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Their Day in Court

Media coverage of the BP oil spill in the Gulf of Mexico has focused—and rightly so— on people who may lose their livelihood as a result of the Deepwater Horizon rig explosion that killed 11 people in April.

But there are other victims of the oil spill that have not been able to describe their plight to reporters and cameras. Those victims are the wild animals whose habitats have been violated and who are dying from both the oil that leaked into the Gulf and from the byproducts of the cleanup effort. Among them are an estimated 400 animal species—including the brown pelican, Louisiana’s state bird.

These animals do have their advocates. In addition to widespread rescue efforts, animal rights groups are pursuing legal actions to protect Gulf wildlife in the courts.

Several organizations, including the Animal Legal Defense Fund headquartered in Cotati, Calif., recently sued under the U.S. Endangered Species Act on behalf of sea turtles being burned alive in Gulf spill cleanup efforts. The groups asked a federal court to halt BP’s controlled burn operations until protective mechanisms were implemented to prevent sea turtle deaths.

In early July, BP and the U.S. Coast Guard agreed to have qualified scientists act as observers for every burn to ensure that turtles will be identified and removed beforehand.

Some efforts have been less successful. People for the Ethical Treatment of Animals—a controversial group based in Norfolk, Va.—has called on the attorneys general of Alabama, Florida, Louisiana and Mississippi to prosecute BP executives on charges of cruelty to animals. None has yet expressed a willingness to do so.

Despite the massive potential for death and damage to wildlife, animal welfare lawyers say current laws limit the legal options available to those who are seeking to protect wildlife. “The oil leak represents an example where tremendous pain and death are brought to individual animals,” says David S. Favre, a professor at the Michigan State University College of Law in East Lansing who is active in the animal law field. “The law presently has no easy way to deal with these individual deaths, so we can only look to environmental law for remedies.”

It’s something they’d like to change.

Efforts to protect wildlife endangered by the BP oil spill are only the most dramatic recent example of a growing movement to change the law to protect animals in a wide range of circumstances—whether as endangered species, as wildlife, as farmed animals raised to be food for humans, or as those trusted companions we refer to as pets.

Some animal protection activists are pushing for laws that would extend rights and protections to animals that have been, up to now, reserved for humans.

“Animals are closer to us than an inanimate object that we use as a tool for everyday living,” says Adam P. Karp, an attorney in Bellingham, Wash., who devotes his practice to cases involving animals. “The law should recognize animals as legal persons with the same access to justice.”

The clash between animals and humans has even reached the U.S. Supreme Court. In April, the court struck down, on First Amendment grounds, a law intended to halt the sale of “crush porn” videos, a particularly offensive form of animal cruelty. But in this case, even a loss in the high court is seen as evidence of a shift toward the mainstream for animal advocacy.

“It was noteworthy for the Supreme Court to accept cert and decide a case that involved animal cruelty which, in turn, brought attention to some of the most horrific acts of cruelty and, in turn, the need for laws to protect animals,” says Joan E. Schaffner, director of the animal law program at the George Washington University Law School in Washington, D.C. She also chairs the Animal Law Committee in the ABA’s Tort Trial and Insurance Practice Section.

JUST WARMING UP

Philosophical arguments over the treatment animals have been waged since ancient times, but current advocacy efforts are a product of the activist movements that grew during the second half of the 20th century. Groups like the Animal Liberation Front and PETA, for instance, were founded in the 1970s and early 1980s. These groups have pushed their agendas largely through a combination of public relations campaigns and legal initiatives.

Those efforts—including some notable legal victories—have coincided in recent years with an increasing interest in animal law at law schools and more intense coverage of animal welfare issues in the media involving situations as diverse as the prosecution of pro football quarterback Michael Vick for running an illegal dogfighting operation and the efforts of New Orleans residents to locate their stranded pets in the aftermath of Hurricane Katrina.

