Animal Law Committees, and current issues in New York

Posted by on Apr 12, 2013 in Animals & the Law | 0 comments

One of the ways law students and practicing attorneys can stay current on the issues and contribute to the local animal law community is by joining an animal law committee or animal law section of the state or local bar association. It’s also a wonderful way of connecting with other like-minded individuals.

While in Tucson, I served as student representative on the Executive Council of the State Bar of Arizona Animal Law Section. During that time, the section organized everything from social happy hours to animal law-focused CLEs and presentations at the annual State Bar convention. When it came time to organize my family’s return to Manhattan, I joined the New York City Bar Association as a recent law school graduate, specifically to connect with its Committee on Animal Law. I’ve already marked April 25th on my calendar: there will be a presentation and discussion at the House of the Association on 44th Street entitled “Sunset for Elephants and Rhinos in the Wild? Illegal Trafficking, Inadequate Enforcement, and Lack of Political Will.” This program is free of charge, open to all members and the general public. In addition, anyone interested in Animal Law can join the Tort Trial and Insurance Practice Section, which includes animal law topics.

To get a further glimpse into the kinds of issues such a committee tackles — and a look at what is currently happening in New York — here’s an excerpt from the March issue of the NYC Bar newsletter:

Consolidated Animal Crimes Bill
The Committee on Animal Law expressed support for A.775/S.1776 (the Consolidated Animal Crimes Bill), which would relocate many of the criminal provisions currently found in the Agriculture and Markets Law to a new Title Q in the Penal Law. The bill also re-defines statutory terms, creates new statutory terms, re-titles animal crimes offenses, reclassifies existing animal crimes, delineates sentencing provisions, and introduces various new animal crimes offenses and creates a hierarchy of offenses for charging, plea-bargaining, and sentencing purposes. The Committee believes such a change would clarify, modernize, and restructure the animal crimes law of New York State and promote greater enforcement and consistent interpretation of animal crimes.

Humane Education

In a joint report the Committees on Animal Law, Children and the Law, and Education and the Law expressed support for A.2484, which would require the Commissioner of Education to notify every school district of the existing requirement that elementary schools provide instruction in the humane treatment of animals, their importance in the environment, and the importance of spaying and neutering programs. The amendment also authorizes the Commissioner to appropriate grants to teachers for training, workshops, videos, and other resources used for humane education instruction and that all applicants for a teaching certificate or license complete two hours of course work or training in humane education instruction.

Sprinklers in Pet Stores
The Committee on Animal Law supports with recommendations A.972, which would require the installation and testing of fire equipment and sprinkler systems for animal housing maintained by pet dealers. As drafted, the proposed legislation would only apply to pet dealer facilities housing dogs and cats and would not cover pet stores that sell only birds, rabbits, and/or reptiles. The report therefore recommends that the proposed legislation be expanded to cover all companion animals housed by pet stores.

Animal Licensing Exemption
A.1123/S.1700 would provide that commercial dog breeders are only exempt from New York State licensing, vaccination, and control regulations where the breeder sells dogs exclusively to USDA registered research facilities and has obtained a certificate of exemption. The Committee on Animal Law expressed support for this legislation as it would close a loophole that currently allows certain commercial dog breeders to escape the licensing, vaccination, and other dog control requirements simply because the breeder is registered as a Class A dealer with the USDA.

Theft of a Companion Animal or Pet
The Committee on Animal Law expressed support for A.1643/S.2336-A, which would amend the Penal Law to provide for first and second degree felony offenses for the theft of a companion animal or pet. The proposed legislation would create a second degree felony offense where a person steals a companion animal or pet and a first degree felony offense where a person commits pet theft in the second degree and either 1) the stolen pet or companion animal is sold for scientific research purposes or 2) the person who stole the pet or companion animal with no justifiable purpose…intentionally kills or intentionally causes serious physical injury to such companion animal or pet with aggravated cruelty.

Unweaned Birds
In a letter to the Legislature, the Committee on Animal Law provided comments on A.738/S.1922, which would prohibit the sale of unweaned baby birds by pet dealers. The Committee supports the intent of the law, to protect unweaned baby birds and to protect consumers who may not know how to properly care for these birds, but expressed concern that as drafted the bill would not apply to many bird sellers. Under the proposed law only bird sellers who also sell dogs or cats would be subject to the law. The Committee recommends amendments which would keep the bill substantively the same but ensure that it applies to bird sellers generally. The Committee also suggested two other legislative approaches: establishing a fuller regulatory system for the sale of unweaned birds, and banning their sale altogether.

As you can see, State Bar Animal Law committees are such a positive force within our legal system. A wonderful means of bringing people together, all working towards more and stronger laws for the protection of animals.

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Breed Discriminatory Laws

Posted by on Dec 17, 2012 in Animals & the Law | 0 comments

Kos

Over the years, different breeds — Dobermans, German Shepherds, Rottweilers, Mastiffs, Dalmatians, Chow Chows, and “pit bulls” (American Pit Bull Terriers, American Staffordshire Terriers, Staffordshire Bull Terriers) — have been victims of bad press and the resulting fear it generates among a misguided public. “Breed specific” legislation (BSL) refers to any laws that regulate or ban certain breeds, with authorities justifying these laws as necessary for public safety, as a means of reducing the number of dog-biting incidences.

State Laws: Breed Specific & Victims in Dogfighting Cases
Currently, thirteen states have “dangerous dog” laws that discriminate against particular breeds, most notably pit bull type dogs that are seized in dogfighting cases: Colorado, Delaware, Louisiana, Massachusetts, Michigan, Minnesota, New Jersey, North Carolina, South Carolina, Oklahoma, Rhode Island, South Dakota, and Wisconsin. In these states, dogs confiscated in dogfighting cases immediately are labeled as dangerous and therefore euthanized. When I was volunteering at Best Friends Animal Sanctuary in September, I spent time with one of the former Michael Vick dogs, a well-mannered and affectionate little lady named Layla. She is living proof that not all victims of dogfighting are beyond rehabilitation. (For the dogs of the Vick case, the Court must approve each dog as “adoptable” before (s)he is adopted out.)

