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5.40.050 Animal control and restraint.
A. “Animal” means every nonhuman species of the animal kingdom, both domestic and wild.
B. “Animal-at-large” means any animal off the premises of the owner and not under the direct control of a person capable of controlling the animal.
C. “Animal control officer” means any person designated by the municipal government as a law enforcement officer for the purpose of enforcing the provisions of this chapter.
D. “Animal shelter” means any facility operated by a humane society, nonprofit organization, or government agency or its authorized agents, for the purpose of impounding animals under the authority of this chapter or state law for care, confinement, return to owner, adoption, or euthanasia.
E. “Bite” means to be seized by an animal with the teeth or jaws so that a person or animal has been nipped, gripped, wounded, or pierced.
1. “Professional” means any person who breeds animals for profit or who produces more than two litters of animals in any one calendar year.
2. “Hobbyist” means any person who breeds animals as a hobby, producing not more than two litters in any one calendar year.
G. “Cat” means any domesticated member of the animal species Felis catus.
H. “Commercial animal establishment” means any pet shop, grooming shop, guard dog training facility, animal auction, riding school or stable, zoological park, circus, performing animal exhibition, boarding or breeding kennel, or other establishment which handles live animals for profit except commercial ranching operations.
I. “Control” means an animal must be on a leash, suitable for the activity involved in, controlled by a person physically competent to control the animal; or within the property limits of its owner or harbored or upon the premises of another person with the consent of that person.
3. Engages in or is trained for animal fighting as described and prohibited in Section 18-9-204, C.R.S.
K. “Dog” means any member of the animal species Canis familiaris or a domesticated animal related to the fox, wolf, coyote, or jackal which is used as a pet or service animal.
L. “Domestic animal” includes: dogs, cats, domesticated sheep, horses, cattle, goats, swine, fowl, ducks, geese, turkeys, confined domestic hares and rabbits, pheasants, and other birds; and animals raised and/or maintained in confinement, including small, harmless pet animals, such as species of aquarium fish, cage birds, and certain rodents, such as mice, hamsters, and guinea pigs.
M. “Dwelling unit” means any building or portion thereof which contains living facilities, including provisions for sleeping, eating, cooking, and sanitation for not more than one family.
N. “Euthanasia” means a death brought about by any method which produces rapid loss of consciousness resulting in a painless death.
O. “Feral cat” is defined as a cat born and raised in the wild, or who has been abandoned or lost and turned to wild ways in order to survive.
P. “Kennel or cattery” means any premises wherein any person engages in the business of boarding, breeding, buying, letting for hire, training for a fee, or selling dogs or cats.
Q. “Licensing authority” means the municipal governing body or anybody designated by the municipal governing body to have authority to promulgate rules pursuant to this chapter and to enforce the provisions of this chapter.
R. “Owner” means any person, partnership, or corporation owning, keeping, harboring, possessing, or having custody or control of one or more animals. “Harboring” an animal includes providing food or shelter for three consecutive days or more.
S. “Person” means any individual, firm, corporation, partnership, association, trust, estate, or other legal entity.
T. “Pest species” means all animals commonly known as starlings, rock pigeons, skunks, prairie dogs, black and Norway rats, common house mice, and all insects or spiders generally considered pests.
U. “Pet” means any animal kept for pleasure rather than utility, especially any animal of a species that has been bred and raised to live in or about the habitation of humans and is dependent on people for food and shelter.
V. “Pet shop” means any person, partnership, or corporation, whether operated separately or in connection with another business enterprise that buys, sells, or boards any species of animal.
W. “Vicious animal” means any animal that, without provocation, bites or attacks humans or other animals; approaches any person or other animal in a vicious or terrorizing manner or in apparent attitude of attack, whether or not the attack is consummated or is capable of being consummated; or has acted in a manner that causes or should cause its owner to know that it is potentially vicious.
X. “Wild animal” means any animal, including those born or raised in captivity, except for human beings and domestic animals. (Ord. 9-2014 § 1; Code 1997 § 5-4-1).
1. License Requirement. Any person owning, keeping, harboring, or having custody of any dog or cat over six months of age within this municipality must obtain a license as herein provided.
2. Application. Written application for licenses, which shall include name and address of applicant, description of the animal, the appropriate fee, and rabies certificate issued by a licensed veterinarian or anti-rabies clinic, shall be made to the licensing authority.
3. License Period. If not revoked, licenses for the keeping of dogs and cats shall be valid for a period of one year. Such license will be renewed annually. The annual licensing period shall begin on January 1st.
A license issued prior to June 1, 2016, will expire May 31, 2016, with a license issued after June 1, 2016, having the costs prorated for the remainder of the calendar year 2016 as per the city fee schedule.
4. Circumstances Requiring Application. Applications for licenses must be made within 30 days after obtaining a dog or cat six months of age or older, or when a cat or dog in one’s possession becomes six months of age. This requirement does not apply to a nonresident keeping a dog or cat within the municipality for 90 days or less.
5. Exceptions. License fees shall not be required for certified governmental police dogs or service animals. They shall be licensed for identification purposes.
6. Additional Regulations. The licensing authority may promulgate other regulations governing the issuance of licenses. Such regulations may include requirements for human care of animals and other requirements consistent with this chapter and other applicable law. The licensing authority may amend such regulations from time to time as is deemed desirable for the preservation of the public health and welfare and to prevent animal cruelty.
7. Tags. Upon acceptance of the license application, fee, and agreement to follow all applicable regulations, the licensing authority shall issue a durable tag, stamped with an identifying number and the year of issuance. Tags should be designed so that they may be conveniently fastened or riveted to the animal’s collar or harness. Dogs and cats must wear the identification tags issued for them, and not that of any other, at all times when off their owners’ premises. The licensing authority shall maintain a record of the identifying numbers of all tags issued and shall make this record available to the public at all times.
8. Fee Schedule. Licensing fees shall be set by city council and recorded by resolution.
9. Duplicate Licenses. A duplicate license may be obtained upon payment of a replacement fee, set by city council and recorded by resolution.
10. License Limitation. No person may use any license for any animal other than the animal for which it was issued. (Ord. 5-2016 § 1; Ord. 9-2014 § 1; Ord. 7-2011 §§ 1, 2; Code 1997 § 5-4-2).
A. Diseased Animals. No domestic animal afflicted with a contagious or infectious disease shall be allowed to run at large or to be exposed in any public place whereby the health of human or animal may be affected.
B. Rabies Vaccination – Dogs and Cats. It shall be the duty of every owner of a dog or cat over six months of age harbored in the municipality to have such a dog or cat vaccinated by a licensed veterinarian or animal health clinic. The owner of such dog or cat shall present a copy of the vaccination certificate with the dog or cat license application required by GMC 5.40.020(A) verifying a current vaccination administered as authorized by the Department of Health.
C. Rabies Vaccination Exemption. If a veterinarian licensed by the state issues a certificate that inoculation would be harmful to a specific dog or cat, and that failure to inoculate such animal shall not create a danger for humans or other animals, that dog or cat shall be exempt from the inoculation prescribed by this chapter.
D. Report of Animal Bites.
1. Any owner whose animal bites a person shall immediately notify the animal control officer or police department of the municipality.
2. It shall be the duty of every medical licensee practicing in the municipality to report to the animal control officer or the police department the name and address of any person treated for bites or wounds inflicted by an animal, together with all available information necessary for rabies control.
a. Any licensee who, in good faith, makes a report pursuant to this section shall have immunity from any liability, civil or criminal, that might otherwise be incurred or imposed with respect to the making of such report, and shall have the same immunity with respect to participation in any judicial proceeding resulting from such report.
3. It shall be the duty of every veterinarian practicing in the municipality to report to the animal control officer or the police department the name and address of the owner of any animal treated for bites or wounds inflicted by any other animal, together with all available information necessary for rabies control.
E. Quarantine of Animals Suspected of Having Rabies. Animals suspected of having rabies or having bitten any person or animal and having an uncertain vaccination status shall be impounded in solitary confinement and kept under observation for a period of 10 days. An attempt shall be made by the animal control officer to discover whether the animal has been vaccinated against rabies. If it is found that the animal has not been effectively vaccinated or there is any doubt whether the animal has in fact been vaccinated, then it shall be vaccinated on the last day of the observation period. The municipality may cause any animal which has rabies to be destroyed humanely and an autopsy performed. All expenses in connection with the provisions of this subsection shall be borne by the owner of the animal.
F. Killing of Certain Animals Which Cannot Be Safely Captured or Impounded. If any vicious or dangerous animal suspected of or having rabies, found at large, cannot be safely taken up and impounded, the animal may be euthanized by a police officer. (Ord. 9-2014 § 1; Code 1997 § 5-4-3).
1. Infliction of Pain or Death. No person shall knowingly, intentionally, or maliciously kill or injure or inflict pain or suffering on any animal. No person shall permit, by neglect or inaction, the death or injury or infliction of pain or suffering on any animal. No person shall beat, cruelly treat, torment, overload, overwork, or otherwise abuse or kill an animal or cause, instigate, or permit any fight between animals or between animals and humans, or attend such fights.
