Wednesday, April 07, 2010

Many Species of Animal Law

Today I went to hear Bruce Wagman speak on the subject of "Many Species of Animal Law" at ASU's Sandra Day O'Connor College of Law.  Wagman, an attorney with Schiff Hardin who is also an outside litigator for the Animal Legal Defense Fund, has litigated cases involving animals for 18 years, written a case book on animal law, and teaches animal law courses at several law schools as an adjunct faculty member.  He was introduced by ASU Law School Dean Paul Berman and Arizona Court of Appeals Judge Pat Norris.

Wagman began by defining "animal law" as any law where the status of an animal matters--psychological, biological, welfare, etc. status of the animal, as opposed to its value as property.  He suggested that animal law attorneys "may be the only lawyers on earth whose clients are all innocent."

He divided his talk up into multiple "species" of animal law.

Species 1: Companion Animal Issues

He said this makes up the majority of his cases, and includes injuries by or to animals, including veterinary malpractice.  The challenge is to get courts to recognize that animals are not merely property, since historically companion animals have been viewed as property with low or even zero market value.  In cases where an animal is injured or killed, the market value doesn't recognize the interests of the animal or other kinds of value that companion animals give.  Under the American Law Institute's Restatements of the Law, however, there is a notion of "special property" (or "peculiar property" in California's statutes) which allows quantification of other kinds of worth to an animal owner, for instance if the animal is a therapy dog.  There are no emotional stress damages available.

Other sorts of companion animal cases include custody disputes, which often occur as a result of one partner just trying to inflict distress on another rather than having actual interest in the animal.  Wagman said that courts are beginning to take a better look at the interests of the animal in such cases, and be willing to appoint a guardian ad litem, as occurred in the Michael Vick case and in another case in Tennessee where there was a dispute over custody of a dog between a dead man's girlfriend and parents.

There are dangerous dog issues, where an attorney may be fighting against the classification of a dog as a dangerous or vicious animal, or against its euthanasia--what he called "capital cases" for animals.  In three counties surrounding San Francisco, what happens in the case of a dog biting another dog that requires stitches varies dramatically.  In one county, the dog gets a period of probation.  In another, the dog gets labeled as a dangerous or vicious dog, which requires the owner to meet various conditions of housing the dog, having a certain height of fence, carry additional insurance, and so forth.  And in Santa Clara County, the dog gets euthanized.  He pointed out that that county's statute has an exemption for "mitigating circumstances" which he's successfully used to prevent dogs from being euthanized.

Finally, there are wills and trusts--he said he doesn't do that sort of work, but that 48 states now have mechanisms for having trusts for animals.

He said he considers companion animals to be a sort of "gateway animal" for getting recognition of animals in the law, and noted that we tend to be "speciesists" who would feel very different about snakes vs. Labrador Retrievers.  [IMO, this is rational to the extent that animals differ in cognitive capacities, and I note that at no point did he discuss litigating on behalf of cockroaches against pest control companies.]

Species 2: Farm animal issues--legislation and litigation.

His second species of animal law was about animals killed for food--about 10 billion per year in the United States.  He said the goal here is not to stop the killing, but just to improve the living conditions of animals before they're killed for food.  This is problematic, however, because the animal cruelty statutes are criminal rather than civil (with an exception in North Carolina that will be discussed with regard to Species 3 of animal law), and that the criminal law for animal cruelty excludes farm animals in 35 states.  He discussed a few of the more abusive methods of animal treatment in factory farming--calf crates, in which calves are placed for about the first 60 days of life, gestation crates for pigs (outlawed in Arizona since 2006, as well as illegal in Florida, Oregon, Colorado, and California), and battery cages for chickens.

He also discussed downer animals--animals which are either so seriously injured or ill that they are unable to move, which the meat industry wants to drag in that condition to slaughter.  Wagman raised the concern that such animals, if sick, could potentially spread illness to humans, and listed a bunch of diseases that could potentially so spread, with BSE (mad cow) at the top of the list along with avian flu.  Of these, only BSE has been documented to spread to humans, and the industry position is that there should be no restrictions on downer pigs unless and until a human actually gets sick.  The state of California passed a law that said that all downer animals must be euthanized on the spot; the meat industry sued and overturned the statute in federal district court, but the 9th Circuit just reversed it last week (National Meat Association v. Brown).

Species 3: Animal hoarding--private ownership, breeders, and the sanctuary that is not

Wagman said that there have been 250,000 documented cases of animal hoarding, and that they are difficult cases to work with in multiple ways.  He said he believes such cases involve mental illness, but while the APA has a diagnosis for "hoarding" behavior, it excludes animal hoarding which is considered to be different.  How many animals constitutes hoarding?  He said he likes to say "more than eight," because he has eight animals at home.  Hoarders characteristics include possessing more animals than they can care for, having a sense of being persecuted, and living in deplorable conditions.

