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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, eleph

    Capturing a slave v. capturing an animal
i.      When a wild animal is captured, it is your property; if that animal escapes, it is free (wild) again (not property) until recaptured by anyone, not just you.
ii.     Dred Scott- a slave could never gain its freedom (become wild) by escaping to a free state; “free” (wild) slaves taken back to slave states returned into a state of slavery
5.      Women
a.      Single women had more rights that married women. Once married, coverture applied. Husband “managed” wife’s property and could do with it as he pleased. Wife could not sell or possess her own land. Could not enter contracts that could bind her or bring a suit in her own name. Husband was seen as “her protector.” She became his chattel.
b.      Married women’s property acts came out in late 19th century. Allowed women to own and manage their own property.
c.       WI thought women were not “suited” to the practice of law naturally; for bearing and nurturing of children and keeping the home. Denial of admission to the bar by many states.
6.      Reasons not to free slaves or give women rights (same args made for denying animal rights)
a.      Money – need slave labor for economy to flourish; woman’s place is in the home
b.      Slavery is part of the divine order of things; husband is the head of the wife
i.      Religious arguments are often used to justify denial of rights to particular groups.
7.      Children
a.      Children were the property of their parents. Child’s interests were not paramount because child was property. Father had complete rights over his children. Right to govern family as he wished.
b.      Mid-1980’s children began having guardian ad litems appointed to look after their rights.
c.       1940’s protection of immigrant children from unhealthy living conditions; to protect their “economic value” to society. If die, no economic value from the children. Now act “in the best interest of the child.”
d.      Emancipation of children – children can secure “freedom” from their parents before the age of majority.
8.      Disabled person
a.      Children, women and slaves are the same as regular person. Different from someone who is mentally disabled or physically disabled. Is a vegetative person entitled to continued existence as a normal person?
b.      Mental incompetents used have little to no rights; can now be appointed guardians. They cannot speak for themselves.
i.      We have no trouble “pulling the plug” for mentally/physically ill animals but we have trouble doing the same for mental incompetents.
9.      Potential Humans
a.      A fetus can sue for wrongful death but mother owns the fetus and can abort or (used to could) sell the fetal tissue. Fetus born alive can sue for injury sustained pre-viability.
b.      Parents have property interest in their potential humans up to but not including a viable fetus.
c.       Fetal Protection Act – criminalize harm to a fetus, regardless of its status as person or property. Gives fetus, a specialized form of property, some rights.
d.      York v. Jones – frozen fertilized egg is property when outside the womb; when implanted, it becomes a fetus
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; anim