Win a few, lose a few: Animal fighting, commercial breeding get another pass

Dog fighter in training (ASPCA photo) – click for story

Kathleen Stachowski   Other Nations

Seventy percent of U.S. adults have a favorable opinion of the animal protection movement–so says recent research–which leads me to think that the other 30% serve in the Montana legislature. Animals lost what should have been a couple of slam-dunks during the 2015 biennial session, but that’s not unusual in a state where the unofficial motto might be “if it’s brown, it’s down; if it flies, it dies; if it hooks, it cooks.” Wildlife are under constant siege from arrows, bullets, hooks, and traps, while laws protecting companion animals don’t have a prayer if they can be twisted–no matter how remotely in the exploiters’ minds–to hold rodeo and animal agriculture to some minuscule standard of decency.  

Michigan dog fighting penalty increases

Seth Victor

As reported by the Detroit News, the Michigan legislature recently voted to increase the penalty for dog fighting. By finding dog fighting to be an organized criminal enterprise, the legislature has made it possible for dog fighting violators to be charged with racketeering, punishable by up to 20 years in prison. Additionally, the property (real and personal) in question could also be confiscated as a nuisance if the House approves the bill. The racketeering classification amendment to the law is expected to be signed by Gov. Snyder soon. As the bill analysis reads:

Under the code, racketeering is defined as committing, attempting to commit, conspiring to commit, or aiding or abetting, soliciting, coercing, or intimidating a person to commit an offense for financial gain that includes any of the listed criminal acts. The bill would amend this list to include a violation of Section 49, concerning animal fighting.

 The bill proposal puts it bluntly; “Simply put, animal fighting is animal abuse on steroids.” By moving this crime into the same category as other criminal enterprises, Michigan is recognizing the vast infrastructure behind animal fighting rings. The amendment to the law will also allow prosecutors to go after repeat offenders in a more meaningful manner, rather than having to separately prosecute individual cases that carry less significant penalties. There is a concern that property seizure based simply on an allegation of such abuse might be extreme, and that is an aspect that certainlyshould  be  carefully considered in each case. Overall, this bill marks a considerable step towards greater penalties for animal abuse, and one that isn’t as particularly tailored as last year’s Schultz’s Law.

North Dakota Votes Against Animals

Seth Victor

In what must be a move of Dakotan solidarity, the people of North Dakota voted last week against Proposition 5, which would have  made it a class C felony, punishable by incarceration, “to maliciously and intentionally harm a living dog, cat or horse.” There would have been the typical exceptions for veterinarians, hunters, scientists, and, of course, agriculture workers. This is a measure aimed at domestic pets, which would have enforced against instances akin to Michael Vick’s dog torture. Nevertheless, 65.4% of voters opted to have North Dakota remain with South Dakota as the only two states in the nation without animal cruelty felonies.

Interestingly, this comes in the same election when three states approved same-sex marriage, a measure in nearby Minnesota to outlaw same-sex marriage was voted down, and recreational marijuana was legalized in two states. Additionally, within North Dakota, voters opted to ban indoor smoking in the workplace by a 2-1 majority, but also voted 2-1 for a measure that bans any law that would abridge farmers and ranchers from employing their own industry practices. It seems that while we as a nation are in a piecemeal fashion expanding the liberties of our own species, animals are clearly still an “other” that do not receive the same considerations. The vote on the smoking measure in a state that is traditionally wary of government intervention shows that individuals do not have an absolute right to do what they want to the detriment of others, but efforts to extend that same logic to establish animals as something more than property remain trapped in our legal schizophrenia. I can grasp the reasoning behind the farmed animal vote; established industry, I expect, advertised, lobbied, and campaigned more effectively to keep the status quo. Why anyone in 2012 would want to keep torture to companion animals punishable only by a slap on the wrist, however, is beyond me.

Taking the Teeth out of Animal Fighting

Seth Victor

Oh, Magoo, you’ve done it again. And by Magoo, I of course mean New York, which as a state is doing a fine job staying on the forefront of advances in animal law. Recently the state assembly passed this nice new bit of legislation, which makes it a class B misdemeanor to possess, with the intent to use, animal fighting paraphernalia. That’s up to 90 days in jail upon conviction. Certain items such as breaking sticks and fighting pits are specified and defined, but there is also a catch-all provision for “any other instrument commonly used in the furtherance of pitting an animal against another animal.”

