Hounded, Cowed, & Badgered

CA cases on animal notice probation conditions

Given how politically disempowered convicted criminals are in this country, it is not surprising that legislatures and courts have begun regulating the keeping of animals by convicted felons. This follows a long line of restrictions, including owning or using a firearm, voting, and, more recently, living in certain areas and being free from suspicionless searches. Earlier this year, Illinois passed a law criminalizing the keeping of animals who aren't fixed, microchipped, or well-behaved, by people convicted of certain crimes. See 725 ILCS 5/12-35. We've questioned the rationality of the crimes covered in the law.

Two recent cases from a panel of the California Court of Appeals, Fourth District, reveal the sorts of arguments that will be raised to challenge the imposition of restrictions on companion animals for individuals convicted of crimes other than animal cruelty. See People v. Mosqueda, No. E038728 (Cal. App. Ct.  11/14/06) (pdf, html cache); People v. Quintero, No. E039290 (Cal. App. Ct. 9/27/2006) (pdf, html cache) (hat tips: The Volokh Conspiracy, Criminal Appeal). In both cases, the defendant was ordered to keep his probation officer advised of "place of residence, cohabitants and pets" and specifically to give 24 hour notice of any changes in those areas. In Mosqueda, the court, while pronouncing the sentence, stated "I don't like certain pets" and then limited that restriction to pit bulls and rotweillers. Each court tested this condition against precedent assessing the relationship of the probation condition to the offense for which the defendant was convicted, the legality of the conduct regulated by the prohibition, and the relationship between the condition and future criminality.

The conclusion of each of the courts at to the validity of a condition relating to all companion animals was the same. Each found the offense (possession of meth in Quintero, vehicle theft in Mosqueda) was not related to the ownership of animals.  Each found that keeping companion animals is itself not criminal, with Quintero noting authority that it is an "important part of our way of life." And each found that there was no relationship between owning a companion animal and future criminality. Quintero, in particular, closely analyzes the state's interest in officer safety, by noting several problems with the condition, namely that it covers "unquestionably harmless animals"; requires a defendant to anticipate changes beyond his or her control; and is not related to the purported interest insofar as that notice itself would not help officer safety.

In Mosqueda, however, the court found that the condition was valid as modified to refer only to pit bulls and rotweillers. Without acknowledging the court's previous holdings in the (admittedly depublished) opinion in Quintero as to the unreasonableness of the notice requirement, or making findings as to the dangerousness of the breeds, the court held that the condition, as modified, was related to future criminality.

In each case,a judge wrote a separate opinion (dissenting in Quintero, and partially dissenting in Mosqueda), arguing that that the condition need not be set out as specifically as the majority in each case held, and that the notice requirement is related to officer safety in that it can prevent unfair surprise.

There is a lot to criticize here. Despite our support of animals and criminal defendants alike, it seems like the strict scrutiny approach adopted goes far beyond what California law requires. We would imagine that, unless a constitutional right was at stake, the question of whether a condition was "reasonably related" to future criminality would be subject to a relatively deferential test, one that allowed for conditions to be related, but not necessarily narrowly tailored, to the state's interest. That a defendant's keeping an animal could thwart attempts to supervise him or her is the sort of minimal linkage necessary to be "reasonably related," especially given that the condition (as the dissent notes) requires only notice.

If a court, however, finds that a condition related to all animals is prohibited, there is zero basis for upholding a breed-specific condition, as the court did in Mosqueda. Defendants seeking to challenge such conditions would do well to consult the recent Ohio Supreme Appellate Court case invalidating Toledo's ban on pit bulls. In that case, the court expressly rejected the claim that pit bulls are more inherently dangerous than other animals and also the related argument that the ban should be upheld given the social conditions in which most pits are raised. The Mosqueda court's complete lack of fact finding as to why such breeds pose a particular danger is indicative of both deep-seated fears of certain dogs and the sad fact that often in animal cases, anything goes.

