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There was a very interesting case out of the Ninth Circuit recently on whether killing an opossum constitutes a crime. While this is a Ninth Circuit case and we have a separate blog for that, the case presents some interesting issues of California law.
Is killing an opossum a crime in California? What are the limits on animal cruelty in California, when the animal is a "pest"?
Back in 2002, the Los Angeles Times had a long article on this question, showing two cases of people arrested for killing opossums. In one case, a man was acquitted of animal cruelty. In the other, a man was convicted. The focal point of the case was whether the defendant had malicious intent.
The recent Ninth Circuit case was a qualified immunity case stemming from the arrest of a father and son who beat an opossum to death with a shovel. At the crux of the case, however, was the question as to whether officers were justified in arresting the father and son on charges of animal cruelty.
To answer that question, the case drew on California law and other California cases.
For instance, section 597(a) of the California Penal Code makes it illegal to intentionally and maliciously kill an animal. However, a narrow exception in the Penal Code says that it's acceptable to kill an animal if such animal is dangerous to life, limb or property.
So where do opossums fall? Local and county websites don't always address opossums. While they do mention section 597 of the Penal Code, they don't always specify whether opossums fall into the category of "dangerous to life, limb and property."
That's where California regulations come in. California regulations say that opossums are considered dangerous.
Going back to the two earlier cases, which were heard in state court, the men were arrested and tried for killing opossums. It will be interesting now to see whether the federal appeals case will have any effect on the way cities and counties handle future cases of opossum abuse.
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