Hounded, Cowed, & Badgered

The elections and animal law

The lobbying wing of the Humane Society of the United States has endorsed Barack Obama for President. Earlier posts, here and here, by blogger and animal-legislation expert Michael Markarian spotlighted the records of senators Obama and McCain on animal welfare. From an animal welfare perspective, the endorsement is no doubt the right choice. As the lobby's latest Humane Scorecard shows, Obama is generally more receptive than his opponents to animal welfare and animal protection legislation, though he is not a leader. Like, say, Dennis Kucinich.

For folks hoping for more radical change, neither of the major two parties offers anything. The above scorecard shows how the political climate prevents all but the most limited attempts at advancing animals' interests from even getting on the legislative docket. To the extent that any large scale animal protection (i.e., protection from humans) occurs, it happens as part of already existing environmental regimes. On the flip side, animal industries have found Congress an easy venue for expanding legislation (the AETA) picking out those animal and environmental activists who commit violent acts and damage property as deserving greater punishment than activists using those tactics to further other causes. Neither presidential candidate blocked the bill when it passed by unanimous consent, but Obama did put the bill in context (hat tip: Green is the New Red).

I don't know anyone who votes on animal issues alone (I do not), but such single-minded voters should consider third parties. Even progressive third parties, however, only rarely call for outright bans on certain animal practices. The strongest animal-related proposal in the Socialist Party USA platform is a ban on animal testing for consumer products. The Green Party platform endorses a "phase-out" of such testing. Still, these parties offers more than the Democrats, whose platform contains nothing positive on animals and promises to "open millions of new acres of land to public hunting and fishing" and the GOP, whose platform, less specifically, calls for public "access to public lands for recreational activities such as hunting, hiking, and fishing." Absent a vegan revelation (join with me in prayer, fellow religious vegans), neither a President Obama nor a President McCain will do anything to seriously advance animal rights.

Update (10/1/08): Well, at least the Obama family won't be supporting pupply mills. As Animal Person ponders, do tiny steps like these add up to anything?

"A pioneer in the field of animal law"

The Bellingham Herald has a good profile on local (blog) hero Adam Karp. Gary Francione has argued that, in order to be effective, animal rights advocates pushing for incremental legislative reform must make clear that the ultimate goal is abolition of animal use. I, and many others, have complained that linking animal cruelty with abuse of humans shifts the focus from animals, who are in fact suffering from their own exploitation. In terms of rhetoric, it doesn't get much better than Karp's comment on an instant-euthanization ordinance: "It's a violation of an animal's right to live."

See also this post on a 2006 profile of Karp.

Back from hiatus?

Sorry, no. Technological upgrades will be made. Will relaunch before summer!

Hiatus

In the tradition of troubled network programs, Hounded, Cowed, & Badgered will be on hiatus until November.

Catchup: Court rebukes USDA on horse slaughter, NM bans cockfighting

Apologies for the old news.

The recall of cat and dog food produced by Menu Foods has generated a lot of media interest in valuation of animals. An article in the Chicago Tribune by Mary Ann Fergus does a good job of summarizing the legal landscape, namely that, because animals are legally property, individuals who keep animals as companions can generally only recover the market value of a deceased animal. Although the coverage has included some quotes from veterinarians who support the status quo (who likes to pay?), most articles appear slanted towards the view that companion animals should be valued as the family members they often are. Or, as is commonly asserted by experts, the loss of a loved animal should not be treated like the destruction of a chair or sofa. Whether the outrage over the death of these animals will lead to legislation to allow for the recovery of loss of companionship or emotional damages remains to be seen.

Other recall-related posts: a rundown of causes of action (and another) against Menu Foods by the excellent, relatively new AnimalBlawg, a 50 state guide to companion animal valuation, and one prof expressing skepticism about class actions in this case and another not forecasting weak prospects for regulatory reform.

Animal Person laments that a bill to ban dog racing in New Hampshire has failed and ably takes apart the excuses given by legislators (one of whom she corresponds with) for allowing this practice to continue.

Two out of three plants that slaughtered horses for human consumption were put out of business by a Texas court's decision in January. (See item #4 in the January roundup) The future of the remaining plant, in DeKalb, Illinois, looks grim after a federal court vacated a USDA rule allowing inspectors to be funded by the slaughterhouses themselves. Humane Soc'y of the U.S. v. Johanns, No. 06-625 (D.D.C. 3/28/07). (Hat tip: An Animal-Friendly Life; more background.) The court's holding, that the USDA violated NEPA when it issued the rule, leaves open the possibility that it could issue another rule.

