This post is the second in a series on each of the Mississippi State Cruelty to Animals Statutes
and how they serve or fail justice. Responses are welcomed. Together we will understand how
to utilize the laws we now have to protect animals, and why we must unite to improve the
statues that defy justice. Our comments follow your reading of the statute.
Title 97. Crimes. Chapter 41. Cruelty to Animals. Title 97. Crimes. Chapter 29. Crimes Against
Public Morals and Decency.
§ 97-41- 2. Seizure of mistreated animal
(1) All courts in the State of Mississippi may order the seizure of an animal by a law enforcement agency, for its care and protection upon a finding of probable cause to believe said animal is being cruelly treated, neglected or abandoned. Such probable cause may be established upon sworn testimony of any person who has witnessed the condition of said animal. The court may appoint an animal control agency, agent of an animal shelter organization, veterinarian or other person as temporary custodian for the said animal, pending final disposition of the animal pursuant to this section. Such temporary custodian shall directly contract and be responsible for any care rendered to such animal, and may make arrangements for such care as may be necessary.
Upon seizure of an animal, the law enforcement agency responsible for removal of the animal shall serve notice upon the owner of the animal, if possible, and shall also post prominently a notice to the owner or custodian to inform such person that the animal has been seized. Such process and notice shall contain a description of the animal seized, the date seized, the name of the law enforcement agency seizing the animal, the name of the temporary custodian, if known at the time, and shall include a copy of the order of the court authorizing the seizure.
(2) Within five (5) days of seizure of an animal, the owner of the animal may request a hearing in the court ordering the animal to be seized to determine whether the owner is able to provide adequately for the animal and is fit to have custody of the animal. The court shall hold such hearing within fourteen (14) days of receiving such request. The hearing shall be concluded and the court order entered thereon within twenty-one (21) days after the hearing is commenced.
Upon requesting a hearing, the owner shall have three (3) business days to post a bond or security with the court clerk in an amount determined by the court to be sufficient to repay all reasonable costs sufficient to provide for the animal's care. Failure to post such bond within three (3) days shall result in forfeiture of the animal to the court. If the temporary custodian has custody of the animal upon the expiration of the bond or security, the animal shall be forfeited to the court unless the court orders otherwise.
(3) In determining the owner's fitness to have custody of an animal, the court may consider, among other matters:
(a) Testimony from law enforcement officers, animal control officers, animal protection officials, and other witnesses as to the condition the animal was kept in by its owner or custodian.
(b) Testimony and evidence as to the type and amount of care provided to the animal by its owner or custodian.
(c) Expert testimony as to the proper and reasonable care of the same type of animal.
(d) Testimony from any witnesses as to prior treatment or condition of this or other animals in the same custody.
(e) Violations of laws relating to animal cruelty that the owner or custodian has been convicted of prior to the hearing.
(f) Any other evidence the court considers to be material or relevant.
(4) Upon proof of costs incurred as a result of the animal's seizure, including, but not limited to, animal medical and boarding, the court may order that the animal's owner reimburse the temporary custodian for such costs. A lien for authorized expenses is hereby created upon all animals seized under this section, and shall have priority to any other lien on such animal.
(5) If the court finds the owner of the animal is unable or unfit to adequately provide for the animal, or that the animal is severely injured, diseased, or suffering, and, therefore, not likely to recover, the court may order that the animal be permanently forfeited and released to an animal control agency, animal protection organization or to the appropriate entity to be euthanized or the court may order that such animal be sold at public sale in the manner now provided for judicial sales; any proceeds from such sale shall go first toward the payment of expenses and costs relating to the care and treatment of such animal, and any excess amount shall be paid to the owner of the animal.
(6) Upon notice and hearing as provided in this section, or as a part of any preceding conducted under the terms of this section, the court may order that other animals in the custody of the owner that were not seized be surrendered and further enjoin the owner from having custody of other animals in the future.
(7) If the court determines the owner is able to provide adequately for, and have custody of, the animal, the court shall order the animal be claimed and removed by the owner within seven (7) days after the date of the order.
(8) Nothing in this section shall be construed to prevent or otherwise interfere with a law enforcement officer's authority to seize an animal as evidence or require court action for the taking into custody and making proper disposition of animals as authorized in Sections 21-19- 9 and 41-53- 11.
(9) For the purposes of this section the term "animal" or "animals" means any feline, exotic animal, canine, horse, mule, jack or jenny.
Laws 1997, Ch. 575, § 1, eff. July 1, 1997. Amended by Laws 2001, Ch. 497, § 1, eff. from and after passage (approved March 24, 2001); Laws 2003, Ch. 357, § 1, eff. from and after passage (approved March 12, 2003).
Without a doubt, MSSS 97-41- 2 is one of the best written seizure statutes, but has one flaw. It fails to protect birds, reptiles, rodents, amphibians, and kept insect (unless classified as exotic), and farmed animals. Prior to the enactment of this statute all animals were seized as “evidence”. This put a terrible burden on agents of the court, usually humane groups who took on the care of the animals, as court could drag on, but now many of the species once protected by seizure have little hope.
MSSS 97-41- 2 is the one statute that must be fully understood. This statute is not a criminal code - it is a civil action. As in a child or elder person’s custody case this statute allows for the seizure of and disposition of, custody determination, in as little as 5 business days if the guardian, owner, custodian, keeper of the seized animal(s) fails to ask for a hearing. If a hearing is requested a bond must be paid within 3 working days (5 days maximum). The court then has 14 days to hear the custody case. The maximum number of days from seizure to disposition of the animals is 26. It seldom takes 26 days.
The most important element for law enforcement and the court agent for the care of the animals to keep in mind is that this is a civil case, not a criminal one. The beauty is that if the keeper of the animals is simply mentally or physically unable to care for the animals but doesn’t understand their inability, the person simply loses the animals without having to be prosecuted. AAIM advises that no cruelty charges be filed until the custody of the animal(s) is determined, as judges inexperienced in the care and need of a species may affect their decision to return the animal(s) to the “owner”. Losing a custody case while a cruelty charge is pending could result in the criminal case being dismissed, remanded to the file, or a judgment of not guilty on the grounds that the evidence used in the seizure case couldn’t substantiate the seizure or a decision to grant custody to a humane organization.