Local Laws: Breed Bans & Confiscation
Cities and municipalities sometimes discriminate through the establishment of breed bans that prohibit ownership of certain breeds. Homeowner associations and landlords also often single out specific breeds as unacceptable. And, before former President George W. Bush left office, the Pentagon issued a memorandum prohibiting pit bulls, German Shepherds, Dobermans, and Rottweilers in military housing. Bans typically give local authorities and law enforcement the power to seize any dogs of the targeted breeds, even if they are living peacefully in a private home, even if the dogs have no history of aggression.

In response to the confiscation of one’s dog, an owner has a right under 42 U.S.C. sec. 1983 to claim that he has been deprived of the constitutional right to due process. In litigation, the state will bear the burden of proof to show that the dog is, in fact, a member of the targeted breed and that (s)he is “dangerous.”

Key cases related to discriminatory laws/bans and liabilities:

  • Sak v. the City of Aurelia (Iowa): James Sak moved to Aurelia with his family, including his service dog Snickers, who was a pit bull. The city council ordered retired police officer Sak to exile Snickers. Eventually, the city settled this case and Sak got to keep Snickers — but with restrictions. 832 F.Supp.2d 1026 (2011).
  • Carter v. Metro North (New York): Dog bite case against a landlord, in which the appellate court held that the trial court erred when it took notice of the vicious propensity of pit bulls as a whole, in light of divergent opinions on the subject. 680 N.Y.S. 2d, 239, 240-41 (1998).
  • City of Pierre v. Blackwell (South Dakota): Court held that the city of Pierre brought criminal charges and therefore needed to prove the “dangerousness” of the dog, meeting the “beyond a reasonable doubt” standard. Because the court relied solely on the animal control officer’s decision and there was no independent assessment of the evidence presented by both sides, due process was not satisfied. 635 N.W.2d 581 (S.D. 2001).
  • Tracey v. Solesky (Maryland): Defines the pit bull as inherently dangerous. “Upon a plaintiff’s sufficient proof that a dog involved in an attack is a pit bull … and that the owner… (including a landlord who has the right and/or opportunity to prohibit such dogs on leased premises as in this case) knows, or has reason to know, that the dog is a pit bull or cross-bred pit bull mix, that person is strictly liable for damages…” 25 A.3d 1025 (2011).

Misidentification of dogs often leads to the confiscation and euthanization of dogs who not only are harmless, but also are not even a member of the targeted breed. Before reading further, I invite you to take the few minutes to test your own ability to accurately identify a dog’s breed by identifying the one American Pit Bull Terrier among the array of dogs pictured on Find the Pit Bull (Pit Bull Rescue Central web site). Current statistics suggest Animal Control usually identifies a dog’s breed correctly only 25% of the time. Meanwhile, breed bans that can lead to the euthanization of dogs often require that a dog be at least 51% of the targeted breed. To address this problem, the use of a dog’s DNA is gaining acceptance in the courtrooms.

with Layla, a rehabilitated dog from the Michael Vick case

Positive Changes: Anti-Discriminatory Laws & Policies
While BSL continues to threaten the lives of countless dogs, there also have been many affirmative steps taken in defense of targeted breeds.

  • State Law: Currently, thirteen states have preemptive laws that prohibit breed discrimination through canine profiling. In Illinois, the Ryan Armstrong Act that went into effect in 2003 provides that no regulation or ordinance is specific to breed (Illinois Animal Control Act, Section 24). In February 2012, the state of Ohio repealed its breed-discriminatory law. Also in 2012, Massachusetts passed a comprehensive animal control bill that prohibits canine profiling. States like New York and Texas provide good models of breed-neutral laws that favor tracking dangerous dogs individually.
  • City/Municipal Ordinances: The cities of Toledo, Topeka, and Cleveland are among those that have repealed breed discriminatory laws. In 2007, Spokane, Washington’s “dangerous dog” ordinance was found unconstitutional because it denied owners the right of due process. Changes at this level are important especially in “Home Rule” states, where local governments have greater decision-making powers and are able to regulate local matters without interference by the state.
  • International Law: Countries such as Italy, Sweden, and the Netherlands prohibit breed discrimination.
  • Department of Justice, Service Dogs & the American Disabilities Act: Regarding service dogs that are identified as a member of a targeted breed, the US Department of Justice has established that “[the DOJ] does not believe it is either appropriate or consistent with the American Disabilities Act (ADA) to defer to local laws that prohibit certain breeds of dogs based on local concerns that these breeds may have a history of unprovoked aggression.” 23 CFR Part 35.
  • American Bar Association, House of Delegates Resolution 100-2012: Passed last August, the ABA resolved to urge all state, territorial, and local legislative bodies and governmental agencies to adopt comprehensive breed neutral dangerous dog/reckless owner laws that ensure due process protections for owners, encourage responsible pet ownership and focus on the behavior of both dog owners and dogs, and to repeal any breed-discriminatory or breed-specific provisions.