Update (12/3/06): When it rains, it pours. The same panel has just released an opinion on the same issue which follows Quintero's reasoning. See People v. Lopez, No. E039251 (Cal. App. Ct.  11/30/06) (pdf, html cache)

In da courts, in da statehouses, in da papers (catching up edition)

Since the posting pace has slackened, HC&B has no doubt missed much. To round out 5766, a rundown of recent animal law stories. It's a hodgepodge.

• (Anti-)circus news: S. 2699, a bill which would ban circuses (but not zoos) from using on elephants either 1) items which "may reasonably result in harm," harm being defined fairly expansively to include items which "pinch", or 2) restraining chains, has passed the Massachusetts Senate and is making its ways through committees in the House. One wonders whether circuses can control/exploit these animals without hurting them. Also, advocates in San Jose can protest Ringling Bros. outside the HP Pavilion. (Hat tip: An Animal-Friendly Life.)
• Experts on animal custody disputes post-Katrina: Steven Wise in the Austin American-Statesman: "The argument that the dogs have been abused is, at its heart, an argument about class and racism." Also, David Favre, quoted in the Concord Monitor: "The law is absolutely muddled."
• Into the mainstream ... The New York Times discovers animal law (reprinted at Book of Joe). Despite some missteps--an emphasis on the quirky, the idea that pets are not considered property in some states--this is a decent introduction to the issues involved in companion animal law practices. Also animal lawyers come in #9 on the "10 Hot Jobs for 2007."
• A grand jury refused to indict under a NY aggravated cruelty statute criminalizing "intentionally caus[ing] serious physical injury" when defendants allegedly slit a dog's throat and threw him out the window of a car.
• A bill has passed the California Legislature which would let the department of consumer affairs regulate pet stores. (Hat tip: GEARI.) Per the Bee, the legislation which passed was a compromise with pet stores, which "prefer to negotiate the specifics with a regulatory agency instead of the Legislature." Sweet capture.
• Michigan's first vet mal case (and some legislative reform brewing).

Rabideau turned in on itself

We've mentioned before the "Greatest Hits of Animal Law," cases where judges have used the power accorded them by our common law system to expand liability for torts involving animals, usually companion animals. Read any article on emotional damages or the legal implications of the human-animal bond (e.g., this recent article on standing by student scholar Lauren Magnotti) and you'll come across  Corso v. Crawford Dog & Cat Hospital and Burgess v. Taylor, for instance. The import of these cases is as much the relief granted human companions of animals as it is the frank way in which the courts in these cases deal with, and often criticize, the property status of animals. Such language, perhaps surprisingly, also appears in cases which go against human and animal companions.

One such case is Rabideau v. City of Racine, in which the Wisconsin Supreme Court observed: "A companion dog is not a living room sofa or dining room furniture. This term inadequately and inaccurately describes the relationship between a human and a dog." Yes! But no--the court then went on to rule against the plaintiff, who had watched her dog get shot and killed and was claiming negligent infliction of emotional distress as a bystander. The court's earlier cases had limited bystander recovery to a fairly small group of close family members, and Rabideau did not depart from this. We think this result a shame, especially given that the court was only limited by broad "public policy" concerns. It arguably would meet such concerns by expanding bystander liability only to, say, any animal which lives with a human and is not used for commercial ends.

In the recent case of Camp v. Anderson, 2005 AP 2407 (Wisc. Ct. App. 7/25/06) the defendant argued that Rabideau precluded relief, and, as in that case, the court came to an unsatisfying decision. In Camp, however, the court did not acknowledge the human-animal bond and then screw the human companions; it did the opposite. This is one of those tort cases where the tortfeasor and the victim are both kids, with the parents suing. Here are the facts:

On July 17, 2000, thirteen-year-old Anthony and four-year-old Steven were playing in the Camps’ yard with Steven’s dog. An eyewitness who had a view of the Camps’ yard stated he saw a “white thing flying through the air and landing in some tall grass.”  The “white thing” was Steven’s dog.  The eyewitness saw Anthony pull some tall reeds or cattails out of the ground, shove them at the dog, and chase Steven with the cattails with what appeared to be feces on the end.  The eyewitness later saw Anthony jump and land with both feet on the dog.  The dog was severely injured and was later euthanized.

