by Kim Kavin
Favre and his colleagues in the United States are leading the world’s thinking on animal law not only because the field first emerged there, but also because of the nation’s history of concern about individual rights. America was founded on the principle of religious freedom and the pursuit of individual happiness. Women, children, people of different skin color, people of different sexual orientation: all have earned rights in America they previously did not enjoy. “It’s pretty meaningless to talk about animal rights in Africa when some people don’t have rights,” Favre says. But in the United States, it’s a matter of being next in line, and in more and more homes today, that means being the family dog, who is often already treated like a human child.
Here’s the rub, though: to change the way people treat dogs in America or anywhere else—even to say a dog should enjoy the same legal protections that a human toddler has—there needs to be a change in law, something that distinguishes dogs from other property. And that king of change, by definition, could affect the way all animals are treated under the law.
The unintended consequences are virtually limitless when attorneys talk about finding a legal path to stopping the worst abuses. The spectrum of what could happen by making, say, puppy mills illegal because dogs have certain rights as sentient beings could quickly lead to demands for ending the farming of all cows and pigs for food. Some legal scholars argue it could lead to the abolishment of dogs as pets altogether, depending on how far down the road of animal welfare and rights modern society wants to walk. Companies engaged in everything from biomedical research to the production of chicken nuggets are resisting this change with every lobbying dollar they have. Even the American Veterinary Medical Association is against the concept, fearing that if dogs are no longer property, a flood of malpractice lawsuits could become the norm for botched surgeries and procedures. If a dog is no longer worth his mere purchase price, but instead the far greater sums commonly awarded with punitive damages, then veterinarians could be driven out of business.
Right now, animal law leaders are testing various routes to upend the entire legal principle that ranks dogs in the same category as inanimate objects. These legal minds haven’t yet figured out how to blow up the foundation of dogs-as-property law, but they’re doing their level best to make some big cracks in it for the first time in human history—and some are taking a more radical approach than others.
There’s Adam Karp in the Pacific Northwest of the United States, who regularly files lawsuits for people whose dogs have been harmed or killed. While the courts and insurance companies often seek settlements reflecting a dog’s value on paper—how much he’d cost to replace, like a broken window—Karp fights for emotional distress awards like the ones given to parents whose children are harmed or killed. His work has led some courts to recognize the intrinsic value of a pet, forcing them, as he puts it, to “think outside that earlier box.”
There’s Massachusetts-based attorney Steven M. Wise, who founded the Nonhuman Rights Project in 2007, naming the group for the fact that humans, too, are animals, and that under current law humans are the only animals with legal rights. Wise and his team, which includes legendary British primatologist Jane Goodall, want to create new legal standing for species who show clear, scientific evidence of certain cognitive abilities. Currently, they say, that includes elephants, dolphins, and whales, and the four species of great apes. In late 2013, the Nonhuman Rights Project filed lawsuits in New York state seeking to free four chimpanzees from a life in cages under the language of legal personhood, and to have them released to a sanctuary. While the cases would not immediately affect dogs, and while motions thus far have been denied, they could, through appeals courts, crack open the door to new legal possibilities for all animals. “We’ll take it to the Appellate Division and then the state Court of Appeals,” Wise told the Associated Press. “We’ve been preparing for lawsuits for many years. These are the first in a long series of suits that will chip away at the legal thing-hood of such non-human animals as chimpanzees.”
There’s Gary L. Francione, the Nicholas deB. Katzenbach Scholar of Law and Philosophy at Rutgers School of Law in New Jersey. He advocates total veganism, an end to animal farming, and a legal distinction of nonhuman personhood for all sentient animals, and he teaches that the very action of owning a pet violates the animal’s basic rights to be considered something other than property. If only two dogs were left on Earth, he says, he wouldn’t breed them to create more pets. “It’s morally wrong,” he says, “to bring any domesticated animals into existence for human purposes.”
And then there’s Favre, who comes down somewhere in the middle of the spectrum with his work as the Nancy Heathcote Professor of Property and Animal Law at Michigan State University. His idea is to create a bridge between people and property under the law: a new category called living property. He got the idea during the 1990s, when he heard animal rights activists comparing the ownership of pets to having slaves. “I’m looking at my dogs and thinking, ‘I’m sorry, but this just is not slavery,’” he says today. “I don’t accept that, so I had to cast about and see what I think of as a step forward. Where we are is not acceptable, but we need to add a category. I came up with the term living property as a place for the law to think about this other set of beings and the relationship we want to have with them.”
Favre thinks a good place to start talking about living property is not in terms of all animals, but in terms of vertebrates, because those are the creatures whom animal cruelty laws typically protect. Most lawmakers accept that animal cruelty laws exist because vertebrates can feel pain, so it’s a good place, in Favre’s mind, to begin the conversation about how to redefine the legal status of favored vertebrates like canines. Most dog lovers are already on board with the notion that a pooch is special compared with other animals, such as frogs or wasps. Once people believe dogs are unique, all that remains is for political leaders and judges to get the law in line with public sentiment.