Positive Changes: A Holistic Approach
In addition to repealing discriminatory laws and creating breed-neutral laws and preemptive laws, we need to take additional measures to rectify the negative stereotype of these breeds and promote responsible ownership. Some recommendations:

  • Considering The Other End of the Leash
    In 2006, in cases involving dog-related fatalities, 84% of the cases involved “reckless owners” (National Canine Research Council). Part of any effective response, therefore, requires us to more clearly define the responsibilities of owning and caring for a dog and enforcing greater penalties when negligence results in a harm. For example, in the cities of Takoma and St. Paul, pet owners found to be “reckless” (involved in dogfighting, letting dogs run at large, etc.) are prohibited from owning dogs, usually for a set period of time. The states of Illinois and Ohio have made it a Class A Misdemeanor for certain felons to own dogs that have not been spayed or neutered (which statistically have greater incidences of aggression and biting) or dogs determined by the court to be vicious.
  • Dangerous Dog Registries
    The state of Virginia has created a Dangerous Dog Registry, which functions much the same as state sex-offender registries and the newly emerging animal-abuser registries. Owners convicted of the Virginia’s dangerous dog law are placed on the list as well as the dog (only information already a matter of public record is included); in this way, the registry  underscores the human role in any incident. Also, those who strongly advocate for breed discrimination laws would do well to look closely at Virginia’s list, where pit bull types keep company with beagles and chihuahuas.
  • Educating & Training Police Officers
    Unnecessary use of deadly force against dogs by law officers happens because officers have not been specifically educated about dogs (for example, the distinction between a “resident dog” and “family dog”) or trained to deal with volatile situations involving dogs; consequently, many officers are unable to discern the level of threat that would warrant actually shooting a dog in self-defense. The Department of Justice has created a free, downloadable reference for officers, The Problem of Dog-Related Incidents and Encounters, that is a good starting point for police departments to educate their officers. In dog shootings, an owner may use the Fourth Amendment protection against unlawful search and seizure (dog, as property). Key cases that address the issue of how law officers interact with dogs on the scene:

    • San Jose Charter of Hell’s Angels Motorcycle Club v. City of San Jose: “a reasonable officer should have known that… to enter the perimeter of a person’s property, knowing all the while about the presence of dogs on the property, without considering a method for subduing the dogs besides killing them, would violate the Fourth Amendment.” 402 F.3d 962, 9th Cir. (2005).
    • Villo v. Eyre: “use of deadly force against a household pet is reasonable only if the pet poses an immediate danger and the use of force is unavoidable” (italics added for emphasis). 547 F. 3d 707 (2008).

As illustrated, it will take a combination of legislation, public outreach, and more specific training for law enforcement to effectively address the issues surrounding BSL. Through positive changes in the law — and, we hope, subsequent decisions in the courtroom based on those laws — we can help correct the negative stereotype of pit bulls and other “bully” breeds targeted by BSL initiatives that, in fact, have had little or no effect on the number of dog-biting incidences. Success in reducing such incidences is much more likely by taking a multi-pronged approach that encourages cooperation between community members and law enforcement. In doing so, we can better protect the interests of both the animals and their human counterparts.

Sources of information for this article: Presentation by Ledy VanKavage, Senior Legislative Attorney for Best Friends Animal Society, given at the Animal Law Conference at Lewis & Clark Law School on October 21, 2012; and Guilty ‘Til Proven Innocent, a documentary by Jeff Theman and Bryan Porter.

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Animals in Entertainment: The Zoo

Posted by on Jun 21, 2012 in Animals & the Law | 0 comments

photo credit: Shannon Kringen, flickr

Zoo facilities range from dilapidated roadside zoos and small “petting zoos” to lavish landscapes that attempt to replicate a species’ natural habitat. Public opinion about zoos ranges just as widely. While many are opposed to zoos, others view zoos as a public good, as educational institutions, and also as vehicles for studying and breeding endangered species. However, even in the best managed zoos, there are going to be issues arising out of the sale of animals, their confinement and transport, and eventually how the animals will spend their later years once they are no longer suitable for exhibit.

First, an overview of the applicable laws:

International Law

The Convention of International Trade of Endangered Species of Wild Flora and Fauna (CITES) is an international treaty among 175 member countries that provides for the regulation of endangered species through the use of a permit system. Species are listed in one of three appendices, depending on how endangered they are, and each appendix has its own restrictions. A few aspects of CITES weaken its protective force for zoo animals. First, there are its essential limitations as a treaty: participation as a member of CITES is completely voluntary for any nation; and, even if a nation agrees to the treaty, the means by which a nation enforces the treaty is entirely up to it. That is, CITES members agree on the desired end, but the means and any implementation plan is never specified. Second, any animal of a species, if born in captivity — even if he is a member of a species classified as most endangered — receives significantly less protection than members of that species still in the wild. Third, all animals that have been housed in zoos prior to 1973, the year that CITES went into effect, are exempt from its protections.

Federal Law

  • The Animal Welfare Act
    The AWA, regulated and enforced by the United States Department of Agriculture (USDA) through its Animal Plant and Health Inspection Service (APHIS), provides minimum standards of care and treatment for animals that are bred for commercial sale, used in research, transported commercially, or exhibited to the public. These standards include guidelines about food, water, housing, and veterinary care. A serious deficiency in this law, however, is its language that prohibits “unnecessary” suffering, without further defining what that threshold might be. In other words, it is left to the industry to deem what is necessary and what is not. In the context of zoos, it is important to note that the AWA only applies to warm-blooded animals; any cold-blooded animals are excluded from the legal protections of care and welfare provided by the Act. Also, with the exception of nonhuman primates, the AWA does not take into account the mental health of the animals. Finally, the Act does not include a citizen suit provision, which means an individual is prevented from bringing a private action against an entity for alleged violations of the Act. Under the Act, APHIS is required to conduct a yearly inspection of any zoo facility and investigate any complaints. However, APHIS suffers from a lack of resources and understaffing, which has led to inadequate monitoring and enforcement of the AWA.
  • The Endangered Species Act
    The ESA, under the supervision of the Department of the Interior’s U.S. Fish & Wildlife Service, has the purpose of protecting endangered and threatened species and of ensuring the conservation of their habitat. Unlike the AWA, the Endangered Species Act includes a citizen suit provision. In the context of zoos, applicability of the ESA is limited. A citizen may file a lawsuit if the behavior at issue involves animals that are specifically listed as either “endangered” or “threatened”; and even for animals so classified, the Act only regulates the import and export of species as they are bought or sold into foreign commerce. Under the ESA, it is “unlawful… to… take any [endangered species] within the United States.” Among the ten different ways a person can illegally “take” an animal according to the Act, one may “harm” an animal, which includes a significant habitat modification or degradation, and one may “harass” an animal by disrupting its normal behavior patterns. However, generally accepted animal-husbandry practices and breeding procedures are exempt from this provision.
  • Species Specific Statutes
    These statutes, such as The Rhinoceros and Tiger Conservation ActThe African Elephant Conservation Act, and The Asian Elephant Conservation Act, tend to reinforce protections already provided by CITES, and they typically create additional funding for the preservation of the species.

