Dear Lawyer,

Every day when I walk to and from work, I pass by a neighbor’s home and look sadly at their dog, who appears to live 24/7 in a tiny, fenced-off concrete space. The dog has water and food, but no toys, no attention, and only a small wooden overhang to cower under when it is raining or the sun is hot. The dog is miserable, and I have talked to the owner, but he slammed the door in my face. I have complained to the police and animal control, who said there is nothing they can do to help. I am seriously thinking of rescuing the dog myself, and taking her to someone who can provide her a much better life. I just can’t watch the suffering any longer. What would be the consequences? — Distressed neighbor

Dear Distressed,

Your situation is unfortunately not uncommon, since many irresponsible dog owners abandon and neglect their dogs, even while continuing to provide shelter, food, and water. No government entity in New Mexico would deem such circumstances to be criminal neglect, though it is an egregious situation.
    If the owner refuses to give up the dog or provide better care, and law enforcement cannot assist you, then your only way to help the dog may be something along the lines of what you are considering. Such actions would constitute criminal trespass and property theft. While neglect of a dog is only a misdemeanor in New Mexico and rarely results in greater punishment than a fine, penalties for trespass and theft would be much more severe.
    There have been cases all over the country where such rescues have occurred, and in most cases the rescuer has been prosecuted. Plea bargains often result in reduced charges, and in a very few cases, the accused has been acquitted by a jury.
    The criminal defense in such a case is the common-law rule of “necessity,” which argues that conduct alleged to be criminal was required to prevent some greater harm. One might argue that it was necessary to drive drunk to get away from a carjacker, or to swerve into a building to avoid hitting a child. For such a defense to succeed, the potential harm has to outweigh the danger of the prohibited conduct; there must be no reasonable alternative; the action must cease when the danger has passed; and the accused must not have created the danger itself. In your hypothetical case, it would seem (to me, at least) that all those conditions would be met.
    If I were a juror in such a case, I would vote to acquit, but many jurors and judges place more societal value on punishing theft than in encouraging extralegal rescue of emotionally neglected animals. In other words, I wouldn’t count on the law of necessity being very persuasive in a courtroom. While I know of no case where a convicted animal rescuer received jail time, there have been hefty fines, months of probation, and many hours of community service ordered.
    When rescuing animals such as horses, the rescuer could be charged not only with theft and trespass, but also breaking laws that prohibit moving a horse without proper paperwork and approval.
    The legal definition of animal abuse has gradually been expanded to include greater protections, such as the ordinance in Corrales that now bans stationary tethering of dogs. Perhaps you can lobby your lawmakers for an expanded definition of neglect in your community, one that criminalizes clearly apparent neglect, such as continuous isolation. Every animal deserves better than how your neighbor’s dog is forced to live.

Ed Goodman worked for more than two decades as a trial lawyer in Massachusetts. A painter, screenwriter, and novelist, he lives in Corrales with partner Ennio Garcia-Miera and their seven dogs, four turkeys, four chickens, and a parrot.