He discussed two cases that he litigated, ALDF v. Barbara & Robert Woodley, and ALDF v. Janie Conyers, which involved over 500 animals between them.  The former case, in North Carolina, was able to use North Carolina statute 19a, which allows a civil cause of action for animal cruelty.  Wagman had some horrifying photos from the Woodley case.  They had hundreds of dogs in their home living in their own feces, where ammonia levels were 20 times the USDA maximum allowed in a pig facility.  These ammonia levels caused blindness in the dogs, as well as chemical burns to bare skin that contacted the floor, such as dogs' scrotums.  Multiple dogs were kept in wooden boxes with lids on them, and never let out.  Mrs. Woodley's favorite dog, Buddy, not only had his eyes burned to blindness from ammonia, but the bone in the dog's jaw deteriorated from malnutrition.  Local officials had known of Woodley's problem for 20 years, but considered themselves powerless to do anything about it, since the scale of the problem was so large--the local shelter had only eight kennels, while the Woodleys had about 450 animals.  The ALDF had to coordinate a massive effort to manage the rescue of the animals through their case.

Conyers was an AKC poodle breeder who had 106 poodles living in their own feces.

Wagman said that animal psychological suffering is difficult to show, but it can be done; demonstrating physiological suffering is easier, with objective criteria like the ammonia levels and physical injuries to animals.

There is no law against hoarding (except in Hawaii), just the criminal abuse statutes (and civil in NC).  In the hoarding cases the abuse is typically neglect rather than active abuse.

Species 4: Exotic animal ownership

Wagman has handled about 10 chimpanzee cases.  One was a case involving a couple in West Covina, California who had a chimp named Moe for 35 years that bit two people.  He argued for a guardian ad litem to determine what was in the best interests of the chimp, and arranged to get Jane Goodall and Roger Fouts for that role.  The court looked upon it favorably, but the couple came to an out-of-court settlement.

He also briefly discussed the Stamford, Connecticut case of Travis, the 200-pound chimpanzee who attacked a woman that was in the news last year.

He argued that there should be a legislative fix to ban exotic animal ownership completely--they're wild animals.  [A complete ban seems to me too much--there should be exceptions for research, conservation, breeding programs for endangered species, and so forth.  And shouldn't it be possible to domesticate other wild animals?]  Connecticut has taken the step of banning chimp ownership.

Species 5: Shelter practices - euthanasia, veterinary care, adequate food, water, and sanitation, and hold periods

Animal shelters have an overwhelming job, said Wagman.  The County of Los Angeles, which he sued, operates seven shelters which handle tens of thousands of animals per year.  California law says that all animals must get veterinary care and be held for five days, and allowing animal suffering without treatment is not permissible.  The shelters' own records showed that they weren't meeting that standard for thousands of animals, but they're now working to meet them and having their activity monitored for compliance.  A similar set of cases occurred in Kentucky, when the state transferred all shelter responsibility to the counties.  Although the standards of care were minimal, they weren't meeting it, and there were nutrition, veterinary care, and euthanasia issues.  Upon getting notice, they quickly took action to remedy.

In Georgia, by contrast, there is a statute that prohibits the use of gas chambers for euthanization at shelters, but the Commissioner of Agriculture sent out letters to the shelters asking that they purchase gas chambers for euthanization.  Gas chambers apparently have very ugly results in some cases, such as with unhealthy dogs.  A lawsuit against the state of Georgia for its failure to comply with its own statute resulted an an injunction, which they then immediately violated by sending out more letters asking for gas chamber purchases.  After obtaining a contempt ruling from the court, they finally got compliance.

Species 6: Entertainment

Wagman called this category both the most obvious and the most hidden.  The use of animals in entertainment is obvious, but what is not obvious is what goes on behind the scenes, the knowledge of which drains the fun out of the entertainment.

Circuses, zoos, film and TV ads, animal fighting, public appearances, racing and rodeos, and hunting and fishing are all cases of animals used for entertainment.  Wagman first discussed elephants in circuses, commenting on a recent Ringling Brothers case which was tossed out on an issue of standing.  The case involved the use of bullhooks for elephant training, which injures the animals.  The defense didn't deny use of bullhooks, but claimed that they only use them as "guides."

Elephant treatment in zoos is also problematic, since standing around on hard surfaces causes painful arthritis.  In the wild, elephants are awake 21 hours a day and may move 35 miles per day.

Wagman discussed dog fighting, and said that the Michael Vick case was a wakeup call for America to the reality of dog fighting, which exists in every state and most major cities.

