February 15, 2009
Animal law makes steady gains in states, experts say
By JOSEPH B. FRAZIER
PORTLAND, Ore. ? Some things shouldn't happen even to a dog. But they do.
In Pennsylvania last year, a warden ordered two kennel operators to examine some of their charges for fleas. Instead, Elmer Zimmerman of Kutztown shot 70 dogs; his brother Ammon, who had a kennel next door, shot 10.
Horrible, yes, said Jessie Smith, the state's special deputy secretary for dog law enforcement, when the killings were reported. "But it's legal."
No more. Partly because of outrage over the shootings, dogs in Pennsylvania kennels now can be euthanized only by a veterinarian, and the state keeps a tighter leash on the "puppy mills."
Changes in animal law have come, and not just to Pennsylvania. Other incidents of abuse and a shifting national consciousness have made this one of the fastest-growing fields in the legal profession. In 1993, just seven states had felony animal cruelty laws; today, all but four do.
"Animal law is where environmental law was 20 years ago. It's in its infancy but growing," said Pamela Frasch, who heads the National Center for Animal Law at Lewis & Clark Law School in Portland, where she has been an adjunct professor for 10 years.
Lewis & Clark opened the first Animal Legal Defense Fund chapter in 1992. Today it has branches at more than 115 law schools in the United States and Canada.
In 2000, nine law schools had animal law studies. Today about 100 do.
"The reason it is getting taught is student demand," said professor David Favre, who teaches animal law at Michigan State University College of Law and is a top authority in the field. "It's not because tenured professors wanted to teach it, it's that students want to take it."
Favre said most animal law cases in private practice deal with issues such as dangerous dogs, divorce settlements, purchases or other property-related activities.
But it is the animal rights cases that draw attention. And while there have been advances in recent years, some issues remain unsettled. Should pets have more rights than livestock or wild animals? Are some species more deserving of protection?
In George Orwell's words, are some animals more equal than others?
State laws vary widely.
For example: At a Montana campsite, Gunner, a chocolate lab, was killed by a camper who cut off the dog's head with a chain saw and threw it at the owners.
Russell Howald, 30, was sentenced to the maximum ? two years.
But in Iowa, undercover video shot by People for the Ethical Treatment of Animals shows farm workers hitting sows with metal rods, slamming piglets on a concrete floor and bragging about jamming rods into sows' hindquarters.
"I hate them. These (expletives) deserve to be hurt. Hurt, I say!" the employee yells as he hits a sow with a metal rod. "Hurt! Hurt! Hurt! Hurt! ... Take out your frustrations on 'em."
Scott Heiser of Portland, a former district attorney who now is criminal justice program director for the Animal Legal Defense Find, said Iowa's general animal cruelty law exempts livestock from protection. If charges were brought against the workers, they most likely would be misdemeanors, at most.
Animal law, Frasch said, is a mix of incongruities.
"In the past, if someone did something bad to your animal, there wasn't much you could do," Frasch said. "But if your animal was stolen and well-treated, it could be a felony. It was out of balance.
"A mouse as a pet has protection. A mouse as a pest can be killed at will. Research mice have no protection. It is the same animal, but it is a matter of context."
Portland attorney Geordie Duckler practices animal law exclusively, but as property. Animals, he said, gain instead of lose value over time as owners build affection and investment.
"Someone who runs over a dog may ask why he should pay the owner thousands of dollars instead of just buying a new dog. That might work with a piano," Duckler said.
The concept that animals have rights, as humans do, appeals to many. But not Duckler, who noted in a legal column in "Bark" magazine that an owner can have a dog euthanized or end an animal's pregnancy.
Duckler, who also holds advanced degrees in biology and zoology, said writings and advocacy by animal rights activists tend to be limited to mammals alone.
He asks why earthworms ? simple and senseless, but animals, nevertheless ? "are left out in the legal cold," while others soak in "soapy tubfulls of nonscientific nonsense that we are not all that far removed from our animal ancestry."
Yet there is a middle ground.
Princeton professor Peter Singer, a pro-animal rights scholar, is quoted in a recent New Yorker article as saying he doesn't think his cats should vote or call on him in the hospital, although he wouldn't object to the visit.
"The right category for pets is closer to children, who can't vote, can't own property but you can't inflict pain on them, either. The law is catching up with societal beliefs."
Well, some of them are, and not just for pets.
In November, California voters banned cramped metal cages for chickens being raised for food and gestation crates for sows and crates for lambs that leave the animals barely able to move. Other states have passed more limited measures, and similar proposals are floating around Congress.
"People are starting to ask questions about things they don't see, and animal abuse mostly happens in places we don't see it," said Jonathan Lovvorn, vice president of litigation for the Humane Society of the United States and adjunct professor of animal law at Georgetown University.
"Most legal protections were drafted in the 1800s. They've upgraded a few of them, but the overall framework is not a modern one," Lovvorn said. "Hamilton and John Adams would not be surprised by our cruelty codes today. They would be very familiar to them."
Lawyers from the Animal Legal Defense Fund are busy helping overworked prosecutors try abuse cases, including aggressive cruelty and cases of horses abandoned to starve because owners cannot afford to feed them.
Heiser says he concentrates on helping prosecutors who increasingly cannot ignore animal cruelty cases. "Some may need five hours of research and don't have time for it. We will help them."
Political pressure to require aggressive investigations and prosecutions began building about 15 years ago, he said. Before that, some prosecutors were giving away cases "for a song at the plea level," he recalled.
Pockets of resistance remain, he said. Some prosecutors tell him "it's just a dog" or "I've got real crime to prosecute. I'm too busy."
But new laws in many states, he said, put animal abuse on par with drunken driving cases where prosecutors are prohibited from "dealing," or plea-bargaining, down to a lesser offense.
He said the law students he has met who are devoted to animal law "are very skilled and talented young men and women. Of course the empathy is there but most have faith in the legal system to effect change," unlike some animal rights activists who resort to violence.
Few areas of the law inspire greater emotional response ? or more contradictions.
"Companion animals are especially caught up in this," Heiser said. "There are people who would risk their lives to save their dog or cat. But they still eat meat."