Opossum Killings Test Limits of Cruelty Cases

When a security guard in Tustin discovered an opossum on a wall one night, he beat it to death with his flashlight.

When a Santa Fe Springs man spotted an opossum in his backyard, he shot it three times with a crossbow. The animal survived until the next morning, Easter Sunday, when the man finished it off with a shovel and a pipe.

One man pleaded guilty to cruelty to animals. Last week, the other was acquitted of the same charge.

Which all raises a few questions: What’s the difference between killing a pest, and inflicting cruel and unusual punishment on a defenseless animal? Is killing the animal the problem? Or is it the killer’s state of mind that becomes the deciding factor?

Such are the questions underlying possum justice.

“I am seeing more people who are taking the law in their own hands and abusing these animals instead of doing what is right--that is, to call authorities or educate themselves first,” said Aaron Reyes, operations manager for South East Area Animal Control Authority, a public agency. “They hide behind the excuse that they feel threatened, when anyone who knows anything about possums knows they are docile and terrified of other animals.”

Under California law, a person may kill a “fur-bearing mammal” that is injuring property “at any time and in any manner.” But animal cruelty laws prohibit maliciously and intentionally maiming, mutilating, torturing, wounding--or killing--an animal.

Malice Is Key

The key in the cases of the security guard and the homeowner were the words “intentional” and “maliciously”: whether the men meant to inflict cruel and unusual punishment, or simply wanted to kill animals they perceived as threatening.

The opossum, North America’s only native marsupial, dates to the time of the Tyrannosaurus rex, according to the Opossum Society of the United States. Members of the American variety, one of 65 opossum species, have 50 teeth, opposable thumbs on their back feet, and eat almost anything--cockroaches, figs, snails, garbage and pet food.

But they definitely are not rodents.

One problem, though--from the possum point of view, at least--is that some people assume that it is an overgrown rat, and that it can be trapped or killed as such.

Michael S. Elliston, 20, had had his security guard license for only two days on Feb. 17, when he encountered a possum while patrolling behind the Tustin Drug Emporium. A witness who saw Elliston knock the opossum off the wall and beat it flagged down a police officer. A necropsy later revealed that the opossum was pregnant.

Elliston could not be reached for comment. But Tustin Police Sgt. Tom Tarpley said Elliston told officers that he had been attacked as a child by a possum.

“Basically,” said Tarpley, “he had been traumatized by that, and every time he sees a possum, he kills it.”

One month later, on March 30, Kirk Broomall, 41, was sitting with his family in their backyard when a possum appeared.

“The animal was aggressive, it came toward me, hissed, showed its teeth, it kept coming and coming,” said Broomall, who runs a small trucking company.

Broomall said his yard had been home to possums before. Some, he had had no problem with. Others--two, to be exact--had scared his wife, he said, and he had trapped them in garbage cans, doused them with gasoline and burned them to death.

This time, Broomall got out his crossbow and shot the animal three times. When the animal fell into a neighbor’s backyard, he said, he thought that it was dead.

The next morning, another neighbor saw the possum walking along a wall, the arrows in its body. That neighbor took pictures of the animal and called animal control--after alerting Broomall, who killed the animal with a shovel and a pipe and disposed of its carcass.

Reyes of the animal control authority, which investigated the case before sending it to the district attorney’s office, insisted that the incident could have been prevented. “Had this man made a phone call to the authorities, we would have responded, picked it up and educated him,” he said.

For his part, Broomall said that before he shot the opossum, he called the animal control authority but was discouraged when told he could rent a trap. “They really failed us,” he said. “They were not informative.”

Across Southern California, each animal control agency has different rules for handling possum reports. While potentially dangerous animals, such as wayward mountain lions or bears, will draw a quick response, animals like opossums are almost too commonplace and harmless to bother with.

Animal Rescue

Some agencies work with the Opossum Rescue Society to recover and relocate opossums (state law dictates that a possum can be relocated only within a three-mile radius of where it was discovered). Some will rent out traps.

Most agencies will first counsel the caller and try to dispel any misperceptions he or she might have. Experts said that under normal conditions, the opossum is a docile animal that will stay in one location two or three days before moving on.

Initially, Elliston was charged with felony animal cruelty, a charge that was later reduced to a misdemeanor. Broomall was charged with a misdemeanor--prompting People for the Ethical Treatment of Animals and the Humane Society of the United States to lobby Los Angeles County prosecutors to reconsider.

“This type of crime is a wobbler,” said Tori Richards, spokeswoman for the Orange County district attorney’s office, which prosecuted Elliston. “We had a total of four attorneys review this case as to whether it should be a misdemeanor or a felony ... they all thought it should be a misdemeanor.”

So, in the end, who pleaded guilty to the malicious killing of a possum? The security guard or the homeowner?

The security guard. In May a judge placed Elliston on three years probation and ordered him to complete 60 hours of community service involving animal care, pay restitution, attend counseling and donate $300 to the Society for the Prevention of Cruelty to Animals. Elliston also lost his job as a security guard.

Broomall’s case went to trial amid media coverage that prompted his lawyer to say that he had tried 20 murder cases with less attention than the possum case.

After leaning toward a guilty verdict, jurors in Broomall’s case eventually decided that, although they found his act objectionable and questioned whether he was indeed defending his family, they believed that his was not an intentionally malicious act.

On July 18, they found him not guilty.

“Even though we knew what he had done before, and it bothered us, we had to judge him on his intent,” juror Maryann Vizcaino told the Whittier Daily News. “He never said he didn’t want to kill it.

“If he had been charged with the first two [burning] incidents, we would have found him guilty,” she said. “We were mad that we couldn’t try him on everything.”

Dana Campbell, staff attorney at the Animal Legal Defense Fund, said she is hearing about more cases of people being prosecuted nationwide under animal cruelty laws--in part because of stronger anti-cruelty laws. There were nine states in 1995 with strong anti-cruelty laws, she said; today, 35 states plus the District of Columbia have them.

Of the possum cases in Southern California, Campbell said, “I am hoping this is an aberration and people don’t go around shooting things in their backyard they are afraid of.”

Broomall said he will never again think of the opossum as an overgrown rodent.

“I’ve learned a lot,” he said. “Quite a lot about our judicial system, and about possums. I feel really bad, knowing what I know now.”