In July, Massachusetts became the first state to ban surgery that cuts or removes the vocal cords of dogs or cats. Under the law, violators are subject to fines and imprisonment of up to five years. Opponents of the law have argued that banning such surgery will result in more pets being abandoned or given to shelters.

“The practice of animal law is exploding in its breadth,” says Favre, who received an award in August from the Tort Trial and Insurance Practice Section for his work in the field. “Increasingly, laws are being adopted to deal with a great diversity of issues, from feral cats to crush videos. This is an intellectually challenging area of law, where society is trying to restructure its thoughts about the relationship between humans and animals.”

But advocacy groups and lawyers in the animal protection field suggest their efforts are just warming up.

“There has been a significant shift of how animals should be regarded under the law. Virtually every state has a felony animal cruelty law. Of course that’s success,” Karp says. “Many states now enforce trusts naming animals as beneficiaries. But they’re still regarded as property, and that’s the next hurdle.”

Some lawyers who litigate animal cases are pushing courts to recognize the emotional value of a beloved pet when deciding what compensation an owner should receive for its loss.

Efforts by the ALDF and other advocacy groups to convince courts to consider companion animals as family members rather than personal property have met with some resistance. In 2009, for instance, the Vermont Supreme Court ruled in Goodby v. VetPharm Inc. that cat owners could not recover for lost companionship or emotional distress when their pets died after allegedly receiving an overdose of a hypertension drug from a veterinarian.

“It is beyond dispute that our bond with pets often, if not usually, transcends their value to strangers in the marketplace,” said the Vermont court. Nevertheless, “plaintiffs fail to demonstrate a compelling reason why, as a matter of public policy, the law should offer broader compensation for the loss of a pet than would be available for the loss of a friend, relative, work animal, heirloom or memento—all of which can be prized beyond measure, but for which this state’s law does not recognize recovery for sentimental loss.”

Animal protection lawyers, however, take issue with the fact that the law still classifies animals solely as property—regardless of their relationship with humans—and only allows owners to recover a loss based on market value.

“It all boils down to the issue of fairness,” Favre says.

“People can harm animals, which has tremendous emotional impact for their owners, for which they cannot get compensation presently.”

Karp says the law also fails to recognize the special position of veterinarians in today’s society. “Do we want to treat the veterinarian like a contractor working on a high-rise, or are they more like doctors and lawyers— professionals who have independent and higher standards of care?” he asks. “If veterinarians are more like doctors and lawyers, then the injured party, the companion animal owner, should have the right to seek relief under all available theories.”

The TIPS Animal Law Committee is redrafting model legislation on the recovery for harm to companion animals after the National Conference of Commissioners on Uniform State Laws declined to consider an earlier version. Noneconomic damages for loss of a pet are among the issues under consideration.

FIGHTING OVER CATS AND BIRDS

Animal rights advocates have used some creative arguments to gain success on some other fronts.

In North Carolina, for instance, the ALDF has thwarted “puppy mills”—large-scale puppy breeding operations—by invoking an obscure state law that permits private civil suits to enjoin acts of animal cruelty when government refuses to prosecute.

Similarly, Wisconsin law allows a citizen to petition a judge to order prosecution when a district attorney declines to prosecute a criminal case despite the existence of probable cause. So the Madison-based Alliance for Animals and PETA took legal action after four sheep died from the bends during experiments financed by the U.S. Navy at a University of Wisconsin research center. In June, Dane County Circuit Court Judge Amy Smith ruled that a special prosecutor should be appointed to determine whether the university researchers violated any laws in conducting the experiments.

The ALDF has been advocating a model law similar to the North Carolina and Wisconsin statutes. The ALDF also supports the establishment of registries for people convicted of animal abuse felonies. The proposal calls for the creation of databases that shelters can use for background checks on individuals seeking to adopt an animal. The databases also would be available to police and the general public. The registries would be similar to those established to track individuals convicted of sex offenses against children, says Stephen Wells, the ALDF’s executive director.

“In so many shocking cases, the law can’t or won’t stop animal abuse,” Wells says. “But by using existing laws creatively and by promoting cutting-edge legislation, the door is opening for significant changes.”