State Law

Individual states have their own animal cruelty statutes. Generally, these laws define cruelty as intentional acts of beating, tormenting, overworking, starving, or otherwise abusing an animal; they also can include instances of neglect. However, the statutes vary considerably from state to state regarding what animals are covered and what the penalties are for violations. Currently, six states have made zoo animals wholly exempt from their animal cruelty statutes.

Laws About “Retirement” for a Zoo Animal

After perhaps years of being on exhibition, where do the animals go? Or, in zoo breeding programs where a “surplus” has been created, what does the facility do with the unneeded extra animals? As one can glean from the laws discussed above, there is nothing available in the legal system to ensure retiring animals receive proper treatment. In fact, these animals often are sold to research facilities; to dealers for canned hunts; to roadside attractions where they endure a life of isolation, concrete, and car fumes; into the illegal trade for exotic animals where they are kept in private, unregulated premises or sold off for their parts (a tiger skin, a rhino horn, a bear claw); or to slaughterhouses. Animals that are released to sanctuaries remain the exception rather than the norm.

Accreditation by the American Zoo and Aquarium Association

Accreditation by  the The American Zoo and Aquarium Association is given much weight within the zoo industry. Its Code of Professional Ethics mandates a higher level of care than the AWA’s minimum requirements. However, getting beyond the specific guidelines a zoo facility must follow in order to be accredited, one must also consider the monitoring and enforcement mechanisms in place. This is especially true when we are determining the effectiveness of any industry’s efforts at self-regulation: inevitably there will be a weighing of interests — the costs and benefits to the industry versus the animals — rather than the creation of a system that prioritizes the animals’ protection above all else.  Finally, let us not lose sight of the fact that the AZA is an organization of voluntary membership, and therefore its guidelines do not have the force of law.

Who Can Sue? The Legal Threshold for Standing

  • Constitutional Requirements
    One of the greatest hurdles in animal law cases is establishing standing. That is, since the animals themselves do not have standing to sue, individuals or organizations must be the ones to bring forth a complaint. To meet the constitutional requirements for standing, a plaintiff must show (1) injury in fact — that she has suffered or will suffer a concrete and particularized injury, (2) causation — that the injury is caused by the action of the defendant, and (3) redressability — that a favorable decision by a court will redress the injury. Note that the injury must be to the plaintiff; it is not enough for someone to come forward claiming injury to an animal. A finding of lack of standing prevents a court from ever getting to the merits of the case, and therefore prevents the court from possibly advancing the interests of the animals at the heart of these cases. So what kind of injury can a person show if he wants to see abuses at a local zoo come to an end?
  • Aesthetic Injury
    In the context of zoos, the court has found “aesthetic injury” to be sufficient for standing. The 1998 case Animal Legal Defense Fund v. Glickman (154 F.3d 426) illustrates the legal issue of standing and, at the same time, sheds light on the underlying problems of confining animals in zoo settings. In this case, plaintiffs were alleging they suffered aesthetic injury during regular visits to a zoo when they observed primates living under conditions that did not meet the needs of the animals for their psychological well-being. For example, the one plaintiff that was granted standing observed one primate in a cage that had only one enrichment — an unused swing; he also observed a chimpanzee isolated in an area where the chimpanzee could not see or hear any other primates. The plaintiff, aware of the social nature and needs of these primates (his background included training in wildlife rehabilitation and volunteering with animal relief and rescue organizations), was “upset… very much” to see these conditions. Although defendants in cases such as this one may try to argue that a plaintiff voluntarily subjects himself to the injury by repeated visits to an upsetting environment, courts have never suggested that someone refrain from a lawful behavior in order to avoid injury. After the Glickman holding, an ordinary visitor/viewer of animals on exhibit has standing to challenge USDA regulations that violate the AWA. The Administrative Procedure Act allows someone to make a claim if the injury falls within the “zone of interests” of the statute. Aesthetic or emotional injuries meet this requirement under the AWA.
  • Should Whales Have Standing?
    In 2011, PETA filed a suit against Sea World. What was different about this case: five orcas were named as the plaintiffs. PETA claimed that the whales were enslaved — a violation of the Constitution’s 13th Amendment that prohibits slavery — as they were forced to live in tanks and perform each day. The question before the court was not about any specific abuses the whales had endured; rather, it was whether animals were entitled to the same constitutional protection as humans against slavery and, therefore, could have standing to sue. Although this case was dismissed, it was viewed as an important step in the animal protection movement: it was the first time that a federal court was asked to consider animals as living, sentient beings with rights of their own, rather than simply worthy of protection as the property of humans.

What About “Safari” Theme Parks?