I like the idea of going after the materials used in animal fighting. It’s one of the more preventative measures I’ve seen. Prosecuting dog fights is all very important, but those animals are often far too damaged at that point. With this kind of approach, the fighting rings can be shut down before they happen. The mens rea will prevent wanton application of the law. Hopefully showing intent will not be too big of a hurdle for the courts. Then again, I’m not sure what else a “cat mill” could be used to do.

Guilty Until Proven Innocent

Seth Victor

The plight of the assailed pit bull has been mentioned a few times on this blawg. Even internationally, these dogs are targeted as problem animals who will sooner rip out your throat than look at you, which is of course blatantly untrue. There are circumstances in which pit bulls can be dangerous, but this is generally the work of the people raising these dogs than their inherent nature.

Last week in Ohio, someone finally got that memo, and a new measure will “[change] current law that defines a vicious dog as one that has seriously hurt or killed a person, killed another dog or is among those commonly known as pit bulls. The new measure removes the reference to pit bulls from the definition and requires evidence to prove pit bulls are actually vicious.”

Come again? Defining vicious dogs as ones that are actually vicious and not just including ones that are unfairly demonized? That’s as crazy as judging someone not by the color of their skin but by the content of their character.

Running in Place

Seth Victor

The more things change, the more they stay the same, so the saying goes. I’m not one to abide by that logic, especially when thinking about animal law; if everything stayed the same, all of the tireless advocacy would be for naught. The progress might  trickle at times, but it does happen.

Yet today I read two articles that, juxtaposed, forced the maxim to mind. Nassau County District Attorney Kathleen Rice has announced that her office supports adding animal cruelty and dog fighting under state penal law, as opposed to the current agriculture law that houses these offenses. Long Island has been pushing for stronger law enforcement for animal abuse in recent years. Suffolk County created the nation’s first animal law abuse registry  in 2010. Moving century old laws into criminal enforcement would certainly be another step in demonstrating the seriousness of these offenses.

The War on Pit Bulls

Lili Corn

Dog fighters concerned about whether they’re abusing their pit bulls

enough to achieve maximum viciousness in the fight ring can breathe a sigh of relief.  The popular dog fighting game application for Android, “Dog Wars,” from Kage Games, is back with a new name.  Pulled from the market for a few days last week due to trademark problems, the app was rereleased as “KG Dogfighting” on Saturday.   Those over the age of 14 are once again free to chose a game personality (perhaps the professional football player looking for a thrill) and get to work injecting virtual dogs with steroids, shocking them with electric currents, forcing them to drag around tractor trailer tires to build muscle, and sending them into the ring to rip apart opponents (or be ripped apart themselves).

          As heinous as it sounds, this game is not only real, but marketed as an attempt to raise awareness against animal cruelty.  Following this logic, one can only imagine what anti-pedophilia or anti-racism games would involve.  Search images of “dog fight victim” on the Internet if you want to see the true face of dog fighting and decide whether you think it is an appropriate subject matter for a game.

Should Michael Vick Own a Dog?

Seth Victor

My quick answer is no, but Scott Heiser from ALDF offers a more detailed explanation about what realistic enforceable judicial options exist to keep abusers like Vick (who recently stated that owning a dog will help with his rehabilitation) from owning animals. You can read Heiser’s Q&A here.

 

UPDATE: While we are on the subject of punishment and rehabilitation, apparently President Obama went out of his way to praise the Philadelphia Eagles for giving Vick a second chance. Very interesting. You can read the article here.

Animal Cruelty and the Courts: Recent Cases

Gillian Lyons

Being an all purpose animal law blog, it seems appropriate to give our readers a rundown of some recent key jurisprudence dealing with cruelty towards domestic animals.  These are a few cruelty related cases decided by state courts in the last three months.