With SB 10, New Mexico has amended its dog fighting statute to ban cockfighting. (Hat tip: AAFL ... Happy Birthday!) Only Louisiana allows cockfighting now, but that may change.

The Animal Fighting Prohibition Enforcement Act, which would heighten penalties for animal fighting and ban blades and hooks used in cockfighting, passed the House. The N.R.A. convinced lawmakers to puts this ban in the animal welfare part of the U.S. Code, rather than the criminal one, though the penalties section still would appear alongside the law targeting animal advocates. Meanwhile, the legislation is being blocked in the Senate; the reason given: opposition to "redundant laws". (Update 4/12/07: Add another to the books, it passed the Senate.)

State standing in the news, in the journals

The latest issue of Animal Law has a blockbuster panel on standing, featuring Pace law professor David Cassuto and animal law litigators Jonathan Lovvorn and Katherine Meyer. The discussion ranges over many facets of standing (which concerns limits on who can sue), but concentrates mostly on standing for animal advocates and the requirements imposed by judges interpreting Article III of the U.S. Constitution. Among the insights: (1) standing is a profoundly political issue, and conservative judges have used it to make it more difficult for public interest litigants to pursue their claims; (2) expansion of citizen suit provisions in federal laws appears unlikely; and (3) animal advocates often must rely on coalitions with other social movements to find plaintiffs with cognizable injuries, as with the poultry worker-animal welfare coalition over slaughter rules for poultry.

One aspect of standing discussed briefly in the Animal Law panel is standing in state court, specifically the role of humane societies and the public in enforcing criminal and civil sanctions against animal abusers. Several recent cases touch on dimensions of this issue.

In In re Application by Block (Minn. App. Ct. 2/6/07), an appellate court recently found a zoning authority's requirement that a breeder "debark" dogs is arbitrary. (Debarking is a baaad thing.) This argument was raised for the first time on appeal by a humane society federation that state law recognized as existing "to assist in the enforcement of the laws for the prevention of wrongs to animals." In finding the group had standing, the court noted both this statutory authority and that their participation would ensure that "issues of alleged animal cruelty will be thoroughly discussed." Although Block is not a constitutional standing case, its recognition that animal have interests worthy of being represented, and thus interests that could be harmed, could form the basis for an Article III standing theory focusing on animals themselves. As the Animal Law panelists note, given the difficulties facing even human plaintiffs, almost all AR-related standing arguments focus on injuries to animal advocates.

Also in February, a North Carolina court's decision will (hopefully) guarantee the Animal Legal Defense Fund's right to take care of over 100 severely neglected dogs. Animal Legal Defense Fund v. Woodley (N.C. Ct. App. 2/6/07). As the ALDF factsheet on Woodley notes, this action against was brought under a unique state law allowing private entities to sue animal abusers. Although the law has been limited over the years--professor David Favre calls it the best cruelty statute procedurally but the worst substantively in the same Animal Law issue--it allows an even greater level of accessibility to the courts than laws granting enforcement powers to humane societies. Because many humane societies are not capable of (or willing to) fight in court many instances of abuse, the expansion of the potential pool of plaintiffs could in theory greatly increase the effectiveness of such laws.

On the criminal side, generally only prosecutors have standing to charge individuals suspected of violating anticruelty laws. Prosecutors, however, frequently deem animal cases insufficiently important to bring charges. (For an excellent analysis of prosecutorial discretion and cruelty cases, as well as legislation allowing private individuals to initiate proceedings, see Jennifer H. Rackstraw, Reaching for Justice: An Analysis of Self-Help Prosecution for Animal Crimes, 9 Animal L. 243 (2003) (pdf).) One recent instance of a prosecutor's failure to charge involved a runaway calf that was killed by police with a Taser. After initially approving charges against the officers, a trial judge reversed course earlier this month. Although the early indications were that the court might dismiss the case on immunity grounds, the latest account in the Spokesman-Review indicates the court found the charges unconstitutional, as applied. This result is a real shame, as it limits the enforcement of the applicable anticruelty laws to an entity that works intimately with potential defendants.