Although “safari” settings may seem to be much more animal-friendly, these environments still pose many of the same problems related to other zoo facilities — sale, transport, the later years. And, though these outdoor settings are better than cages, they still are nothing like a species’ natural habitat: the animals here have little reason to engage in their natural abilities, such as foraging and problem-solving. Furthermore, although architects may plant some familiar vegetation in the designated areas, there are considerable limitations to how effectively one can mimic several diverse ecosystems all within the boundaries of one “safari” location. New Jersey, USA is not Africa. And it certainly is not Africa and Asia and other remote regions where these numerous species belong.

In addition, here are a few eye-opening facts about these “safari” settings, taken from Thomas G. Welch’s Globalization and Animal Law, citing statistics found on the Helping Animals web site:

  • Disney’s Wild Animal Kingdom: 31 animals died of neglect and negligence before the park even opened, “including two West African crowned cranes who were run over by safari trucks, four cheetah cubs who swallowed a toxin found in antifreeze, and two Oriental small-clawed otters who ate poisonous seeds from loquat trees planted in their exhibit.”
  • Six Flags Wild Safari:  in one three-month period, 26 animals died… causes of death ranged from neck and skull fractures to hypothermia, tetanus, pneumonia, and drowning. Six Flags also has sold a “surplus” of baboons to biomedical research and exotic hoofed animals to hunting ranches. Meanwhile, Six Flags Discovery Kingdom in Vallejo, California has used “training” methods such as beating elephants with bullhooks, and has failed to give its animals proper veterinary care.

Recommendations

In response to the issues concerning zoos and their animals, the legal system relies on regulation rather than prohibition. However, I encourage individuals to thoroughly consider the lives these animals are forced to endure. Some proponents of zoos point to the extended life expectancy of many captive animals compared to those living in the wild. First, this is not true of all species; for example, it is not true of elephants, whose life in the wild naturally exceeds 60 years. But, even for those who may live longer at a zoo facility than they would have survived in the wild, what quality of life is there?  I ask: would a person choose an extra ten years of life if it meant having to live the entirety of his life imprisoned?

For those who argue that zoos are essential to educate the public –especially children — consider alternative ways that individuals can learn about animals:

  • Film/Television
    There are so many quality television programs, such as those on the Animal Planet channel. And, while Disney’s theme parks are objectionable, DisneyNature is doing the public an extraordinary service by producing high quality films like African Cats and Chimpanzee. These films are a hybrid of documentary and mainstream film-making that makes them palatable for the general public, including children, and they are made without exploiting the animals in them. Ultimately, a person will learn a great deal more about a chimpanzee this way than by observing an agitated and depressed chimpanzee placed in an artificial setting.
  • Wildlife Watching
    Whether it’s a whale watching excursion or a visit to one of our glorious national parks, there are plenty of ways to witness the majesty of animals and the natural world. And for anyone wanting to see elephants, big cats, zebras, and hippos, I recommend a real safari trip. Yes, it will be more expensive than a visit to the zoo, but it also will be a transformative experience well worth the price. Just be sure to use a safari company that allows you to observe the animals in the wild respectfully, without disrupting them or the environment. Last summer, I traveled to South Africa and Zimbabwe, using Hills of Africa Travel.
  • Visit or Volunteer at an Animal Sanctuary
    Some of my greatest moments with animals have been while I was working as a volunteer at a sanctuary. Check out places like Farm Sanctuary (New York, California), Poplar Springs (Maryland), Woodstock Animal Sanctuary (New York), Chimpanzee Sanctuary Northwest (Washington), and Elephant Sanctuary (Tennessee). This September, I’ll be helping out at Best Friends in Kanab, Utah.
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Animals in Entertainment: The Circus

Posted by on May 23, 2012 in Animals & the Law | 2 comments

“Circus animals are being forced to perform unnatural tricks, are housed in cramped cages, subjected to fear, hunger, and pain, not to mention the undignified way of life they have to live, with no respite… Though not homo sapiens, they are also beings entitled to dignified existence and humane treatment sans cruelty and torture.” – K. Madhavan v. The District Collector, 2008, Madras High Court – India

photo credit: Bob n Renee, Flickr

The use of animals in circuses presents a few different issues. First, one looks at the treatment of the animals and the conditions they are subjected to as they perform: an environment of noisy crowds and flashing lights is a far cry from an animal’s natural habitat. Second, there is the treatment of the animals that results in their performance bag of tricks — namely, the training methods. Third, there are the issues of housing and transport, as a circus makes its way from city to city.

Federal Law
There are two major federal laws that apply to the use of animals in circuses:

  • The Animal Welfare Act
    The AWA, regulated and enforced by the United States Department of Agriculture (USDA), provides minimum standards of care and treatment for animals that are bred for commercial sale, used in research, transported commercially, or exhibited to the public. These standards include guidelines about food, water, housing, and veterinary care. (Primates, such as chimpanzees, are given an additional protection in the provision that requires an enriched environment for their psychological well-being.) However, a serious deficiency in this law is its language that prohibits “unnecessary” suffering, without further defining what that threshold might be. In other words, it is left to the industry to deem what is necessary and what is not. Furthermore, the AWA does not include a citizen suit provision, which means an individual is prevented from bringing a private action against a corporation that she alleges is violating the Act.
  • The Endangered Species Act
    The ESA, under the supervision of the Department of the Interior’s U.S. Fish & Wildlife Service, has the purpose of protecting endangered and threatened species and of ensuring the conservation of their habitat. Unlike the AWA, the Endangered Species Act includes a citizen suit provision. In the context of circuses, a citizen may file a lawsuit if the behavior at issue involves animals that are listed as either “endangered” or “threatened” under the appendices of the ESA. Under the ESA, it is “unlawful… to… take any [endangered species] within the United States.” Among the ten different ways a person can illegally “take” an animal according to the Act, one may “harm” an animal, which includes a significant habitat modification or degradation, and one may “harass” an animal by disrupting its normal behavior patterns. However, generally accepted animal-husbandry practices and breeding procedures are exempt from this provision.

