Ruling by Ninth Circuit Court of Appeals holding that it’s not a crime to strike an opossum with a shovel in California, Results in $400,000.00  False Arrest Award to Anaheim father and son

December 6, 2012

Anaheim, California

A ruling by the Ninth Circuit Court of Appeals holding that California law does not criminalize the striking of opossums, has resulted in a $400,000.00 award from the City of Anaheim, to Anaheim resident Lorenzo Oliver and his teenage son.

Neil Chayet, Looking at the Law, Possum Impossible

Broadcast of October 16, 2012, on CBS News

On March 10, 2008, Lorenzo Oliver and his then 12 year old son, were arrested by Anaheim Police Department officers for Animal Cruelty, and for being an accessory to the same. The APD officers claimed that the boy had struck an opossum with a shovel, and that when his father, Lorenzo Oliver, was asked by the police if his son had done so, he told them that he didnt know, because he was walking away when the shovel striking supposedly happened. The police claimed that this made Mr. Oliver an accessory, by denying knowledge of the suspected crime. In fact, eye witnesses confirmed that no one hit the opossum with any shovel, and that the opossum was injured and bloody from being chewed-up by the Olivers two American Bulldogs in their backyard.

After Mr. Oliver posted a $20,000.00 bail bond, the Anaheim Police Department issued him a Certificate of Release that stated that Mr. Olivers arrest was as a Detention only, as there were . . . insufficient grounds for making a criminal complaint against him.”

Thereafter the Olivers, represented by Newport Beach Civil Rights lawyer Jerry L. Steering, sued the City of Anaheim and the APD officers for false arrest.

On February 23, 2011 United States District Judge Cormac J. Carney dismissed the Olivers lawsuit; holding that the APD officers were entitled to qualified immunity from the Olivers lawsuit, because the California Animal Cruelty statute[1] was so vague, that a reasonably well trained police officer could have believed that striking an opossum with a shovel violated that law.

On August 1, 2012, the Ninth Circuit Court of Appeals reversed Judge Carneys award of summary judgment, holding that The officers had no probable cause to arrest C.B. and Oliver because the act the officers believed C.B. committedtrying to kill the opossum by hitting it with shovelisnt a crime.Thereafter, Olivers obtained $400,000.00 from the City via acceptance of an Offer of Judgment. The Olivers lawyer, Jerry L. Steering, believes that $100,000.00 per hour for the Olivers arrests is adequate restitution to his clients. Moreover, according to Mr. Steering:

Rather than receiving kudos for trying to save the mother opossum from their American bulldogs in their backyard, Mr. Oliver and his son were portrayed in the local and national media as monster opossum bashers. When Orange County Animal Care Services refused to come to the Oliver home to help the mother opossum, Mr. Oliver and his son put a laundry basket over the opossum and pushed it out to their driveway, to get it away from their bulldogs. Once out front, the son grabbed a shovel to flip over the basket to let the opossum go. The chewed-up opossum, flung her bloodied babies (Joeys) about and scurried away under a neighbors car. When another neighbor saw the opossum and her Joeys, bloodied and mangled, he assumed that the son must have struck the opossum with the shovel that he saw him holding, and told the police that he did. However, any reasonable police investigation would have shown that the son did nothing of the sort.”

Moreover, even if the police had reasonable grounds to have believed that the son did hit the opossum, their rationale for arresting Mr. Oliver belies reason. According to Mr. Steering:

When Mr. Oliver was questioned by Anaheim Police officers about the neighbors allegations about his son, he told them that he did not know if his son hit the opossum with the shovel, because he had walked away after the laundry basket had been flipped over. For that, the Anaheim Police officersarrested Mr. Oliver for being an accessory after the fact; for covering for his son. This is pure madness. If one could be arrested for telling the police that one didnt see another commit an act, we should all carry our bail bondsmens business cards with us.

Oral Arguments before the Ninth Circuit Court of Appeal


[1] Californias Animal Cruelty statute, Cal. Penal Code 597, provides in pertinent part:

597. (a) Except as provided in subdivision (c) of this section orSection 599c, every person who maliciously and intentionally maims, mutilates, tortures, or wounds a living animal, or maliciously and intentionally kills an animal, is guilty of a crime punishable pursuant to subdivision (d).

[2] The twelve year old boy.

[3]While section 597(a) of the California Penal Code prohibits the intentional and malicious killing of animals, section 599c provides, No part of this title shall beconstrued . . . as interfering with the right to destroy . . . any animal known as dangerous to life, limb, or property. Cal. Penal Code 597(a), 599c. Regulations confirm that opossums are dangerous by explicitly permitting their killing. Cal. Code Regs. tit. 14, 472(a). The regulations do prohibit certain ways of killing animals, but hitting them with a shovel is not among them. Cal. Code Regs. tit. 14, 475. Indeed, if section 597(a) were construed as prohibiting the killing of wild opossums, it would impermissibly nullify Californias laws that permit killing them. See Cal. Penal Code 599c; Cal. Code Regs. tit. 14, 472(a). Ninth Circuits Memorandum Opinion of August 1, 2012, p.2

[4] That is for each hour of confinement pursuant to their arrests.