When is it Legal to Shoot a Trespasser?

Surprisingly, my 2008 post entitled How to Deal With Trespassers on Your Property has returned more hits than virtually any other single post on the Equine Law Blog. The search terms that usually land people on that post are some variation of “when is it legal for me to shoot a trespasser?” or “shoot + trespasser + [name of state]”.

Looking at the almost daily searches about shooting trespassers that keep landing people on the Equine Law Blog, it would seem that we have a real issue in this country with trespassers. It would also seem that landowners do not feel that dialing 9-1-1 is going to solve the problem. 

Last weekend's bizarre horse-stabbing case from Pine Grove, California perhaps illustrates the trespassing problem. According to news reports, a man named Gaylord Neil Story, 59, trespassed onto his neighbor’s property, appeared at her door covered in blood, attempted to force his way into her home, chased her through a pasture, rummaged through her vehicle, and stabbed her 14 year-old Quarter Horse gelding. 

But this victim never shot at Story. Instead, she fled her residence and called 9-1-1. Sheriffs’ deputies arrived 12 minutes after the call.

At some point after sheriffs’ deputies arrived at the scene, Gaylord Story brandished a large butcher knife and advanced towards the officers. Deputies opened fire on Story in self defense. Story, who was struck by four rounds (two rounds each from two officers), was dead when medical personnel arrived. However, an autopsy also revealed several self-inflicted stab wounds, one of which would have been fatal.

Luckily, the victim was not injured. The horse was severely injured as a result of the stab wounds, but is expected to make a full recovery.

Reports indicate that the deputies who shot Story have been placed on administrative leave pending an investigation by the California Department of Justice. 

All of this raises some questions: 1) is the trespassing problem increasing because trespassers are no longer afraid of being shot at by landowners? 2) if even the sheriff’s deputies are being investigated for shooting Story (who would have probably died anyway due to self-inflicted stab wounds), what does this mean for landowners?

This prior post contains a summary when it’s permissible under Texas law to use deadly force against a trespasser.  My dad, a native Texan, always says, "I'd rather be judged by 12 than carried by 6."  Texas law basically says that If you reasonably believe you'll be "carried by 6" (i.e. dead) if you don't shoot, you're probably justified in shooting.

The facts surrounding the Story case seem to fit the bill of a case where the victim landowner could have legally opened fire on a trespasser (at least if the incident had occurred in Texas). But unfortunately for landowners, they probably subject themselves to an investigation (and possibly even a trial) if they choose to shoot a trespasser (no matter the circumstances). And would-be trespassers probably know this.

Disclaimer: I don’t specialize in criminal law…so don’t go shootin’ somebody based solely upon something you read on the Equine Law Blog!

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Guest Post: Minimum Warranties Applicable to Horse Sales in the European Union

Happy Tuesday, Equine Law Blog readers!  I hope you find this guest post by my friend and colleague, Dutch equine attorney Luc Schelstraete, both interesting and informative. 

"Pursuant to European legislation, a horse that is delivered to a buyer in a horse sale transaction needs to meet up to the purchase and sale terms agreed upon between seller and buyer. For example, if the parties agreed upon specific qualities of the horse, the horse needs to have these specific qualities at the time of sale. If a buyer can prove after the sale that the horse did not have these specific qualities at the time of sale, the seller can be held liable for this shortcoming. In cases where no specific qualities are agreed upon, and/or it is not discussed that the horse needs to meet specific criteria, the horse still needs to be suitable for so-called 'normal use'."

"What constitutes 'normal use' depends upon what the buyer may expect under the circumstances of each particular sale. Another factor used in Europe to determine whether a horse is suitable for 'normal use' is the amount of the agreed purchase price. In cases where, for instance, the horse is found to have been permanently lame at the time of sale, most courts in Europe will find that the horse was not suitable for 'normal use'."

 "In cases where the seller has guaranteed or expressly warranted specific characteristics or qualities, the horse needs to meet up with the features that were guaranteed or expressly warranted by the seller. In cases where the horse is found to have not possessed these guaranteed characteristics or qualities at the time of sale, the seller can be held liable.  When the seller makes a guarantee or express warranty about a horse, the buyer does not have to investigate whether the horse indeed has these qualities and the buyer may rely upon the seller’s representations. In other words, in cases of express warranties, courts in Europe will not hold it against the buyer that he did not investigate the seller’s representations about the guaranteed or warranted qualities."

When does EU law apply to a horse sale?  