“Our society is already there, conceptually,” Favre says. “It’s a matter of the law catching up with society, at least in regard to pets.”
Opposition, Favre knows, will be strong; the slippery slope of logic turns many minds immediately to food supplies and billions of dollars at stake for everyone from dog breeders to pharmaceutical companies using dogs in research (about seventy thousand Beagles alone are used in US laboratories each year). There’s also the daunting fact that creating a new category like living property would, to some people, be akin to going against the very teachings of God.
And yet the law evolves along with society, and society is changing its opinion about dogs. In the early 1900s, the law didn’t recognize pets the way it does today. Just one century ago, when many of today’s grandparents were born, it wasn’t a crime to steal a dog because society, through its laws, hadn’t yet made the dog something of value. “At the moment, we [Americans] don’t perceive dogs the same way we did a hundred years ago, or the way they’re perceived in other countries now,” Favre says. “You’re living in a world that has come into existence in the past fifty years or so.”
For now, with attorneys attacking on multiple fronts, what’s happening in the courts often provides the greatest insight into where we may be headed next, and one recent case hints that dogs may be considered individuals sooner rather than later.
Most dog lovers already know this case well, and many have strong feelings about it, even if they don’t realize its significance in the history of animal law. Ironically, it came about not because anyone sought to change the legal status of dogs as it has been known since biblical times, but instead because a professional athlete was forced to endure a come-to-Jesus moment before a federal judge in the United States of America.
At first, Michael Vick denied knowing anything about the dogs.
A year after the Atlanta Falcons star became the first National Football League quarterback ever to rush for more than one thousand yards in a single season, and
at a time when his public reputation and financial prospects were soaring skyward, a federal grand jury in Virginia indicted Vick and several others on accusations of dogfighting. According to the summary of the facts issued by a US District Court in Virginia, Vick and his associates spent six years sponsoring and participating in dogfights, buying and training dogs to fight in multiple states, and killing dogs who didn’t work out as part of the business plan. The details were gruesome and involved things like electric-shock execution along with a “rape stand” that may have turned at least one female dog irreparably vicious. Headlines fast appeared around the world and continued to dominate news reports for the latter half of 2007, and a lucrative market sprang up for hawking fake-blood-splattered T-shirts calling for the athlete’s ouster from professional sports. Vick claimed ignorance of the dogfighting operation at a home he owned, saying he was hardly ever there, but testimony quickly mounted to the contrary.
In the end, he was sentenced to twenty-three months in prison, but his temporary removal from the sports highlight reels wasn’t enough to quell public outrage. In December 2008, a full year after Vick’s conviction, Sports Illustrated ran a cover photograph of a dog to promote a feature article about the surviving Vick pooches. The magazine received more letters and emails about the story than any other it had published the entire year prior, and in 2010, the article’s author expanded the tale into the book The Lost Dogs, which became a New York Times bestseller. As recently as 2014, when the New York Jets signed Vick as their new quarterback, reports fast topped the news about longtime fans selling their season tickets in disgust. “He electrocuted dogs in a bathtub for fun,” one fan wrote on the Jets’ Facebook page. “I’m supposed to root for this guy?”
The involvement of such a high-profile athlete made the story sensational for the general public, but Rebecca Huss didn’t bother paying much attention, at least in the beginning. She teaches animal law at Valparaiso University in Indiana, and she knew how dogfighting convictions usually turned out. Somebody might go to jail, and a lot of dogs would end up dead. The whole thing was just plain sad. Both the HSUS and PETA had called for the Vick dogs to be killed en masse, as had usually been done in cases involving dogfighting seizures. It was always assumed that dogs raised to fight were so badly damaged psychologically that they could not be brought back. Huss had no reason to think anything would be different this time.
That is, until her phone rang. She was asked to accept appointment as guardian/special master for the nearly fifty dogs who had become the legal property of the US government following their seizure from Vick’s house. Nearly $1 million of Vick’s fortune, a startling sum, had been earmarked for their care and treatment. Experts had been evaluating the dogs individually—a rare if not unique occurrence in a dogfighting bust—and had told the court that at least some of the dogs might be able to be saved. Media from around the world were watching, and the federal court needed to figure out what to do. Huss was the person asked to give official recommendations on handling the dogs and the money.
“When I got the initial call, the language used was guardian, and I thought, ‘Wow, the animal people would love that,’” she recalls. Appointment of a guardian implies not property, but a victim, like a child caught between two parents in a custody battle. Guardians for dogs had been appointed in estate planning by people who wanted their pets cared for after the last family member’s death, but never had a court appointed a guardian to oversee the care of seized dogs. Doing so would have been similar to a judge appointing a guardian to oversee the care of any other property, say, a furnace. The mere act would have been a watershed in the field of animal law.