2. Proper Food and Shelter. No owner or person with custody of an animal for more than 12 consecutive hours shall fail to provide the animal with sufficient wholesome and nutritious food, water in sufficient quantities, proper air, shade or shelter space, protection from the weather, veterinary care as needed to maintain health and prevent suffering, and other humane care and treatment.
a. “Shade” shall mean protection from the direct rays of the sun during the months of June through September.
b. “Shelter” shall mean a moisture-proof structure of suitable size to accommodate the animal and allow retention of body heat, made of durable material with a solid floor raised at least two inches from the ground. Such structure shall be provided with a sufficient quantity of suitable bedding to provide insulation and protection against cold and dampness.
c. All pens, yards, or runs, or other structures wherein any animal is kept shall be of such construction so as to be easily cleaned and shall be maintained in good repair. Fences which are intended as enclosures for any animal shall be securely constructed, adequate for the purpose, and kept in good repair, in compliance with all ordinances of the municipality.
d. Agricultural operations involving large animals are exempt from shade and shelter requirements.
3. Abandonment. No person shall abandon any animal which they own or is in their custody. In this context, “abandon” means to leave the animal unattended for more than 48 consecutive hours or without food, water, or shelter for more than 12 hours.
4. Poisoning. No person shall expose any known poisonous substance, whether mixed with food or not, so that a reasonable person would know or should know that such substance would probably cause animals to be attracted thereto, eat thereof, and be poisoned thereby; however, this subsection does not make unlawful the poisoning of rats or mice with commercial rat poison mixed with vegetable substances.
5. Sale of Chickens, Ducks, and Rabbits. Chickens, ducks, or rabbits younger than eight weeks of age may not be sold in quantities of fewer than 25 to a single purchaser.
6. Animals as Prizes. No person shall give away any live animal, fish, reptile, or bird as a prize for, or as an inducement to enter, any contest, game, or other competition, or as an inducement to enter any place of amusement, or as an incentive to enter into any business agreement whereby the offer was for the purpose of attracting trade.
7. Confinement in Vehicles. No person shall confine an animal within a parked, closed vehicle without allowing cross-ventilation. Under no circumstances shall a person confine any animal in any parked, closed vehicle for more than 30 minutes, or where the temperature in the vehicle exceeds 90 degrees Fahrenheit. Any animal control or police officer observing an animal kept in violation of this section may enter the vehicle and impound the animal. In addition to all other defenses and immunities provided by law, any such officer making entry for the purpose of this section is immune from suit or liability, criminal or civil, for, caused by, or arising out of such entry.
a. Any animal found receiving inhumane treatment, as described in this section, may be removed and impounded at the expense of the owner.
b. Any animal whose life reasonably appears to be endangered may be so removed and impounded, whether or not in the presence of its owner.
9. Exceptions to This Section.
a. Nothing in this subsection (A) shall be deemed to prohibit any action by a licensed veterinarian done in accordance with accepted standards of veterinary medicine.
b. Nothing in this subsection (A) shall be interpreted as prohibiting any act done in self-defense or to defend another person.
c. Nothing in this subsection (A) prohibits any conduct authorized or permitted under title 33, C.R.S.
d. It shall be an affirmative defense to a charge brought under this section involving injury or death to a dog that the dog was found running, worrying, or injuring sheep, cattle, other livestock or wildlife.
B. Commercial Animal Establishments – Other Domestic Animal Regulations.
a. Animal housing facilities shall be provided for the animals and shall be structurally sound, constructed of nontoxic materials, maintained in good repair, and designed so as to protect the animals from injury and restrict the entrance of other animals. Each animal shall be provided with adequate floor space to allow it, according to species and breed, to breathe and turn about freely and to easily eat, eliminate wastes, stand, sit, and lie in a comfortable, normal position and sanitary environment.
b. Water shall be supplied at sufficient pressure and quantity to clean housing facilities and enclosures of debris and excreta.
c. Adequate food and bedding shall be provided and stored in facilities which provide protection against infestation or contamination by insects or rodents. Refrigeration shall be provided for the protection of perishable foods.
d. Provision shall be made for the removal and disposal of animal and food wastes, bedding, dead animals, and debris. Disposal facilities shall be so provided and operated as to minimize vermin infestation, odors, and disease.
e. Each animal shall be observed daily. Sick, diseased, or injured animals shall be separated from those appearing healthy and normal. Sick, diseased, or injured animals shall be removed from display and sale and kept in isolation quarters. Ventilation of quarters for sick or diseased animals shall be arranged to avoid contamination of healthy animals.
f. An employee, keeper, or owner shall make provision to feed, water, and provide other necessary care for animals on days the store or establishment is closed.
g. No person shall knowingly misrepresent an animal to a consumer in any way. No person shall knowingly sell a sick or injured animal. Adequate care and feeding instructions shall be given, in writing, to each animal purchaser.
h. Animals which are caged, closely confined, or restrained shall be permitted to exercise daily for an appropriate length of time as determined by their size, age, and species, in an area suitable for that purpose.
i. Facilities shall be clean and sanitary at all times.
a. It shall be unlawful to maintain any dog house or poultry or animal yard within 25 feet of any building used for residential purposes by anyone other than the one maintaining such dog house, poultry, or animal yard, or his or her immediate family, or within 25 feet of any public way other than an alley, or within 100 feet of any church or school building.
b. For the purpose of this chapter, the term “poultry or animal yard” shall include every enclosure, shed, or structure used to house one or more live fowl (included in the term “fowl” are chickens, ducks, geese, and other poultry) or one or more cattle, horses, sheep, goats, or other domestic animals.
c. Every person maintaining a poultry or animal yard shall keep the same clean and sanitary and free from all refuse.
a. No person is permitted to exhibit any animal performance in which animals are induced or encouraged to perform through the use of chemical, mechanical, electrical, or manual devices in a manner which will cause or probably cause physical injury, pain, suffering, or irritation to any such animal.
b. All equipment used on any performing animal shall fit properly and be in good working condition.
C. Animals Injured by Motor Vehicles. Any person who, as the operator of a motor vehicle, strikes a domestic animal shall stop at once and shall immediately report the accident to the appropriate law enforcement agency.
1. The entire area within the corporate limits of the municipality is a wildlife sanctuary for the refuge of all wildlife, and all persons within the municipality are urged to protect said wildlife and encourage its propagation. “Wildlife,” as used in this subsection, includes all native or naturalized wild animals except pest species.
2. No person shall at any time within the corporate limits of this municipality frighten, shoot at, wound, kill, capture, ensnare, trap, net, poison, or in any other manner kill, injure, or molest any wildlife or injure the nest, den, eggs, or young of such animals. All municipal, state, and federal authorities possessing wildlife control jurisdiction authorized to kill or capture any wild animal are exempted from this provision. (Ord. 9-2014 § 1; Code 1997 § 5-4-4).
1. Generally. No person shall suffer or permit any domestic animal of which he or she is the owner, caretaker, or custodian to run at large within the municipality. Any such animal shall be deemed to be running at large when it shall be off the premises owned or rented by its owner and not under the control of the owner or an agent or employee of the owner. Any such animal may be impounded by the municipality.
a. Control as defined by ordinance requires the use of a leash being held by a person capable of controlling the animal. The leash requirement is waived for animals typically moved by herding provided the owner or person in control is present and engaged in moving the animal(s) from one location to another.
2. Public Places. No domestic animal shall be permitted in any public place, unless under the control of its owner. “Public places” include, but are not limited to, public property, common areas of private property, parking lots, churches, cemeteries, parks, schools, and swimming areas.
a. Ownership of a Dangerous Dog Prohibited. A person commits ownership of a dangerous dog if such person owns, possesses, harbors, keeps, has a financial or property interest in, or has custody or control over a dangerous dog.
b. The animal control officer, neighborhood services officer, or any police officer may impound any animal which is reasonably believed to be a dangerous dog.
i. A dog may be released to the owner, pending court procedures, provided the animal is not exhibiting overtly aggressive or dangerous behavior, is not exhibiting any symptoms of disease, the owner can assure that the dog will remain under the owner’s control, and that such control will be sufficient to prevent a reoccurrence of the reason for initial impoundment, that the owner will present the dog for inspection on request of the animal control officer, and that the owner will report any change in the animal’s health to the animal control officer until the case is resolved.
ii. An owner may request the animal be housed in a facility licensed to board and care for animals, at the owner’s expense.
v. That the person who was the victim of the attack by the dangerous dog tormented, provoked, abused, or inflicted injury upon the dog in such an extreme manner which resulted in the attack.
d. The affirmative defenses set forth in subsection (B)(1)(c) of this section shall not apply to any dog that has engaged in or been trained for animal fighting as said term is described in Section 18-9-204, C.R.S.
e. Identification of Dog upon Conviction. At the owner’s expense, permanently identify the dangerous dog through the implantation of a microchip by a licensed veterinarian or a licensed shelter. A veterinarian or licensed shelter that implants a microchip in a dangerous dog shall report the microchipping information to the Colorado Department of Agriculture within 10 days after implantation of the microchip, pursuant to Section 35-42-115(2), C.R.S.
f. Condition of Ownership upon Conviction. The court as part of sentencing may establish conditions to be met by the owner for continued ownership.
a. It shall be unlawful for any person to keep or harbor any vicious animal within the municipality.
b. The animal control officer, neighborhood services officer, or any police officer may impound any animal which is reasonably believed to be vicious.
i. An animal may be released to the owner, pending court procedures, provided the animal is not exhibiting overtly aggressive or dangerous behavior, is not exhibiting any symptoms of disease, the owner can assure that the animal will remain under the owner’s control and that such control will be sufficient to prevent a reoccurrence of the reason for initial impoundment, that the owner will present the animal for inspection on request of the animal control officer, and that the owner will report any change in the animal’s health to the animal control officer until the case is resolved.
c. It shall be an affirmative defense to charges under subsection (B)(2)(b) of this section that the actual or intended victim of any attack has made an unlawful entry into the dwelling of the animal’s owner or is threatening or attacking an owner of the animal.