Cts in January: PETA workers littered; horse slaughter ban valid

Two PETA workers were prosecuted in North Carolina for cruelty, obtaining property by false pretenses, and littering. They admittedly killed dogs and cats and disposed of the bodies as part of the organization's animal control project. Animal users and their mouthpieces, like the misleadingly named Center for Consumer Freedom (which offered the most complete coverage at PETA Kills Animals) thumbed through thesauruses for different ways to say "hypocrites!" The cruelty case had no legs--the workers injected the animals with sodium pentobarbital, which is frequently used by vets--and the workers eventually were only found guilty of littering for disposing of the bodies in a dumpster. The fact that this was a selective, political prosecution should not deter PETA members (present company included) from questioning why the organization is in the euthanizing business in the first place.

Animal rescue Farm Sanctuary lacks standing to sue a pork producer for its use of confining crates, a California appellate court held. The unpublished opinion is titled Farm Sanctuary, Inc. v. Corcpork, Inc. (pdf, html cache). The decision hinges on a relatively straightforward reading of a law that limits the pool of consumer fraud plaintiffs to anyone "who has suffered injury in fact and has lost money or property as a result of such unfair competition." As we've noted before, after the passage of Proposition 64, which imposed this requirement, animal advocates have been recruiting those hyped "conscious" animal product consumers as plaintiffs. More evidence that, for the purposes of standing, vegans make bad plaintiffs.

An Indiana appellate court upheld the state's hunter harassment law. Shuger v. Indiana (pdf, html cache). The law, Indiana Code 14-22-37, prohibits a variety of nonviolent but possibly annoying activities intended "to prevent or hinder the legal taking" of a game animal.  The defendants, who noisily drove by some hunters, argued the law hindered their First Amendment rights. The court found that the law was tailored (sometimes "narrowly," sometimes "sufficiently") to the State's interests in hunter and protester safety and game population management. The court relied heavily on Hill v. Colorado, a U.S. Supreme Court case which okayed a Colorado law aimed at anti-abortion activists.

Texas's (unenforced) ban on selling horsemeat for human consumption is valid,the Fifth Circuit U.S. Court of Appeals held. Empacadora de Carnes de Fresnillo v. Curry (pdf, html cache) (hat tip: An Animal-Friendly Life). The court found that the law was not implicitly repealed, preempted by the Federal Meat Inspection Act, or in conflict with dormant commerce clause cases. If this law is enforced, it would leave Illinois's Cavel International as the only slaughterhouse that kills horses for food in the U.S. If the Illinois legislature can distract its attention from such nonissues as Internet hunting, maybe the states can end this practice. The U.S. Congress has been singularly inept at doing so; put "horse slaughter" in the search box to the right and follow the trail of failure....

The owner and employees of an Ohio hog farm were charged with cruelty, and pled not guilty. This is news because prosecutors rarely charge people for abuse of animals used for food and courts and legislators have excepted agricultural practices from the scope of cruelty laws. (Ohio law, for instance, requires a confined animal be given shelter, but excludes animals "impounded or confined prior to slaughter." Ohio R.C. 959.13.) According to an article in the Columbus Dispatch (link above), the farm owner and employees are charged with cruelty for both negligent and intentional conduct. The Humane Farming Association drew attention to the abuses at the Wiles Farm, including a pig killed by hanging. The defendants face only misdemeanor charges, because Ohio's felony law applies only to people who repeatedly commit the worst acts of cruelty ("torture, torment," etc.) against companion animals.

A Washington court okayed charges for cops in Taser killing of a calf. As a quote from local hero Adam Karp notes, this is a rare prosecution because it involves a police officer killing an animal and because it was initiated by a citizen complaint and opposed by prosecutors. The prosecutor's office is challenging the citizen complaint law as invading executive prerogative.

2006: The year in animal law

This year saw small changes in the legal landscape regarding animals, most of which benefited animals, a few of which did not. The theme, as in year's past, is inconsistency: more companion animals got trusts, while animals on factory farms still get almost no legal protection. One court called stomping a fish cruelty; another won't recognize the emotional damage to a kid watching his dog get beat to death. That said, animal guardians and animal advocates have been suing and lobbying, and animal users fighting back. The top stories, in no order:

Animal rights activists targeted. Legislatures and prosecutors have done their best to suppress dissent over animal exploitation in 2006. Although existing laws punish harassment, property damage, and theft (the worst crimes committed by AR activists), animal industries have flexed their strength by passing laws at the state and federal levels that add or expand penalties for offenders who target animal industries. See recent legislation in Pennsylvania and the federal Animal Enterprise Terrorism Act. Courts have also convicted activists of maintaining an incendiary website (SHAC) and breaking into a factory farm to film the suffering there, (Compassionate Consumers). Will Potter at Green Is the New Red has done a fantastic job covering the "Green Scare."

