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Phoenix didn't have to die: how the system failed
How the system failed to protect a dog
that was never given a chance --
until it was too late

Above photos: A dog known as Phoenix, inset; and in the backgroung her mother and brother.
Photos courtesy of Friends For Life Canine Rescue.

Story & photos by  MEGHAN VOGEL FULMER


JACKIE SIMPSON DIDN'T THINK MUCH ABOUT the call left on her answering machine that Friday afternoon in late March. Stopping by her office after a day spent in the field, Eureka's sole animal control officer was just checking the last of her messages before leaving work for the weekend. It wasn't until almost 6 p.m. that Simpson had a chance to return Cindy Bowser's call about a possible case of animal abuse in Myrtletown. She informed Bowser that the matter would have to wait until Monday.

hole in the Tatro fenceTwo days later, a dog that had been living at that location would be named "Phoenix" by veterinarians engaged in a desperate and ultimately futile battle to save its life; not long afterward, the dog's owner, Susan Tatro, would be arrested and charged with a felony and two misdemeanors in what has become one of Humboldt County's most widely publicized animal cruelty cases in recent memory. And now, for the first time, animal rights advocates are publicly questioning the role played by Eureka animal control -- not just about Simpson's decision to put off Bowser for the weekend, but also about the fact that she did not take aggressive action when she first received a complaint last December about "screaming" and "crying" dogs living in an outdoor pen at 1307 West Ave.

Simpson is not the only one who failed to take effective action. A Eureka police officer went out to the site the day before Phoenix was rescued, viewed the moribund animal, and was told by his supervisor to do nothing. Two days later, with Phoenix dead, animal rights advocates frantically tried to persuade the authorities to go onto the property and seize two other animals that had been trapped in the same pen. A search warrant was not obtained until the following day, by which time the two animals -- who were in better condition than Phoenix -- were gone.

When told that animal control knew about possible problems at the property last year, Kathleen Kistler, executive director of the Sequoia Humane Society, said that an on-site inspection of the pen should have been done then; either that, Kistler said, or animal control should have posted a notice on the property requiring the dogs' owner to come down to City Hall with the dogs so that their condition could have been assessed.

dog pen on Tatro propertyTamara McFarland, co-founder of Friends for Life Canine Rescue, a local organization focused on finding homes for stray and abandoned dogs, accused animal control of abrogating its responsibilities: "There are laws in place that are meant to protect animals from these situations, and the fact that law enforcement didn't implement those laws resulted in this dog's death."

Simpson said anyone criticizing animal control in this case simply doesn't understand the law; absent an emergency situation in which an animal is in jeopardy of dying in a matter of minutes -- perhaps from heat stroke if locked in a car left out in the sun -- an animal control officer cannot trespass on private property without a search warrant. To obtain a warrant, an officer needs tangible evidence of abuse; that was lacking in this case, Simpson said, for the simple reason that the pen was too deep on the property to be seen clearly from the street.

 

NO SENSE OF URGENCY

"At the time I had no concrete evidence, there was no sense of urgency," said Simpson of her telephone conversation with Bowser on Friday, March 22. "All I knew was that she was telling me there was a dog that appeared to be unkempt and that it smelled bad. I couldn't enter onto the property without a search warrant."

Bowser said she expressed strong concern to Simpson about poor living conditions. Walking by the property earlier in the day, "it smelled like a broken sewer pipe and I really believed the smell was coming from the pen," Bowser recalled. "I was concerned about the dogs in the pen, about their well-being."

During the conversation, Simpson realized she had received a previous complaint about the same Myrtletown property before. It was in December, when another neighbor -- not Bowser -- had called complaining of dogs "screaming or crying in the night." Simpson went down to the West Avenue property to investigate. She knocked on the door, got no answer, then walked and drove the perimeter. She saw dogs in a pen, but the pen appeared to be fairly good sized and the dogs were quiet. Seeing no reason to investigate the matter further, she left.

Jackie SimpsonKnowing that she had inspected the property over three months before did not raise a red flag in Simpson's mind that Friday evening in March. Instead, it merely strengthened her decision not to take any action. She said Bowser told her that the pen was small, "but I remembered that it had seemed O.K." As for the complaint about a foul smell emanating from the property, Simpson said "I had not noticed the smell before."