Sullivan v. Commonwealth, 2010 WL 4352715 (Va. Nov. 4, 2010):  In a recent decision, the Virginia Supreme Court upheld a misdemeanor cruelty conviction against a president of a horse rescue organization.  The charge against defendant was based on her failure to provide necessary emergency veterinary treatment.  Defendant claimed she was unaware of the horse’s grave condition, but expert testimony led the court to believe the condition was not only obvious for at least 48 hours before the horse’s death, but readily observable for weeks prior.  The court thus affirmed the trial court which had found the Defendant guilty and sentenced her to twelve months in jail, with six months suspended on conditions of good behavior and “no possession of horses” for 24 months.

Eckhart v. Department of Agriculture, 2010 WL 4596316 (Pa. Cmwlth. Nov. 15, 2010):  The Commonwealth Court of Pennsylvania recently issued a decision upholding almost $170,000 in administrative penalties, issued by the Pennsylvania Department of Agriculture, against a former kennel operator.  Petitioner, former operator of “Almost Heaven Kennels,” had sought renewal permits from the Department’s Bureau of Dog Law Enforcement to operate kennels within the state. Both permits were rejected by the Department based on previous and pending animal cruelty conviction charges.  In response to Petitioner’s renewal request, the Department issued a Refusal Order demanding that Petitioner acquire no additional dogs, and that he cease and desist operating the kennel.  For Petitioner’s failure to abide by the order, he was charged almost 170,000 in penalties.  Petitioner appealed the penalties as excessive under the Eighth Amendment, but the Commonwealth Court disagreed with this argument and affirmed the penalties as reasonable.           

Sex, Animal Abuse, and the Internet

Seth Victor

In Long Island, New York last Tuesday,  the Suffolk County Legislature unanimously approved a bill, sponsored by legislator Jon Cooper, creating the nation’s first registry for people convicted of animal abuse. The online registry operates in a similar fashion to the online registration required for sex offenders under Megan’s Laws. Anyone convicted of animal cruelty will be required to submit and keep updated their name, address, and photograph to the publicly searchable database for five years following their conviction. Convicted abusers will have to pay $50 annually for the cost of the registry, and those who do not face a $1,000 fine and one year imprisonment.

Mr. Cooper is quoted stating, “We know the correlation between animal abuse and domestic violence…Almost every serial killer starts out by torturing animals, so in a strange sense we could end up protecting the lives of people.” In acknowledging the link between animal abuse and domestic violence, a relationship of which many people are not aware, Mr. Cooper illustrates how animal protection laws can serve both human and animal interests.

Some More Cool Animal Law CLE

David Cassuto

From the email:

The DePaul Center for Animal Law cordially invites you and your colleagues to join us for this year’s symposium, “Revisiting the Line between Free Speech and Obscenity: U.S. v. Stevens and Its Impact on Animal Welfare”. The symposium will take place at the DePaul College of Law on Thursday, September 30 from 8:30 a.m. to 4:30 p.m.

The symposium will evaluate the constitutional issues raised in Stevens, as well as draw attention to the destructive influence of dog fighting on our local community. Panelists include Bob Corn-Revere, co-counsel for defendant Robert Stevens, Randall Lockwood, PhD, Senior Vice-President for Anti-Cruelty Initiatives and Legislative Services for the ASPCA and internationally renowned bioethicist, author and veterinarian, Dr. Michael W. Fox.

Wrath

Seth Victor

            I did not intend to include wrath as the second sin, though according to Dante I am already out of order by putting pride first. In light of Tuesday’s Supreme Court ruling in U.S. v. Stevens, I feel that this post is timely.

            Wrath is a terrible vice in the context of animal-human relationships. Wrath isn’t simply rage or force, a knee-jerk reaction at a perceived slight. This isn’t the classic “heat of the moment” response to seeing your spouse in bed with another lover. Wrath has a cool down period, a time to contemplate feelings, but instead of cooling down, those feelings grow into hatred, revenge, and a desire to punish. Wrath is a very conscious and intended vice, and for that reason it is a very human one.

            I am not claiming that other species are exempt from wrath, especially those species that share the same capacity for higher thinking as humans do. Why wrath is so dangerous in the animal-human context is that while other species may possibly carry out premeditated violence, only humans find it necessary to subjugate a number of other species and vent their wrath on countless animals who have no inclination to return the punishment. The ASPCA and HSUS have documented hundreds of cases against a variety of animal victims of varied species. Dogs may be the most commonly abused of them all.

