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Posts Tagged ‘Animal Law’

Washington court rules county “dangerous dog” policy unconstitutional, sort of

Working Like a DogExaminer.com (always a font of questionable journalism) ran a story last week about an appellate court in Pierce County, Washington that ruled the county’s “dangerous dog” policy to be unconstitutional. In fact, the headline reads “Dangerous dog policy in Pierce County deemed unconstitutional.” If only the story were that simple.

Now, I would be the first to welcome a bit of constitutional scrutiny of our dangerous dog laws. I’ve represented dog owners in dangerous dog proceedings, and I hope it doesn’t seem like too much of a pun to say they are frequently not much better than kangaroo courts. State, county, and municipal laws set out standards for how a determination of “dangerousness” is made, a hearing is scheduled, a judge or a panel of officials hear evidence from the dog owner, the victim, and others, and a finding of “dangerousness” almost always results. Because, at the end of the day, it is usually an injured person versus a dog, and the human almost always has more political clout.

Of course, I’m generalizing, but this has been my experience.

Now then, back to the constitutional question. The case in question involved a Great Pyrenees and a Pomeranian. I’d rather not get into the details of how that turned out, but suffice it to say the Great Pyrenees was the one on trial. The dog’s owner had to pay a fee to the county simply to obtain a hearing on the decision, made without her input at all, that her dog was dangerous.

The court in Washington did not rule that the county’s policy vis a vis the dogs themselves is unconstitutional. They ruled that the practice of charging fees to the dog owners to challenge determinations made by the county animal control authority to be unconstitutional. In short, if you live in Pierce County and you wanted to have an actual hearing on whether or not your dog is “dangerous,” you have to pay the county $250. That’s the fee for an “informal” hearing. For a “formal” hearing, you need $500. If you couldn’t afford the fee, the county could declare your dog dangerous, and you couldn’t do a thing about it. A “dangerous dog” designation could obligate you to obtain extra insurance, keep the dog confined at all times, or lose the dog entirely.

Charging a three-figure fee just to have a day in court, quite frankly, is crap, so the Court of Appeals did the right thing.

As for the policy towards the dogs themselves, unless and until the law starts to view dogs as something more than just chattel with teeth, it won’t be improving any time soon.

Photo credit: Working Like a Dog by KM Photography.., on Flickr.

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Animal Welfare CLE presentation for Bastrop Wildfire Relief

Yesterday I made a brief presentation on animal welfare legal issues for the Austin Bar Association’s CLE program for Bastrop wildfire relief volunteers.

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No dogs in the bar, yankee!

Bailey (photo by rfirman)

You never take me out anymore

In New York City, a dog can help you testify in court but can’t help you drown your sorrows in a bar. Via Volokh Conspiracy comes the story of how the NYC health department is stepping up enforcement of a long-neglected ban on canines in the vicinity of food prep. Since booze is legally considered “food,” dogs aren’t even allowed in bars that serve booze but not food. They’re not even allowed on outside patios.

For once, I’m actually inclined to agree with the libertarianish arguments in the Volokh post, in that dogs are an easily-minimized risk in a business like a bar, and that people can certainly make an educated choice as to whether to go to a dog-friendly or dog-prohibited bar. It’s also quite a blow to the social opportunities offered by dogs. Not everyone is a dog person, but dog people tend to be social, and they might like a place to gather with their dogs besides a dog park. For a city that prides itself on its many social and cultural offerings, it seems unfortunate to make such a drastic prohibition.

I’m staying in Austin no matter what, but now I feel even better about it. We allow dogs on patios.

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Puppy mills better watch out! I have a GIF!

And with this GIF, I will strike terror into the hearts of illicit puppy mills everywhere……

Well, it’s cute, anyway. Thanks to the lovely and talented Amy Welborn for bringing this to my attention.

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Oh PETA, PETA, PETA. What are we going to do with you???

Today is a great day for my blog. A day many bloggers can only dream of.

Today I get to write about porn.

Most bloggers wait in vain for some legitimate reason to blog about porn. Well, bloggers who aren’t named Marc Randazza or Michael Fattorosi, anyway. This week, I found such a legitimate reason. (I should probably mention the NSFW status of this post. Proceed with caution.)

But first, I have to talk about PETA.

I have conflicted views on PETA. On the plus side, they have done some excellent work investigating cases of animal cruelty.

On the minus side, they have a very bad track record on many issues of animal rescue.

  • This rather snarky infographic (h/t BigMikeInAustin) shows some stats on their rescue efforts and the activities of their spokespeople.
  • PETA advocated for Michael Vick’s dogs to be put down.