"I knew it was going to be one of those debatable situations," Simpson added. She said another factor in her thinking was that going out that late in the day on Friday would have involved requesting overtime pay.

Phoenix, a female kelpie about a year old, was eventually taken from the mud and feces-encrusted pen she was locked in on Sunday, March 24, by Eureka Police Officer Cindy Manos. Although McKinleyville veterinarian Cynthia Macune did all she could to save the animal, its emaciated state had brought on a severe case of hypothermia; the dog's starvation was so advanced that it had no body fat or muscle to insulate itself from the cold.

"A day would have possibly made a difference," said Macune of the dog's survival. "It's quite possible. It would have been nice to be able to work on her Friday evening."

"No, not really," said Simpson when asked if she regretted not going out that Friday night. "Because there was nothing I could've done anyway except stand on the edge of the property and look in."

Of course, had Simpson obtained a warrant after her December visit and inspected the pen then, she might very well have realized that the animals were being severely neglected; after all by March they were knee-deep in excrement, an indication that they were trapped for a very long time. But Simpson said it's possible that at that time Phoenix may not have been in bad enough shape to justify seizing her.

 

`A SHRIVELED-UP LITTLE THING'

Cindy BowserBowser [photo at left] had been concerned since late last summer about the crying puppy noises she had been hearing so frequently on her walks past a neighbor's fenced-in backyard. On a few occasions she and some fellow neighbors had even tried to contact the owner of the dogs.

"It was hard to tell who really lived in the house. People were always coming and going," said Bowser. "Sometimes there would be no lights on for days, but you could still hear puppies crying in the backyard. We didn't know who the owner was. Every time we went to speak with residents at the home it was a different person who didn't really know what was going on except that the dogs were not wanted. We wanted to offer help, but we didn't know who to talk to. I never did see the puppies, but it sounded like they were being hurt."

Bowser offered to find the puppies a home, explaining to whomever answered the door at Tatro's home that there were several options available to the dogs' owner, such as taking them to a shelter or an animal rescue organization. Since no one at the home would take responsibility of ownership however, the dogs remained in the backyard's 8-foot by 8-foot wire pen.

"If someone needs help with their animals, there are so many places and animal rescue organizations to call," added Bowser. "You just don't stick them in a box and allow them to starve to death."

The day after she called Simpson, Bowser went for another walk past Tatro's home to check on the dogs. This time she heard crying. And this time she decided to take matters in her own hands by entering the property to look into the pen herself.

"What I found was horrifying. I had no idea it was that bad," said Bowser who described the dogs' pen as being 5 inches thick with feces, reaching up to the middle of the dogs' legs. [photo below depicts empty food and water dishes, dried feces and footprints of the three dogs kept in an 8-foot by 8-foot pen.]

empty and rusty food and water dishes in dog pen"You had to have something over your nose the smell was so bad," Bowser continued. "I was talking to two dogs trying to comfort them, and then all of a sudden I said, `My God!' Out of the corner of my eye I saw something moving just a shriveled up little thing lying there in the mud and feces. The dog could barely move. At that point I literally went screaming to my neighbor's for help and left a hysterical message with animal control."

She also called the Eureka Police Department. A young officer, fresh on the force, came out to assess the situation.

According to Bowser the officer was "horrified," and immediately called his supervisor to find out what sort of action he could take. He was told that nothing could be done. Officer Manos, who rescued the dog the next day, said the young officer "feels terrible," and requested that his name not appear in print. It is not clear who the supervisor was.

On Sunday, March 24, Bowser attended a meeting of Friends for Life, of which she is a member. Bowser notified McFarland of the dogs' situation. McFarland then contacted Manos, a friend.

"Thank God Tamara knew Cindy (Officer Manos)," said Bowser. "I wouldn't have known what to do otherwise, and if Tamara hadn't known Cindy, then probably nothing would've gotten done."