            There is something about dog abuse that strikes a chord with the general population. Average citizens who are normally indifferent about animal issues will rally around the plight of abused dogs. Casual animal rights advocates will lament the condition of a kennel in disrepair, while in the same breath order a double-patty cheeseburger with bacon. Why is this? I think it is because dogs are able to abide by the maxims we are taught as children better than any of us are able to do. They treat you as they would want to be treated. Mark Twain, an animal rights advocate, says it best, writing, “If you pick up a starving dog and make him prosperous, he will not bite you. This is the principal difference between a dog and a man.” Can anyone reading this honestly say they have met an Irish Setter who didn’t have a smile on his face? Ignore a dog for hours, and he is still ecstatic to nuzzle you if you have a bad day. It is not surprising that people are so appalled by abuse against an animal that embodies so many of the sympathetic qualities we admire.     

U.S. v. Stevens, The Post-Mortem

David Cassuto

There’s little good here.  In Stevens, the Supreme Court struck down a law that aimed at and succeeded in curbing the market for crush videos and other animal mutilation.  To be fair, the law was seriously flawed.  But the Court’s analysis is worse.  However, the holding could have been worse still, so I am at least a little relieved as well as disappointed.

18 U.S.C. s. 48 banned depictions of cruelty “in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed” if that conduct violates federal or state law “where the creation, sale, or possession takes place.”  It exempted depictions possessing “serious religious, political, scientific, educational, journalistic, historical or artistic value.” 

Mr. Stevens operated a website called “Dogs of Velvet and Steel.”   He marketed videos of dog fighting, of dogs attacking pigs, and other similar works.  One would be hard pressed to find any redeeming social value to his wares and the Court makes no attempt to do so.  In fact it spends very little time analyzing the law as it relates to Mr. Stevens.   It instead focuses on the law’s potential applications to other cases not currently before it.  As a result, the opinion runs far into the weeds.  

Pondering Michael Vick & Grandma´s Turkey

David Cassuto

From the Recommended Readings Desk:  This from Sherry Colb over at Dorf on Law — a very thoughtful essay furthering a discussion begun when Gary Francione lectured at Cornell Law School.  Among other queries, the piece explores the relative morality of dog-fighting vs. cooking a Thanksgiving turkey.  The name of the essay is ´Animal Rights, Violent Interventions and Affirmative Obligations´ and is well worth the peruse.

Thinking About Dogs

Bruce Wagman

I have had dogs on my mind lately.  They are the main players in many of my (and many animal lawyers’) cases, and they are the species I get the most calls about.  This week I had a call about a sheep owner shooting a roaming dog, with the caller wondering about the implication of the California statute that allows a livestock owner to shoot any dog on his land, even if the dog is nowhere near livestock, Cal. Food and Agric. Code section 31103, and the case that upheld the broad scope of that statute, Katsaris v. Cook, 180 Cal. App. 3d 256 (Cal. App. 1986).  I talked earlier in the year with a lawyer who convinced a court that her client’s dog breeding operation was a livestock facility, United States v. Park, 536 F.3d 1058 (9^th Cir. 2008), on remand, 2009 WL 2949333 (D. Idaho).  The irony of that case seemed to escape everyone involved.  The issue in the case was whether this breeding operation could operate on land with a federal easement.  “Livestock operations” were allowed to do so.  So the interesting point of the ruling for me is the conclusion that breeders are in fact just like factory (livestock) farmers and others who operate commercial operations, use animals for profit, and in the short and long run contribute directly to the death of thousands of animals in shelters around the country.  When someone buys a dog from a breeder, they automatically kill a dog in a shelter who could have been saved – “buy one, get one killed,” as one of my t-shirts says.  The math is simple and can’t be denied; if a new dog if brought into the world for profit, and given to someone who has room for a dog, then that breed dog replaces the life of a dog in a shelter, who will then be gassed, injected or otherwise summarily wiped off the planet, dying sad and alone and wondering why.   

