The long leash of the law

Domestic violence, custody, malpractice, wrongful death: Today's animal legal issues and challenges are not unlike those of humans.
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Walking the dog at Green Lake: a protected class.

Domestic violence, custody, malpractice, wrongful death: Today's animal legal issues and challenges are not unlike those of humans.

Driving my old Ford pickup down a two-lane highway, I saw a woman standing on the shoulder with her thumb out, and I pulled over. She climbed in. She was probably in her early 40s, and she looked as though some of them had been pretty high-mileage years. She was clearly upset. "Are you okay?" I asked.

"No," she said, trying hard not to cry.

She paused. "Why do people have to hit people?"

Evidently, for the same reason they kick dogs and otherwise abuse animals. At the recent annual meeting of the Washington State Bar Association's animal law section, Elizabeth Elliott, who practices animal law in Normandy Park, Wash., explained that — not surprisingly — animal abuse is clearly linked to domestic violence. People who hit their partners often abuse pets, too. Sometimes they abuse a partner's pet in front of the partner as a way of demonstrating power or getting even.

That's not the only connection between animals and domestic violence, Elliot said. One survey of women in shelters indicated that many of them had delayed going to the shelters because they hadn't known what to do with their pets.

Elliott, who was the day's first speaker at the Washington State Convention and Trade Center in Seattle, began with the story of Trixie, a small, gentle (she showed a picture of Trixie with three orange kittens), elderly (she showed one of Trixie with a whitened muzzle) black-and-white dog who had died of internal injuries after being kicked by her owner's abusive partner, who happened to hold a black belt in karate. It was heartbreaking, as were the other stories of animal abuse.

Prosecutors explained that it's hard to nail a defendant for first-degree animal cruelty because it applies only to a person who intentionally inflicts substantial pain or causes physical injury, and in the absence of witnesses, intent is hard to prove. Second-degree, which carries a lesser penalty but requires only that the act be knowing or negligent, is often the best you can do.

The prosecutors said that the "substantial pain" standard could be tricky, too, because of course the animal can't tell the jury what it felt. One said it really wasn't all that different from showing that an infant had suffered pain; you just go with common sense.

A prosecutor in the audience said she made a practice of letting the press know when someone charged with an egregious act of animal cruelty was due in court. The room was always packed with outraged citizens, and the social pressure often helped move the defendant to plead guilty.

Other parts of the program dealt with less emotional, nuts-and-bolts issues. One speaker talked about zoning for doggy day care centers. Getting a change in the zoning code is a much better bet than fighting the neighbors over a variance. Another discussed the basics of establishing a trust to support a pet after its owner dies. Washington state law (RCW 16.52.205) says explicitly that "[a] trust for one or more animals is valid." As Karp pointed out, pets are considered property, so allowing a pet trust means — or almost means, since a trust beneficiary doesn't legally own trust assets — that some property can own other property. A third discussed a landlord's duty to accommodate service animals in rental housing. A "no pets" policy is irrelevant, because a service animal isn't a pet. It qualifies as a service animal if some professional — an aroma therapist might do — says that the services it performs, for which it needn't have been specially trained, are linked to the owner's disability. You can't demand a special damage deposit. The owner is liable for any damage, but good luck collecting.

Bellingham lawyer Adam Karp, who founded the Washington Bar's animal law section six years ago, explained that even if you get a judgment against the person who killed or injured your client's pet, it can be hard to collect. Indeed, he said, the more egregious the act, the harder it might be to collect. Karp described a case in which a pit bull, trained for fighting and allowed to roam free, had killed his client's cat, and his client got a judgment against the pit bull's owners for $75,000, which covered both damages for the death of the cat and for the emotional distress caused by the cat's death. In response, the pit bull owners had simply declared bankruptcy. The case is still pending in bankruptcy court. Karp explained that there are ways of insulating a judgment from discharge in bankruptcy, but it's not a slam dunk.

Still, even an uncollected $75,000 judgment represents a huge step for animal law — and animal lawyers — in Washington state. Six years ago, no Washington court would have awarded $50,000 damages for the loss of a cat or $25,000 for emotional distress caused by the cat's death. In 2006 (in Womack v. von Rardon, 133 Wash.App., 254), the Washington Court of Appeals wrote: "For the first time in Washington, we hold malicious injury to a pet can support a claim for, and be considered a factor in, measuring a person's emotional distress damages [...] because, depending upon the particular case facts, harm may be caused to a person's emotional well-being by malicious injury to that person's pet as personal property."

Actually, Karp says, while the law is evolving, it has long provided a basis for such litigation — but until recently, no one seized the opportunities. "The common law has evolved, but the litigation structure hasn't taken advantage of that change," he says. "I don't know why."

Karp says that a couple of cases now before the courts involve damage suits against veterinarians. The vets' lawyers are arguing that the value of the animals, and therefore the potential damages, are trivial. Karp finds that ironic, since the veterinarians make a living from the fact that people value their animals way beyond any price that the market would place on them.

What he's doing isn't all that revolutionary, and not at all what some animal rights advocates would want. One speaker at the animal law meeting a few years ago talked about defending animal rights activists, and some speakers talk about "companion animals," rather than "pets," but most of the presentations are pretty mainstream — and why not? According to the Humane Society, Americans own roughly 75 million dogs and 88 million cats; other sources suggest at least 9 million horses, 9 million dairy cows, and perhaps 34 million beef cattle. People spend billions every year to feed, house, and doctor them. Inevitably, all this generates plenty of rather conventional legal problems. Some people who go into animal law care deeply about animal rights issues, but that isn't where most of the action is. "Most of what I'm doing really isn't animal rights," Karp says. "I'm still using the old rubric of animals as property."


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About the Authors & Contributors

Daniel Jack Chasan

Daniel Jack Chasan

Daniel Jack Chasan is an author, attorney, and writer of many articles about Northwest environmental issues.