State Animal Cruelty Statutes and Local Ordinances
Individual states have their own animal cruelty statutes. Generally, these laws define cruelty as intentional acts of beating, tormenting, overworking, starving, or otherwise abusing an animal. However, in twenty-three states, circus animals are explicitly exempt from the protection of these statutes. And even in those states where there is no exemption, because traveling circuses are quickly moving from one jurisdiction to another, monitoring and reporting abuses — and therefore enforcing any penalties –is difficult to achieve on a state level.

Beyond state cruelty statutes, another approach is the use of local ordinances. For example, in recent news, the city of Rio Rancho, New Mexico refused to issue Ringling Bros. a permit to perform at its Santa Ana Star Center on the basis of its updated ordinance: last year, the city added a provision to its animal ordinance barring animal shows that had entered into any settlements with the USDA within the previous five years or had been cited for violations of the AWA within the past three years.

Two Cases: Treatment & Transport 

  • ASPCA, et al. v. Feld Entertainment, Inc. (2011)

Plaintiffs in this case were four animal welfare organizations and a former elephant handler for Ringling Bros., Tom Rider. This case was brought forth as a citizen suit, under the Endangered Species Act. The claim alleged that the use of bullhooks and leg tethers of the circus’ Asian elephants (classified as “endangered” under the ESA) constituted illegal “takings” under the ESA.

Bullhooks are three-foot wooden clubs with a sharp metal hook at the end; elephant handlers use the bullhook to repeatedly beat the elephants as a way of training them. As for the tethering, the plaintiffs pointed to the social, psychological and physical needs of elephants. Chained as they are, the elephants are unable to engage in their normal behaviors, which include walking many miles each day and interacting with other elephants; also, they suffer from foot problems and arthritis because they are kept on hard surfaces.

Feld’s arguments were that (1) the plaintiffs did not have standing, (2) the “takings” provision of the ESA did not apply to captive endangered species and,  (3) that, even if the ESA did apply, the use of bullhooks and leg chains are generally accepted animal-husbandry practices and therefore exempt from the ESA’s “harass” provision.

The trial court found in favor of Feld. Unfortunately, more than a decade after the original filing, this case was unanimously dismissed by the Circuit Court panel on the basis that Rider had been paid by the organizations who were also party to the suit — essentially discrediting him as a witness. No. 03-2006 (D.D.C.)

  • Hagan v. Feld d/b/a Ringling Bros. and Barnum & Bailey Circus (2005)

The plaintiff Hagan was a lion handler, part of whose job was feeding and watering the lions, cleaning their cages, and caring for them during transport as well as at each performance location — all tasks that should be carried out in accordance with the Animal Welfare Act. The incident at issue began on July 12th, 2004, when the Ringling Bros. train left Phoenix, Arizona for Fresno, California.

The second day of travel took the train through the desert and temperatures were “upwards of one hundred degrees.” Hagan requested that the train be stopped so he could water down the lions; his request was denied, and he was given the reason that the train was behind schedule. Between 8:30am and 2:45pm that day, the lions had no drinking water and were not watered down. When the train finally stopped, Hagan found a two year-old lion lying in a fetal position with his tongue hanging out and eyes rolled back. He was barely breathing. And, despite Hagan’s attempts to revive him, the young lion died.

Subsequently, Ringling’s Operations Manager told Hagan to move the lion’s body to the meat car and not to say anything to anyone about what had happened. Once the train arrived in Fresno, Hagan was told to move the lion corpse from the train to a rental truck and to pressure wash the train car before the USDA arrived for inspection. Once the inspectors arrived, Hagan was taken to another location where he was questioned by Feld’s legal counsel and then, again, told not to discuss the incident with anyone. One week later, while still in California, Hagan was terminated and left with no way to get back home. (Reason given for termination: Hagan caused a power outage.)

In this case, the focus was on the injury to Hagan — wrongful discharge — rather than on the mistreatment of the lions. Hagan claimed that his termination was the result of his complaining to management about the AWA violations regarding the lions in transport. 365 F. Supp. 2d 700

International Bans on Animal Circuses
Because of the widespread abuses, the inherent problems with entrusting an industry to regulate itself, and the cruelty in having to contain and transport animals endlessly from one location to the next as any traveling circus necessitates, the response from the global community has been to move for complete bans rather than further regulation of the circus industry. With its Prevention of Cruelty to Animals Act, India limited circuses by prohibiting the training or exhibition of bears, monkeys, tigers, panthers, and lions. Other countries that ban the use of some wild animals in circuses include Denmark, Portugal, Finland, Sweden, and the Czech Republic. Countries that have banned the use of all wild animals in circuses include Austria, Singapore, Israel, Costa Rica, and Peru. In 2009, Bolivia became the first country to ban the use of all animals in circuses (wild and domestic). In February 2012, Greece also banned all animals from circuses, and Brazil is now considering similar legislation.

On a Personal Note
I have a vivid memory from when I was a young child — five or six years old — of going to Madison Square Garden to see the circus. Naturally, there was all the excitement of going with my friends to such a huge spectacle. At that age, the arena seemed as big as a universe. All the kids had tiny plastic flip-top flashlights on cords that we could twirl around to create circles of light in the vast darkness. When the spotlights started dancing around the arena, pink clouds of cotton candy were everywhere. Kids and adults were all cheering with anticipation. Let the show begin.

My mother remembers that day well. She remembers how my face immediately changed when the bears came into the ring. I was distraught: “Why are they wearing muzzles?” I recall my mother explaining to me that the muzzles were for our safety and to protect the bears from each other. I was not convinced. These bears, who were dancing on their hind legs for us, turning around in circles for us? These bears… seemed sad. I wanted to go home.