3. Wild and Dangerous Animals.
iii. All species of canine, feline, bear, and other carnivorous animals other than dogs and cats, as defined within this chapter.
b. Exceptions. The provisions of subsection (B) of this section shall not be applicable to any bona fide zoological park, wildlife sanctuary, research facility or any circus licensed by the city.
4. Costs to Be Paid by Responsible Persons. Any reasonable costs incurred by the municipality in seizing, impounding, and confining any dangerous, wild, or vicious animal shall be charged against the owner of such animal. Such charge shall be in addition to any other fine or penalty provided for violating this chapter.
5. Destruction of Animal Too Dangerous to Capture. Any dangerous animal subject to impoundment under the provisions of subsection (B) of this section, or any other animal which because of its disposition or diseased condition is subject to impoundment and is deemed too dangerous to apprehend, may be destroyed by a police officer.
1. No person shall appear with an animal in those portions of the public parks of the city of Gunnison which are enclosed by fencing and are posted with signs prohibiting dogs or other animals from being brought upon the premises. This subsection shall not apply to service dogs.
2. The city may establish public areas to be utilized by the public for the exercising, training and enjoyment of their animals. Such area will be clearly marked and animals may be off leash, when inside the designated area.
a. Use of public areas for this purpose will be at the user’s own risk.
b. The official rules or signs posted for users of the area will be followed.
3. The city maintains parks and open spaces for recreational enjoyment. These areas are considered public areas or public ways and this chapter applies to all areas of a public park or open space. (Ord. 1-2015 §§ 1, 2; Ord. 9-2014 § 1; Code 1997 § 5-4-5).
1. Generally. No animal owner shall fail to exercise proper care and control of his or her animals to prevent them from becoming a public nuisance. A “public nuisance” includes any of the occurrences listed in this section as well as any other occurrence determined by the governing body or a court of competent jurisdiction or law.
2. Noise. No animal owner shall permit any animal to cause annoyance, alarm, or noise disturbance for more than 10 minutes at any time of the day or night, by repeated barking, whining, screeching, howling, braying, or other like sounds which can be heard beyond the boundary of the owner’s property.
a. This section does not apply if the cause of the noise is the result of a permitted or conditional use within the city of Gunnison.
3. Property Damage. It shall be unlawful for an owner to allow an animal to injure or destroy any real or personal property of any description belonging to another. A judge may, in addition to any other penalty, order the defendant to make restitution to the party injured.
4. Excessive Number of Animals. It shall be unlawful for any person or persons in any dwelling unit to keep more than two dogs or two cats or a total of three dogs and cats within the municipality, with the exception that a litter of cats or dogs, or a portion of any such litter, may be kept for a period of time not exceeding three months from birth. The provisions of this subsection shall not apply to any commercial animal establishment or licensed breeder.
5. Excrement. No person shall appear with an animal upon the public ways, within public places, or upon the property of another, absent that person’s consent, without some means for the removal of excrement; nor shall any person fail to remove any excrement deposited by such animal. This subsection shall not apply to a blind person while walking a guide dog.
6. Females in Heat. All female animals in heat shall be confined in a building or secure enclosure or upon a leash in such manner that the animal cannot come into contact with a male animal except for planned breeding.
7. Feral Cats. Any property owner who allows or harbors a feral cat colony is responsible for the cats associated with that colony.
1. Hearing and Impoundment. Any person owning or having in his or her possession or under his or her control any animal constituting a nuisance in violation of this section may be summoned before a court of competent jurisdiction to show cause why such animal should not be confined, disposed of, or removed, or the nuisance otherwise abated. Upon hearing and a finding that the animal constitutes a public nuisance in violation of this section, the court shall order the animal in question either to be confined, to be disposed of, or to be removed, or such other relief as the court deems appropriate.
2. Cost of Impoundment. Any person who owns any animal that has been adjudged a nuisance pursuant to this section shall be responsible for the costs of disposal, removal, or impoundment. (Ord. 9-2014 § 1; Code 1997 § 5-4-6).
a. Comply with Colorado Department of Agriculture license requirements.
1. All animals authorized under this chapter to be impounded shall be captured by or turned over to either a police or an animal control officer and impounded in an approved animal shelter and there confined in a humane manner.
2. Impounded animals without owner identification shall be kept for not fewer than five days, during which time the description of the animal will be made available to the public at minimum by posting on the city of Gunnison official notification board, electronic posting and public posting at the shelter.
a. Pet animals which in the opinion of the animal control officer and their supervisor are deemed to be dangerous and no owner has been identified after three days become the property of the city of Gunnison and may be adopted or euthanized.
b. Pet animals, which in the opinion of a veterinarian, are experiencing extreme pain or suffering, may be disposed of immediately through euthanasia after reasonable efforts to contact the owner.
c. Feral cats which are unclaimed or from property where the owner has declined ownership become the property of the city of Gunnison immediately upon impound and may be adopted or euthanized.
3. If, by a license tag or other means, the owner of an impounded animal can be identified, the animal control officer or impounding police officer shall immediately notify the owner. The five-day holding period will begin once proof of notification has been made; if notification cannot be made, the animal will be held for 10 days.
4. An owner reclaiming an impounded animal shall pay all fees set by city council and recorded by resolution. Fees assessed shall be based on initial pick-up as well as a daily fee to cover expenses associated with housing and care. Fees will be in addition to any veterinary expenses incurred or fines which may be levied by the court. Council may also choose to set higher fees for repeat violations.
5. Any animal not reclaimed by its owner after notification is made or attempted as required in subsections (B)(2) and (B)(3) of this section shall become the property of the municipality and shall be made eligible for adoption in a suitable home or subject to humane euthanasia.
6. The police department shall keep complete and accurate records pertaining to the veterinary treatment and disposition of all animals impounded or picked up by the police department.
7. It shall be unlawful for any person to remove an animal from the municipal owned or contracted animal shelter without first reclaiming the animal pursuant to the provisions of this section, or to interfere with an employee or volunteer of a contracted facility, animal control officer, neighborhood services officer, or a police officer while they are attempting to impound an animal.
8. Veterinarian services, including treatment, medication and vaccinations, provided to injured or sick animals while in impound will be at the owner’s expense.
C. Adoption. No unclaimed animal shall be released for adoption without written agreement from the adopter guaranteeing that such animal will be sterilized on or before a specified date. (Ord. 9-2014 § 1; Code 1997 § 5-4-7).
A. Enforcement – General Procedures. Whenever there is any violation of any provisions of this chapter, the animal control officer, or any police officer, finding such violation may, except as otherwise provided herein, issue a summons and complaint or citation to the owner of or person responsible for the animal to appear in municipal court. Any hearing on the summons and complaint or citation shall be held no sooner than five days after the notice without the consent of the person to whom the summons and complaint or citation was issued.
iii. Not less than $100.00 nor more than the fine and sentence provisions allowed in GMC Title 4 on conviction for the third offense within a 12-consecutive-month period; in addition to or in lieu of either of the foregoing, the defendant may be ordered to remove such animal permanently from the municipality within 24 hours. Refusal or failure to comply may result in the impoundment and disposal of the animal.
b. Ordered to have such animal destroyed within such period of time as ordered by the court.
3. In addition to any other penalties set forth in this section, the court may impose additional terms or conditions as the court deems appropriate.
4. Any violation of this chapter is considered a misdemeanor violation and punishable in accordance with GMC Title 4 and subsections (B)(1) and (B)(2) of this section. (Ord. 9-2014 § 1; Ord. 1-2011 § 7; Ord. 19-1997 § 6; Code 1997 § 5-4-8).

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The Federal Circuit has released an interesting new (though non-precedential) decision on patent exhaustion – in particular the court affirmed a lower court finding of exhaustion based upon a retroactive sublicense filed after the lawsuit was filed and the patents had expired. The case offers some further guidance as to how patent licenses are treated in complex mergers.
In High Point SARL v. T-Mobile, the patentee (High Point) sued T-Mobile for infringing its patents. The set of patents themselves have an interesting history. They were originally owned by AT&T but then spun-off to Lucent when that company was created. Avaya bought the patents from Lucent in 2000 and then the Luxembourg-based patent assertion entity High Point bought them from Avaya in 2008.
T-Mobile uses the technology allegedly covered by the patents, but it is not the manufacturer. In particular, various portions of the accused systems were purchased from Alcatel Marketing US, Nokia Siemens Networks US, and Ericsson US. The district court held (and now the appellate panel) that these parts used in the system were all licensed under the patents and “substantially embodied” the asserted claims.
