California law shields wildland arsonists from animal cruelty charges. Here’s how

California law shields wildland arsonists from animal cruelty charges. Here’s how

Photo of Andres Picon

As the Caldor Fire swept through Sierra communities over the summer, Henry Brzezinski helped lead a sprawling team of animal welfare officers and others who rescued roughly 1,800 animals — everything from cats and dogs to lizards, exotic birds and koi fish — that evacuating residents had left behind.

Some were injured, having sustained burns or suffering from smoke inhalation. Other animals, including a burned black bear, died.

Rescue efforts like the one led by Brzezinski, chief of El Dorado County Animal Services, are crucial to prevent animal suffering during wildfires, but animal welfare advocates say more must be done: They want people who start wildfires to be held accountable for the suffering of affected animals.

While most wildfires are the result of natural or accidental causes, hundreds of wildfires each year are intentionally set by arsonists.

“If people are deliberately setting fires and they could subsequently be charged with murder or manslaughter, then the implications for the animals need to be considered as well,” said Jill Tucker, CEO of the California Animal Welfare Association. “There’s still definitely a cost of life and a tremendous amount of suffering.”

In recent years, individuals and organizations such as People for the Ethical Treatment of Animals have heightened calls for prosecutors to file animal cruelty charges against wildland arsonists, most recently for the Hopkins and Fawn fires, the latter of which a Bay Area woman is accused of starting. But given the way state animal cruelty law is written, legal experts say, filing those charges isn’t generally possible.

Injuring or killing wildlife “is, in my opinion, a known risk of setting particularly a large-scale forest fire,” said Stephanie Bridgett, the Shasta County district attorney, whose office has charged Alexandra Souverneva of Palo Alto with arson on suspicion of starting the Fawn Fire in September. “Unfortunately, California law does not support that.”

The state’s animal cruelty statutes dictate that for someone to be criminally charged with animal cruelty, they have to have acted maliciously — with intent to injure or kill animals — or they must have had custody or charge of the animals, Bridgett said. In most wildland arson cases, neither of those two conditions is met.

And while criminal negligence or recklessness can be enough to prosecute an arsonist if the fire they start injures or kills people, that legal standard does not apply to California’s animal cruelty law. According to the Judicial Council of California’s 2020 jury instructions for penal code section 597(a), the animal cruelty statute, defendants can only be found guilty of animal cruelty if they acted maliciously.

El Dorado County veterinarians Margie Fansler and Melissa Gates treat a cat that suffered burns to its paws during the Caldor Fire over the summer.

El Dorado County veterinarians Margie Fansler and Melissa Gates treat a cat that suffered burns to its paws during the Caldor Fire over the summer.

El Dorado County Animal Services

Courtney Lee, a professor of law and legal practice at the McGeorge School of Law in Sacramento who has been teaching animal law since 2014, said she thinks state law does not allow for negligence or recklessness to be the determining factor in animal cruelty cases out of deference to defendants, who are innocent until proven guilty.

If recklessness or negligence were the legal standards for animal cruelty, then there would be circumstances in which a person could technically be charged with animal cruelty, even though most people would probably not deem them cruel, such as if a driver hit a dog that ran into traffic.

“For the criminal law to hold someone in that situation liable seems to be contrary to the intent of our legal system, really,” Lee said. “Not that a prosecutor would go after someone in that situation, but the fact that the law would allow it seems a little bit contrary to what the drafters would have intended.”

People who neglect to feed or take care of their pets could face animal cruelty charges because they do have custody of the animals and because the abandonment of their own animals can be interpreted as malicious, Lee said. They are typically charged with misdemeanor, not criminal, animal cruelty.

Similarly, someone who sets a house or barn on fire knowing that there are animals inside could face animal cruelty charges for acting maliciously.

In the case of the Fawn Fire, which burned more than 8,500 acres near Redding, the final investigative report had not been completed by early October, and Bridgett, the district attorney, said she did not know whether any animal victims had actually been identified. She said she does not plan on filing animal cruelty charges and has acted similarly after past requests for charges from PETA.

For many animal rights advocates, California’s animal cruelty laws do not go far enough, shielding wildland arsonists from legal consequences for effectively causing injury or death to animals. California is ranked eighth in the nation in terms of the strength of its animal cruelty laws, but there is still room for improvement, said David Rosengard, managing attorney of the Animal Legal Defense Fund’s criminal justice program.

Oakland Zoo veterinary technician Linden West steadies Captain Cal, a 6-week-old mountain lion cub, during an examination for severe burns suffered in the Zogg Fire in Shasta County in October 2020.

Oakland Zoo veterinary technician Linden West steadies Captain Cal, a 6-week-old mountain lion cub, during an examination for severe burns suffered in the Zogg Fire in Shasta County in October 2020.

Paul Chinn/The Chronicle 2020

In Oregon, for example, a people can be charged with animal abuse if they “knowingly, intentionally or recklessly cause serious physical injury to an animal,” according to that state’s statutes. Last year, PETA requested that a man accused of intentionally starting part of the Almeda Fire in Oregon be charged with animal abuse for allegedly causing the deaths of several pets. The man was subsequently charged with eight counts of misdemeanor first-degree animal abuse, according to the Mail Tribune.

A revised version of the California law in which custody and intent are less relevant could facilitate the prosecution of wildland arsonists, which could pave the way for a renewed focus on animal rights, as well as restitution for injured animals’ medical expenses, Rosengard said.

“In some ways, that would be huge,” he said. “It would send a strong message that we are, as a society and as a legal system, committed to treating animals like living creatures — as beings and not as things — and that we’re committed to doing that consistently.”

“We know that in criminal cases there are victims, and the experiences of victims matter,” Rosengard said.

At the El Dorado County Animal Services shelter, there are animals that are still notably anxious, weeks after they were recovered from the aftermath of the Caldor Fire. Brzezinski and his staff regularly let some of them out onto their exercise yards to get some much-needed movement and socialization, he said.

There doesn’t appear to be any precedent in California for wildland arsonists being charged with animal cruelty, but Brzezinski is hopeful that that could change soon.

“Maybe that’s what needs to happen; maybe there needs to be a test of the law in that respect,” he said. “That would be good for the animals and the animal owners, too, because their animals have suffered.”

Andres Picon is a San Francisco Chronicle staff writer. Email: andy.picon@hearst.com Twitter: @andpicon