Animal Law (Ortiz) Outline Summer 2011
a. Law that impacts the legal, social, or biological nature of nonhumans
What is considered an Animal?
Culture is a big factor in what is considered an animal.
Animal is just a legal definition – it is whatever the state legislature decides is covered by the statute.
For purposes of the AWA – rats, birds, and mice (which make up 90% of research population) have been excluded.
What is considered Cruelty?
Father who smashed goldfish in front of children out of anger – was considered cruelty – court focused on the affect it had on the children. – Court didn’t buy argument that fish died instantly so it wasn’t cruelty.
Goldfish that were blended in the exhibit – couldn’t charge the museum with cruelty.
Artist in Nicaragua – tied up dog w/o food or water for the entire duration of the exhibit. Artist’s point was that this was how we treat our animals. He was prosecuted for neglect.
Texas Anti-Cruelty Statutes
i. Texas Animal Fighting Prohibition
1. Livestock Animals (Tex. Penal Code § 42.09(a)(6)/(b)(5))
a. (a) A person commits an offense if the person intentionally or knowingly:
i. (6) causes one livestock animal to fight with another livestock animal or with a non-livestock animal.
b. (b)(5) “Livestock animal” means:
i. (A) cattle, sheep, swine, goats, ratites, or poultry commonly raised for human consumption;
ii. (B) a horse, pony, mule, donkey, or hinny;
iii. (C) native or nonnative hoofstock raised under agriculture practices; or
iv. (D) native or nonnative fowl commonly raised under agricultural practices.
2. Non-Livestock Animals (Tex. Penal Code § 42.092(b)(7)/(a)(2))
a. (b) A person commits an offense if the person intentionally, knowingly, or recklessly:
i. (7) causes one animal to fight with another animal, if either animal is not a dog.
b. (a)(2) “Animal” means a domesticated living creature, including any stray or feral cat or dog, and a wild living creature previously captured. The term does not include an uncaptured wild living creature or a livestock animal.
3. Dog Fighting Statute (Tex. Penal Code 42.10)
a. (a) A person commits an offense if the person intentionally or knowingly:
i. (1) causes a dog to fight with another dog;
ii. (2) participates in the earnings of or operates a facility used for dog fighting;
iii. (3) uses or permits another to use any real estate, building, room, tent, arena, or other property for dog fighting;
iv. (4) owns or possesses dog-fighting equipment with the intent that the equipment be used to train a dog for dog fighting or in furtherance of dog fighting;
v. (5) owns or trains a dog with the intent that the dog be used in an exhibition of dog fighting; or
vi. (6) attends as a spectator an exhibition of dog fighting.
b. (c) A conviction under Subsection (a)(2) or (3) may be had upon the uncorroborated testimony of a party to the offense.
c. (d) It is a defense to prosecution under Subsection (a)(1) that the actor caused a dog to fight with another dog to protect livestock, other property, or a person from the other dog, and for no other purpose.
d. (e) An offense under Subsection (a)(4), (5), or (6) is a Class A misdemeanor. An offense under Subsection (a)(1), (2), or (3) is a state jail felony.
ii. Texas Exception (Tex. Penal Code § 42.09(f) / § 42.092(f))
1. It is an exception to the application of this section that the conduct engaged in by the actor is a generally accepted and otherwise lawful:
a. (1) form of conduct occurring solely for the purpose of or in support of:
i. (A) fishing, hunting, or trapping; or
ii. (B) wildlife management, wildlife or depredation control, or shooting preserve practices as regulated by state and federal law; or
b. (2) animal husbandry or agriculture practice involving livestock animals.
Challenges to Anti-Cruelty Statutes
Too vague – don’t want to leave certain acceptable practices under scrutiny. We want people of ordinary intelligence to know that what they are doing is illegal.
i. How would we fix a statute that is too vague?
1. Give exceptions (like we do in TX) or just specifically state everything that is illegal.
Domestic Animal v. Wild Animal
They have intrinsic value – it's an animal that we make use of.
Pets are now recognized as domestic animals – court recognizes the value of pets.
Deer are not domestic animals but game.
i. Are captive deer wild animals?
1. Supreme Court says that a wild animal is a wild animal regardless of captivity for purposes of liability for injuries.
2. Wolf hybrid – born as a pet; raised in captivity. Some courts treat as wild; others domestic.
Animal regulations need only meet the rational basis test bc animals are not a protected class.
OWNERSHIP OF ANIMALS
1. Status of Animals
a. Current regulation
i. Traditional property status – animals are personal property (so it gets distributed in marriage)
b. Future regulation (movements)
i. Higher status as “living property”
1. Different treatment from traditional property
2. Should be treated differently bc they are living beings (Arguing for the addition of an additional category of property – real, personal, intellectual, and living)
ii. Personhood granting certain rights (would no longer be property)
1. Great Ape Project
a. Right to life
b. Protection of individual liberty
c. Prohibition of torture
2. Cetacean Rights
a. Want to formerly declare rights on behalf of marine mammals – give them right to life, liberty and freedom and protect their environment – not owned by any being, etc.
2. Animals as property
a. Property has no rights to sue or be sued.
b. Capturing an animal
i. When a wild animal is captured, i
Finders and possessors can be charged with the liability of an owner.
iv. TX has 3 day holding statute – Can place dog in permanent home after 3 days.
Problems that can arise with purchase of animals:
i. With a true breeder you can't be sure what you are purchasing. It may look fine when you get it but:
2. Misrepresentation – saying it is purebred and has papers, but it isn't.
3. Failure to supply papers – If you don’t have papers then you can’t register the dog with the AKC – which means you can’t breed “pure breed” or use them as “show” dogs.
a. In such situations you do have a private cause of action however it is better left up to AG bc of cost.
i. Grants consumer right to return sick or dead companion animal for return or replacement or retain animal and get portion of purchase price and/or veterinary expenses
ii. TX does not have Lemon Laws
iii. Often need to be able to show that you were not part of the problem (i.e. the case where the guy took the puppy on the plane while so young)
iv. Grants consumer right to registration records;
v. Often requires veterinary examination (i.e. case where man cremated dog before other vet was allowed to examine dog and so only got half)
vi. States with Lemon Laws: AZ, AR, CA, CT, DE, FL, ME, MA, MN, NH, NJ, NY, NV, PA, SC, VT, VA
vii. Short of lemon laws what do you do to a breeder who has screwed you?
1. You can soil their reputation – so easy now with facebook.
Concerns of shelter:
i. Post-placement control over the animal
1. Ellen DeGeneres Case – wants to give dog to hairdressers kid but can’t bc of adoption contract.
2. Laws allowing shelters to compel return of dog if isn’t fixed.
ii. Tort liability
1. Concern of animal causing harm when placed in a home – must make sure they are safe to be adopted.
2. This is a liability beyond the contract remedy for return of defective goods.
iii. Limited resources available with which to deal with the unending flow of animals arriving at shelters.
Revocation of Ownership
By public entity:
i. Conditional ownership – ownership revoked if animal not spayed/neutered
By third parties:
i. Restraint on alienation issues if third party prohibits sales
ii. Running of contract covenant to next purchaser