25 October 2016
By Debi Metcalfe (c) 2014
Phone calls went unanswered. Messages weren’t returned. Undaunted, Jill Black repeatedly called her close friend, who was caring for her two horses while she was away. Days passed. Finally, Black got a response, but it was not the one she was expecting: Her horses were dead, both killed in a horrible storm.
She reeled in disbelief. Dead? How could both horses be dead?
Five months earlier, in January 2013, Black had relocated from North Carolina to North Dakota, and she had l
left her two geldings, Shatan and Sony, with a friend in North Carolina until she could find a place to keep them. Now, finally settled into a new home, Black was trying to reach her friend to make arrangements to transport the horses when she got the bad news.
Suspecting something wasn’t right, Black sent a veterinarian to her friend’s property to confirm the story, but he was blocked from entering. Next, she called the sheriff’s department, and some important details of the case were quickly flushed out. Shatan and Sony weren’t dead. Her friend, who was being paid to care for them, instead sold them just weeks after they arrived at her farm.
“I was devastated, and I could not eat or sleep, telling myself it was my fault for leaving them,” says Black. And, she adds, “I wanted something done. This person committed a crime by selling [my] horses without my permission.”
But the local law enforcement provided no help. Black was told her case did not involve theft because the person who sold the horses had legal possession of them. Instead, she says, the authorities told her it was a civil matter, and there was nothing they could do. If she wanted her horses back, she was told, Black would have to sue and take her case to court.
While it might seem obvious to you that a person who sells your horse without your permission has, in effect, stolen him, that’s not always the case. “Civil theft” is, legally speaking, quite different than criminal theft, which is the type of crime that occurs when someone cuts your fence and removes a horse from your property without permission. In the latter, there is a clear delineation between the criminal and the victim. A civil matter, in contrast, is considered a dispute between two honest people. If the police decide your case is civil, rightfully or not, they will decline to treat it as a crime.
Getting your horse back after a civil theft is possible, but it can be difficult and expensive, and you need to take the right steps from the beginning to improve your chances of success. Your better bet is to take measures to not let it happen to you. Here’s what you need to know.
Civil versus criminal
What exactly is “civil theft”? The answer depends on whom you talk to and where you live. Right now, Florida is the only state that has a civil theft statute, which includes the definition, “obtaining or using the property of the Plaintiff by taking or exercising control over property” and “making that an unauthorized use, disposition, or transfer of property.” In other words, civil theft occurs when someone who has legal access to your horse takes him or sells him without your permission.
This isn’t uncommon. “As an active horse owner myself, I had heard stories time and again from horse owners: ‘I left my horse at a boarding facility … with a friend … with a trainer … and the horses went missing,’” says former paralegal Pamela Garron of Sanford, North Carolina. For example, a horse may be sold by an angry spouse or another family member. The perpetrators might claim that they have a right to hold and/or sell your horse, especially if they believe you owe them money.
Often, whether a case is treated as criminal or civil comes down to the response from law enforcement. From your perspective as the “victim,” you may want the police to arrest the “perpetrator” immediately and return your horse to you. At the very least, you want them to treat your case as a crime and investigate it accordingly. But consider the perspective of the investigating officers, who are faced with two people, both claiming---correctly or not---they have ownership rights to the same horse. If both parties have any degree of legitimacy---or even if they can just convince the police that they do---law enforcement may back off and declare it a civil matter.
Many times, it comes down to your ability to prove your case. If you cannot present indisputable evidence that the horse was taken from your custody wrongfully, the police will be unable to prosecute the case as a crime, and they may decline to pursue the investigation any further.
And, sometimes, the police may just not want to be bothered. The majority of those serving their communities take their oath in the pursuit of justice seriously. But, as the founder and president of Stolen Horse International, a nonprofit group that offers resources to help people find and recover horses who have been lost, stolen or missing for any reason, I have encountered many people in law enforcement who simply don’t want to deal with “a horse case” or don’t have the expertise to do so. You may have to pursue your case as a civil matter regardless.