    Norfolk-based People for the Ethical Treatment of Animals cautioned that people may seek to adopt the dogs for the wrong reasons, such as boasting of having a “Michael Vick dog” or returning the animals to the dogfighting pits.

    “In most cases, pit bulls seized from dogfighting rings are euthanized, and as sad as that is to all of us, it may be the best thing to do for everyone concerned,” PETA spokesman Dan Shannon said.

    Note that the concern is over what may happen to the dogs if they live. Also note that nearly all of the dogs were rehabilitated and successfully placed in adoptive homes.

  • PETA has not been much of a friend to pit bulls at all. This puts them at odds with me.
  • A PETA “sheltering adviser” offered a remarkably weak, alternative-solution-free criticism of Austin’s no-kill policies recently.

They also make widespread use of nudity in their ad campaigns and protests. I am torn as to whether this goes in the “plus” or “minus” side, as I feel it distracts attention from the important issue but at the same time features naked people.

From zimbio.com. Fair use applies.  From connect.in.com. Fair use applies.

From zimbio.com. Fair use applies.

This brings me to the point of this post, where things get good: PETA plans to launch a porn site using the “.xxx” domain.

No, really.

I’m serious. And it sounds delightful:

The bizarre site will aim to raise awareness of veganism by offering pornographic material alongside graphic footage of animal mistreatment.

The porn site will illustrate the horror of life for animals on factory farms, will pictures and video shot undercover by the group’s hidden camera investigations.

Spokesman Lindsay Rajt told the Huffington Post: ‘It will have enough adult content to qualify for the XXX domain site but also some other graphic images of animals that viewers may not expect to see.‘We live in a 24 hour news cycle world and we learn the racy things we do are sometimes the most effective way that we can reach particular individuals.

She added: ‘We really want to grab people’s attention, get them talking and to question the status quo and ultimately take action, because the best way we can help the greatest number of animals is simply by not eating them.’

“Adult content” combined with “graphic images of animals”??? Does PETA, ummmm, know what porn is for??? I mean really, how often do you want to see “graphic images of animals”? Probably not very often. Now think of the absolute last time you would want to see that sort of “graphic” image. You probably thought of a time when you were eating. Now think of what might come in second. You see where I’m going with this.

I fail to see how this could succeed either as effective advocacy or as pornography. There is such a thing as too much controversy. People who aren’t already repulsed by PETA’s antics might finally be repulsed. People looking for new adult entertainment might be in for a rude surprise. Aside from joke fodder, I don’t see much good coming from this.

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City of Rockwall, Texas approves no-kill

Photo by Christa Richert

Not pictured: Rockwall, Texas

The city of Rockwall, Texas has become the second Texas city to adopt a no-kill policy:

The Rockwall City Council voted unanimously Monday night to make Rockwall a No Kill community. It’s the culmination of a volunteer-driven campaign by Rockwall Pets, an independent nonprofit, to stop the killing of healthy and adoptable animals at the city shelter. Following meetings between Rockwall Pets board members and city management, the issue was sent to the city council.

The council directed city staff to maintain a minimum 90% live outcome rate at the city’s open-admission municipal shelter. The city must now adopt, return to owner, or save the lives of at least 90% of the animals it takes in. The No Kill Advocacy Center established what has become the industry standard, allowing a maximum euthanasia rate of 10% for animals who are gravely ill or irredeemably aggressive.

[snip]

“I see the 90 percent, but I’m wondering why not 100 percent?” asked councilman David White, getting into the spirit of the discussion. “I wish that extra 10 percent could be cute little Yorkies.”

It may take as long as two or three months to retool Rockwall Animal Services to meet the council directive. In the meantime, councilwoman Margo Nielsen asked city staff to present a revised euthanasia selection protocol at the next council meeting. Rockwall Pets hopes this overhauled procedure, coupled with ongoing efforts from volunteers, will begin saving more lives immediately.

I applaud Rockwall for taking this step. It looks like they have some good citizen support, which is essential for a no-kill plan to succeed.Austin, of course, was the first Texas city to adopt no-kill, back in March 2010, and we have surpassed the 90% live outcome rate for most of 2011. This is the crucial time of year, when kittens and puppies are brought to the shelter in droves. Austin had a 93% live outcome rate for July 2011, according to the article quoted above, and Rockwall had a 83% live outcome rate. That still puts Rockwall far above many Texas cities.

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Animal welfare roundup, July-August 2011

I got way behind on my Google alerts, so here are some stories from the past 3-4 weeks on animal welfare issues.