He argued that the use of great apes in film and television should be banned, because of how the training process works.  He said that while trainers claim to use only positive reinforcement training, an undercover person who volunteered for a year and a half with trainer Sid Yost found otherwise.  A young chimpanzee is immediately treated to beating and punching to get them to comply.  Their performance lifetime is about 3-5 years, after which they become to strong to conrol, and end up in private homes, in research, or in zoos, often all alone in barren cases.  Wagman pointed out that the common use of a "smiling" chimpanzee is actually a fear grimace.  He does lots of work for sanctuaries, of which there are nine in the U.S. for chimpanzees (including

Regarding hunting, he distinguished traditional hunting from canned hunting and Internet hunting.  Hunting is protected in most states, including in many state constitutions.  Canned hunting ranches, where animals are fed by hand by humans before they are flushed out into open areas to be shot, are not considered to be hunting by most traditional hunters.  [But is considered hunting by our former Vice President, Dick Cheney.]  Internet hunting, where a rifle can be fired at live animals over the Internet, has been banned in 30 states.

He mentioned mountain lion hunting in the Black Hills of South Dakota, where mountain lions have become fairly scarce.  A lawsuit was filed to try to stop the hunting on grounds of near-extinction of the animals, but the injunction was denied on the grounds that there were unlikely to be any mountain lions even found and killed.  Two mountain lions were killed shortly thereafter in fairly quick succession, and even though there was a law that prohibited killing female mountain lions with cubs, the second one killed had a cub, and there was no prosecution.

Some Adidas shoes are made with kangaroo skin, and the state of California has banned the importation of kangaroo skin, which Adidas ignored.  Adidas was sued as a result, and they lost at the California Supreme Court--but they responded by persuading the legislature to repeal the ban rather than changing their practices.

Species 7: Species and breed-specific legislation and ADA breedism case.

A variety of dog breeds have been considered at various times and places to be "bad dogs" that create a special danger.  After WWII, it was German Shepherds and Dobermans.  All cases to stop such breed-specific legislation have failed, because the "rational relation" standard is met by only a single case of harm.  A case in progress right now in Concord, California involves Theresa Huerta, a woman suing under the Americans with Disabilities Act to keep her pit bull therapy dog from being euthanized.

Wagman concluded by saying that his overall objective is to keep the public and the courts focused on the real issue, which is ending blatant cases of animal abuse.  Animal law is a growing field, and there's an annual animal law conference in Portland that's now in its fifth year.


RBH said...

You made a parenthetical remark I have to respond to. You wrote

And shouldn't it be possible to domesticate other wild animals?

Don't confuse domestication and taming. Taming is a behavioral change in what is still a "wild" animal, and occurs during the lifetime of the animal. Domestication involves generations of artificial selection, purposeful or inadvertent, for behavioral and/or morphological traits. But a tame animal is not necessarily a domesticated animal. E.g., chimps that are tamed are not domesticated.

Jim Lippard said...

RBH: Thanks for the further distinction--I actually did mean domestication, not taming, but probably should have mentioned both, since both are precluded by Wagman's position as he stated it.

Perhaps he is open to the possibility of domestication under some kind of regulated and licensed scheme, but not taming, but I suspect he opposes both. But if that position were projected backward in time, the domestication of companion and farm animals that we have today gets labeled as unethical, unless there's a situational exemption. It's debatable, I suppose, but my own moral intuitions suggest to me that the development of new domesticated species, whether by genetic engineering or artificial selection, isn't inherently wrong.

Stephen said...

What is/was the logic behind the California ban on kangaroo imports? Most kangaroo species (at least those used commercially) are neither endangered nor CITES-listed.

Jim Lippard said...

Stephen: California's import ban is in California Penal Code section 653o, which was put into effect via legislation (not initiative) in 1970. It covers multiple animals. The California Supreme Court upheld the statute in July 2007; it was then revised in October 2007 to allow such imports until 2011. Here's the text:

(a) It is unlawful to import into this state for commercial
purposes, to possess with intent to sell, or to sell within the
state, the dead body, or any part or product thereof, of any polar
bear, leopard, ocelot, tiger, cheetah, jaguar, sable antelope, wolf
(Canis lupus), zebra, whale, cobra, python, sea turtle, colobus
monkey, kangaroo, vicuna, sea otter, free-roaming feral horse,
dolphin or porpoise (Delphinidae), Spanish lynx, or elephant.
(b) (1) Commencing January 1, 2015, it shall be unlawful to import
into this state for commercial purposes, to possess with intent to
sell, or to sell within the state, the dead body, or any part or
product thereof, of any crocodile or alligator.
(2) This subdivision shall not be construed to authorize the
importation or sale of any alligator or crocodilian species, or any
products thereof, that are listed as endangered under the federal
Endangered Species Act, or to allow the importation or sale of any
alligator or crocodilian species, or any products thereof, in
violation of any federal law or any international treaty to which the
United States is a party.
(c) Any person who violates any provision of this section is
guilty of a misdemeanor and shall be subject to a fine of not less
than one thousand dollars ($1,000) and not to exceed five thousand
dollars ($5,000) or imprisonment in the county jail not to exceed six
months, or both the fine and imprisonment, for each violation.
(d) The prohibitions against importation for commercial purposes,
possession with intent to sell, and sale of the species listed in
this section are severable. A finding of the invalidity of any one or
more prohibitions shall not affect the validity of any remaining
(e) This section shall become operative on January 1, 2011.