The court straightforwardly applies Rabideau, holding that there can be no recovery for a bystander who sees an animal harmed under an NIED theory. But then it goes on to allow a claim based on the (non-bystander) harm caused when Anthony chased Steven with a cattail with feces on it. We know this calls for more extensive analysis but our first thought was: C'mon! If the chasing wasn't preceded and followed by acts of violence against the family pet, it seems very unlikely that any court would recognize this as any legally cognizable harm. Instead the death of this unnamed deceased dog (a contrast with the Rabideau, where the animal is named and initially humanized) is something to be recited but ignored. This is the flip-side of the talk-nice/act-mean approach of Rabideau and seems almost worse, from our perspective. We'll leave the topic of the power of language to oppress to other smarter commentators, but suffice it to say we can't wait to see the next addition to those rare "Greatest Hits," which both speak and act nicely to animals.

The year so far in animal law

Stateline.org has a review of recent animal-related legislation in the states, particularly laws regarding evacuation of companion animals during disasters. (A coattail: our rundown.) The sponsor of the disaster legislation in Louisiana is quoted as saying that the price tag for the bill is higher because of federal regulations requiring the use of refrigerated trucks to transport animals. This seems odd because federal law provides no protection for farm animals in transport, unless they are transported by railroad (in which case they're nominally covered by the Twenty Eight Hour Law) and Congress has yet to pass its own disaster relief bill for animals. Still, the price for transport (2.16 million, according to this fiscal note [pdf]) is extremely modest compared to the amounts spent and misspent on disaster plans for humans.

Also part of the "flurry" of animal legislation (warning! more coattailing): laws regulating humans with exotic animals (effective?), bans on bestiality in Washington and Arizona, and increased penalties for dog fighting and keeping dangerous dogs. It is worth noting that the dangerous dogs laws cited all base the determination of whether a dog is "dangerous" or "vicious" on past behavior or training, not the breed of dog. Not mentioned, but also noteworthy so far this year are: Kansas's felony anti-cruelty law, more anti-activist bills, the expansion of protective orders to cover companion animals in Maine, South Dakota creating pet trusts, and the Saga of How Not to Ban Horse Slaughter (I, II, III, IV, the latest).

More recently, New York has followed Maine's cue on protective orders with A. 10767, though less broadly than Maine did (hat tip: SuperVegan); and Hawai'i's governor has signed legislation to make abusers pay for the care of animals seized, but there is still no felony animal cruelty offense in that state.

Post-Katrina animal evacuation bill passes

The Louisiana legislature has passed a bill, SB 607, which would require state and parish authorities to make plans "for the humane evacuation, transport, and temporary sheltering of service animals and household pets in times of emergency or disaster." (Hat tip: Louisiana Pet Lawyer.) The account from the Best Friends Animal Society details the compromises that went into the amended bill. One unfortunate amendment made the bill effective only if it was paid for [pdf] by a fund administered by the governor. (Naysayers call it a slush fund.) The enrolled text [pdf] of the bill out of conference committee, i.e., the text agreed upon by both houses, does not contain this restriction however, but is effective upon the signature of the governor or the expiration of the veto period.

The bill's pros: it would allow companion animals to be transported on public transportation during an emergency in some circumstances, contra ala NYC, and establish an identification system to reconnect separated human and animal companions. Cons: It is limited to domesticated cats and dogs and other "domesticated animals." (Ah, the definitions game.)