"EU countries are required to revise their national statutes / codes, if necessary, so that they are compliant with EU legislation. In other words: EU member countries have to implement the EU legislation into their own statutes / codes. Therefore, because national statutes must comply with EU legislation, this EU law may apply to every horse sale where EU law or the law of an EU member country governs a sale.  Note:  the implementation of EU law is a minimum requirement for EU countries. EU countries can make their national statutes more specific.  If parties explicitly agree that Dutch law, for example, will apply to a horse sale, then Dutch law will indeed apply.  But indirectly, EU law will apply as well because Dutch law is based upon on EU legislation."

About the Author

Mr. Luc Schelstraete is the founder of European Equine Lawyers and Equestes. Both entities are based in Holland. Luc and his staff (6 attorneys and 5 office staff) specialize in international equine law. They assist clients in purchase and sale documentation and litigation involving horses purchased in Europe.

For further information, see: www.europeanequinelawyers.com and www.equestes.com.

 

Federal Judge in Florida Issues 80 Page Opinion in Polo Horse Case

You rarely ever see a trial court sign an 80-page order…especially in a horse case. 

But on September 12, 2011, U.S. District Judge Timothy J. Corrigan of the Middle District of Florida signed an 80-page order on a motion for permanent injunction in a case stemming from an April 2009 incident involving 21 Venezuelan polo horses that died in Florida. The 21 polo horses died after receiving a compound prepared by Franck’s Compounding Laboratory of Ocala, Florida. A link to the 80-page order can be found here.

In the lengthy order, Judge Corrigan denied the Food and Drug Administration’s petition for a permanent injunction to keep Franck’s from producing and distributing animal medications compounded from bulk ingredients without the FDA’s approval.

Judge Corrigan ruled that the FDA does not have the authority to regulate state-licensed veterinary pharmacy compounding, stating:

The FDA has long been on notice that its statutory authority to regulate traditional, state-licensed veterinary pharmacy compounding was questionable. It has decided to proceed with this enforcement action, asserting a ‘maximalist’ interpretation of its authority.”

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Race Horse Wardrobe Malfunction May Prove Costly to Owner

Texas Racing Commission v. Marquez, a recent opinion from the Austin Court of Appeals, involved a horse race where two horses owned by Javier Marquez were inadvertently wearing each other’s saddle cloth numbers. One of the horses suffering from this “wardrobe malfunction” finished second, and the race stewards disqualified both horses and redistributed the race purse.

When the Texas Racing Commission refused to hear Marquez’s appeal of the stewards’ decision, Marquez sued the Texas Racing Commission and its executive director, Charla Ann King.

Marquez won big in the trial court. The trial court declared that Ms. King acted in excess of her statutory authority by refusing Marquez’s appeal, by disqualifying Marquez’s horses, and by redistributing the race purse. The trial court also awarded Marquez his attorneys’ fees under the Uniform Declaratory Judgment Act, and ordered the second place race purse distributed to Marquez. The Racing Commission appealed the decision.

On appeal, the Austin Court of Appeals found that Ms. King did exceed her authority in denying Marquez’s appeal of the stewards’ decision and upheld Marquez’s attorneys’ fees award under the Declaratory Judgment Act. However, the Court of Appeals vacated and dismissed the portion of the trial court’s judgment that awarded the second place race purse to be distributed to Marquez.

The trial court’s logic: TheTexas Racing Commission has exclusive jurisdiction over the issue of the second place race purse. Marquez needs to exhaust his administrative remedies by moving forward with his appeal before the Texas Racing Commission that he fought for in the trial court. 

Ironically, the Texas Racing Commission (the same entity that Marquez sued and fought on appeal) will get to decide whether or not Marquez will get the purse that his horse won when it was wearing the wrong “outfit”. 

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Are You On the List of Horse Haters?

The issue of horse slaughter is on my mind today after reading a news story about the introduction of a U.S. Senate bill proposing the recommencement of horse meat inspection funding.  That's when I poked around on the Internet a bit and found the "Haters List".

In case you haven't seen it, the blog Wild Horse Haters & Horse Slaughter Promoters published a lengthy list of horse hatin’ people and groups (i.e. opponents of the horse slaughter ban in the U.S., according to the blog's publishers) so that the public can boycott them, their members, and their services.

A link to the Haters List can be found here.  The Haters List includes the American Association of Equine Practitioners (AAEP) and just about every major U.S. horse association, cattle association, and farm association.

Note:  the publisher(s) of the Haters List and the blog on which is appears remain(s) anonymous.

I am a life member of two associations on the Haters List: the American Paint Horse Association and the American Quarter Horse Association.  What about you?