The Austin American-Statesman Editorial Board discusses the success of Austin’s “pet-friendly policies,” as the city shelter marks six months of achieving “no kill” status:

In June, the center surpassed no-kill goals, achieving a live outcome of 91 percent, meaning at least 9 of 10 animals that came in to the center left through adoptions, foster care or other placements that kept them alive. So about 1 in 10 died or was put down. And June is not a fluke; the animal center has achieved a live outcome of 90 percent for the past six months, and that is no small achievement considering that the center provides shelter for about 23,000 animals, mostly dogs and cats, each year. In the past, it relied heavily on putting stray animals down to manage Austin’s stray pet population.

Meanwhile, the Austin Chronicle notes “The ‘Unintended Consequences’ of No-Kill’s Success,” as the shelter has spent most of the summer at capacity for puppies and kittens:

The city announced that achievement [6 months of no-kill] in a press release on July 6. Nine days later, it sent out word that TLAC was at capacity and had run out of space for cats. That week, the shelter had taken in 347 dogs and cats. To save lives, the statement said, staff were “setting up temporary cat cages in the administrative conference room.”

So, the question is: Has it turned out that skeptics were right all along in arguing that the attempt to make Austin a no-kill city was bound to result in an animal shelter operating constantly over capacity, with animals living in every available space and staffers overwhelmed by a never-ending flood of new arrivals? The answer, [shelter director Abigail] Smith says, is yes and no.

“No” because animal shelters always see an increase in animal intake numbers in spring and summer, which is breeding season, or “kitten season,” as Smith calls it. A shelter doesn’t have to be no-kill to suffer the ill effects of a breeding season; it comes with the territory. “Yes” because there’s more than a little anecdotal evidence that people feel more comfortable surrendering their unwanted pets to the shelter now that it’s no-kill. Smith calls this an “unintended consequence of success,” one she would like to see vanish.

The shelter has a foster program to get dogs and cats out of the shelter and into homes. Sign up now.

A columnist for the International Business Times takes on critics of no-kill and promotes fostering and adoption:

Some people – even major organizations – still think the no-kill philosophy can’t succeed, in spite of all the evidence that it is succeeding. Only yesterday, a PETA spokesperson wrote in an Austin, Texas, newspaper that:

“It isn’t surprising that since implementing ‘no-kill’ policies, the Town Lake Animal Center is reportedly overcrowded and struggling to find space to house all the homeless animals who pour through its doors … [This] is only the beginning of what is to come, as long as it maintains these dangerous and misguided policies.

“Because there are so many more homeless animals than good homes waiting for them, the only way most shelters can avoid euthanasia is by caging animals for months on end, sometimes warehousing them in stacked crates – which is cruelty, plain and simple – or by turning away animals when there is no more room.”

What’s wrong with assertions like this?

For starters, it’s entirely untrue that “there are so many more homeless animals than good homes waiting for them.” In fact, the opposite is the case.

Photo by sanmarks

Photo by sanmarks

In other news, Texas is beginning to implement the newly-passed Puppy Mill Bill:

The Texas Department of Licensing and Regulation (TDLR) is taking the first steps to bring dog and cat breeders into compliance with the newly passed HB 1451, also known as the Puppy Mill Bill.  TDLR announced that a Licensed Breeders Advisory Committee (Committee) is now in the process of being formed to determine the rules and standards for large scale commercial dog and cat breeders as directed by the passage of HB 1451.

The Committee will be composed of nine members: two licensed breeders; two veterinarians; two members who represent Texas animal welfare organizations; two members of the public; and one animal control officer. Committee applications will be accepted through September 15, 2011.

A writer at OpposingViews offers a criticism of the outright ban on puppy mills passed in Los Angeles,in that it lacks clear definitions :

How many of these breeding factories actually exist within the city limits?

According to L. A. Animal Services veterans, they can’t recall ever finding one or receiving complaints about puppy mills. They say the city’s pet overpopulation stems from careless owners who do not spay their pets and a combination of local backyard and home-based hobby breeders churning out litters which are easily sold through Craig’s List, the Pennysaver, L.A. Times and flyers in pet supply stores or veterinary offices. And, of course, add whatever outlets are used by Los Angeles’ “responsible breeders” who are offended at the mention of advertising , but whose breeding credits are revealed and extolled  in dozens of Internet  Google references.