“The reason why this worked and they could appoint me as a guardian is that the federal government at the time owned the dogs,” Huss explains today. “Not only had they seized the dogs, but they had gone through the civil asset forfeiture procedure. The person who actually owned the dogs wanted to appoint me as guardian/special master.”
Even though the legal action was technically narrow, its effects were substantial in advancing the cause of treating dogs as individual beings. While dog lovers around the world were focused on demonizing Vick, animal law experts were watching the legal machinations of the case with rapt attention.
One of the first things Huss did was travel to meet each dog in person, and she gave names to the ones who didn’t already have them. “I wanted to look at them as individuals, and from a practical perspective, it’s more compelling to say Haley or Halley or whatever you want to call the dog, Nigel, versus Hanover two-thirty-five,” she says. “It’s not sweet. It’s necessary if we’re going to treat them as individuals.”
She walked through the shelters where the dogs were housed, and it was there that she realized how unusual her presence was in a legal sense. Her job was to visit several dozen dogs in particular, but she saw the faces of hundreds more who were homeless. Their gazes through the cage links weighed on her conscience.
“I was walking past all these other dogs that were not part of the case, that don’t have a guardian/master, that don’t have someone advocating for them,” she says. “The shelters do what they can, but these [Vick] dogs, because of who they were, one of the criticisms was that they had a better shot of making it out of the system because of where they came from. It’s just like the dogs after [Hurricane] Katrina. You had people walking into shelters saying ‘I want a Katrina dog’ and ignoring the dogs that had been there for a year.”
Plenty of people contacted Huss asking to foster or adopt the Vick dogs. Others sent her emails of general support, encouraging her to do what she could for as many dogs as possible. Those emails, she loved to receive.
On the flip side were the emails saying she was evil if she didn’t ensure all the dogs would die, presumably sent by people afraid that dogfighting refugees—dogs widely and falsely stereotyped as vicious Pit Bulls, at that—would ultimately bite or kill a person if she recommended that they be allowed to live.
“It was pretty intense,” she recalls. “I was getting calls in the middle of the night from people, and people are very passionate about this, and rightly so. These are sentient beings that deserve a chance.”
In the end, working with help from other evaluators, Huss recommended moving forty-seven of the forty-nine dogs into places where they could recover. Today, some are therapy dogs working in nursing homes and hospitals. Only two had to be put down, one for temperament and one for illness.
The million or so dollars earmarked for the dogs’ care was given to the humans who took legal possession of them as property. It wasn’t technically restitution being paid to the dogs as victims, but it was a whole lot more than had ever been done for dogs in similar situations, and the repercussions of that court action continue today. In dogfighting busts since the Vick case, groups including the HSUS and the ASPCA have sought to treat seized dogs as individual beings. The fact that the federal government allowed as much with the Vick dogs now gives the advocacy groups legal precedent to cite.
In August 2014, lawmakers began pushing for more, tying the cause of animal abuse to the cause of domestic violence and citing at least one study that shows 71 percent of women entering domestic violence shelters say their abuser also threatened, harmed, or killed their pets, making the dogs additional victims instead of just property. US Representative Katherine Clark, a Democrat from Massachusetts, and US Representative Ileana Ros-Lehtinen, a Republican from Florida, introduced federal legislation that would, in cases of domestic violence, add veterinary care to the list of restitution costs able to be recovered and that would, for the first time, recommend that all states extend legal protections to include pets in court-issued protective orders. (Twenty-seven states do today, along with the District of Columbia and Puerto Rico.) That legislation was recently reintroduced as the Pets and Women Safety (PAWS) Act of 2015—with forty-nine original cosponsors on board.
Also significant is what public reaction to the Vick case indicates about h
ow future legal changes might be received. Each person who thought, “Good, make Michael Vick pay whatever it costs to help those poor, suffering dogs he abused,” believes in the idea that dogs deserve to be treated as more than property. New York Jets fans canceling their 2014 season tickets because Vick is now on the team roster is no small thing, either. It’s everyday people doing what they can to let the world know that they stand on the side of the dogs. These are the types of feelings to keep in mind when large-scale breeders talk about “animal rights extremists.” Any dog lover who agrees that pups should have a legal status of victims, enjoy similar protections to human toddlers, and be financially compensated for harm more accurately described as a moderate animal rights advocate.
Many people, at the time of the Vick case, wanted to say Huss was a guardian for victims instead of property, and some media misinterpreted her position that way. She is still not ready to make that legal leap today, because the dogs always remained property in the context of the law, but she does believe the Vick case shows the law may be tipping toward change.
“I think as a society we’re closer, because we didn’t treat them like other types of property,” she says. “That means something. It means that we recognize them as sentient beings. That’s a huge thing in property law. Forty years ago, most of society would’ve just killed the dogs.”