Susan Tatro  Susan Tatro


When Manos arrived to investigate shortly before 11 a.m., she found no one at home at the Tatro residence. To get a better look inside the pen, she threw in some pigs' ears as treats for the dogs so they'd stop jumping up on the pen's walls. Manos noted that the bigger of the two was dominant and took both treats. Although the dogs' living conditions were squalid, and two metal bowls in the pen were caked with dried mud indicating they had not been fed or watered in some time, they appeared not to be in any immediate danger. Manos called McFarland, telling her she had only seen two dogs that seemed to be in fairly good shape. McFarland, alarmed that the sick dog could possibly already be dead, insisted that there were three dogs, and both women went back to take a second look.

"I thought it was dead," said Manos when she went back to the property with McFarland and found the dog around 12:30 p.m. "There was small movement, but she didn't do anything only emitted little shivers that was her only response. She was cold to the touch."

"She was nothing but bones," Manos said, shaking her head at a loss for words.

Manos met Macune, the emergency on-call veterinarian that day, at the McKinleyville Animal Care Center at approximately 1:30 p.m. The dog's temperature had dropped so low that it didn't even register on Macune's thermometer, and it had no detectable blood pressure. According to Manos there was also a "maggoty area" on the dog's body. Macune guessed that the dog was around a year old, and said it weighed half of its normal weight according to its size and breed.

"I can't ever remember seeing a neglect case this bad. The degree of emaciation was amazing," said Macune. "This was a long-term situation that had been going on for weeks, if not months."

When the dog arrived at the office, all the doors and windows of the building had to be opened because of the overpowering stench.

"She was soaked in her own excrement covering her entire body. The wetness was just sucking out her heat even more," explained Macune. "At that point she had lost the ability to shiver. The ability to shiver is a basic mechanical body reflex, and once shivering stops and hypothermia sets in death happens usually within 24 hours."

The dog, named Phoenix in the hopes it would make a miraculous recovery, died later that night.

"At least she didn't have to spend another night out in the cold," Macune said. "At least she died warm and clean."

 

HOW MUCH POWER?

Manos went onto the property only after she knew that a dog was in dire condition. According to Simpson, Manos had greater freedom to act for another reason: because she's a full-fledged police officer while Simpson is not. "I'm essentially a civilian in uniform. Police officers have a lot more power than I do," she said. She said when she does need to write a warrant she has to track down a detective in the department to help her with the technicalities.

Simpson, who's been an animal control officer for 21 years, said that she used to more aggressively enforce animal cruelty laws but that the legal system tended to not back her up. She said she learned a hard lesson with one case in particular a few years ago when, without first obtaining a warrant, she seized animals that she believed were being neglected. "The district attorney's office refused to file charges and the person got all the animals back for free," Simpson recalled. Not only that, Simpson said, but the city was out about $1,000 in sheltering costs for the time the animals were impounded.

Simpson said animal control used to have greater powers to inspect properties for possible animal abuse, but that the law has changed over the years in favor of protecting people's property and privacy rights.

"Animal control's powers have been taken away from them," agreed Manos. "They are not allowed to go onto private property without a warrant. I could get on the property because I'm a police officer and I had reason to believe a crime was being committed. I could take Phoenix then without a warrant because of her appalling condition."

McFarland and Kistler say California law expressly gives animal control officers -- not just police officers -- the power to go onto private property to seize animals they believe are being abused. They pointed to a section of the California penal code titled "Animals in specified places without proper care or attention" that specifically applies to "any peace officer, humane society officer or animal control officer." The section reads: "When the officer has reasonable grounds to believe that very prompt action is required to protect the health or safety of the animal, the officer shall immediately seize the animal." The section says nothing about a search warrant or that the officer can only act in an emergency.

"If you get serious complaints from credible people, I think it's clear that you can investigate more thoroughly without having to go get a search warrant, which is not that easy to get," Kistler said.

Simpson, for her part, said "the way the laws read and how they play in court are two very different things."

Bradley Woodall of the Animal Legal Defense Fund in Portland, Ore., said that of all the cases that have come across his desk lately, Phoenix's has been bothering him considerably. "The suffering is extremely dire in this particular case. I've seen photos. It's tragic," said Woodall in a telephone interview from Portland. "Neglect like this case is one of the easier crimes to correct if the situation had been discovered sooner."

But Woodall refused to second-guess the way Simpson handled the case. "Unfortunately, an animal control officer has to see the animal in a public place before they can seek a search warrant. Most animal cruelty cases are well hidden on private property.

