Given how politically disempowered convicted criminals are in this country, it is not surprising that legislatures and courts have begun regulating the keeping of animals by convicted felons. This follows a long line of restrictions, including owning or using a firearm, voting, and, more recently, living in certain areas and being free from suspicionless searches. Earlier this year, Illinois passed a law criminalizing the keeping of animals who aren't fixed, microchipped, or well-behaved, by people convicted of certain crimes. See 725 ILCS 5/12-35. We've questioned the rationality of the crimes covered in the law.
Two recent cases from a panel of the California Court of Appeals, Fourth District, reveal the sorts of arguments that will be raised to challenge the imposition of restrictions on companion animals for individuals convicted of crimes other than animal cruelty. See People v. Mosqueda, No. E038728 (Cal. App. Ct. 11/14/06) (pdf, html cache); People v. Quintero, No. E039290 (Cal. App. Ct. 9/27/2006) (pdf, html cache) (hat tips: The Volokh Conspiracy, Criminal Appeal). In both cases, the defendant was ordered to keep his probation officer advised of "place of residence, cohabitants and pets" and specifically to give 24 hour notice of any changes in those areas. In Mosqueda, the court, while pronouncing the sentence, stated "I don't like certain pets" and then limited that restriction to pit bulls and rotweillers. Each court tested this condition against precedent assessing the relationship of the probation condition to the offense for which the defendant was convicted, the legality of the conduct regulated by the prohibition, and the relationship between the condition and future criminality.
The conclusion of each of the courts at to the validity of a condition relating to all companion animals was the same. Each found the offense (possession of meth in Quintero, vehicle theft in Mosqueda) was not related to the ownership of animals. Each found that keeping companion animals is itself not criminal, with Quintero noting authority that it is an "important part of our way of life." And each found that there was no relationship between owning a companion animal and future criminality. Quintero, in particular, closely analyzes the state's interest in officer safety, by noting several problems with the condition, namely that it covers "unquestionably harmless animals"; requires a defendant to anticipate changes beyond his or her control; and is not related to the purported interest insofar as that notice itself would not help officer safety.
In Mosqueda, however, the court found that the condition was valid as modified to refer only to pit bulls and rotweillers. Without acknowledging the court's previous holdings in the (admittedly depublished) opinion in Quintero as to the unreasonableness of the notice requirement, or making findings as to the dangerousness of the breeds, the court held that the condition, as modified, was related to future criminality.
In each case,a judge wrote a separate opinion (dissenting in Quintero, and partially dissenting in Mosqueda), arguing that that the condition need not be set out as specifically as the majority in each case held, and that the notice requirement is related to officer safety in that it can prevent unfair surprise.
There is a lot to criticize here. Despite our support of animals and criminal defendants alike, it seems like the strict scrutiny approach adopted goes far beyond what California law requires. We would imagine that, unless a constitutional right was at stake, the question of whether a condition was "reasonably related" to future criminality would be subject to a relatively deferential test, one that allowed for conditions to be related, but not necessarily narrowly tailored, to the state's interest. That a defendant's keeping an animal could thwart attempts to supervise him or her is the sort of minimal linkage necessary to be "reasonably related," especially given that the condition (as the dissent notes) requires only notice.
If a court, however, finds that a condition related to all animals is prohibited, there is zero basis for upholding a breed-specific condition, as the court did in Mosqueda. Defendants seeking to challenge such conditions would do well to consult the recent Ohio Supreme Appellate Court case invalidating Toledo's ban on pit bulls. In that case, the court expressly rejected the claim that pit bulls are more inherently dangerous than other animals and also the related argument that the ban should be upheld given the social conditions in which most pits are raised. The Mosqueda court's complete lack of fact finding as to why such breeds pose a particular danger is indicative of both deep-seated fears of certain dogs and the sad fact that often in animal cases, anything goes.
Update (12/3/06): When it rains, it pours. The same panel has just released an opinion on the same issue which follows Quintero's reasoning. See People v. Lopez, No. E039251 (Cal. App. Ct. 11/30/06) (pdf, html cache)