In March 2008 officers were called to the home of a man and the man’s son after someone called to report that a man and his son had beaten a mother opossum with a shovel. When they arrived, officers found a seriously injured adult mother opossum and 3 dead baby opossums (joeys). According to statements taken at the scene, the mother opossum was fighting with the suspects’ dogs in the backyard of the suspects’ home. At some point one of the suspects placed a laundry basket over the opossum and pushed/dragged the opossum from the backyard to the front yard and driveway.
One of the two suspects used a shovel to flip the basket over. Someone touched the opossum with the shovel and the opossum, which had been “playing dead,” jumped up and began hissing and running around in circles. The opossum then crossed the street. A witness told the police that one of the suspects struck the opossum in the head with a shovel 3 times, while the other suspected aided him.
The suspect(s) denied hitting the opossum with a shovel.
The police officers arrested the suspects for cruelty to animals. The suspects sued the city and the arresting officers for false arrest, saying that while they didn’t beat the opossum(s), even if they had, beating an opossum with a shovel doesn’t constitute cruelty to animals and, therefore, they should never have been arrested.
The court acknowledged that in California the law prohibits the intentional and malicious wounding or killing of animals, and that the word “animal” is defined as being “any dumb creature.” In its unpublished opinion, however, the court said that while the law in California prohibits intentionally and maliciously killing animals, that law doesn’t apply to opossums because another law gives people the right to destroy animals “known as dangerous to life, limb, or property” and opossums fall into that category.
The court said that the officers “had no probable cause to arrest the suspects because the act the officers believed they had committed – trying to kill the opossum by hitting it with a shovel – isn’t a crime.” Because “a reasonable officer could not have believed the arrests of the suspects were lawful,” the arrests “violated the plaintiff’s constitutional rights.” Since the court held that the officers had no right to the immunity, which is afforded to officers who are lawfully acting within the course and scope of their duties, the officers can be personally sued.
There are people who believe that, published or unpublished, when law enforcement hears about this case they will be reluctant – even afraid – to arrest someone for animal cruelty if the victim animal in the case is something other than the typical animals people have as pets, like cats and dogs.
The case raises other issues: Are possums more dangerous to life, limb, or property than feral cats that may kill birds and destroy flowerbeds and cars they climb on? Are opossums more dangerous to life, limb, or property than raccoons? Than pigeons? How about rabbits? Will it become open season on opossums and other not-so-cute animals like rats, or pigeons as a result of this case?
And for the record, people HAVE been charged and prosecuted for animal cruelty where the victim was an opossum.
How do YOU feel about this case? Do you think the court made the right decision? Should the officers lose their immunity? Should the suspects get off so easily (or at all)?
TELL ME WHAT YOU THINK NOW…
 An unpublished opinion cannot be cited to or mentioned by attorneys in court.