While advocating for new legislation recognizing animal rights in some areas, animal protection advocates are resisting other laws that they contend are unfair to animals—or at least some animals.

Municipalities throughout the United States, for instance, have passed ordinances specifying that pit bulls or other “canines used for fighting” must be muzzled or otherwise controlled more than other dogs. And, in fact, some communities have gone so far as to outlaw certain breeds—usually pit bulls.

“The worst type of dangerous dog legislation is the kind that’s breed-specific,” says Schaffner, who edited A Lawyer’s Guide to Dangerous Dog Issues, published in 2009 by the ABA. “It is inefficient, ineffective and unfair. To me there is a parallel between race discrimination and breed discrimination. In both instances the law targets the individual based on their status rather than their conduct.”

Sometimes the interests of different segments of the animal advocacy community come into conflict with each other.

For instance, Los Angeles is one of the nation’s cities that tried to deal with a feral cat problem. Feral cats roaming a city’s streets, alleys and open spaces are rarely adoptable. Some jurisdictions catch and kill feral cats, but many animal advocates say they should be trapped, neutered and then released.

Los Angeles adopted a program along those lines, but in 2008, the Los Angeles Audubon Society, the American Bird Conservancy and four other groups sued the city for failing to conduct studies on what impact this program would have on the city’s bird population. (The conservancy estimates that free-roaming cats kill hundreds of millions of birds every year.) A U.S. district court ordered the city to halt the program so an impact study can be completed.

COWS FALLING DOWN

In 2008, the Humane Society of the United States released a video showing workers at a slaughterhouse in Chino, Calif., kicking, electrocuting and dragging with chains cows that were no longer able to walk on their own. Public health officials warned that these non-ambulatory cows were more likely to be diseased than other cows. Afterward, the U.S. Department of Agriculture ordered the recall of 143 million pounds of frozen beef from the slaughterhouse.

In the wake of the controversy, the state legislature amended California Penal Code ¤ 599f to prohibit slaughterhouses from processing, butchering or selling meat or products of nonambulatory animals for human consumption. And California voters passed Proposition 2, titled the Prevention of Farm Animal Cruelty Act, which forbids any confinement of animals that restricts their ability to stand, lie or loosen their limbs.

Animal protection advocates say they plan to pursue similar laws in other states. “There is an increasing social concern that so many animals in our agricultural system are not being appropriately cared for, and that’s motivation for change,” Favre says.

Again, there was a challenge. The National Meat Association sought, and received, an injunction in federal court barring enforcement of the amended California code regarding swine inspected under federal guidelines. The district court granted an injunction on federal pre-emption grounds, but in March the 9th U.S. Circuit Court of Appeals at San Francisco vacated the injunction. In National Meat Association v. Brown, a three-judge panel concluded unanimously that the Federal Meat Inspection Act does not pre-empt states from issuing further regulations on food safety and animal treatment. (A request by the association for an en banc hearing was turned down in May.)

Bruce A. Wagman, a partner at Schiff Hardin in San Francisco who serves as chief outside litigation counsel for the ALDF, says the 9th Circuit ruling reduces the chance “that millions of Americans could get sick from the many diseases that might be passed on by sick animals. In addition, if the sick animals were put in the food supply, they would have to languish and suffer as opposed to being immediately put out of their misery. This ruling eliminates the suffering of many sick animals by ensuring they are euthanized.”

But the National Meat Association contends that the appellate panel should have upheld federal preemption in the realm of meat inspections. “The California law is vague and replaces a very solid standard that has evolved over 100 years of regulatory action,” says Jeremy Russell, an association spokesman. “The best thing is to have a good, clear federal standard that is backed up by the research from the U.S. Department of Agriculture.”

Moreover, says Russell, the California law creates the possibility that some animals will be euthanized for no good reason. “If a cow is sitting down and unwilling to move, it’s a bad sign for a cow. The cow is sick,” he says. “But hogs, if they get tired, they sit down. The California law could result in perfectly healthy hogs being euthanized without cause.”

