Grass Roots Animal Legislation 9780463788813

Table of contents :
Chapter 1 Animal hoarding
Chapter 2 Animal protective orders
Chapter 3 Anti vivisection
Chapter 4 Breed specific legislation bans Chapter 5 CAFO Bans
Chapter 6 Cat de-clawing bans
Chapter 7 Commercial dog breeder regulations Chapter 8 Dog chaining bans
Chapter 9 Dog fighting bans
Chapter 10 Dogs in hot cars
Chapter 11 Dangerous dogs
Chapter 12 Feral cat colonies
Chapter 13 Gas chamber bans
Chapter 14 Horse slaughter bans
Chapter 15 Ivory bans
Chapter 16 Mandatory spay neuter
Chapter 17 Pet store bans
Chapter 18 Pet trusts
Chapter 19 Egg laying hen confinement Chapter 20 Tail docking bans
Chapter 21 Veal crate bans
Chapter 22 Animal testing bans Acknowledgements
About the author Russ Mead

Citation preview

Grass Roots Animal Legislation By Russ Mead Copyright Russ Mead 2018

Table of Contents Chapter 1 Animal hoarding Chapter 2 Animal protective orders Chapter 3 Anti vivisection Chapter 4 Breed specific legislation bans Chapter 5 CAFO Bans Chapter 6 Cat de-clawing bans Chapter 7 Commercial dog breeder regulations Chapter 8 Dog chaining bans Chapter 9 Dog fighting bans Chapter 10 Dogs in hot cars Chapter 11 Dangerous dogs Chapter 12 Feral cat colonies Chapter 13 Gas chamber bans Chapter 14 Horse slaughter bans Chapter 15 Ivory bans Chapter 16 Mandatory spay neuter Chapter 17 Pet store bans Chapter 18 Pet trusts Chapter 19 Egg laying hen confinement Chapter 20 Tail docking bans Chapter 21 Veal crate bans Chapter 22 Animal testing bans Acknowledgements About the author Russ Mead

Chapter 1 Animal hoarding

Introduction to Animal Hoarding Alto Georgia Hawaii Illinois Never Enough: Animal Hoarding law Introduction to Animal Hoarding Animal hoarding is one of the worst forms of domestic animal abuse in the United States. We are outraged when we see photos of a single neglected single dog, cat or horse. In an animal hoarding case, the hoarder can injure hundreds of animals. These large-scale animal cruelty cases are often hidden from our view. Animal hoarders don't let us in. They don't let anyone in. Few jurisdictions have specific laws that address animal hoarding. Animal hoarding is its own particular brand of animal abuse. Traditional animal cruelty laws are not enough to protect these animals. Materials in this chapter look at three jurisdictions that have specific animal hoarding statutes. The approaches outlined in these statutes are different. One approach focuses on the conditions the hoarder keeps the animals in. Another identifies a specific number of animals as the primary indication of animal hoarding. The issues of animal hoarding are discussed in the article “Never enough: animal hoarding law”. The author is Courtney G Lee. The original publication is

the University of Baltimore Law Review. The article is reprinted with permission. Alto Georgia Alto, Georgia – CODE OF ORDINANCES Chapter 6 - ANIMALS ARTICLE I. - ANIMAL CONTROL Sec. 6-16. - Hoarding of animals. It shall be unlawful for any person to collect animals and fail to provide them with humane/adequate care, collect dead animals that are not properly disposed of as required by this article, or collect, house, or harbor animals in filthy, unsanitary conditions that constitute a health hazard to the animals being kept, and/or to the animals or residents of adjacent property. (Ord. of 5-11-2010) Hawaii HRS § 711-1109.6 § 711-1109.6. Repealed by Laws 2009, ch. 160, § 3, eff. July 1, 2015 2008 Hawaii Laws Act 128 (S.B. 3203) HAWAII 2008 SESSION LAWS 2008 REGULAR SESSION OF THE 24th LEGISLATURE Additions are indicated by Text; deletions by Text. Changes in tables are made but not highlighted. Vetoed provisions within tabular material are not displayed. Act 128 S.B. No. 3203 CRUELTY TO ANIMALS—HOARDING PETS A BILL FOR AN ACT RELATING TO ANIMAL HOARDING. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII: SECTION 1. Chapter 711, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows: > “§ 711– Animal hoarding.

(1) A person commits the offense of animal hoarding if the person intentionally, knowingly, or recklessly: (a) Possesses more than twenty dogs, cats, or a combination of dogs and cats; (b) Fails to provide necessary sustenance for each dog or cat; and (c) Fails to correct the conditions under which the dogs or cats are living, where conditions injurious to the dogs', cats', or owner's health and well-being result from the person's failure to provide necessary sustenance. (2) Animal hoarding is a misdemeanor.” Illinois Effective: January 1, 2002 510 ILCS 70/2.10 70/2.10. Companion animal hoarder Currentness § 2.10. Companion animal hoarder. “Companion animal hoarder” means a person who (i) possesses a large number of companion animals; (ii) fails to or is unable to provide what he or she is required to provide under Section 3 of this Act; (iii) keeps the companion animals in a severely overcrowded environment; and (iv) displays an inability to recognize or understand the nature of or has a reckless disregard for the conditions under which the companion animals are living and the deleterious impact they have on the companion animals' and owner's health and well-being. Credits P.A. 78-905, § 2.10, added by P.A. 92-454, § 5, eff. Jan. 1, 2002. 510 I.L.C.S. 70/2.10, IL ST CH 510 § 70/2.10Current through Public Acts effective August 28, 2018, through P.A. 100-1114, of the 2018 Reg. Sess. Never Enough: Animal Hoarding Law Never Enough: Animal Hoarding Law Courtney G. Lee University of Baltimore Law Review Volume 47 | Issue 1 2017 University of the Pacific McGeorge School of Law Article 3