Milt Toby, a colleague of mine in Kentucky, did a blog post a while ago about how the issue of horse slaughter has a way of dividing people. But can we draw general lines to determine who, in general, is in favor of laws allowing for the processing of horse meat in the U.S. versus who is against such laws? 

Upon review of the Haters List, it would seem to me that in general, those who support humane horse processing in the United States are those who, either directly or indirectly, are in the horse business.  This includes the AAEP, a national group of equine veterinarians whose mission includes "meticulous concern for the health and welfare of the horse". 

There are of course others who support horse processing in the U.S. who aren’t directly or indirectly in the horse business. One example is Fort Worth Star Telegram journalist Bob Ray Sanders.  Mr. Sanders’s recent editorial entitled “Congress Should Revisit Ban on Horse Slaughter” cites evidence from the recent Government Accountability Office report.

And surely there are some in the “horse business” who are in favor of government bans on processing horse meat in the U.S.

But assuming the Haters List is correct, it tells us a lot about where the “line in the sand” is drawn. The Haters List seems to indicate that, in general, most horse businesses and equine veterinarians are in favor of humane horse processing in the United States. Do you agree with this assessment? 

While you ponder this poignant question, I’ll leave you with a quote from Milt Toby’s blog this week:

I think the world would be a better place if horses were not being slaughtered for food anywhere.  I think the same thing about cows and pigs and sheep and chickens and tuna and salmon, and I think it’s logically and morally inconsistent to categorically oppose one without opposing all.  And no, I’m not a vegan."

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**19 SEP 2011 Clarification:  Out of all of my readers, only two individuals read this post and thought that I agreed with the publishers of the "Haters List" and that I don't believe that any animals should be processed for meat.  Although most people "got" where I was coming from on this issue, this alterted me to the fact that I may need to clarify some things.  I was "poking fun", tongue in cheek, at the anonymous publishers of the "Haters List" because I feel that their methods greatly reduce their credibility.  I was also asking if anyone agreed with me that it seems that most equine vets and most people who are in the horse business support humane processing.  As far as Milt Toby's quote goes, I read it as saying that Milt believes you can't categorically oppose humane horse slaughter unless you also oppose the humane slaughter of other animals.**

Alleged Cow Owner Wins Appeal of Bosque County Stock Law Case

In a rare appellate opinion dealing with a Texas stock law, the Waco Court of Appeals recently found in favor of Bradley Evans, an “alleged” cow owner in the case of Evans v. Hendrix

The memorandum opinion was rendered by the Honorable Al Scoggins, a fomer district judge in my home town of Waxahachie, Texas.  According to Justice Scoggins's website, he is a horse owner.

 

Admittedly, the case does not involve a horse. But the fact scenario is one which could have easily involved a horse, and we can safely assume that the court of appeals decision would not have differed had the case involved a horse. 

The basic facts are as follows: Trucker Charles Hendrix collided with a cow on Highway 174 in rural Bosque County, damaging his big rig and the military cargo he was hauling (but Hendrix was not injured). Hendrix sued Evans, alleging that Evans was the owner of the cow in question. Hendrix asked the trial court to award him lost wages and damages to the tractor-trailer and cargo. After a bench trial, the trial court awarded Hendrix $10,000 in damages.

Evans was an "alleged" cow owner because he never admitted that he owned the cow. However, shortly after the accident, Hendrix observed Evans dragging the cow’s carcass up a nearby street with his tractor after having cut out the cow’s back straps.

On appeal, the Waco Court of Appeals reversed Hendrix’s award and ruled that Hendrix “take nothing”. What did Hendrix do wrong? According to the court:

  • Hendrix never pleaded or alleged that the dispute involved any stock laws [though my research indicates that Bosque County has enacted several stock laws related to cattle for different parts of the county between 1901 and 1939]. Hendrix might have added some ammunition to his case by pleading liability under the stock laws, assuming that the accident occurred in one of the areas of Bosque County where a stock law restricting the free roaming of cattle had been enacted.
  • Hendrix never argued that Evans violated any statutory provision. Because the stock law wasn’t raised, the court gave Hendrix the benefit of the doubt and assumed that Hendrix was relying on Section 143.102 of the Texas Agriculture Code, which deals with livestock roaming on the right-of-way of a highway. Under Section 143.102, the plaintiff must prove that a defendant knowingly permitted the livestock to roam on the highway. Hendrix put on no evidence that Evans knowingly allowed the cow to roam at large.

I think the Waco Court of Appeals got this right, given what appears to have been in the record. Hendrix may have survived appeal had he asserted liability under the local stock law on the trial court level, but he did not. 