Finally, some problems are emerging with a new Texas law allowing pets to be included in protective orders in domestic violence situations, according to a writer for the Fort Worth Star-Telegram:

Another bill drawing questions is one from state Sen. Wendy Davis, D-Fort Worth, that allows domestic abuse victims to include pets in a protective order against an abuser. During the session, supporters like Davis and House sponsor Jodie Laubenberg R-Parker, said some domestic abuse victims delay leaving an abusive situation out of concern over the welfare of a pet. Battered woman shelters usually don’t allow animals.

The new law is “unprosecutable” in most cases, [Texas District & County Attorney Association analyst Shannon] Edmonds said. At issue is how the bill restricted itself to animals that are “possessed” by the abuse victim. Legally, if a victim leaves their animal while fleeing for safety, the person is no longer in possession of the animal, Edmonds said. He argues that the bill should have referred to “ownership” rather than “possession.”

The moral of this post is as follows:

  1. Foster one or more shelter animals;
  2. Don’t breed dogs in your backyard; and
  3. Don’t commit domestic violence, or, if you are escaping an abusive situation, try to take your pets with you.
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Court appearances just got more cuddly

Photo by Be Inspire

Photo by Be Inspire

Interesting news out of New York: they are now allowing service dogs on a witness stand.

It was a tense moment in a Poughkeepsie courtroom when a 15-year-old girl who had been the victim of sexual abuse for four years was asked to point out the man who had violated her. The girl seemed to freeze.

Then a furry snout and wet brown nose came up over the stand and nudged her arm.

The girl’s demeanor changed and she was able to point out the man in the courtroom and continue with her testimony. The man was found guilty and is facing 25 years to life in prison.

The snout that helped the girl overcome the difficult moment on June 13 belongs to Rose, affectionately called Rosie, an 11-year-old golden retriever service dog whose specialty is comforting people.

This is the first time in New York State that a service dog has sat on the witness stand during a trial.

The dogs are trained to help children who might otherwise be nervous or intimidated in a courtroom.

[Clinical social worker Lori] Stella said she noticed an immediate change in the young girl from the day she first met [the dog] Rosie. “I could physically see her anxiety diminishing,” Stella said.

Measures were taken to make sure Rosie was as inconspicuous as possible.

The dog was behind the witness stand and could not be seen by those sitting in the gallery, except when she poked her head up to nudge the victim and the judge gave very specific instructions to the jury that they were not to make any interpretations about why the dog was there.

Photo by Noël Zia Lee

Photo by Noël Zia Lee

I applaud both making the dog available and making efforts to keep the dog inconspicuous. It’s impossible to keep such a thing hidden from a jury, and I do wonder if this is a bell that can be unrung, or if having a service dog supporting a witness creates automatic sympathy for the witness unrelated to their testimony. It may eventually be no different than an injured litigant appearing on the witness stand in a cast, but we are not there yet. The defense attorneys in the above case raised some valid points in objection, as noted by the Companion Animal Law Blog:

One argument the attorneys made is that Rosie’s presence biased the jurors by making them empathize with the teenager. A second argument is that a therapy dog is trained to encourage a person under stress to continue to testify, but a witness may be under stress whether they were testifying truthfully or lying. Another argument is that the attorneys are unable to cross examine the dog.  Yet another argument is that jurors may pick up on subtle actions such as the dog nudging the witness or the witness leaning into or hugging the dog, and think that those parts of the testimony are somehow more truthful or significant. In fact, during Tohom’s trial, the dog reportedly nudged the teen at one point when she hesitated in her testimony. Although no New York courts have dealt with the issue of a courtroom dog, the judge pointed to a case allowing a witness to have a teddy bear while testifying as grounds to allow Rosie into the witness box.

I tend to think that the benefits of allowing witnesses to have support from a companion animal outweigh the objections made by the defendant’s lawyers. It is certainly preferable to other methods of allowing testimony by witnesses who might be too distressed to appear in court (which include testimony from a third party about the witness’ statements and testimony via closed circuit TV).

I’m not particularly convinced by the argument relating to the witness’ truthfulness–having a dog present shouldn’t make a witness more or less likely to lie. Furthermore, I don’t see why cross-examination of the dog would be necessary, as the dog (assuming sufficient intelligence to testify in the first place) would only have contact with the witness in the courtroom (or in matters directly related to preparing for testifying) and would not have any relevant knowledge.

I could see a legitimate concern that a jury might see the dog make a particular gesture–a nudge or a lick–and infer that there is some special significance to that part of the testimony. That could be unfairly prejudicial to the opposing party, but it can theoretically be addressed through jury instructions.

Overall, I think this is a good development. Witnesses who might otherwise be too rattled to testify can have their day in court, and these dogs can find a calling to help people.

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You can’t just kill your dog. Seriously, people.