The fight over factory farm pollution continues. Intensive factory farming not only makes animals' lives hell, but wreaks havoc with local ecosystems. This year has seen attempts by neighbors and environmentalists to limit factory farms, and attempts by Big Ag to protect itself. The Oklahoma AG has sued chicken producers, Missouri counties are zoning out hog farms, and many U.S. Congressman are watching the factory farms' backs. Also, the EPA also drafted a rule on factory farms and the Clean Water Act after a court struck down the previous rule.

Gains at the local level. Too many cities and towns to mention amended animal control statutes. Chicago banned foie gras (though the enforcement stinks). Albuquerque passed an extensive animal ordinance, including mandatory spay/neuter. Toledo's pit bull ban was struck down.

States expand laws against (non-institutional) animal abusers.  After years of struggle, Kansas joined the bulk of states in enacting a felony animal cruelty provision; an attempt in Utah failed. Utahans are trying again though. (Hat tip: AAFL.) Bills criminalizing sex with animals passed in Washington and Arizona. Several states, led by Maine, enacted laws allowing companion animals to be added to protection orders. One law professor asked whether, in the current climate, it's possible for legislation or lawsuits to address cruelty against animals in any meaningful way.

Animals added to evacuation plans. States enacted laws allowing/requiring/studying disaster plans to consider animals, most notably in Louisiana. After what seemed like a bit of a delay, there was also federal action. Also, animal law experts pondered post-Katrina animal custody disputes.

Direct democracy still where it's at.  And don't animal industries know it? Earlier this year, a federal appellate court upheld a Utah amendment which makes it harder to pass wildlife related initiatives, by imposing a 2/3rd's majority vote. In July, the Massachusetts Supreme Court prevented voters from having their say on an initiative that would reform various dog laws and, in doing so, ban greyhound racing. In the November elections, Arizona voters passed a ban on restrictive crates for calves and for pregnant pigs, and Michigan voters turned down a chance to legalize hunting mourning doves. Why bypass legislatures? See the feet dragging of the U.S. Congress on the horse slaughter ban (earlier coverage here) and an animal fighting bill.

Also, a roundup roundup: Dawn Watch, HSUS (with pictures!). Happy New Year!

In da courts, in brief

• A federal suit has been filed, and cruelty charges are being investigated, regarding the alleged shooting massacre of companion animals in Louisiana in the aftermath of Hurricane Katrina.
• Two cases brought by the Animal Legal Defense Fund have been decided recently:
• The ALDF, joined by law enforcement interests, challenged an Oregon measure which, would arguably hinder forfeiture of abused, neglected, or abandoned animals. In Lincoln Interagency Narcotics Team v. Kitzhaber, the Oregon Supreme Court rejected their challenge, which claimed that Measure 3 unconstitutionally required voters to vote on two separate amendments at once.
• The group's suit against the USDA for failing to take action on guidelines for nonhuman primates is going ahead. ALDF v. Veneman (pdf, html cache). The Ninth Circuit opinion, reversing the trial court's dismissal of the claim, has sustained discussions of constitutional standing and the reviewability of agency (in)action, as well as a stinging dissent by Judge Kozinski. ALDF has the complaint and motion to dismiss.
• In People v. Leach (pdf), a man who raised rabbits for food for years killed one in front of a police officer and was convicted under Michigan's felony cruelty law; the appellate court affirms.
• The titled respondent in a recent Illinois dog bite case, People v. Tara, is canine. (She loses.)
• A Kentucky court upholds a county's ordinance banning possession of pit bulls. Bess v. Bracken County Fiscal Court (pdf, html cache) (hat tip: Kentucky Law). With regard to the appellant's challenge as to the reasonableness of the law, the court acknowledges recent authority to the contrary, but defers to late 1980s/early 1990s decisions holding that pit bulls are inherently vicious.
• Two somewhat recent decisions apply the firefighter's rule in the animal context. The firefighter's rule reflects the idea that people employed to face certain risks should not be able to sue people who create those risks. In Brady v. White (pdf, html cache), a district court in Delaware found that a veterinarian assumed the risk of handing a wounded dog, and could not sue for injuries from handling the animal. In Priebe v. Nelson (pdf, html cache), the California Supreme Court extended its preexisting veterinarian's rule to kennel operators.

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)