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Animal Law
South Texas College of Law Houston
Ortiz, Francesca

Animal Law – Introduction
1. What is an animal and what is animal cruelty is cultural.
2. Vivisection/Dissection
a. Many states now prohibit vivisection in educational institutions.
3. Evolution of the view of animals:
a. Middle ages, an animal could be tried for a crime.
b. Culture is a big factor in what is considered an animal.
c. Knox v. MA SPCA (Ap Ct of MA) – goldfish interpreted as “any live animal”
i. MA – any non-human creature, all irrational beings; anything other than a human.
ii. Purpose: prevent cruelty; directed against acts which may be thought to have a tendency to dull humanitarian feelings and to corrupt the morals of those who observe or have knowledge of those acts.
d. Lock v. Falkenstine – Gamecocks not interpreted as animals under animal fighting statute
i. Every person who maliciously, or for any bet, stake, or reward, instigates or encourages any fight between animals, or instigates or encourages any animal to attack, bite, wound or worry another, is guilty of a misdemeanor.
Animal
1. State Statutes – Animal
a. AK – a vertebrate living creature, not a human being, but does not include fish
b. AZ – mammal, bird, reptile or amphibian
c. CA – animal includes every dumb creature – including roosters
d. DE – not include fish, crustacea or mollusks
e. HI – any animal other than insects, vermin or other pests.
f. IN – vertebrate animals, but not human beings
g. KS – animal does not include gamecocks; are considered birds; fowl are biologically animals but chickens are seldom commonly thought of as animals; thought of as birds.
h. KY – Cruelty to animals in 1st degree prohibits causing animals to fight for pleasure or profit, protects four-legged animals, cruelty to animals in 2d degree protects any animal
i. LA – Fowl not animals. But these fowl are: parrots, parakeets, love-birds, macaws, cockatiels, or cockatoos, canaries, starlings, sparrows, flycatchers, mynah or myna.
j. ME – every living, sentient creature not a human
k. MA – no use of a live animal as lure or bait, except for fishing
l. MI – vertebrates other than humans
m. MS – cruelty protects any living creature
n. MO – animal is a mammal
o. NH – animal is a mammal
p. NJ – cruelty protects a living animal or creature
q. NM – no statute prohibiting cock fighting; cocks are animals under the cruelty statute but cock fighting not deemed cruelty because the statute interpreted only to include “brute creatures and work animals”. Purpose is to protect all animals from the “cruel infliction of pain and suffering imposed by individuals.” Wild animals, not captured, are not protected by the statute. Protects only domesticated creatures and captured, wild creatures.
r. NY – every living creature except humans
i. NY – no fighting between “cocks or other birds, or between dogs, bulls, bears or any other animals”
s. NC – every living vertebrate in classes amphibian, reptile, birds, mammals; not humans
t. OR – anti-cruelty statute includes birds as animals.
u. SC – not fowl
v. SD – any mammal, bird, reptile, amphibian, or fish, not humans
w. TN – no fighting between any “bull, bear, dog, cock, or any other animal”
x. TX – domesticated living creature and wild living creature previously captured. Not uncaptured wild creature or a wild creature whose capture was accomplished by conduct at issue in this chapter.
y. UT – a live, nonhuman vertebrate creature
z. VA – includes birds and fowl.
2. Animal Legal Defense Fund v. Espy – Birds, rats and mice used as lab animals are excluded from the regulations governing treatment of lab animals. They are termed not animals even though they constitute 90% of the research animals.
a. Policy – Money: it costs more to house properly; chill research by medical companies; prosecutorial perspective – how do you prove individual violations.
b. Law was subsequently changed to exclude birds, mice and rats from the statute explicitly.
3. Holcomb v. Van Zylen – A domestic turkey is an “other domesticated animal” per the statute and the legislative history/meaning at time statute enacted. Wild turkeys are not domestic.
4. Goal: to protect living creatures other than humans without extending that protection to an unreasonable or unenforceable extent.
5. US v Gideon (MN 1856)- A dog has no intrinsic value so as to make it an “other beast”. Not like horses or cattle. A dog can be a beast but it must have had value proved extrinsically. Malice (ill will; intent to do a wrongful act) must be proved against the owner, not the dog.
