Request By:
Katie Marie Brophy
Fischer, Thomas, Brophy & Shake
713 West Main Street
Louisville, Kentucky 40202
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Grant Winston, Assistant Attorney General
You requested by letter of 4 January 1991 a formal opinion of this office about the legality of shakeout seasons in the Commonwealth, considered in light of KRS 525.125 and 525.130.
Shakeout season, generally speaking, is a definite period of the year during which the taking of opossum and raccoon by the use of dogs alone is permitted. According to your description of what occurs during a shakeout, hunters and their dogs chase opossum and raccoon up trees, then coerce (or shakeout) these animals from the trees, whereupon the opossum or raccoon fight against the dogs in an unsuccessful effort to save their lives which are ended "by being torn apart by dogs. "
KRS 525.125 and 525.130 are statutes against cruelty to animals.
OPINION OF THE ATTORNEY GENERAL
KRS 525.125 and 525.130 read as follows:
525.125. Cruelty to animals in the first degree. -- (1) The following persons are guilty of cruelty to animals in the first degree whenever a four-legged animal is caused to fight for pleasure or profit:
(a) The owner of the animal;
(b) The owner of the property on which the fight is conducted if the owner knows of the fight;
(c) Anyone who participates in the organization of the fight.
(2) Cruelty to animals in the first degree is a Class D felony.
525.130. Cruelty to animals in the second degree. -- (1) A person is guilty of cruelty to animals in the second degree when except as authorized by law he intentionally or wantonly:
(a) Subjects any animal to or causes cruel or injurious mistreatment through abandonment, participates other than as provided in KRS 525.125 in causing it to fight for pleasure or profit, (including, but not limited to being a spectator or vendor at an event where a four legged animal is caused to fight for pleasure or profit) mutilation, beating, torturing, tormenting, failing to provide adequate food, drink, space or health care, or by any other means; or
(b) Subjects any animal in his custody to cruel neglect; or
(c) Kills any animal.
(2) Nothing in this section shall apply to killing of animals;
(a) Pursuant to a license to hunt, fish or trap;
(b) Incident to the processing as food or for other commercial purposes;
(c) For humane purposes; (d) For any other purpose authorized by law.
(3) Cruelty to animals in the second degree is a Class A misdemeanor.
KRS 525.130 expressly exempts its application from "the killing of animals: pursuant to a license to hunt, fish or trap. " Yet, it also prohibits subjecting any animal to "cruel or injurious mistreatment through . . . mutilation, beating, torturing, tormenting . . . or by any other means" "except as authorized by law." KRS 525.125 prohibits causing four-legged animals "to fight for pleasure or profit." As these would be the result caused by participation in a shakeout as you described it, it would appear at first glance that such activity would be illegal cruelty to animals by either or both of the above statutes. However, any further research into these and related statutes, and into the hunting statutes, begins to reveal a series of reasons why participation in the shakeout seasons is not illegal cruelty to animals under either statute.
The first true light is cast on this subject by observing that the shakeout season is not a practice permitted by the Department of Fish and Wildlife Resources as you indicated in your letter requesting this opinion, but is permitted by the legislature in KRS Chapter 150, Fish and Wildlife Resources. 1 KRS 150.175(g) provides for the issuance of a statewide hunting license which authorizes the holder to "take or pursue wild animals" by various methods including the use of dogs alone. Taking wildlife by the use of dogs alone is also provided for by KRS 150.360(1).
"Take," as used throughout KRS Chapter 150:
. . . includes pursue, shoot, hunt, wound, catch, kill, trap, snare, or capture, wildlife in any way and any lesser act designed to lure, attract, or entice for these purposes; and to . . . use any . . . animal . . . which may reasonably be expected to accomplish these acts; or to attempt to do such acts or to assist any other person in the doing of or the attempt to do such acts.
KRS 150.010(34).