Nunc pro tunc: After the litigation began, Ericsson LM granted its subsidiary Ericsson US a “nunc pro tunc” sublicense that was made retroactive back to 2002. The courts found that retroactive sublicense effective even though the license was conveyed after the patents had expired. Further, the courts found that the retroactive sublicense also retroactively exhausted the patent vis-à-vis products sold by Ericsson US after the 2002 back-date. The appellate court found that this right to retroactively sub-license was simply paperwork and that, in effect, the subsidiary was always licensed.
Here, Ericsson U.S. was at all times authorized to sell the accused equipment to TMobile because when the sales took place neither Lucent nor any of its successor entities could have sustained an infringement claim based on those sales. To the contrary, if they had attempted to bring suit, LM Ericsson had the unrestricted right … to immediately grant Ericsson U.S. a [retroactive] sublicense, thereby immunizing Ericsson U.S. from any potential infringement liability.
Thus the result was that the parts supplied by Ericsson US were deemed licensed and authorized and thus patent rights associated with those parts were exhausted.
For Alcatel Marketing US, it turns out that in 1996 AT&T had licensed the patents to Alcatel (France). By its terms, the 1996 license extended to both current and future subsidiaries, but was limited only to products “of the kind” being furnished or used by Alcatel back in 1996. In 2006, Alcatel and Lucent merged, to form Alcatel-Lucent. Alcatel Marketing US was already a subsidiary of Alcatel and merged with a Lucent subsidiary to become Alcatel-Lucent USA. Of importance, although Alcatel did use and sell parts similar to those at issue here back in 1996, it did not manufacture those parts back then but instead purchased them from Spatial Communications (Alcatel later acquired Spatial). In reviewing this history, the courts found that the patents were properly licensed to Alcatel Marketing and that the “of the kind” language was broad enough to include more modern switches.
Finally, for Nokia-Siemens US, Siemens originally obtained a patent cross license from AT&T in 1988. That license was extended in 1995 to include an allowance for sublicensing to divested businesses. In April 2007, Siemens divested its carrier division into a joint venture (Nokia-Siemens BV) and then granted a retroactive sublicense to the new venture. In 2011, Nokia-Siemens BV granted a retroactive sublicense to its US subsidiary Nokia-Siemens US. It was this US sub that sold the parts to T-Mobile and, according to the court, those sales were (at least retroactively) licensed under the patents and thus the patent rights exhausted.
Substantial Embodiment and a Combination of Licensed Parts: As suggested above, the authorized supplied parts here do not themselves individually infringe the asserted patents. However, the particular combination of the parts (along with some other parts) does result in a system that allegedly infringes. In the appeal, High Point argued that the asserted claims include innovative features beyond the licensed parts and that, as a consequence, the patents were not exhausted as to the unique combination claimed.
In Quanta, the Supreme Court roughly addressed this issue – stating that “[M]aking a product that substantially embodies a patent is, for exhaustion purposes, no different from making the patented article itself.” Likewise, in Univis Lens, the court wrote that sales of an article that “embodies essential features of [a] patented invention” exhausts the patent rights.
 High Point SARL v. T-Mobile USA, Inc., App. No. 15-1235 (Fed. Cir. February 8, 2016) (Judges Reyna, Mayer, and Chen). District court decision available at High Point SARL v. T-Mobile USA, Inc., 53 F. Supp. 3d 797 (D.N.J. 2014).
 U.S. Patent Nos. 5,195,090 (the “’090 patent”), 5,195,091 (the “’091 patent”), 5,305,308 (the “’308 patent”), and 5,184,347 (the “’347 patent”).
 United States v. Univis Lens Co., 316 U.S. 241, 251 (1942).
What this case illustrates is that patents held by big companies who routinely cross license are almost worthless from the point of view of a monetizing entity. I wonder why how big companies can justify the fraud they practice upon innocent purchasers when they sell them patents from their portfolio, knowing they are worthless, for big bucks.
Yeah, I know the answer to this. Caveat emptor. But the gall of these big companies is amazing.
There is far more naivety among some in-house corporate “patent licensing experts.” For example, not appreciating that the PAE may sue, and anger, some of their own important customers. Or, telling their management that they will get rich with no costs by “selling” patents with contracts for a % return of whatever litigation-avoidance settlement payments the PAE can collect. Miss-representing that the company will never get involved in those lawsuits, even though third party subpoena discovery demands and depositions of the corporate employee patent attorneys and inventors involved in obtaining the subject patent are far more likely from the defendants of the PAE suits than depositions of the PAE personnel who had nothing to do with the preparation or prosecution of those patents or their prior art.
Last I checked it was still a foundational element of US patent law to be able to fully alienate one’s patent property, so the implication here of somehow possibly being NOT “innocent purchasers” sounds a bit biased and untowards as to what the law is.
Maybe you should go back and try again to have a registration number and actually understand things from the property owner’s side, Paul.
“anon” t was still a foundational element of US patent law to be able to fully alienate one’s patent property, so the implication here of somehow possibly being NOT “innocent purchasers” sounds a bit biased and untowards as to what the law is.
Congrats, “anon.” This is even more nonsensical and incoherent than your usual ranting. Please, please, please take a remedial writing class or learn to keep your trap shut.
Paul, the purchasers may be innocent to the extent they thought they were getting something of value.
I fully agree about your observations about in-house counsel.
Ned: the purchasers may be innocent to the extent they thought they were getting something of value.
That gets back to the “buyer beware” issue which you already raised.
Remember: we’re talking about patent attorneys going around and buying the right to threaten and sue people. These people are the furthest thing imaginable from “innocent” grandmothers purchasing constipation pills off an infomercial.
Because somehow the ability to enforce patent rights by lawsuit is “bad”…..
Sure. There is no propaganda effort here whatsoever, huh?
Patent attorneys buying the right to sue are not the furthest thing from gandmothers purchasing constipation pills from an infomercial “because somehow the ability to enforce patent rights by lawsuit is ‘bad'”. Patent attorneys engaging in that behavior are the furthest thing from those grandmothers because, unlike the typical constipated old lady watching M*A*S*H reruns, patent attorneys are almost always highly sophisticated professionals who are very familiar with both the enforcement and licensing aspects of the system they are seeking to exploit.
You have explained NOTHING in regards to the property aspect and the right to use that property that includes (Oh Noes) enforcement in a court of law.
Your jibe about “patent attorneys are almost always highly sophisticated professionals” is completely immaterial to the aspects that I am talking about.
it is most likely that you are just engaging (again) in your classic rhetoric of AccuseOthersOfThatWhichMalcolmDoes with your (baseless) accusation of “Stop arguing with your imaginary “enemies” about baloney that only exists in your own mind.” and your manifestations of cognitive dissonance.
But the patent system needs a monetizing system in order to function properly. Otherwise, universities, small inventors and failed startups, will be left with their patents and no way to enforce them to the extent they have to do all the infringement research themselves, and to pay their litigation counsel out of pocket.
This is NOT a new position for him, and it is rather doubtful that you cannot know this already.
The evidence again multiplies that when one sells a partially completed product of a patented process, and that process is completed by a third party performing conventional steps, that there direct infringement by that third party performing the last step, and contributory infringement by the party making the partially completed product and selling it to one it knows will complete the process.
This line of thought from you remains Quixotic.
The point you seem unable to grasp is the interplay of when something is exhausted – and thus loses the ability to be a point in determining infringement, and when actual infringement occurs.
The item, earlier in the chain – BEFORE that last other party performs that last step – reaches a point of being exhausted in a sale.
How can a post sale that exhausts be what you want to label as direct infringement? How do you want to have infringement on an exhausted item?
Can you address and clarify this point?
My $0.02 – the problem is the Court confused two related, but distinct, doctrines. Which is the incongruity you are seeing in sales of all vs sales of less than all.
The problem is (i) Exhaustion vs. (ii) Implied License. They are different.
So how can you exhaust a patent right by selling less than the whole? You can’t. You can, however, and do, grant an implied license. Same effect but a different legal argument.
Under the facts in this case, would an implied license defense have worked? Looks like it.
So why did the Fed Cir create confudion and issue it as nonprecedential?
Under the FRCP a license defense has to be pled or it is waived. The SJ motions should have been filed as license issue. T-Mobile and Nokia filed exhaustion motions – wrong! But Ericsson filed a license motion – correct! License defenses are personal and there is a chance that could have been a chance that there was a user who only had T-Mobile / Nokia equipment and not Ericsson. So, in theory, if you just granted Ericsson’s motion you would leave T-Mobile and Nokia hanging out there because of decisions of their counsel, nothing a little judicial activism can’t fix! Blend some doctrines, hide behind a nonprecedential opinion and voila!
Actually, you can. That is the holding in Quanta and Univis. In both, the claims recited an “inventive” element (or step) and conventional elements. Sale of the inventive element exhausts the entire claim.
In Quanta, on page 2121, the Court distinguished Aro Mfg.(to do with convertible tops) because “the combination itself is the only inventive aspect of the patent,” all the elements being conventional.
There are licensing issue in all these cases (except Aro), but I think my general statements still apply.