If it happens to you
The moment you realize your horse isn’t where you think he’s supposed to be, your first actions are critical to establishing your rights and gaining the cooperation of your local law enforcement to treat your case like a criminal action. Here’s what to do:
• Call the police right away. Your call will trigger a police report---a written record of your complaint---and launch an investigation. Even if you know who is responsible for the disappearance of your horse, this step is critical to establishing your case. As
you describe the situation to the officer who responds, stick to the facts and avoid making personal attacks against other people.
• Press for a higher authority. If the first officer you talk to says it’s not a criminal case, don’t stop there. “Just because this guy rolls out of his patrol car and tells you there’s nothing he can do, that is not necessarily the end of it,” says Robert Jordan, former director of the Mississippi Agricultural & Livestock Theft Bureau. “That guy has people he answers to, and if you think he has wronged you, do not be intimidated by that uniform and the car he is driving.”
Persistence can pay, but you do need to be tactful. “Find out who the supervisor is or who the sheriff is or who the chief of police is and call them,” says Jordan, who before his retirement in 2013 supervised criminal investigators in the detection and prevention of agricultural crimes, including horse thefts. “Usually a reasonable person who has been around for a while will see if he can help you.”
• Keep it polite. No matter how solid your case is, you can hurt your chances of succeeding if you behave badly and alienate the people whose help you need, Jordan says: “You don’t call snorting and bucking and cussing and all that.”
• Be truthful and cooperative with the investigator. Providing false or misleading information in an attempt to get a result faster can only hurt you in the long run, if the investigating officer becomes suspicious of your motives.
Jordan says that a case can be declared a civil matter quite easily during the investigation. “Usually [the accuser is] going to tell you it is someone they know. They are going to tell you that right off the bat because they want you to go get them,” he says. “We are going to talk to the other guy, too, and the truth is going to be somewhere in the middle, usually. Neither one of them may be doing things just right.”
See you in court?
If your horse’s disappearing act has been deemed a civil matter, then your only hope of getting him back is to take legal action. In other words, you’ll have to sue the perpetrator in a civil court and present enough evidence to convince a judge and/or jury that you’ve been wronged. This can be a long, expensive process.
First, you will need to hire an attorney. Seek one who specializes in equine law and is familiar with the industry practices. Just because someone is an attorney and owns or rides a horse, that doesn’t make him qualified to handle your equine legal case.
When you, the plaintiff, file a complaint, the defendant is served with a warrant. The sheriff’s department or a process server can be utilized. Your attorney should know the laws to make sure the correct procedure is followed. Once the defendant is served they will file their answer to your complaint or possibly file a motion to dismiss the lawsuit. Remember, the opposing counsel’s job is to dispute your claims.
After the answer is filed, the discovery process begins. During this phase, representatives from both sides gather evidence to support their respective claims, and facts may be exposed that will weaken one or both parties’ arguments. While not a guarantee, the parties can agree to a settlement during a lawsuit at any time, even during trial, if it gets to that point.
At any point during the suit, the parties can agree to submit their case to alternative dispute resolution (ADR), which refers to any form of meeting with a third party, such as a mediator, to come to an agreement without going to trial. In fact, some courts may require cases to go to ADR before trial, although in others it’s voluntary. One option for ADR is arbitration---which is like a simplified version of a trial in which the plaintiff and defendant present their evidence before a panel of arbitrators, who will hear the evidence and issue a decision. A binding decision is final. If the decision is nonbinding, then either party has a specified length of time to appeal and take the case to trial. Typically, the process is faster and somewhat less expensive than formal litigation.
Another type of ADR is mediation, in which both parties meet with a mediator to negotiate a resolution to the dispute that both parties can agree to. If mediation is successful the parties will sign a legally enforceable mediation agreement. If mediation fails the parties can take their dispute to trial.
If the case comes to trial, a judge and/or jury will examine the evidence and hear each party’s arguments and then issue a judgment. If unhappy with the decision, the losing party may appeal---a process that takes the dispute to another court. But even the “winner” can come out of the courtroom feeling like a loser---if awarded a monetary judgment, it can be extremely difficult to collect.