"Wildlife, " as used throughout KRS Chapter 150:
. . . means any normally undomesticated animal, alive or dead, including without limitations any wild mammal . . . or other terrestrial . . . life . . . and including any . . . offspring thereof . . . .
KRS 150.010(37).
KRS 150.360(5) goes even so far as to make opossum and raccoon two of the few species which are permitted to be taken at night with lights or other means designed to blind them.
Therefore, according to statutes and subject to license and regulations, dogs alone may be used to hunt, wound, and kill opossum and raccoon. Opossum and raccoon fighting against the dogs "may reasonably be expected to accomplish these acts." (KRS 150.010(34)). So, participation in shakeout seasons as you described the activity, and as it is regulated by the Department at 301 KAR 2:110, is statutorily authorized by KRS Chapter 150.
We have now arrived at a point where we can see half of the answer to your question. Shakeouts, as we have seen, are authorized by law; hence, legal participation in them cannot be a violation of KRS 525.130 because subsection (1) of that statute expressly excepts from its application any activity "authorized by law." Too, since shakeouts are conducted pursuant to a hunting license, killing animals in a legal shakeout is further exempted by subsection (2)(a) of the statute.
KRS 525.125 does not have the same express exceptions as does KRS 525.130, and quite succinctly makes it criminal to cause a four-legged animal "to fight for pleasure or profit." Yet, there remain numerous reasons why participation in the shakeout season cannot be regarded as violative of this section.
KRS 525.125(1)(a) subjects to prosecution the "owner" of the fighting animal. No one "owns" the wildlife of this Commonwealth in the proprietary sense intended by this statute. It would be ridiculous for law enforcement officers to try to apprehend the "owner" of wild opossum or raccoon.
KRS 436.610 mandates that:
All animals of the same species, which are on the property when an animal is caused to fight for pleasure or profit, in violation of the provisions of KRS 525.125 and 525.130, shall be confiscated and turned over to the county dog warden appointed pursuant to KRS 258.195, if there are reasonable grounds to believe that such animals were on the property for the purpose of fighting.
Again, it would be a ridiculous opinion to hold that law enforcement officers are to scour the wilds in search of all opossum or raccoon, determine if it would be reasonable to conclude their presence was for a shakeout fight, and, if so, "confiscate" them (from whom?), and deliver them to the doorstep of the local dog warden.
KRS 525.125(1)(c) subjects to prosecution "anyone who participates in the organization of the fight. " Any opinion that shakeouts are illegal cruelty to animals in the first degree would necessarily insinuate that the governor, general assembly, officers and employes of the Department of Fish and Wildlife Resources, all have undertaken a great deal of criminal activity by organizing virtually every shakeout in the Commonwealth. It would, in other words, be a ridiculous opinion to hold that the legislature would take the same activity, criminalize it in one chapter (KRS 525), and in another (KRS 150) provide for its licensing and regulation. It would also be an opinion contrary to one of the judiciary's foremost rules of statutory construction; that is, the legislature is presumed not to intend to do anything foolish.
Commonwealth v. Anderson, Ky.App., 694 S.W.2d 465 (1985).
We think we can now answer the second half of your question by stating that legal participation in a shakeout cannot be a violation of KRS 525.125 for the above reasons.
We add in closing that KRS 446.010(9) defines "cruelty" to animals to include acts or omissions whereby " unjustifiable physical pain, suffering, or death is caused or permitted." (Emphasis added.) Having a license, pursuant to statute (KRS 150.175) to cause pain, suffering or death to an animal makes doing so justifiable, pursuant to statute (KRS 446.010). Doubts in the construction of a penal statute will be resolved in favor of lenity and against a construction that would produce extremely incongruous results.
Commonwealth v. Colonial Stores, Ky. 350 S.W.2d 465 (1961). What could be more incongruous than criminalizing and licensing the same behavior?
Footnotes
Footnotes
1 The practice, permitted by the legislature through statutes enacted, is regulated by the Department at 301 KAR 2:110.