"Mrs. Tatro should have fed her dogs and I'm not going to point a finger at anyone other than Mrs. Tatro," Woodall said.

 

THE WORST-CASE SCENARIO

The worst-case scenario for animal rights advocates is that the case against Tatro might somehow get dismissed or the felony charge reduced to a misdemeanor. It's happened before -- most recently last year, when felony charges against Dan Ray Evans, a Eureka man accused of poisoning five neighborhood cats (and represented by District Attorney-elect Paul Gallegos), were all reduced to misdemeanors.

Woodall said he had concerns that the case might get thrown out because Manos went onto the property to rescue Phoenix without a search warrant and on the basis of information obtained by someone who trespassed -- namely Bowser. "The case may not be able to go forward because of that," Woodall said.

Kistler expressed incredulity at that possibility: "If you hear a neighbor stabbing his wife, anyone can go to into the house because that's a criminal act being performed. And it's a criminal act to not take proper care of an animal. If something that's defined as a crime takes place in your house, does that make it OK?"


Few Legal Protections

WHILE EUREKA ANIMAL CONTROL has come under fire for not doing more to investigate the conditions that led to the death of the 1-year-old female dog Phoenix, the fact remains that legally speaking animals are considered private property -- and hence can only be taken from their owners in extreme cases of abuse and neglect.

"You can't just go and take animals -- only in exigent circumstances when their life is in danger. Animals are personal property. You have to understand that principle," said Bob Timoni, director of the Haven Humane Society in Redding and a retired member of the Humane Society's state board of directors.

Bradley Woodall of the Animal Legal Defense Fund, a Portland, Ore., organization, said that "animals are considered property in every state in the country. Relinquishing property before being found guilty is an idea that is just now being proposed. To challenge property issues is futile to take someone's property is a really hard thing to do."

Woodall said that of all the animal cruelty cases being investigated in the nation, less than 10 percent are actually strong enough to be prosecuted in court. Of the 14,000 reports of abuse and/or neglect his office received last year, less than 5 percent made it to court, he said.

When asked if animals could be better protected if their legal status was changed from property to sentient creatures, Woodall responded, "Ideally that would be the case, but there's a lot of resistance (from people who) would rather not see those protective rights extended to animals. Take factory farming and research animals, for instance. These rights do extend more to dogs and cats because of their intricate relationships with human beings, but it's a slippery slope when discussing the value of one species over another."

To which Kathleen Kistler, executive director of the Sequoia Humane Society in Eureka, retorted: "For centuries children and women were considered property and weren't legally protected either."

 


Cruelty unchecked

FOR EVIDENCE OF A SICK SOCIETY, PAY A VISIT to Eureka's Sequoia Humane Society.

"We see so many animals at the shelter who are on the verge of starvation, they're dying or at death's door," said Executive Director Kathleen Kistler. "There's mange, scars, broken tails totally obvious abuse cases. Sometimes owners just bring their animals in to be put to sleep. These are nice animals that have been obviously neglected. Most of the time it's a lack of respect or caring, but sometimes it's just ignorance."

"People need to stand up and say this will not to be tolerated in their communities," said Bob Timoni, who heads the Haven Humane Society in Redding. "Whether you win or lose an animal abuse case is irrelevant. What does count is the message saying that we're not going to tolerate letting animals be treated this way."

If Kistler had to point the finger of blame somewhere, she'd single out "the entire society because animals, children, the elderly and women aren't thought of as important, and until people understand the interconnectedness of all these things and start to care a little bit more nothing is going to get done."

One sign of the low priority given to protecting animals from abusive people -- and, for that matter, to protecting people from dangerous animals -- is that there is only one animal control officer for the entire city of Eureka, and only three for all of Humboldt County.

Tamara McFarland of Friends for Life Canine Rescue, a local organization, said more vigorous prosecution of animal cruelty cases could end up providing better protections to people. Why? Because many hardened criminals start out victimizing animals.

"It's impossible to separate cruelty to people and cruelty to animals. Study upon study has shown that people who abuse animals are far more likely to abuse children or spouses or to become serial murderers."

 


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