The “license to practice” is the implied license. That is different from patent exhaustion.
When I buy the whole patented good, I get to use it (exhaustion).
When I buy less than the whole, if the only use (or foreseeable use) is to practice the patent, I get to use it (Implied license).
Exhaustion and implied license are VERY similar defenses but they also VERY different in what they apply to and how you raise them. Or so says FRCP 8(c)(1) (“license”). The High Point decision takes liberties with the entire issue – result oriented.
The point of Ned’s that I am trying to grasp is that very conflation of exhaustion versus licensing.
Ned appears to want to take exhaustion cases in which the unfinished product is “close enough” prior to that last third party obtaining the item and somehow have that same third party doing something “enough” such that it is the party that would be a direct infringer.
The problem as I see it is that the item that that third party is receiving has been determined to have been exhausted.
How – and on what basis – is it possible for that third party to take as input something that is exhausted, do their thing (which is admittedly a common enough act on its own), and yet come away as being the direct infringer?
I would look at how the Court (in Univis) said: “close enough, thus you do exhaust.” They said this prior to the third party doing what that third party did as a normal part of what they do. I “get” how the “gee, what else are you going to do with a lens blank except grind the lens into a finished shape,” but they were explicit in saying that the item TO the third party WAS exhausted.
It is this very notion of the third party receiving an exhausted item that speaks directly OPPOSITE of what Ned reads that case to hold. If your input is exhausted, there is just no possible way for you to be the direct infringer.
Not only (as you point out) are these different defenses, the viability of patent rights on leaving the premises of that third party are very different.
Ned does not seem to say that these are not in truth exhaustion cases – or does not effectively deal with the Court itself saying these are exhaustion cases.
What I am talking about is when third parties that have no license at all are doing all the steps. I contend that under the facts of Univis Lens there is both direct and contributory infringement, yet neither party practiced all the steps, and the finisher may be completely independent of the vendor of the partially competed product — just that the contributory infringer knew that the independent vendor will, and in fact does, complete the product.
Sorry Ned- but your thought train still derails.
Your attempt here to insert “license” back into the point on exhaustion just does not fit. The disconnect remains.
Now if you want to change that pattern and omit entirely the element of exhaustion, then you might carry some persuasiveness (but you would need a different case to cite for your position).
anon, you have to consider that I am talking about 3rd parties performing all process steps without a license to do so. There can be no exhaustion.
Ned – as I stated: you keep on citing the wrong case for that proposition.
That case – based as it does on exhaustion occurring before the actions of the third party simply cannot reach what you keep on saying that decision holds.
That’s why I keep on wanting you to actually link what you say the case holds and what the case actually states.
Ned, your latest reply is not in sync with the comment at 2 that started this discussion.
Kindly move the goal posts back, and address the exhaustion issue of an item that is NOT complete (but “close enough”) that is deemed exhausted prior to that third party NOT “performing all process steps,” but merely some finishing step on an item already deemed “close enough” to have been exhausted prior to any actions by that third party.
Your post at 2 simply cannot stand. And certainly NOT with the citations that you want to use to back to your legal assertion.
Let me help a F-Heller out….I think the issue (confusion) you are seeing is, once again, caused by sloppy opinions. Quanta was a method claims.
So take a step back at how method claims are infringed. “Congress has consistently expressed the view that it understands infringement of method claims under section 271(a) to be limited to use.” NTP, Inc. v. Research in Motion, Ltd., 418 F.3d 1282, 1319 (Fed. Cir. 2005). OK, but what about selling an apparatus that can be used in a method? Well “[t]he law is unequivocal that the sale of equipment to perform a process is not a sale of the process within the meaning of section 271(a).” Joy Techs., Inc. v. Flakt, Inc., 6 F.3d 770, 773 (Fed. Cir. 1993). So if the sale of the equipment in not an act of direct infringement, how can the sale exhaust the patent rights associated with it?
Enter Quanta, which really just extends exhaustion to method claims, but to do that it needs to use the concept of substantial similarity or ??? or pick a term you like. It really becomes a technical issue of how close you can come and trigger exhaustion. Granted if you can’t trigger it, you can drop to implied license. BUT it is possible to be close enough an hit exhaustion on a method claim. As an attorney would you ever rely only on exhaustion though? Yet some do, go figure.
So what does substantial mean and how does that all add up with direct infringement of a method claim? Good question, but they are not symmetric legal analysis. Asymmetric application of the law does happen.
Not withstanding any veracity in what you post, I do not see how what you post helps that certain “F-Heller” out.
He keeps on wanting to cite to a case on exhaustion as if there was NO exhaustion involved.
Look here and now at him scramble to change the “conditions” to be a third party practicing ALL of the process steps, with NO exhaustion.
Yet he continues to attempt to put forth a position of law and cite a Supreme Court case that simply does not back his view of the law.
I “get” that he might want to put forth a position.
I “get” that he might want to sound impressive and have a Supreme Court case that backs up his view.
But that certainly is NOT the case here with his view as posted above at post 2.
And the sad thing is, that come soon, he will AGAIN make that very same mistake as if no one said anything that points out his error. It will be as if the “shouting down” of an opposing view occurs (in the internet style of being able to simply engage in a drive-by monologue and merely repeat the mantra of what one wants the law to be).
Well, a-hole-JRF, as you note, the Federal Circuit has introduced the asymmetry. That means the Feds have it wrong once again.
I do not think that JRF’s “Let me help a F-Heller out…” was meant to be derogatory Ned, so your classic “Malcolm-like” response is just not warranted.
Further, you have not (still, as of yet) provided the on point clarification to which this sub-thread is aiming for.
Maybe less mis-aimed ad hominem, and more on point response…..
For those keeping track, “at the time” in this instance is 1991.

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D. Trapl, I. Horvacanin, V. Mareska, F. Ozcelik, G. Unal & V. Spiwok: Anncolvar: Approximation of Complex Collective Variables by Artificial Neural Networks for Analysis and Biasing of Molecular Simulations. Front. Mol. Biosci. 2019, 6, 25.
Kříž, Z. Šućur & V. Spiwok: Free Energy Surface Prediction by Flying Gaussian Method: Multi-System Representation. J. Chem. Phys. 2017, 121(46) 10479-10483.
P. Hošek, P. Kříž, D. Toulcová, & V. Spiwok: Multisystem Altruistic Metadynamics – Well-Tempered Variant. J. Chem. Phys. 2017, 146, 125103.
J. Pazúriková, A. Křenek, V. Spiwok & M. Šimková: Reducing the Number of Mean-Square Deviation Calculations with Floating Close Structure in Metadynamics. J. Chem. Phys. 2017, 146, 115101.
Z. Šućur & V. Spiwok: Sampling Enhancement and Free Energy Prediction by Flying Gaussian Method. J. Chem. Theory Comput. 2016, 12(9), 4644-4650.
P. Hošek, D. Toulcová, A. Bortolato & V. Spiwok: Altruistic Metadynamics: Multisystem Biased Simulation. J. Phys. Chem. B 2016, 120(9), 2209-2215.
P. Hošek & V. Spiwok: Metadyn View: Fast Web-Based Viewer of Free Energy Surfaces Calculated by Metadynamics. Comput. Phys. Commun. 2016, 198, 222-229.
V. Spiwok, P. Oborský, J. Pazúriková, A. Křenek & B. Králová: Nonlinear vs. Linear Biasing in Trp-cage Folding Simulations. J. Chem. Phys. 2015, 142, 115101.

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D.C. Law Library - § 10–1601.04. Local, small, and disadvantaged business enterprises, First Source employment, and apprentice requirements.
↪ § 10–1601.04. Local, small, and disadvantaged business enterprises, First Source employment, and apprentice requirements.
(b) Notwithstanding any other provision of law, the Mayor shall take all measures as shall be reasonably necessary to assure that all contracts entered into by the District or any agency or instrumentality of the District with respect to the ballpark shall comply with the requirements of subchapter IX-A of Chapter 2 of Title 2 [repealed].
(c) The Mayor shall take all measures as shall be reasonably necessary to assure that all contracts entered into by the District or any agency or instrumentality of the District with respect to each major phase of the development and construction of the ballpark, including contracts for architectural, engineering, and construction services, shall provide that at least 50% of the work in the aggregate under such contracts shall be awarded to local business enterprises, local small business enterprises, or local disadvantaged business enterprises, as such terms are defined in § 2-218.02; provided, that of the percentage of the work required by this section to be awarded to local business enterprises, local small business enterprises, or local disadvantaged business enterprises, 35% of the work shall be awarded to local small business enterprises or local disadvantaged business enterprises, as such terms are defined in § 2-218.02; provided further, that if the 35% requirement is unattainable, the Mayor shall report this to the Council for reconsideration. Of the percentage of the work required by this section to be awarded to local small business enterprises or local disadvantaged business enterprises, not less than 20% of the work shall be awarded to local disadvantaged business enterprises.
(d) Notwithstanding any other provision of law, the Mayor shall take all measures as shall be reasonably necessary to assure that all contracts entered into by the District or any agency or instrumentality of the District with respect to the development and construction of the ballpark shall comply with First Source Employment requirements of subchapter X of Chapter 2 of Title 2 [§ 2-219.01 et seq.].