Want more general info on Texas stock laws? Here’s a link to a great paper written and presented this year by Alex Eyssen at the Texas State Bar Agricultural Law CLE.

See also these blog entries on the topic of stock laws on the Equine Law Blog.

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Sale Documentation Tips for International Horse Sales Involving a Party in the United States

Happy Thursday on a short Labor Day holiday week, everybody!

Today's post is a reprint of a "blurb" I did for a colleague's newsletter this week.  My colleague, Luc Schelstraete, is a top-notch equine attorney practicing in the Netherlands and his firm is called European Equine Lawyers.  Luc and I are pictured below at the "Poco Bueno" brand clothing booth at the Americana 2011 trade show in Augsburg, Germany.

There is no federal law in the United States that uniformly governs documentation and disclosure requirements for horse sales. Only three U.S. states have enacted statutes specific to horse sale documentation and disclosure requirements (California, Florida, and Kentucky).

In general, the horse sale statutes in California, Florida, and Kentucky [click hyperlinks to view statute / rules] all require the following for most private treaty horse sales:

1)         A written bill of sale that is a) signed by both parties, and b) sets forth the purchase price for the horse;

2)         Written disclosure to both purchaser and seller of sales commissions in an amount or value of $500 or more; and

3)         Written consent by both purchaser and seller if someone is acting as a dual agent (i.e. a sales agent for both the buyer and the seller of the horse).

The penalties for failure to comply with these statutes can be harsh (i.e. “treble damages”). Determining which state’s law might apply to an international horse sale involving a buyer or seller in the United States might be tricky for a party based in Europe. 

Due to these concerns, parties to all international horse sales involving a party in the United States would be well advised to at least comply with points 1-3 above and further stipulate in writing which state or country’s law will apply in the event of a dispute arising from the horse sale. 

Parties are further advised to review Florida’s rules carefully if they might apply to a sale. Florida’s rules contain more extensive requirements for horse sale documentation and disclosures than those found in Kentucky and California’s statutes."

As a P.S., don't forget that tomorrow (September 9) is the deadline to nominate blogs for the "ABA Best 100 Law Blogs" and I'd appreciate your vote.  See my bleg from August 11 for more info!

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Employee v. Independent Contractor: Pitfalls of Misclassification (Part 2)

Hello all!  I'm back stateside after a brief business trip to Germany.  Unfortunately, the Equine Law Blog went "postless" last week due to a bad internet connection in the Hotel Dorint in Ausgburg, Germany.  Hotel management reported to me that the bad connection was unavoidable and due to the fact that the walls of the hotel are about 2 feet thick and made of concrete!!

In any event, I am happy to see that I seem to have brought some cooler temeratures back with me from Germany!

Last week I was at the Americana Horse Show in Augsburg, Europe's biggest Western horse show.  Below is a photo I took of my friend Uwe Roeschmann, a German cutting horse trainer whose training facility is located in Gainesville, Texas.  The photo shows Uwe entering the arena on September 1, 2011 and preparing to work cattle in the European Cutting Championship Open Finals.  As you can see, he was showing in front of a packed house!

I hope you find the following guest post material helpful.  It is Part II of a series on employer vs. independent contractor status by  employment law specialist Russell Cawyer, publisher of Texas Employment Law Update.  Enjoy! 

In Texas, the test for determining independent contractor status is a multifactor analysis that centers on the economic realty of the relationship.  The focus is on whether the worker is, as a matter of economic reality, dependent on the alleged employer or in business for himself.   This inquiry includes whether the employer has the right to control the progress, details, and methods of operations of the work.  A nonexclusive list of factors that are usually considered in this analysis include: 

  • the degree of control exercised by the alleged employer;
  • the extent of the relative investments of the work and the alleged employer;
  • the degree to which the worker's opportunity for profit or loss is determined by the alleged employer;
  • the skill and initiative required in performing the job;
  • the permanency of the relationship.

No one factor is determinative. If a court or taxing authority determines that the independent contractor was misclassified, the employer may be responsible for failing to provide the benefits the employee would have otherwise enjoyed had he been properly classified as an employee (e.g., participation in certain employee benefit plans and unpaid overtime).  Depending on the size of the workforce and the work it engages in, these sums can be significant.  Consequently, operations making extensive use of independent contractors should review these relationships carefully to ensure that the workers are properly classified and incorporate changes in the relationships that enhance the ability to defend that classification."

Follow Russell Cawyer on Twitter @RussellCawyer

Follow Alison Rowe on Twitter @alisonmrowe