6. Commonwealth v. Massini (PA) – cat is not a domestic animal; policy: statute explicitly lists the covered animals (excludes cats) and cats could never be the subject of CL larceny since they did not have any intrinsic value.
a. Commonwealth v. Comella (PA) – dog is a domestic animal; the phrase “unless the context clearly indicates otherwise” allows for the inclusion of dogs & cats and avoids the absurd result of excluding them; pets are now more valuable to people
7. Arkansas does not consider dogs and cats domestic animals; sheep, goats, cattle, swine and poultry. In Maine, cats and dogs are domestic animals.
Wild Animal
1. State Statutes – Wild Animal
a. CA – any animal of the class, birds, mammals, amphibians, bony fish, lampreys, reptile, crawfish, slugs, snails which is not normally domesticated.
b. CN – (rabies statute) wild animal means mammal wild by nature; (game & fish) any animal which is not wildlife and is not normally a domestic species; includes any hybrid and its offspring
c. IL – any wild animal, the taking of which is authorized by the Fish&Aquatic Life Code or the wildlife, fish, and game laws.
d. IA – wild mammal, bird, fish, amphibian, reptile or other wildlife, whether game or nongame, migratory or nonmigratory, which is owned by the state.
e. KS- living mammal or marsupial normally found wild in the state, not farm animal
f. LA – any wild creature, including fish, wild birds, wild quadrupeds, taking of which is authorized.
g. ME – species of mammal, wild by nature, whether or not bred or reared in captivity, as distinguished from common domestic animals, and includes any physical part of that species. If the name of a specific wild animal is used, it includes the wild animal & its parts.
h. MI – (environmental law) mammal, bird, fish, reptile, amphibian, or crustacea of wild nature indigenous to the state or introduced to the state by the government.
i. MI – (animal industry) – any non-domesticated animal or any hybrid
i. MN – (harmful exotic species) a living creature, not human, wild by nature, endowed with sensation and power of voluntary motion.
i. MN – (game & fish) all living creatures, not human, wild by nature, endowed with sensation and power of voluntary motion, including mammals, birds, fish, amphibians, reptiles, crustaceans, and mollusks.
j. MS – any wild animal classified as inherently dangerous to humans as provided in the code.
k. MT – (rabies) skunk, fox, raccoon, or bat. Other species of normally nondomesticated animals known to be capable of transmitting rabies may be added by rule making.
i. MT – (fish & wildlife) – a game animal, migratory game bird, upland game bird, fur-bearing animal, or predatory animal as defined in the code or a fish.
ii. MT – (commercial activities) – animal wild by nature as distinguished from common domestic animals, whether the animal was bred in captivity or not and includes birds and reptiles.
l. NC – (conservation, ES) any native or once-native nongame amphibian, bird, crustacean, fish, mammal, mollusk, or reptile not otherwise legally classified by statue/reg as such as game & fur bearing animals, except those inhabiting and depending on coastal fishing waters, marine and estuarine resources, marine mammals & sea turtles found in coastal fishing waters, and those declared to be pests
m. TN – any wild creature, the taking of which is authorized by the laws
n. TX – (local govt code) a lion, tiger, ocelot, cougar, leopard, cheetah, jaguar, hyena, bear, lesser panda, binturong, wolf, ape, elephant and rhinoceros.
i. TX – (conservation, hunting, unlawful controlled killing) – dangerous wild animal = lion, tiger, leopard, cheetah, hyena, bear, elephant, wolf, or rhinoceros and includes any species, subspecies or hybrid of any of those animals.
ii. TX – (land use regulations) – nondomestic animal that the commissioners court of a count determines is dangerous and in need of control.
o. VA – wild or exotic animals kept for public exhibition kept in a place properly zoned for such use; any animals which are found in the wild, or in a wild state, within the US, its territories or possessions. Exotic animals means any animals which are found in the wild or in a wild state, and are native to a foreign country.
p. WV – all mammals native to the state of WV either in a natural state or in captivity, except house mice or rats.
q. WA – mammals that exist in WA in a wild state and bullfrogs. Does not include feral domestic mammals or old world rats and mice.
r. WI – (ES) any mammal, fish, wild bird, amphibian, reptile, mollusk, crustacean, or arthropod, or any part, products, egg or offspring or the dead body or parts.
i. WI – (removal of wild animals) – any undomesticated mammal or bird, but does not include farm raised deer or farm raised fish.
