassigner’s story, read this article.

Gary Dassinger Prevails

With the help of his daughter, Protect The Harvest and many others, Gary successfully fought to keep his livestock and his 40-year breeding program. However, it was not without great personal sacrifice both emotionally and financially. In order to defend himself and to stop the seizure and sale of his livestock, Gary and his daughter made a considerable investment in time and legal fees.

The first step was to stop the removal of his livestock from his property which Dassinger’s attorney was able to successfully achieve. The next step was to address the criminal charges, filed by the State’s Attorney based on the nefarious claims. After all of the facts were finally presented, including the reports from two independent veterinarians, the State’s Attorney’s Office was willing to negotiate a plea that involved minimal sanctions. Dassinger was already in debt from the initial proceedings and preparing for a trial is prohibitively expensive. Therefore, despite the fact that he was not guilty of the charges, he decided to cut his losses and take the plea deal.

Impact In Other States

What happened to Dassinger is almost identical to other cases executed by the HSUS. The result of Gary Dassinger’s legal fight is a strong lesson to farmers, ranchers and animal owners in North Dakota and around the whole country. If the HSUS is allowed to push more laws like Nebraska’s Tilte 36 in other states, even more ranchers and farmers, could face the same unfortunate and unnecessary circumstances. The question is, will they have the same emotional fortitude and resources available to defend themselves?

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