Meanwhile, states continue to enact laws relating to livestock. In July, California Gov. Arnold Schwarzenegger signed into law a bill mandating that by 2015 all eggs sold in California come from cage-free chickens. And Ohio Gov. Ted Strickland brokered an agreement between the Humane Society and the Ohio Farm Bureau Federation over new guidelines for raising veal calves, poultry and pregnant sows.

CRUELTY ACT CRUSHED

Perhaps the most perplexing legal clash between man and animal arose in U.S. v. Stevens (PDF), the crush porn video case decided last spring by the Supreme Court.

In 1999, Congress passed the Depiction of Animal Cruelty Act, which sought to curb the sale of crush porn videos that, among other things, depict women in high-heeled shoes crushing small animals to death. Internet sales of the fetishist videos had begun to gain popularity in the early 1990s.

And as earlier bans on the possession and sale of child pornography sought to halt actual child sexual abuse, the crush video legislation was aimed at this kind of wanton punishment of animals.

The law quickly came under fire from opponents who argued it violated the First Amendment. Critics claimed that the law, as written, was overly broad and unenforceable. Supporting that claim was the fact that none of the cases actually prosecuted under the law involved a crush video.

In fact, U.S. v. Stevens involved videos about dog fighting, not fetishism. Robert J. Stevens of Pittsville, Va., ran a business associated with a website that sold videos of pit bulls fighting each other and attacking other animals.

After a trial in the U.S. District Court for the Western District of Pennsylvania, the jury deliberated for 45 minutes before convicting Stevens on three counts of violating the Depiction of Animal Cruelty Act. He was sentenced to three years in prison.

But upon appeal, the 3rd U.S. Circuit Court of Appeals at Philadelphia vacated Stevens’ conviction on grounds that the act violated First Amendment rights without addressing the actual crime of animal cruelty.

“The problem was that the statute did nothing to regulate, prohibit or criminalize actual acts of animal cruelty,” says Joshua Wheeler, associate director of the Thomas Jefferson Center for the Protection of Free Expression in Charlottesville, Va. “Rather, the statute only criminalized video or audio recordings of such acts, even when the possessor of such recordings had absolutely nothing to do with the making of the recording. Thus, the statute could be used to punish people for their thoughts rather than their actions.”

The Supreme Court granted cert and issued an 8-1 decision affirming the 3rd Circuit on April 20—coincidentally, the same day the BP oil rig exploded. The court ruled that the law was so broad it would make the sale of magazines or videos about hunting illegal.

Writing for the majority, Chief Justice John G. Roberts Jr. said the act “creates a criminal prohibition of alarming breadth.” Child pornography has no First Amendment protection because each depiction is “intrinsically” bound to a well-defined crime of child sexual abuse. But the definition of animal cruelty as defined by the Depiction of Animal Cruelty Act is too broad and too malleable to have earned such an exemption. “To read [the act] as the government desires requires rewriting, not just reinterpretation,” Roberts wrote.

Animal welfare advocates have vowed to do just that: Revise the law so it can pass Supreme Court review.

“The case pitted the federal statute targeting the sale of depictions of animal cruelty for profit against freedom of speech and, as we all know, freedom of speech tends to win out,” Schaffner says. “The goal now is to enact a statute that more narrowly targets depictions of the most egregious acts of animal cruelty criminalized in every state. Congress should be able to criminalize these depictions without infringing the free speech rights of citizens.”

The Prevention of Interstate Commerce in Animal Crush Videos Act has already been reported out of committee, and House sponsors say they expect the bill to have wide support in both chambers of Congress.

Animal protection lawyers view congressional response to the Stevens ruling as an important step—but still just one step in a broader evolution in the legal relationship between humans and other animals.

“The law is in the midst of changing,” says Michigan State’s Favre. “We remain hopeful that significant further change will allow animals the legal status that they deserve so that their interests can be represented when conflicts arise.”