2. Bueckner v. Hamel (TX) – A person who shoots a dog that is harassing wild animals is not justified in shooting the dog because wild animals are not domestic animals. Dogs that harass non-domestic animals cannot be lawfully shot.
a. WI: An “untamable animal”, such as a deer, remains wild even if raised in captivity. Wild is a type of animal that normally survives without human assistance in a state of nature, or is nondomesticated and usually is of outdoor habitation, or is of an untamable disposition. A rabbit of a wild species, as opposed to a domesticated species, would remain wild ev

of property, some rights.
d. York v. Jones – frozen fertilized egg is property when outside the womb; when implanted, it becomes a fetus
i. Preembryo is in between a person and property; not owned by parents but parents have authority over it. Have some rights but not all rights. Animals are like preembryo as well; can’t speak for itself; animals can’t speak for themselves.
e. A person has no property rights in excised body tissue. Frozen Sperm are property.
10. Slavery, Women’s Rights, Children, Mental Incompetents and Fetuses v. Animals
a. No longer have slavery because of evolution in the way we think. Evolving societal mores changed the view about slavery.
b. Women have rights because of changing cultural viewpoints and political grassroots efforts by women for the right to vote. These secured rights for women.
c. Children’s rights were based on moral grounds only, not legal grounds.
d. Animals are like preembryo as well; can’t speak for itself; same with animals.
e. Animals can’t speak for themselves, can’t organize to demand rights. Animals are like mental incompetents: they can’t speak for themselves. If mental incompetents have rights, why not animals? Who will speak for the animals?
f. Should we be consistent between non-human animals and humans that are pre-birth humans or mentally incompetent (the something-less-than-human people)?
i. Do they have to have the same rights? Any rights? We can extend rights in whatever way we wish to.
A. Corporations have person status. Ships are persons. Illegal aliens might not be persons. Incompetent humans have been deemed to have the same rights as competent humans (thus, the capacity for self-determination and autonomy cannot be foundations for person status)
B. Some animals have more intelligence and capacity than some humans (e.g., embryos, vegetative state person)
ii. Animal cruelty laws are more to stop humans from doing certain behaviors and not for extending rights to animals.
iii. Animal welfare act provides certain minimal living standards for certain animals.
iv. Slaves, women & children were not considered food; many animals are considered food.
v. Carolyn Matlick – Animal Legal Report Srvc – sentient property = companion animals.
vi. Animals are so close to humans that experiments on them help predict human responses to stimuli. But they are so different that they do not merit ethical consideration or legal protection.
A. Why not “equitable self ownership” while a human retains title for an animal? Human is custodian of the animal. Must act in best interests of the animal. Guardians safeguard the interests and rights of their wards, such as minors or mental incompetents.
Tort Law Emotional Distress & Bailment
Emotional Distress
1. Emotional Distress and Loss of Companionship – Generally plaintiff can only recover the value of the animal lost, not ED damages.
2. Rabideau v. City of Racine – NIED is not allowed because the dog is not a spouse, parent-child, grandparent-grandchild or sibling. IIED fails only because there was no intent established to inflict ED on P. P had valid claim for destruction of property (dog). Current focus is on animal welfare, not animal rights. No ED for NIED; perhaps for IIED.
a. NIED does not work for a best human friend either; must be related to the victim.
b. Six policy factors for considering whether to allow recovery for ED caused by negligent damage to property p74. Court says factor 6 as creating a slippery slope if recovery allowed for death of dog. (on the other hand, juries are very capable of deciding whether and how much ED is suffered)
c. Court acknowledges the special bond between dogs and humans; subtle pressure on legislature to change laws or at least consider the emotional effects of the killing of the family dog.
Court does not disallow ED damages if P could show that D acted to intentionally inflict ED. The purpose of the D’s conduct must have been to cause ED, not enough that D intended the