Oreo’s Law

Christopher Cuomo

In June 2009, I was deeply saddened to learn that a fellow New Yorker threw his pit bull (Oreo) off the roof of a building. Despite the horrendous act I was happy to hear that the owner was being prosecuted and Oreo was recovering. In November 2009, after Oreo had made a full physical recovery the A.S.P.C.A decided to euthanize him. The A.S.P.C.A claimed that Oreo displayed aggressiveness. As was explained in Ms. Gallo’s November 16^th post, the A.S.P.C.A made the decision to kill Oreo despite the fact there had been many offers from animal rescue groups and No Kill shelters to take Oreo and save him from being killed.  Once the announcement was made public the A.S.P.C.A received emails, phone calls, and an online petition was even launched in an attempt to save Oreo.   

All was done in vain.  What was once an act of animal cruelty by one became an act of complicity. The A.S.P.C.A had the resources available to give Oreo a good life, yet they chose the easy way out and ended his life.

Oreo may be memorialized and his death may have had a purpose after all. Not only did he defy all the odds by surviving the fall, but his death may be the catalyst needed to save thousands of animals each year. Two New York State legislators introduced a bill named “Oreo’s Law”.  This law would make it illegal for a shelter in New York State to kill an animal if a rescue group or No Kill shelter is willing to save the animal’s life.  “Oreo’s Law” is modeled after a similar California law.  

Eagles TAWK

Jessica Kordas

In 2007, Michael Vick, then quarterback for the NFL Atlanta Falcons, was convicted and sentences to 23 months in prison for dog fighting related offenses.  When Vick was arrested and charged, the NFL suspended him from the league indefinitely.  After Vick’s release earlier this year, the NFL commissioner reinstated him, allowing Vick to play in the NFL should a team choose to hire him.  Shortly after this announcement Vick signed a contract to play for the Philadelphia Eagles. The Eagles owner Jeffery Lurie thought that Vick was taking an active role to be a valuable member in society, as such he offered Vick a second chance.  In addition, Lurie promised disappointed fans that the Eagles organization would also actively participate in the animal welfare arena.  Lurie’s full statement can be read here.  Related blawg posts are here.

A few weeks into the 2009 season the Eagles announced they would keep their promise and set up a community outreach program called Eagles Tawk.  This program is designed to help educate people on a number of important issues including, spaying and neutering pets, eliminating dog fighting, and the benefits of pet adoption.  The sports world revolves around money and, while hiring Vick inevitably hurt Lurie’s pocket temporarily, fans will ultimately forget the harm that Michael Vick caused.  While this program doesn’t make up for the things that Vick, it may help a new demographic to become interested in animal welfare. 

Dog Fighting in a Day Care Center

Maybe those who maintain that humanity represents the acme of evolution (or even something better) can help explain this.

–David Cassuto

Could the Murder of 32 Dogs be the Key to Tougher Anti-Cruelty Laws in Russia?

Irina Knopp

As a Russian-American, I am familiar with the culture that values expensive furs and leather boots well above the rights of the animals used to make the products.  The furs are a status symbol and an asset.  Leather is used because it’s more durable and reliable, a leftover of the Soviet Era when a month’s salary would buy you a pair of leather boots-if they were in stock. With such a love of animal products and until recently, a surprising disregard for the welfare of animals, it is no wonder that Russia has been notoriously slow to develop anti-animal cruelty legislation, falling far behind the EU and the United States.  However, over the last decade small changes have started setting a trend of animal protection.  For example, in 2007 legislation was put forth to protect small forest animals such as hedgehogs from being hunted or having their habitats deliberately damaged.

More on Leiter’s Veganism Poll

Surprisingly, my recent post about Professor Leiter’s poll on “attitudes toward veganism”  seems to have sparked substantial interest among AnimalBlawg readers. Given the attention that the post has received, I want to keep readers updated on a couple of developments regarding this topic.

First, it seems that Professor Leiter was somewhat annoyed by AnimalBlawg readers and other animal advocates who decided to participate in the poll. Here’s what he had to say after some of us linked to his poll:

UPDATE: Unfortunately, some pro-vegan websites have now linked to this, thus skewing the results, at least for now.  I would encourage other law-related blogs to link, so that we can get a less skewed sample of opinion.  Thanks.