(e)(1) Notwithstanding any other provision of law, the Mayor shall take all measures as shall be reasonably necessary to assure that all contracts entered into by the District or any agency or instrumentality of the District with respect to the development and construction of the ballpark shall comply with the requirements of subchapter I of Chapter 14 of Title 32 [§ 32-1401 et seq.].
(2)(A) Notwithstanding any other provision of law, 50% of all apprenticeship hours performed pursuant to apprenticeship programs related to the construction and operation of the ballpark shall be performed by District of Columbia residents.
(B) Any prime contractor or subcontractor that fails to make a good faith effort to comply with the requirements of this paragraph shall be subject to a monetary fine in the amount of 5% of the direct or indirect labor costs of the contract. Fines shall be imposed by the Contracting Officer and remitted to the Department of Employment Services to be applied to job training programs, subject to appropriations by Congress.
(f) The Mayor shall encourage the owner of any professional baseball franchise that operates in the ballpark to enter into broadcast media rights agreements with broadcast media companies that are local business enterprises and disadvantaged business enterprises as such terms are defined in § 2-218.02.
This section is referenced in § 10-1601.06.
D.C. Law 16-191, in subsec. (b), substituted “subchapter IX-A of Chapter 2 of Title 2” for “subchapter IX of Chapter 2 of Title 2”; and, in subsecs. (c) and (f), substituted “§ 2-218.02” for “§ 2-217.01”.


New York City Criminal Court Judge Robert Mandelbaum sentenced Genevieve Sabourin to six months’ imprisonment yesterday, November 14, after she was convicted of two counts of stalking and one count of harassment and one count of aggravated attempted harassment. Ms. Sabourin, a publicist and aspiring actress, was accused of stalking and harassing actor Alec Baldwin and his wife Hilaria Thomas Baldwin. Earlier in the week, Judge Mandelbaum sentenced Ms. Sabourin to a 30 day term of imprisonment for contempt of court for disrupting the trial. The defendant had been offered a plea bargain in which she would serve no jail time and the charges would have been dismissed. Instead, Ms. Sabourin chose a non-jury trial that led to her combined sentence of seven months.
The New Jersey Supreme Court ruled on July 18, 2013 in State v. Thomas W. Earls that the police will have to obtain a search warrant to obtain location information from cell phone providers. Cell phone providers can place the location of cell phones at specific times by tracking the particular cell phone tower with which the cell phone is interacting or has interacted in the past. Typically, law enforcement agencies have been able to obtain this data without a warrant in other parts of the country.
The Court based the ruling on the expectation of privacy reasonably expected by cell phone customers. The decision was based squarely on the New Jersey State Constitution guarantees of privacy and not the Fourth Amendment to the U.S. Constitution, which protects against unreasonable searches and seizures.
The New Jersey Supreme Court on July 19, 2012 released expanded jury instructions relating to eyewitness identification in criminal cases. Last year, on August 24, 2011, the New Jersey Supreme Court issued a unanimous decision in State v. Henderson, which revised the legal framework for evaluating and admitting eyewitness identification evidence. At the time, the court directed that jury instructions be revised to reflect the ruling.
The jury charge goes on to explain that memory can be affected by a variety of factors. Among these are factors that occurred during the time of the offense and factors that occurred during procedures used by law enforcement that led to the identification of the defendant.
Among the factors during the offense that may affect the reliability of an identification are: the stress the witness was under, the duration of observation and whether the witness was focusing on a weapon. The charge also asks the jury to consider the consistency of the witness’s prior descriptions of the defendant. The charge also admonishes the jury to consider that the witness’s confidence about the identification may not be an indication of reliability. The jury charge also informs the jury that people may have greater difficulty identifying members of a different race.
Jurors are also to consider whether the reliability of the identification was affected by outside factors such as reports and pictures in the news.
Regarding identification during line-ups and other out-of-court police procedures and in-court identifications, the jury charge enumerates a number of factors for the jury to consider in evaluating reliability. The new charge is path breaking in informing the jury to consider whether subtle influences were exerted on the witness by a line-up administrator who knew which person in the lineup was the suspect and whether feedback by the police to the witness influenced the confidence of the witness in the identification.
The new charge will surely impact jurisprudence on eyewitness identification in other states, as well as providing greater assurance in New Jersey that persons are not wrongfully convicted.
Governor Andrew Cuomo of New York announced yesterday that he will ask the State Legislature to decriminalize possession of small amounts of marijuana in plain view. The action comes in response to the large number of criminal prosecutions of African American and Latinos for possession of marijuana open to public view arising from New York City’s aggressive “stop-and-frisk” policy. Under the Constitution as construed by the Supreme Court, the police are entitled to pat down or frisk a person if the police officer reasonably believes that the person is committing, has committed or is about to commit a crime and the police officer reasonably believes that he or she is in danger of physical injury by virtue of the accused being armed. Terry v. Ohio, 392 U.S. 1 (1968).
In practice, the police don’t have a reasonable belief that their target is involved in crime, they pat down their target and feel a cell phone, and then ask the target to empty his or her pockets and go so far as to demand that the person take off his or her shoes. When a small amount of marijuana is revealed, the target is charged with possession of marijuana in a public place a misdemeanor punishable by six months in jail, instead of the violation punishable by a $100 fine. The violation is like a traffic ticket and is not a crime.
The practice has led to the stigmatization of a broad swath of the young, minority community making it difficult for the convicted to obtain work. It also has led to a form of racial profiling. According to The New York Times, from 2002 through 2011, New York City had 400,000 low-level marijuana arrests, more than the three mayoral administrations prior to Mayor Bloomberg, spanning 24 years, combined. Last year, New York City arrested over 50,000 people for possession of small amounts of marijuana.
The policy has also caused deteriorating relationships between the police and the minority community. While Police Commissioner Raymond Kelly issued a directive in September that police officers were not to arrest people who take small amounts of marijuana out of their pockets after being stopped, according to The Times, this resulted only in a modest decline in the number of arrests.
After Governor Cuomo announced his proposal, both Police Commissioner Kelly and Mayor Bloomberg announced their support for it.
Under Governor Cuomo’s proposal, it would still be a misdemeanor to smoke marijuana in public.
A former attorney and associate at several large nationally-recognized firms was sentenced on June 4 to a 12-year term of imprisonment for his role in an insider trading scheme. The scheme began in 1994 and resulted in $37 million in illegal gains. Matthew Kluger faced 11 to 14 years in jail under the United States Sentencing Guidelines, which are advisory.
U.S. District Court Judge Katherine Hayden, sitting in Newark, New Jersey, sentenced Kluger to what the Judge referred to as a harsh sentence. Kluger passed on information concerning corporate mergers he learned as an associate at four different law firms to co-defendant Kenneth Robinson who passed it on to a stock trader Garret Bauer. Bauer traded ahead of public announcements for the accounts of the three co-defendants. The law firms involved are: Cravath, Swaine & Moore; Skadden, Arps; Fried, Frank; and Wilson; Sonsini. All are recognized nationally as top-quality law firms.
According to the New Jersey Law Journal, the conspiracy involved more than 30 separate transactions. Bauer took the greatest portion of the proceeds and was forced to give back $31.6 million. Kluger forfeited $516,000, while Robinson forfeited $845,000 of illegal profits.
Conspirators are liable for the reasonably foreseeable acts of their coconspirators. While Kluger argued he was misled as to the amount of the trading undertaken by his coconspirators, his sentence did not reflect the Court’s crediting of that argument. The sentence also likely reflected the extent of the breach of trust by Kluger as an associate lawyer at four different law firms.
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In a path breaking and far reaching decision, the New Jersey Supreme Court recently recognized certain best practices in eyewitness lineup procedures. See State v. Henderson, 208 N.J. 208 (2011).
a. Administration of the lineup in a double blind fashion, that is, the administrator of the lineup should not know which person in the lineup is the defendant.
c. In the event the witness makes a positive identification, the administrator should refrain from telling the witness that he or she made a correct identification. Moreover,soliciting an indication in the witness’ own words of how certain the witness is about the identification will increase the reliability of the identification.
A double blind administration of a lineup occurs when the administrator does not know who the suspect is. The New Jersey Supreme Court has determined that “a non-blind lineup procedure can affect the reliability of a lineup because even the best-intentioned, non-blind administrator can act in a way that inadvertently sways an eyewitness trying to identify a suspect.” State v. Henderson, 208 N.J. 208, 250 (NJ 2011). The court concluded, “failure to perform blind lineup procedures can increase the likelihood of misidentification.” Id. at 250. A double bind test “prevents the tester from skewing, even unintentionally, the test result.” In the Matter of the People of the State of New York v. Wilson, 191 Misc.2d 224, 226 (Sup. Ct. Kings Cty. 2002). Double blind testing has long been a near universally accepted staple of scientific research. Id., at 228. See also, Final Report of the New York State Bar Association’s Task Force on Wrongful Convictions, p. 10 (2009)(recommending double-blind lineup procedures).