Photo by Noël Zia Lee

Photo by Noël Zia Lee

If you are looking for radical theories of pet ownership, look no further than William Richerson of Utica, New York:

A Utica, New York man told a judge in court this week that he didn’t see anything wrong with killing the family dog by shooting it twice in the head in April because it was his dog.

William Richerson, 58, pleaded guilty in Oneida County Court to aggravated cruelty to an animal and third-degree criminal possession of a weapon, both felonies.

He faces two years in state prison when he is sentenced by Judge Barry M. Donalty.

Interestingly, the two-year state prison sentence is not for shooting his dog, but for unlawful possession of a firearm:

Since he had no license permitting him ownership of the weapons, police charged Richerson with third-degree criminal possession of a weapon, a class D violent felony.

Richerson pleaded guilty to both charges Tuesday and agreed to spend two years in state prison. Prosecuting Assistant District Attorney Kara Wilson said while the animal cruelty charge is considered a felony, it is classified under Agriculture and Markets law, not penal law, and carries the equivalent of a misdemeanor when translated to a penal law charge. It can only be punished by local jail time but the weapon possession charge will net him time in state prison, she said.

Photo by wanderstruck

Photo by wanderstruck

I’ve written about issues like this before. It still begs the question of what Richaerson did wrong (aside from weapons possession) if the dog was “his.” This is an area of some commotion: exactly what sort of property is a pet? The law treats pets as personal property for the most part, but clearly a pet has certain rights protected by the law that are not enjoyed by inanimate possessions. At least one legal scholar has suggested a new category, “living property,” which could take into account the fact that animals, unlike cars or kitchen tables, can feel pain and have certain rights.

Texas courts have also been conflicted as to how to treat the value of an animal. As far back as 1891, the Texas Supreme Court allowed for the possibility of some “special value” of an animal over and above its market value:

There is no evidence in this case that the dogs had a market value, but the evidence is ample showing the usefulness and services of the dogs, and that they were of special value to the owner. If the jury from the evidence should be satisfied that the dogs were serviceable and useful to the owner, they could infer their value when the owner, by evidence, fixes some amount upon which they could form a basis. Heiligmann v. Rose, 16 S.W. 931 (Tex.,1891)

So pets (or “companion animals,” if you will) have legal protections against cruelty and have at least some “special value” that courts are beginning to recognize. I don’t see how a person can legitimately claim to “own” a pet the way one owns, say, a toaster. At best, “custody” seems a better concept than “ownership,” particularly if there is a legal mechanism for a negligent or abusive pet “owner” to lose “custody” of a pet.

Photo by PuppiesAreProzac

Photo by PuppiesAreProzac

Here is a thought experience I came up with that might help here. The law typically recognizes three categories of property: real property (e.g. land), personal property, and intangible property (e.g. stocks and bonds or intellectual property). Take an example of each one: my house, my toaster, and a savings bond I got for my tenth birthday. I have certain legal obligations regarding each, and I have different legal rights.

  • I can rip up the savings bond if I want, and it is doubtful anyone would care.
  • I can take a baseball bat to the toaster, so long as I am not endangering anybody else.
  • I can take a baseball bat to my house if I want, again with the restriction that I cannot endanger anyone or create a nuisance. I cannot, however, set my own house on fire without getting into serious legal trouble. Again, this relates to the extent to which I am endangering others.

Now then, I could hypothetically hit my dog with a baseball bat without endangering other people, much like I could smash my toaster. I seriously doubt any decent human being would agree that there is no difference between smashing my toaster with a bat and doing the same to my dog. Do I “own” my dog the same way I “own” my toaster? I think not. More likely, I am a guardian or custodian of my dog, with a duty to keep her reasonably safe and healthy. I owe no such duty to my toaster.

To be clear, I am not going to smash anything with a bat. Nor should anyone reading this conclude that it is okay to smash things with bats. This is a thought experiment. Seriously, people.

I hope William Richerson learns something in the next two years. I hope he realizes how and why he was wrong. I hope no one in prison treats him the way he treated his dog.

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Good news on license plate income

There had been controversy around how the Texas Legislature was going to disburse funds collected from the sale of “Animal Friendly” license plates, which are intended to be used to fund spay/neuter programs. I learned today that all funds were authorized by the Legislature for their intended purpose. This came after protests from nonprofits who were expecting funding. The cuts proposed by the Legislature would have barely made a dent in the budget shortfall, but would have been devastating to the organizations that were expecting the money (not to mention the Texans who bought the license plates expecting the money to support spay/neuter). It is always nice when the Legislature does what it is supposed to do.

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