So why go through all of this? I’ve often heard it said that by the time you have gone through the civil court process you will probably swear you will never do it again. But the truth is that most people never get that far because of the amount of money it costs to take the defendant to court. Often, it becomes clear that you are not the defendant’s first victim, and you won’t be their last. You may be fighting someone who is skilled at manipulating the laws, and your efforts may prove futile.
“Bad things happen to very savvy people sometimes, but more often than not the victims of horse theft or misappropriation are good, trusting folks who would never do something like steal a horse and so they don’t expect it to be done to them,” says Dottie Burch, an equine attorney in Raleigh, North Carolina. While she acknowledges it’s an individual decision, she adds, “more times than not I discourage people from pursuing civil actions because of the expense, the time commitment, the emotional toll and the uncertainty of a positive outcome.”
Going to court over a missing horse is the last thing you ever want to do. So it makes sense to take measures now to help avoid that possibility. Your goals at this point are twofold: first, to have documentation at hand that proves that you own a particular horse. You can’t just say, “That’s my horse,” and expect him to be handed over to you in a dispute. Second, you need to take steps, in writing, to protect your interests when it comes to all transactions with your horse. Here’s what to do:
• Have ready access to proof of ownership. Only one document truly proves your ownership of a horse: a bill of sale. This document contains, at a minimum, information on the buyer and seller, a description of the horse including any identifying marks, registration numbers, purchase price, terms, and signatures of the buyer and seller. Keep this someplace safe where you can find it quickly in an emergency---time can be critical if you become a victim.
Other documents, such as registration, association papers and passports, are not a substitute proof of ownership. But keep them handy, too, as backup. Veterinary records, Coggins or insurance statements that list your name and con-
tact information can also be beneficial.
• Make it easy to identify your horse. You have several options for accomplishing this goal. Brands and tattoos are age-old methods of marking a horse. Make sure you register yours with any relevant databases, and also keep close-up photos for your own records. A microchip, implanted in your horse’s neck, is one of the most effective ways to trace a horse to his rightful owner---a reader passed over the chip yields a unique number
that, when checked against a national database, gives your contact information. Not only can identification methods help someone contact you if they find your missing horse, they can also support your claim of ownership.
• Create a “poor man’s copyright.” Your goal is to establish your ownership of your horse at this point in time---long before, we hope, you encounter a theft of any sort. Start by making copies of each of these documents (store the originals someplace safe): bill of sale, registration papers and ID registrations for microchips, brands, etc.; veterinary records; health certificate; Coggins papers; farrier bills; any insurance-related paperwork; and your own photo ID. Also gather a set of clear photographs of your horse: both sides of his head and body, in both winter and summer coats, with close-ups of any brands, scars, distinctive markings, whorls or any other distinguishing features. Include photos of you with the horse, with backgrounds that are clearly on your property---in front of your barn or house, etc. Then get a sample of pulled mane and tail hairs, which might be usable to provide DNA evidence, and seal them in a plastic bag.
Seal all of these papers and materials in a sturdy envelope, tape it securely closed, and mail it to yourself. When it arrives, it is important that you do not open or tamper with the envelope in any way. Instead, store it someplace safe, such as a safe-deposit box.
If you ever need to prove owner-ship of your horse, the postal cancellation stamp on the envelope gives you a legally documented date of possession before any proof which a third party may possess. The poor-man’s copyright, if not opened, may be used to prove ownership with law enforcement. This could be well worth the effort if it is all that you have to prove that the horse is yours.
• Get it in writing. Use contracts for all transactions. Take this as a given: Someone who takes your horse unethically won’t hesitate to lie. And then consider the perspective of the investigating officer who is interviewing both of you. You will be adamant that you had a boarding agreement, for example, and the other person will be just as insistent that you gave the horse to her, or that you failed to pick up your horse by a certain date, or that you told her over the phone you didn’t want the horse anymore…. Trusting someone based on a word and a handshake is a lovely thought, but it’s a dangerous road to take when your horse is involved.