As more details about the lives of circus animals become general public knowledge, it is my hope that the United States soon will be among the countries implementing a ban on animal circuses and, in doing so, eliminating the suffering of countless animals.

*For an in-depth discussion of ASPCA v. Feld, see Michael Eichelman’s  “Ringling Brothers on Trial: Circus Elephants and the Endangered Species Act.” 16 Animal L. 153-170 (2009)

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Student Animal Legal Defense Fund at University of Arizona Law

Posted by on Apr 12, 2012 in Animals & the Law | 0 comments

Student Animal Legal Defense Fund LogoIn the summer of 2009, just before starting at the James E. Rogers College of Law at the University of Arizona, I contacted the Animal Legal Defense Fund to find out how I might get involved and help generate interest on campus. The ALDF staff connected me with a third-year law student and, together, we took the necessary first steps towards organizing a student chapter. By my 3L year, we had successfully petitioned and worked with the faculty to have an Animal Law class offered in the fall semester. We’ve come a long way!

Over the past three years, I have been so inspired by my classmates, watching them get excited and more involved in animal-related efforts ranging from those focused on farmed animals to companion animals. In addition to successfully petitioning for the Animal Law class, here are some of the highlights from my time on campus:

John Becker speaks on Pet Estate Planning

SALDF members at Equine Voices Sanctuary

Today is the last meeting of the school year. I’m just a few papers and an exam away from graduation day; and today the 3L students will officially pass the torch to those students who will continue to make the SALDF chapter and Animal Law issues a part of the law school community.

A special thank you to those who have served on the board of our student chapter, taking leadership positions to get the chapter going and growing. From Day One, the student chapter has been a team effort. And, as the 3Ls leave school to follow our individual paths, I am most grateful to know that my SALDF friends and I will always have this connection with each other. Finally, thank you to our faculty sponsor, Shaun Esposito, and all the faculty who have been so supportive of the student organization.

For Law Students
Interested in creating a student chapter of the Animal Legal Defense Fund at your law school? Check out the Student Animal Legal Defense Fund site for all the details and support you need!

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Puppy Mills: Laws To Protect Pups and Purchasers

Posted by on Mar 21, 2012 in Animals & the Law | 2 comments

If someone were to describe a situation where a hundred dogs were found living in all-wire cages that offered little or no shelter from extremes in weather, where the dogs themselves were suffering from overgrown nails, ear and eye infections, severely matted hair, and untreated wounds, I would expect us all to have a similar reaction: surely, this was a situation of neglect that amounted to animal cruelty; such cruelty would be a violation of any state cruelty statute. Perhaps some of us would question whether this was a case of animal hoarding, which, though also constituting neglect and cruelty, adds a factor of human mental illness to consider when deciding what is justice.

However, many times a scenario such as the one I’ve described is the reality known as a “puppy mill,” a large breeding facility where the market for purebred companion animals has turned dogs into crops, and where breeders that look into those lovable puppy eyes see only dollar signs. And the only thing worse than being a puppy at a mill is being one of the dogs who are kept solely for breeding purposes. While puppies are sold into (we hope) loving homes, mamas will spend their whole lives in cages, kept pregnant for as long as their bodies will keep producing. When they are spent, they will be sick, exhausted, and euthanized.

So why aren’t these breeders prosecuted for cruelty? Here’s a look at the federal and state laws in place, where they fall short, as well as some recent legislative efforts to come to the aid of those suffering.

Federal Law

The Animal Welfare Act, under the supervision of the USDA’s Animal and Plant Health Inspection Service (APHIS), is the major federal law that is supposed to protect animals used for commercial purposes. The minimum threshold standards address basic needs of food, water, shelter, and veterinary care. Unfortunately, animals sold by retail pet store owners are explicitly exempt. The original thinking behind the exemption was that, because people would be going into pet stores, they would be able to see the conditions; therefore, additional regulation wouldn’t be necessary – the retailers would self-regulate in their own interest. However, with the rise of internet sales, the public doesn’t have the same access it once did. A wonderful-looking web site does not mean things are looking so wonderful behind the fences. And getting onto the premises to inspect these places is nearly impossible.

The Puppy Uniform Protection and Safety Act
This piece of legislation currently is under review by the United States House (H.R. 835) and Senate (S. 707). The law would help to close the loophole in the AWA by regulating breeders that sell more than 50 dogs per year; it also includes the requirement for daily exercise.

Particularly because of the nature of the puppy mill business — interstate commerce — a uniform federal standard is essential in the protection of these dogs across state lines.

State Laws
Many states have taken different approaches towards offering dogs in puppy mills greater protection. State laws may impose regulations on individuals in possession of a certain number of dogs (i.e., 30 dogs in Virginia); in other states, such as Pennsylvania and Arizona, breeders are required to obtain kennel licenses. Other states may place a cap on the total number of dogs one can have on premises (Louisiana prohibits more than 75 dogs). Still other laws require that dogs be given time outside of their cages for exercise.

However, as with other systems that rely on permits and licensing, there are frequently issues of monitoring and enforcement; even where the law allows for inspections, local law enforcement is unlikely to make this a priority when they are already feeling stretched thin by other community demands.

During the 2010 elections, there was cause for great excitement when Missouri citizens voted in favor of  “The Puppy Mill Cruelty Prevention Act” (Proposition B), which placed restrictions (such as a 50 dog cap) on dog breeders. Missouri is one of the Midwestern states where puppy mills are big business. Not surprising, then, that after the measure passed, there was pressure from rural communities where these puppy mills are located to overturn the vote; the industry claimed the Act as it was written would be too costly… businesses would close. Consequently, in 2011, the law was repealed by Missouri’s Governor. In its place, new legislation was signed into effect that does not include many of the key provisions — and therefore protections — of the original Act.

