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Thinking About Dogs
by Bruce Wagman
Editor's Note from Cathy Alinovi: Legal concerns about pets are usually the last thing pet owners think about. But when “the law” descends, all of a sudden pet owners “know.” The law does not consider feelings and emotions; unfortunately, it is part of our everyday.
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 (9th 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.
The circumstance is no different if you decide to let your dog have puppies (or cat have kittens) – even if you adopt every one of them out to good homes, those good homes are now closed to shelter dogs, and for every puppy you allow to be born, you might as well be putting a bullet in another puppy’s head. I look at the dogs who share my home, who all would have been killed if they could not be adopted, and I start to cry when I think that they could be dead, because someone wanted their dog to look a particular way or be a particular type, or because they wanted their children (or dog) to just have the experience of one litter.
The more common dog matters handled by animal lawyers include the regular (and increasing in number) dangerous and vicious dog cases. There are surprising differences from one county to another in this area. In one county a dog might bite a human and send her to the hospital and get off with “probation” and no restrictions, while in an adjoining county a dog might get into a fight with another dog, who walked away injured but fine, and she would be summarily deemed “vicious” and executed unless a lawyer fights hard to save her. The disparity in treatment, literally from town to town, is challenging for animal lawyers, frustrating for guardian-owners, and unquestionably unfair to the dogs themselves.
Definitely on the rise are the custody cases which often involve two individuals truly concerned about the dog at issue but with both feeling they are the best guardian. There are of course the custody cases that involve the use of the family dog as a point of leverage or threat held over the head of the other spouse to force a more favorable settlement. Most interesting, because they raise the real issue of the dogs’ interests, are the cases involving unmarried individuals. I have had many roommate situations: Roommate A is the dog’s initial owner, but leaves for an extended vacation, with the dog at home. Roommate B gets attached to the dog and the dog to her, and she may even take him through expensive veterinary procedures. Then Roommate A returns six months or six years later and says “give me my dog.” These cases highlight the law’s inability to deal with ethics and morality, especially when courts allow the property status of the dog to prevail and control the decision. This notion is bothering courts and litigants more and more, and a recent case in New Jersey involving an engaged but not married couple and their dispute over their dog, resulted in a published appellate decision which suggested the special nature of animals required special consideration by courts. Houseman v. Dare, 966 A.2d 24 (2009).
And there is a constant, near-numbing flow of information about dogs who are abused in every way possible — egregious, heinous, choose-your-adjective cruelty that turns my stomach when I hear about it and stabs my heart when people call for help in these situations and I often have to tell them that there is very little justice for that kind of crime. The sentences are too short, the prosecutors are often unwilling or unable to take the cases, restitution is minimal if it exists, and the depths of suffering are monstrous. Then there are the dogfighting cases. I have worked closely with some animal control officers who have been on the front lines and first in on those situations, and the stories are brutal. I am not sure if it is irony but I thank Michael Vick every day for waking the world up to the reality of this popular form of entertainment, and for helping to educate people that dogfighting is not restricted by socioeconomic status, ethnicity, region or city. It is in your town and my town, across the country, and thousands of dogs are affected. It makes money for the competitors and for some reason excites the families who come to watch. And so it continues. But the fact is that dogfighting is illegal in all fifty states.