“When engaging the services of a friend or professional in the industry, a contract is essential, and is meant to protect both parties,” says Debbie Hanson of RateMyHorsePRO.com. Since 2010, RateMyHorsePRO.com has advocated for fair practices within the horse industry by providing a resource for people to rate trainers and other equestrian professionals. The site also offers criminal background checks, sample contracts, and a compendium of news stories, including coverage of horse
professionals who have been charged with criminal activity.
The contract does not have to be formally put together by an attorney, although that is ideal, says Hanson. However, she says, “The agreed-upon terms should be noted and the document must be signed by both parties.”
Keep the contract current at all times. “We see victims get into trouble when the initial contract ends and new terms are agreed upon verbally,” says Hanson. “Always protect yourself; don’t get comfortable. Add the new terms to the original contract and have both parties sign and date it. If they won’t agree to it in writing, walk away.”
• Keep your proofs of payment. It’s very common for people who take or sell a horse to claim that the owner owed them money. Along with a written contract---which specifies exactly how much you owe---your cancelled checks or other proofs of payment (such as credit card statements, documentation of electronic transfers, etc.) are your proof that you are telling the truth.
• Check up on people you hire. Unfortunately, many perpetrators of “civil horse thefts” are repeat offenders. To protect yourself, it’s a good idea to do a little research before trusting your horse to a trainer, a new boarding barn, or any other situation where his care will be in someone else’s hands. At the very least, ask for references of prior clients, then actually call the numbers provided. Internet searches can be useful, too, especially if a person’s name was ever in the newspaper, but a “clean” search may not mean anything if the person has operated under different aliases.
For a fee, you can also have a criminal background check done to look for prior arrests and convictions. This might seem like overkill in many situations, but it’s probably a good idea if you’re ever in a position to hire a regular employee to work in your barn. Above all, trust your gut. If something about a person’s attitude or comments seems “off,” then heed the warning and keep your horse safe.
But also be aware that a career con artist will be superficially charming and may be a master of befriending you and gaining your trust, all the while waiting for the opportunity to commit a crime. Individuals with antisocial personality disorder do not believe they should conform to the norms and laws the rest of us live by, says therapist Deborah Rich, LCSW, of Southern Pines, North Carolina. “They are deceitful and con others for personal profit or pleasure,” she says. “They lack remorse and are indifferent to or rationalize having hurt, mistreated or stolen from another.” Crazy like a fox, these predators are seldom prosecuted criminally. A good rule of thumb is that you will never meet a con man you don’t like.
A (somewhat) happy ending
Angry, dismayed and feeling re-victimized, Jill Black turned to Stolen Horse International. After filing a report on the website, Black found an ally in Garron, a former paralegal who has been lending support to victims of horse theft at Stolen Horse International for years. Garron and Black started by returning to local law enforcement, but, Garron says, “we were virtually thrown out of the department” and told never to contact the detective about the matter again.
“I was not giving up,” Black says. “I wanted my boys back and was going to make sure they came home no matter what it took.”
Her only recourse was to sue the buyer of her Arabian and Quarter Horse cross in small-claims court. She returned to North Carolina for the proceedings armed with documentation proving she was the horses’ owner. The court awarded Black both horses in late 2013. Left without a choice, the horses’ buyer reluctantly gave the geldings back. They were immediately moved to another boarding facility, examined by a veterinarian and later shipped to North Dakota. Even though it was only small-claims court, the ordeal cost Black thousands of dollars, not to mention the emotional stress.
On the other hand, the woman who sold Black’s beloved horses never suffered any consequences for her actions, either criminally or civilly.
What advice does Black offer? “Be sure to have all of your paperwork, lots of pictures and even microchip your horses to prove they are yours if this happens. If you need to have someone board them for you, the best thing I could say is check everything before leaving your babies.”
This article first appeared in EQUUS issue #455, August 2015.