HSUS is tracking several other state efforts, including recent laws in New Hampshire (HB 1435: evacuation of service animals, study re: other animals), Florida (H7121: shelter plans for service and companion animals), and Hawai'i (HB 3121: sheltering companion animals). The Louisiana bill seems by far to be the most comprehensive. The U.S. Senate has not yet taken action on the national companion animal evacuation bill which passed the House nearly a month ago.

On da hill, in da statehouses, at da council in brief

The House has passed the Pets Evacuation and Transportation Standards Act (HR 3858), reports the HSUS. It would require state and local authorities receiving federal disaster to consider in their emergency preparation plans "the needs of individuals with household pets and service animals following a major disaster or emergency."

Following an embarrassing first try, Arizona has criminalized bestiality once again. The new law follows a high profile case involving the sexual assault of a lamb which brought to legislators' attention that bestiality has been decriminalized in the state since 1985. See this research memo. SB 1160 codifies the offense of bestiality in the same section of the code as the offense of child molestation.

Philadelphia is considering banning foie gras. (Update (6/4/06): Councilmember Kelly's bill [pdf].)

The mayor of Albuquerque has signed an animal care ordinance he thinks would be bad if enforced. There's a lot to like: limits on chaining, mandatory spay/neuter, very specific requirements regarding spaces for keeping animals, a broader power to seize animals. There's also some nice, but precatory language that the City Council "finds that the people of Albuquerque should treat animals as more than just lifeless inanimate chattel property." (Update 12/4/06: a challenge to the law has largely failed.)

Dangit: loss of companionship claim fails in Oregon

As noted in this background post, a family who alleges their dog was intentionally run over by a neighbor was allowed to sue under for the heretofore unrecognized tort of loss of companionship. Today, however, the court overturned the ruling of a previous judge and rejected the claim. The report in the Oregonian is spare on the legal details, but says, of the trial judge:

[S]he said she didn't believe loss of animal companionship was "a viable theory under Oregon law." It's up to other courts or the state Legislature to establish that concept, she said.

There is something unsatisfying about this rationale for rejecting the claim. Accepted ideas about institutional competence support a court being wary of recognizing a new tort (or an extension of a preexisting one or an expansion of damages) because of the belief that such a drastic step is best left to elected officials. One of the institutional advantages of the common law, however, is its flexibility. With again the caveat that we are not legal historians, and are barely lawyers at that, our Googling has revealed that one arguably analogous tort--the tort of consortium--has undergone significant judicial modification, from applying only to husbands for loss of sex, to applying to both spouses, to applying for loss of emotional support, to applying to children for emotional support. Legislative action in this area, however, could limit this flexibility.

The more frustrating rationale is that "other courts" should handle this issue. If a higher court had decided the issue, the trial court would certainly be bound by it. This does not seem to be the case. (We found one case, Lockett v. Hill, where the denial of a damages for loss companionship at the trial level was not appealed.) So why not consider the issue on its merits? A trial judge should be no more or less qualified to consider the extension of the law than an appellate judge. When faced with a innovative legal theory, a trial court should take a good look and come to a decision. Just because the issue will ultimately be decided on appeal, there's no reason a court should abdicate its role. As we've noted, another Oregon trial court has examined the issue (or a similar one) in another case and allowed the claim to go forward. (That case settled.)

From a tactical (if not strictly legal) perspective, the decision is also bad for the plaintiffs. Had the claim gone to the jury, and the jury found for them, it would have given the loss of companionship claim a greater legitimacy on appeal. This is a setback, but we remain confident "the loser now will be later to win." (Happy Birthday, Bob!)

Update (6/4/06): The jury returned a verdict awarding the Greenups $56,400, of which $50K was punitives. While this verdict could not include the sort of novel relief discussed above, the award of a nice amount of punitive damages seems to have been a proxy for the value of the dog in this case.