Consumer Demand
Stronger laws, as those described above, are essential to regulate breeding establishments and to bring an end to puppy mills. Furthermore “puppy lemon laws” help protect the uninformed consumer who unknowingly purchases a dog with health or congenital defects — not uncommon in dogs born within the puppy mill system. In addition, dogs coming from these miserable conditions can be extremely difficult to socialize.

Getting beyond the availability of compensation for an unhealthy puppy remains the fact that, simply put, the public needs to stop purchasing these puppies. The puppy mill industry is a for-profit business. If the demand for these puppies goes away, the businesses will end. Not only is it imperative to cease buying these puppies, but it also is essential to educate others about the true conditions of these places so that they, too, will look elsewhere for their next family dog.

our Galileo as a puppy

Please adopt — don’t shop!
Local animal control centers euthanize upwards of 70% of the stray animals they take in. Approximately 4 million shelter animals are euthanized each year, 60 percent of them dogs. I encourage everyone who is thinking about adding a canine member to the family to please adopt – don’t shop! Besides the nearest animal control, local humane societies and foster/rescue organizations are seeking loving furever homes for animals in need. My Pushkin came from Bideawee in NYC; Galileo was a puppy rescued by the Tucson organization FAIR.

For those who are drawn to a particular breed, Petfinder.com will allow you to search for that darling Daschund or Boston Terrier. Also, many local rescue groups focus on a particular breed. Here in Tucson, for example, we have the Arizona Greyhound Rescue and the Southern Arizona Beagle Rescue. In nearby Phoenix, there is Southwest German Shepherd Rescue. These are just a few of the countless organizations that will help you find the perfect match… without going to a breeder.

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Animals in Tort Law: property status & noneconomic damages

Posted by on Jan 27, 2012 in Animals & the Law | 0 comments

A Texas appellate court recently ruled that owners of a wrongfully euthanized dog may recover “sentimental” or “intrinsic” damages. While this interpretation of state law might result in an award greater than an animal’s “fair market value” (which, in many cases, can be next to nothing), it still puts companion animals in a category closer to a family heirloom than a living, sentient being. The property status of animals remains a hot topic, so thanks to Jennie for her guest-blog today!

guest blogger: Jennie Schenck

When choosing a topic for my Law Review note, I was asked to consider a legal concept I had learned during my 1L year that I found strange or inconsistent with reality. I came up with a topic rather quickly: I wanted to write about animals as property—and why they ought to have a higher legal classification than that.

I remember writing “WTF?” in the margins of my torts book next to the case that explained why animals are considered property in the eyes of the law. I remember wondering if the judge who wrote the opinion could honestly sit there and analogize animals to inanimate possessions like cars or furniture with a straight face.  It doesn’t take studies and statistics to show that people regard their animals more as family members and less as mere property (though statistics do support that point time and time again). I grew up in a family that gave our pets Christmas and birthday gifts, spent thousands of dollars on our pets’ medical care when necessary, and took more pictures of our pets than the rest of the family combined.  Low and behold, we didn’t do this with our cars or our furniture. And I had a feeling my family was more of the rule than the exception.  In my note, I decided to focus on why the law is so stagnant in this area and what can be done to give animals a higher legal status.

I started by examining case law. Soon, I found a pattern—judges and juries really were sympathetic to pet owners whose pets had been injured or killed due to the tortuous conduct of another, but were almost always unwilling to award anything but economic damages, reflective of animals’ property status.  When they did award noneconomic damages, they were often very small and the court was careful to limit the award to the facts of that specific case. One involved an old lady whose dog was killed and whose house was subsequently burgled—the court awarded damages for the worth of the dog as a guard against intruders, but made sure to limit the award to the facts of that case.  I eventually decided the answer was with the legislature.  Courts would not be willing to extend noneconomic damages in tort cases involving animals unless they had some sort of clear vehicle for doing so.

As of a year ago, when I completed my Law Review note, three states—Tennessee, Illinois, and Connecticut—had enacted statutes that allowed for certain types of noneconomic damages in cases involving the loss or injury of a pet.  I examined two of these in detail (because the Illinois and Connecticut statutes were very similar). One specified that noneconomic damages were to reimburse the owner for the loss of companionship he suffered due to the loss of or injury to the pet.  The other gave the court more leeway in deciding the nature of noneconomic damages. Both were limited in the amount of damages that could be awarded.

Based on the two statutes and my perception of the amounts and types of noneconomic damages necessary to deter inhumane conduct toward animals and adequately reimburse pet owners, I created my own noneconomic damages statute.  I specified that damages should be to reimburse the owner for loss of companionship and for the owner’s foreseeable emotional distress. I included a limit on the amount of damages available (higher for intentional conduct than for negligent conduct), exemptions for governments and veterinary businesses, and a broad definition of “pet” (“pet” being an animal that would qualify his owner for damages under the statute).  My statute was meant to serve as a general template for states to use for their own pet-loss statutes.

Now that I have taken an animal law class and have had about a year to think about the note, I wish I had focused more on the suffering of the animal rather than the loss of companionship and suffering of the animal’s owner.  I now believe that this would get us closer to giving animals a higher legal standing than the statutory remedy I set forth.  However, this comes with a whole new host of problems, of which my note only skims the surface.

Also, ultimately, such a statutory remedy would only be a small step toward giving animals a more deserving legal status.  My note addressed only tortuous interference with pets—there are hundreds of other areas of law which would have to be tweaked to truly recognize animals as having a higher legal standing.

Jennie Schenck is a third-year law student at the University of Arizona James E. Rogers College of Law. She is a board member for law school’s student chapter of the Student Animal Legal Defense Fund. Her legal experience includes family law, personal injury, estate planning, and federal contracts.  

 

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