To help prevent misidentification, it also is important for the administrator of the lineup to read a statement to the witness to the effect that the perpetrator may or may not be in the lineup. The Department of Justice guidelines recommend reading a statement that includes, “the person who committed the crime may or may not be present in the group of individuals.” Eyewitness Evidence: A Guide for Law Enforcement, U.S. Department of Justice, pp. 31-33 (1999); see also, Final Report of the New York State Bar Association’s Task Force on Wrongful Convictions, p. 10 (2009)(recommending such a statement be read to the witness).
Post-identification feedback presents the risk that the witness’ memory will be affected by the feedback. Confirmation by the police that a witness has correctly identified the suspect can reduce doubt and engender a false sense of confidence in a witness. Henderson, 208 N.J. at 253. Accordingly, prohibiting the police from confirming to a witness that the witness identified the suspect, will help reduce statements of inflated confidence at trial. A confidence statement by the witness, that is a statement in his or her own words about how certain he or she is regarding the identification, will also help to ensure that the witness’ confidence level does not become affected by post-identification events. Such a statement gives the jury a way to gauge the weight it should accord a witness’ identification. Given the impact of post-identification events, the truer measure of certainty is the original statement made by the witness at the time of the identification.
The New Jersey Supreme Court has stated: “To the extent confidence may be relevant in certain circumstances, it must be recorded in the witness’ own words before any possible feedback. To avoid possible distortion, law enforcement officers should make a full record — written or otherwise – of the witness’ statement of confidence once an identification is made. Even then, feedback about the individual selected must be avoided.” Henderson, 208 N.J. at 254.
On February 16, the Second Circuit overturned the conviction of Sergey Aleynikov, a former Goldman Sachs programmer, bringing to an end a critical prosecution by the federal government for the act of stealing source code. Aleynikov had been found guilty after trial last year of violating the Economic Espionage Act of 1996 (“EEA”), 18 U.S.C. §1832, and the Interstate Transportation of Stolen Property Act (“ITSPA”), 18 U.S.C. § 2314. He allegedly downloaded source code for Goldman Sachs’s high-frequency trading (“HFT”) system. Aleynikov had served one year of a 97 month sentence before being released on February 17 after the Second Circuit ruling. The Government may appeal the ruling to the Supreme Court.
Information available from the briefs filed before the Second Circuit give a good indication of the reasons for the ruling. Aleynikov maintained in the court below and on appeal that downloading source code did not violate either of the two statutes. Defendant argued that Goldman Sachs’s HFT was not produced for interstate commerce within the meaning of the EEA, having been produced for strictly internal use. He also argued that the ITSPA, which prohibits interstate transportation of “goods, wares or merchandise,” did not include in its prohibition intangible, intellectual property such as source code.
Defendant asserted that every court that has addressed ITSPA has found that the statute does not criminalize the theft of intangible property. Defendant also argued that the Government failed to establish a market – even a thieves market – for the stolen source code, as required to prove theft of “goods, wares or merchandise,” within the meaning of ITSPA.
Regarding the EEA, Defendant asserted that that statute proscribes theft of trade secrets “related to or included in a product that is produced for or placed in interstate or foreign commerce.” Aleynikov argued that the statute does not federalize theft of trade secrets in the form of source code for a proprietary HFT system that was never intended to be placed in the stream of commerce. The District Court below adopted a broader definition despite the language of the statute, namely, “produced for the purpose of engaging in” interstate commerce. Defendant also maintained that the Government failed to prove that Defendant intended or knew his conduct would harm Goldman Sachs as required by the EEA.
Aleynikov had quit Goldman Sachs and was about to begin employment with Teza Technologies. The founder of Teza, Misha Malyshev, had designed an HFT system for Citadel Investment Group. Malyshev testified at trial that the system he built for Citadel made nearly four times what Goldman Sachs’s system earned in a year from HFT. Malyshev testified further that he did not consider Goldman Sachs a significant competitor and would not have taken Goldman Sachs’s trading system if Goldman had offered it to him.
Aleynikov was sentenced to 97 months’ imprisonment, four times the recommendation of the United States Probation Office. The Government asserted that the intended loss was $7 to $20 million. Defendant argued this was unrealistic because he did not intend to harm Goldman Sachs and there was no market for the source code divorced from the rest of Goldman Sachs’s system.
The end result of the reversal is a significant setback to the Government’s effort to stem the tide of stolen source code through prosecutorial efforts.
The decision is reported at 676 F.3d 71 (2d Cir. 2012).


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Li J., Y.D. Chen, T.Y. Gan, and N.C. Lau (2018), Elevated increases in human-perceived temperature under climate warming. Nature Climate Change, 8, 43-47.
J Liu, Q. Zhang, Y. Zhang, X. Chen, J. Li, and S.K. Aryal (2017), Deducing climatic elasticity to assess projected climate change impacts on streamflow change across China. Journal of Geophysical Research: Atmospheres, 122(19), 10228-10245.
Chen Y.D., J. Li, and Q. Zhang (2016), Changes in site-scale temperature extremes over China during 2071-2100 in CMIP5 simulations. Journal of Geophysical Research: Atmospheres, 121(6), 2732-2749.
Li, J., Q. Zhang, Y. D. Chen, and V. P. Singh (2015), Future joint probability behaviors of precipitation extremes across China: Spatiotemporal patterns and implications for flood and drought hazards. Global and Planetary Change, 124, 107-122.
Zhang, Q., M. Xiao, J. Li, V. P. Singh, and Z. Wang (2014), Topography-based spatial patterns of precipitation extremes in the Poyang Lake basin, China: Changing properties and causes. Journal of Hydrology, 512, 229-239.
Li, J., Q. Zhang, Y. D. Chen, C.-Y. Xu, and V. P. Singh (2013), Changing spatiotemporal patterns of precipitation extremes in China during 2071-2100 based on Earth System Models. Journal of Geophysical Research: Atmospheres, 118(22), 12537-12555.
Li, J., Q. Zhang, Y. D. Chen, and V. P. Singh (2013), GCMs-based spatiotemporal evolution of climate extremes during the 21st century in China. Journal of Geophysical Research: Atmospheres, 118(19), 11017-11035.
Zhang, Q., J. Li, V. P. Singh, C.-Y. Xu, and J. Deng (2013), Influence of ENSO on precipitation in the East River basin, South China. Journal of Geophysical Research: Atmospheres, 118(5), 2207-2219.
Zhang, Q., J. Li, V. P. Singh, and C.-Y. Xu (2012), Copula-based Spatio-temporal Patterns of Precipitation Extremes in China. International Journal of Climatology, DOI:10.1002/joc.3499.

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JOHN L. NICHOLS & another, executors, vs. WILLIAM W. VAUGHAN, executor. JOSIAH E. BACON vs. SAME.
Present: RUGG, C.J., LORING, BRALEY, SHELDON, & CROSBY, JJ.
Limitations, Statute of. Statute, Construction.
which the defendant, although he was in a foreign country, retained his domicil in this Commonwealth.
It is a well established rule of statutory interpretation, that, when a statute after having been construed by the courts is re-enacted without material change, the Legislature are presumed to have adopted the judicial construction put upon it.
TWO ACTIONS OF CONTRACT by different plaintiffs against the executor of the will of Charles G. Lundell, late of Boston. Writs dated May 3, 1910.
In each case the defendant in a substituted answer alleged that the causes of action set out in the plaintiff's writ and declaration did not accrue within six years before the suing out of the plaintiff's writ or within the time when the plaintiffs' testator in the first case or the plaintiff in the second case might by law bring the action.
In the Superior Court the cases were heard by Quinn, J., without a jury. The facts as found by him are stated in the opinion. In each of the cases the judge "ruled as a matter of law that change of domicil alone suspends the expiry of the statute of limitations" and on the facts found by him ruled that the statute was a bar to the plaintiff's action. He ordered that judgment be entered for the defendant on all the counts of the declaration in each action, and reported the cases for determination by this court.
S.M. Child, for the plaintiffs.
J.B. Warner, (F.S. Montgomery with him,) for the defendant.
defendant is entitled to prevail provided it is found that the statute was running in his testator's favor for the first or any one of the years of his absence. The finding of the Superior Court judge, that the statute had run in favor of the defendant, involved a finding that the domicil of his testator was in Boston for at least one year out of the period of his absence.
case of his absence from the State actual notice of the pendency of the action can be given to him, so that a valid and binding judgment can be obtained."
The defendant contends that these decisions are no longer law because of Pennoyer v. Neff, 95 U.S. 714, wherein it was held that there could be no personal judgment against a non-resident defendant over whom jurisdiction was obtained solely by attachment of property. That case does not go to the extent of holding that the courts of the State in which one is domiciled and to which he owes allegiance cannot acquire jurisdiction over him so as to be able to render a judgment in personam except after personal service of process upon him within the State. There are, however, expressions in several decisions of that court which lend support to that view. Freeman v. Alderson, 119 U.S. 185, 188. Clark v. Wells, 203 U.S. 164, 170. Caledonian Coal Co. v. Baker, 196 U.S. 432, 444. Goldey v. Morning News, 156 U.S. 518, 521. Mexican Central Railway v. Pinkney, 149 U.S. 194. Noble v. Union River Logging Railroad, 147 U.S. 165, 173. Harkness v. Hyde, 98 U.S. 476, 478. Cooper v. Reynolds, 10 Wall. 308, goes very far toward sustaining that contention. It is supported by Raher v. Raher, 150 Iowa, 511, De La Montanya v. De La Montanya, 112 Cal. 101, Smith v. Grady, 68 Wis. 215, and Moss v. Fitch, 212 Mo. 484. See 25 Ann. Cas. 680.