Kansas court holds animal has value beyond market value

In a case of first impression in Kansas, the state's intermediate appellate court held that the proper measure of damages for an injured companion animal includes veterinary bills.  Burgess v. Shampooch Pet Industries, No 93,698 (Kan. Ct. App. Apr. 7 2006).The facts are those of a typical companion animal tort case: the plaintiff brought her dog in to be groomed and the dog was returned injured. In this case, the dog only recovered after over $1,300 in veterinary services. Although the holding only affirms the lower court's awarding of vet bills, the court's language suggests that it is embracing a view which could allow for damages based on emotional or sentimental value. To wit:

• Regarding the measuring an animal's worth as the value to the owner, "This approach is contemplated by the language in Thatcher which allows consideration of 'any special value to the owner.'"
• "[W]hen an injured pet dog with no discernable market value is restored to its previous health, the measure of damages may include, but is not limited to, the reasonable and customary cost of necessary veterinary care and treatment." (emphasis added).
  
• "Murphy's real value to Burgess as a household pet is noneconomic and, as a result, is difficult if not impossible to appraise in the purely economic terms of market value ... "it is impossible to reduce to monetary terms the bond between man and dog." (citing Zager v. Dimilia, 138 Misc. 2d 448, 524 N.Y.S.2d 968 (1988)).

The court did not need to reject the traditional fair market value measure of damages to allow the recovery of veterinary bills. As Elaine Byszewski has noted in the Animal Law journal (pdf), the fair market value approach does allow for the recovery of consequential damages, such as vet bills. By doing so, however, the court had made a key doctrinal step away from valuing animals solely as property.

The failings of exotic animal legislation

Laws regulating the ownership of certain (wild/dangerous/exotic) animals are widespread, although jurisdictions vary as to which animals are covered and what restrictions are imposed. See the Animal and Legal Historical Center's summary of possession of wildlife statutes. Recent legislative activity on this front includes the passage in Kansas of SB 578 (pdf), which requires owners of big cats, bears, and venomous snakes to be licensed but also seemingly bans any ownership, a similar-sounding bill in Illinois dying in committee, and an expansion of the Maryland law.

Exotic animal laws often arise after a high profile incident where an animal hurts a human. Perhaps out of genuine concern, perhaps out of posturing, legislators make a publicized effort to deal with the problem. The news laws are unfunded and unenforced and nothing changes ... until another bloody incident. See recent criticism in Minnesota and in California. In terms of improving enforcement, one obvious answer is funding. (An Illinois legislator discussing the above-mentioned bill bemoans spending a mere $150,000 for enforcement.) Another, however, is to make enforcement easier by strengthening the law. Total bans would make it easier for officers to seize animals, without allowing humans who keep wild animals to take advantage of the inertia and delays (i.e. process) of getting a license. The biggest problem with this approach however is that laws banning even ownership of licensed animals might be preempted by the federal Animal Welfare Act.

In da statehouses, in brief

There is further talk of regulating puppy mills in the Rust Belt, as an Ohio legislator introduces a bill which (per the Dover-New Philadelphia Times-Reporter) includes inspections and licensing by the Ohio Department of Commerce. State Senator Robert F. Hagan frames the issue even more starkly than Pennsylvania Governor Ed Rendell did in his recent tough talk against puppy mills: "This is about torturing animals for profit."

A recently signed Mississippi law (SB 2210) extends the state's cruelty by malicious injury offense to include injury to cats; the law now [before SB 2210--ed.] only applies to dogs, while cruelty to other animals is included under a catchall. (Hat tip: An Animal-Friendly Life.) The law also bans hog-dog fights. As the Natchez Democrat notes, others bans have passed in Alabama and Louisiana and more are on the way.

The Journal News (NY) reports on a bill which passed the New York State Assembly allowing a tax check-off to fund animal shelters, but which a quoted advocate says may require shelters to turn over animals for a narcotic- and bomb-sniffing program funded by the check-off. The language is indeed sloppy, referring to the "development of police canine units (with dogs from shelters)," but without outlining procedures for requisitions.