The hoarding cases are some of my “favorites.” The evidence in those cases – involving from 10 to 1000 animals neglected and suffering in some of the worst conditions – is a nuclear weapon of impact to the senses of any practitioner. For being an animal lawyer is a strange surreal world where the attorney, usually an animal lover, knows that a “great case” is one involving unquestionable violence and torture and suffering, and “good evidence” comes from graphic pictures that tear at your heart and don’t leave your mind’s eye sometimes for months, or forever. So even our language is upside down in a world in which the most sadistic conduct is occurring every day. There are indeed pictures from some of my cases that still flash in front of my eyes from time to time, and that still bring me to tears. (Some people who know me well will tell you that I do indeed cry a lot, but in my defense I see and hear an awful lot of things worth crying over, and if I don’t cry I bottle it up inside.) And while I fully appreciate the emotional impact of doing what I do, in the first years of my practice I did not appreciate the need to deal with it, lest I fail, burn out, or surrender to the endless barrage. But somewhere around 2004, I was near that point. For a two-week period, I could not face the endless signs and neon broadcasts for steak dinners, bacon and eggs, or Kentucky fried cruelty. Every time I passed a restaurant or a supermarket, I saw not the signs and the packages but the pictures of the millions of souls suffering behind those signs, and I was truly frantic to escape. I called some trusted friends, mentors and clients, and told them of my plans to abandon the work and move far away. They insisted I could not run, because in doing so I would be turning my back on the suffering, and that would be as close to complicity as actually engaging in the practices. “Our lives begin to end the day we become silent about things that matter.” I went home that night and I sat with my dogs. I looked in their eyes, and those eyes were cows’ eyes and pigs’ eyes and chickens’ eyes and dogs’ eyes and cats’ eyes. And I agreed to stay, to fight until my last breath, and at the same time I recognized that in order to do it to the end and maintain some semblance of sanity, I needed to double up on my spiritual health.
Everyone has their own path that way, and I profess expertise for no one, not even myself. But for me what has worked is, first, spending time with my dogs and cats, holding and hugging them and feeling their fur, and getting that interspecies connection. And long walks on the beach, shouting my anger, offering my sadness, and letting the vast expanse of ocean take my castaway pains. And my other deep and vital source of comfort and catharsis is music, everywhere I go. I revel in the release of live music, where I feel transported enough to, for those moments when everything is just right, be able to purge the pain. When I can cry in the middle of a concert, loud rock or soft singer-songwriter, I know I am healing.
The problem of internalized, compartmentalized anguish and sadness and frustration and rage is big for all animal law practitioners, and I never believed it could be adequately synthesized or described. So I was quite grateful when I found a valuable and incisively written article that did just that, and provided for me both a mirror and support. That article was written by Taimie Bryant, and the article is Trauma, Law, and Advocacy for Animals, 1 Journal of Animal Law and Ethics 63-138 (2006). Taimie was actually one of the first people I called when I was considering teaching a course in animal law in 1995; she was already doing it and was then and has been a great source of advice and information for me. She was also the primary author of the Hayden Act, California’s set of statutes covering the treatment of animals in animal shelters and the problems of overpopulation, with a clear focus on adoption of those abandoned souls. For that she is also one of my heroines, and the thought of shelters reminds me of that large contingent of dogs who are kept alive as long as possible by shelter directors and workers, most of whom entered those hallowed halls in order to care for the unwashed and unwanted, abandoned and forgotten and discarded dogs and cats of America. We kill four to five million animals every year in American shelters, and it is not because anyone (other than the occasional and rare miscreant) wants to or likes to euthanize animals. Euthanasia is a practical reality of what we have created. I have worked with veterinarians in rural counties who step up to euthanize forty or fifty dogs at a time. They are deeply affected. And the source of all those deaths and pain, animal and human, the real cause, is the continued failure to spay and neuter and the continued breeding of companion animals, when so many are dying.
I don’t think I am done talking about them, but I guess I think about dogs all the time.
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About the Author
Bruce Wagman, Partner at Schiff Hardin LLP, focuses his practice on animal law litigation, consultation, legislative affairs and education. He has brought and tried multiple state and federal cases involving a wide range of animal law issues. Learn more about his work at http://www.schiffhardin.com/BruceAWagman.htm.
AnimalbLawg.com focuses on animal law, ethics and policy. It provides a forum for community and collegiality as well as debate and the exchange of ideas. Founded by Pace Law School professors, David N. Cassuto, Luis E. Chiesa and law student, Suzanne McMillan, the blog is now principally maintained by David Cassuto. Contributors include academics, practitioners, and law students, as well as other interested members of the animal advocacy community.