Of course, if that is the law under the Fourteenth Amendment of the Federal Constitution as established by the Supreme Court of the United States, it is authoritative and binding upon all State courts. Eliot v. McCormick, 144 Mass. 10. See also Porter v. Prince, 188 Mass. 80.
But, however that may be, the point here presented is one of interpretation of our statute of limitations and not one of sufficiency of service of process. We are constrained to adhere to the interpretation of this statute repeatedly given. The Legislature has re-enacted the statute at least twice without substantial change in this regard since our earliest decision interpreting its words. It is a well settled rule of statutory interpretation that, when a statute after having been construed by the courts is re-enacted without material change, the Legislature are presumed to have adopted the judicial construction put upon it. The doctrine of stare decisis is supported by legislative approval.
If the result of this interpretation, in the light of the decisions of the United States Supreme Court in Cooper v. Reynolds, Pennoyer v. Neff, and the others above cited, is to work a possible injustice in some instances, as well it may, the remedy is with the Legislature.

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In an eagerly awaited ruling handed down on 13 February 2014 the Court of Justice of the EU (CJEU) has decided that the owner of a website may, without the authorisation of the copyright holders, hyperlink to copyright-protected content that is "freely accessible" on another website. This is so even if someone who clicks on the link will have the impression that the work is appearing on the site that contains the link. The CJEU held that for an act of communication to the public to infringe copyright, the communication must be directed to a "new" public. The CJEU added that when a clickable link makes it possible for internet users to circumvent systems on a site that restrict access to the content to the site’s subscribers, "all those users must be deemed to be a new public [and] the holders’ authorisation is required for such a communication to the public".
The case of Svensson and others v Retriever Sverige pitted four Swedish journalists against Retriever Sverige, a media monitoring and aggregation company that provides clickable links to articles published by other websites. The journalists complained to the Stockholm District Court that Retriever had infringed their exclusive right to authorise communication of their protected content to the public by linking to their press articles on the website of the Göteborgs-Posten, where they were published and freely available. The District Court disagreed. Upon appeal, the Svea Court of Appeal decided to stay the proceedings and referred four questions to the CJEU on how the Copyright Directive 2001 should be interpreted.
The CJEU found that whilst providing hyperlinks does constitute an act of "communication to the public", for such a communication to infringe copyright it must be directed "at a public that was not taken into account by the copyright holders when they authorised the initial communication to the public". In the Svensson case the court found that there was no "new" public as the articles on the Göteborgs-Posten website had been placed openly on the Internet, with the authorisation of the rights holders, and were therefore freely accessible to all users.
The Svensson decision is binding on all other EU member states’ national courts or tribunals before which a similar issue is raised; and the CJEU ruled that it was not open to member states in their domestic copyright legislation to broaden the scope of what is considered "communication to the public".
The CJEU’s decision that for an infringement by communication to occur it must be to a "new public", and hence that a link will infringe if it circumvents a restriction on public access, such as on a subscription-only service, is consistent with earlier decisions of the court on the communication to the public right. Those too have turned on whether a new public not contemplated by the rights holder is being served by the communication; if so, there will be the basis for an infringement claim. With hyperlinks forming such an important element in the operation of the Internet, leading users from one location to another, for the court to have come to the opposite conclusion would have had serious ramifications. In consequence, the ruling reinforces the need for rights holders to consider whether to impose restrictions and paywalls if they wish to control and monetise access to their content online.
The decision does not settle the question of whether linking to infringing content constitutes an infringement. That question is still before the CJEU for decision, in the C More Entertainment case. At UK level, though, Mr Justice Arnold in his decision in the FirstRow case last summer had little difficulty in finding grounds to order ISPs to block access to the FirstRow website that was offering links to unauthorised streams of Premier League football matches.

matches: CJEU CJEU CJEU CJEU CJEU CJEU


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ROBERT G. MUNROE and NANCY M. MUNROE vs. JOHN MELVIN and JANICE MELVIN.
Plaintiffs bring this action seeking a declaration that the Defendants have, 1) exceeded the use granted them in an easement; 2) the Plaintiffs' right of use of the right of way has been denied by the Defendants' actions, and ; 3) that the Defendants cease to utilize said right of way for other than access.
By way of answer the Defendants allege that the Land Court lacks jurisdiction over the subject matter of the complaint and that Defendants, if the right to park is not implicit in the easement, have obtained a right by prescription to park vehicles on said right of way.
A trial was held on June, 29, 1982. A stenographer was sworn to record and transcribe the testimony in the case. Two witnesses testified and sixteen exhibits were introduced into evidence and are incorporated herein for the purpose of any appeal. A view was taken on December 30, 1982 with counsel and parties present.
1. By deed dated January 11, 1967 and recorded in Book 8091, Page 302 [Note 1] Francis G. Shea, Jr. and Margaret G. Shea deeded a parcel of land in Hyde Park to Defendants John B. Melvin and Janice M. Melvin. The property was described in part as being bounded "Northeasterly by land now or late of Alden, fifty-three (53) feet; together with a right of way over said passageway out to Williams Avenue."
2. By deed dated September 15, 1976 and recorded in Book 8899, Page 220, Samuel H. Sidman conveyed a parcel of land in Hyde Park to Plaintiffs Robert G. Munroe and Nancy M. Munroe. This parcel was described in part as "being shown as Lot A on a plan entitled 'Subdivision Plan of Land, Hyde Park, Mass.'" which is Appendix A. [Note 2] The deed also recites that "there is also conveyed herein all my right, title and interest in the Right of Way over said Lot B to Williams Avenue, as shown on the above mentioned Plan by Charles E. Brewer."
3. The easement in question is fifteen feet wide and runs closely between the two houses. There is no question that Defendants have parked at least one car on the easement from 1967 to 1976 and at least two cars on the easement until the commencement of this suit. As the width of the easement is only 15 feet, Defendants have parked their cars one behind the other impeding passage over the back end of the right of way.
May Defendants park their cars in the easement?
It is not disputed that Defendants have an easement over the Plaintiffs' land. When an easement is created every right necessary for its enjoyment is included by implication. Mt. Holyoke Realty Corp. v. Holyoke Realty Corp., 298 Mass. 513 , 514 (1937). What is disputed is whether the easement includes the right to park their cars thereon.
Where an easement is created by grant, the extent of the right depends upon the terms of the grant. J.S. Lang, Engineering Co. v. Wilkins Potter Press, 246 Mass. 529 (1923). The terms of the grant in the instant case state "...together with a right of way over said	passageway out to Williams Avenue." (See paragraph 1 herein). Here, there is no difficulty with construction as the terms of the grant	are unambiguous. Defendants have a right to drive over the easement. They do not have a right to park cars on the easement.
Plaintiffs, as owners of the servient estate, possess all the rights of owners except as limited by the easement; they cannot interfere with Defendants' rights in the way. Crullen v. Edison Elec. Illum., Co., 254 Mass. 93 , 94 (1925). As set forth above the easement sets forth that it is for a right of way "out to Williams Avenue." It is for ingress and egress only. The easement does not give the Defendants the right to park cars thereby obstructing the way and interfering with the Plaintiffs' rights as owners of the land. To do so would be an invasion of Plaintiffs' title as owners and is not within the easement to travel over the way granted to Defendants. New York Central Railroad v. Ayer, 242 Mass. 69 (1922), Crullen v. Edison Elec. Illum., Co. supra and cases cited therein.
Although Defendants have alleged that they have acquired a right by prescription to park their cars on the way, the Court finds and rules that insufficient evidence was presented to support such a claim. In order to acquire an easement by prescription the use must be open, notorious, continuous and adverse for twenty years. Ryan v. Stavros, 348 Mass. 251 , 263 (1964). Defendants have used the way to park at least one car since 1967; some 16 years. There is no evidence that their predecessors in title used the way for four additional years. Thus, Defendants have not met their burden of proof.
In sum, Defendants may not block the easement, by parking cars or otherwise as both Plaintiffs and Defendants have a right to pass over the way. Everything must be within reason, however. The prohibition against parking of cars has to be construed reasonably, It does not mean that the cars cannot be left for a short time, for example, to unload groceries (and passengers for that matter). But certainly the passageway cannot be blocked by the Defendants' parking of their automobiles for any protracted period of time. In addition, the Defendants have no right to go over other land of Plaintiffs to turn around and they have no right to use the entrance to Plaintiffs' garage for a turnaround.
Defendants have submitted a document entitled "Defendants' Requests for Rulings" which contains 5 requests for rulings. All 5 requests are allowed.
[Note 1] All recording references are to the Suffolk Registry of Deeds unless otherwise noted.
[Note 2] Appendix A is a copy of Exhibit 14 which is entitled "Subdivision Plan of Land, Hyde Park, Mass. Scale 30 ft.= 1 in., dated March 21, 1964 by Charles E. Brewer, Surveyor, to which the Court has added certain notations.