Regardless of whether animal advocates voted in sufficient amounts to significantly skew the poll results, it seems pretty obvious to me that most people (50%)  who follow Leiter’s blog believe that “[v]eganism is neither morally commendable nor morally wrong, but is a reasonable personal choice for some individuals to make”. This is probably an accurate reflection of what most law professors (and students) think about veganism. (On a side note, I’m curious to know what option Professor Leiter voted for).

Second, it looks like Professor Bainbridge also voted for the “veganism is a reasonable personal choice option”. Bainbridge explains his choice in the following manner:

Brian Leiter’s taking a poll of his readers on veganism. For lack of a better option, I chose “Veganism is neither morally commendable nor morally wrong, but is a reasonable personal choice for some individuals to make” as my answer. I’d qualify that statement, however, by noting that the attitude of moral superiority on the part of many vegans gets old real fast. Plus, the efforts by some vegans to turn the issue into a political one, using the state to regulate food choices (see, e.g., foie gras bans), needs to be resisted at every opportunity.

Professor Bainbridge raises two important points. Do animal advocates generally and vegans (and vegetarians) in particular display an “attitude of superiority” when they talk about their lifestyle and food regimen? I’m sure that some do, but it’s far from clear whether most or even “many” do so.

The other interesting point raised by Bainbridge is his suggestion that the animal advocate’s attempt to ban foie gras should be resisted. While Professor Bainbridge’s contention that the state should not regulate food choices is understandable as an abstract proposition given his conservative political views, it’s not clear why he takes issue with proposals to ban foie gras but has no problem with banning dog fighting in order to prevent animal cruelty. A couple of years ago, Professor Bainbridge defended his views by pointing out that:

(1) Because “the enduring truths of what Burke aptly called “original justice” are revealed slowly, with experience, over time”, conservatives are guided by tradition, experience and history,

(2) There is a long history of  opposition to dog fighting, as “England prohibited it and other blood sports as early as 1835” and “[t]here is a longstanding consensus in the Anglo-American tradition that blood sports are cruel and ought to be banned”.

(3) There is no tradition or long history of opposition to foie gras in this country.

(4) Therefore, the wisdom of tradition and history “justifies an infringement on human property rights” in the case of dog fighting, but doesn’t justify governmental intervention in the case of foie gras.

This strikes me as a particularly weak argument. After all, as Justice Oliver Wendell Holmes famously asserted in The Path of the Law, “[i]t is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV”.

Luis Chiesa

Nationwide Dogfighting Crackdown Leads to 26 Arrests

7 states, 400 dogs.  Apparently this was not one large ring.  Just lots of people around the country with vicious, sadistic streaks.  Read all about it here.

–David Cassuto

PETA and . . . Michael Vick

PETA continues to break new ground in the unusual approach to animal advocacy sweepstakes.  Apparently, Micheal Vick is in talks with PETA to become a spokesperson for the organization.  We can interpret Vick’s motives in a number of ways.  Perhaps he has rehabilitated himself and developed a love (or at least respect) for animals while in prison and now wants to help steer others toward the path of righteousness.  One might suspect, however, that since he has lost everything, is still young, and hopes to resume playing pro football, his reasons might smack more of opportunism than altruism.

Ultimately, I don’t know that it matters because [heaven help me] I think it’s a good idea.  First, Vick can reach a constituency that typical animal welfare PSAs don’t normally impact.  Second, he is bound to attempt to rehabilitate his image somehow; why not like this?  And third, I seriously doubt that the NFL will gauge whether to allow him back into the league based on whether he did volunteer work for PETA.  So heck; go for it, I say.

—David Cassuto

UPDATE: PETA withdrew from these negotiations some time ago after learning that Vick had enjoyed putting family pets in the ring with fightingdogs.  According to a PETA spokesperson:

PETA believes that this revelation, along with other factors in the report, fit the established profile for anti-social personality disorder (APD), and we called on Vick to have a brain scan to help confirm this. People diagnosed with APD are commonly referred to as “psychopaths.” They are usually male, prone to lying and manipulation, often take pleasure in cruelty, and cannot feel genuine remorse, which frequently leads to recidivism.

See updated story here