Follow this and additional works at: (URL removed for reprint) Part of the Animal Law Commons Recommended Citation Lee, Courtney G. (2017) "Never Enough: Animal Hoarding Law," University of Baltimore Law Review: Vol. 47 : Iss. 1, Article 3. Available at: (URL removed for reprint) This Article is brought to you for free and open access by ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion in University of Baltimore Law Review by an authorized editor of ScholarWorks@University of Baltimore School of Law. For more information, please contact [email protected]. NEVER ENOUGH: ANIMAL HOARDING LAW Courtney G. Lee* ABSTRACT Animal hoarding, a disorder that causes sufferers to acquire animals compulsively despite the inability or unwillingness to provide them with adequate care, is a widespread, costly, often underestimated problem that causes more animal suffering than all acts of intentional cruelty combined. Not only are animals harmed, but humans are as well, from dependents that live with hoarders to members of the surrounding communities to the hoarders themselves. Current laws do not address the issue effectively, and recidivism rates are close to 100%. This Article seeks to increase awareness of the animal hoarding problem and offers suggestions as to how the law might evolve to better manage and resolve these complex cases. TABLE OF CONTENTS I. BACKGROUND: WHAT IS OBJECT HOARDING A. Helping Object Hoarders II. ANIMAL HOARDING A. Why People Hoard Animals 1. Overwhelmed Caregivers 2. Rescuer Hoarders 3. Exploiter Hoarders 4. Other Types, Common or Combined Traits and Mislabeling B. Helping Animal Hoarders III. CIVIL AND REGULATORY RESPONSES TO ANIMAL HOARDING

A. Civil Forfeiture and Bonding Laws B. Other State and Municipal Laws C. Other Local Ordinances IV. CRIMINAL RESPONSES TO ANIMAL HOARDING A. Intent Requirements of Animal Cruelty Laws B. Outside Factors Affecting Charging and Sentencing C. Other Problems with Using Animal Cruelty Laws to Prosecute Hoarding Cases V. LEGISLATIVE RESPONSES TO ANIMAL HOARDING A. The Illinois State Law Example 1. Limitations of the Illinois Law 2. Effectiveness of the Illinois Law B. Hawaii’s Animal Hoarding Law C. Rhode Island’s New Animal Hoarding Law D. Proposed Animal Hoarding Bills 1. Arizona 2. West Virginia 3. New York 4. New Jersey VI. RECOMMENDATIONS A. Adopt an Official Definition of Animal Hoarding at the National Level 1. Distinguishing Animal Hoarding and Animal Neglect 2. Home of the Official Definition 3. Definition Recommendations B. Suggestions for State Laws 1. State Animal Abuse Registries 2. State Hoarding Task Forces 3. Providing for Seized Animals 4. Providing for Hoarders 5. State Criminal Law Provisions 6. Collaborative Justice VII. CONCLUSION INTRODUCTION

There is a person right now who—quietly, unbeknownst to her family and neighbors—is acquiring animals. She might keep them in her home, which may look perfectly normal from the outside, or perhaps she keeps them in another structure. They could be dogs or cats, or they could be birds, exotic pets, livestock, or even wild animals. She might be compelled by various reasons; she may have started with the best intentions, just trying to provide a safe haven for a couple of pets that she did not spay or neuter, and the number grew out of control too quickly for her efforts ever to be enough to contain the situation. Alternatively, she may honestly believe that she is the only person who can save the animals, and that other caregivers would never be enough. Or she may just feel that she never can have enough animals, so she continues to adopt more from shelters, and perhaps she buys them from pet stores or through classified ads. Regardless, she does not or cannot provide adequate care for these animals, and by the time the authorities realize what is happening, she may have ten, twenty, fifty, or even hundreds, some barely alive, some already dead. After a lengthy, expensive process during which the animals are seized and treated and her property is cleaned, she may pay a fine, serve some time in jail, or both.1 She then returns to her newly clean, empty home, or maybe she moves to a new city or state. As the authorities heave a sigh of relief that the case finally is over and local media coverage of the incident dies down, she might notice a stray cat in the neighborhood, or encounter someone outside the local grocery store who is trying to rehome some puppies. Then quietly, unbeknownst to her family and neighbors, she begins the process all over again. Animal hoarding is a widespread, often undervalued problem across the country that causes more animal suffering than all acts of intentional cruelty combined.2 Not only are the animals harmed, but humans are as well, from dependents living with hoarders, to members of the surrounding communities, to the hoarders themselves.3 Many hoarders feel as if they never have enough animals, and current treatment strategies that rely primarily on animal cruelty laws are not enough to address the problem effectively.4 This Article seeks to increase awareness of the problem and offers suggestions as to how the law might evolve to better manage animal hoarding cases. Part I provides background on object hoarding in general,5 and Part II

expands upon those ideas to explain animal hoarding specifically, types of animal hoarders and the rationales behind their behaviors, and ways to assist them.6 Parts III through V explore civil and regulatory, criminal, and legislative responses to animal hoarding cases,7 and Part VI offers suggestions as to how the law might change to better resolve these complex cases.8 Finally, Part VII concludes that current laws will never be enough to solve this problem until increased awareness of the issue and more thoughtful consideration of its causes, not just its effects, lead to change.9 I. BACKGROUND: WHAT IS OBJECT HOARDING? The hoarding of objects entails the compulsive acquisition of, and difficulty in discarding, a large amount of possessions in a manner that impairs the hoarder’s daily life, and that may threaten her health and safety, in addition to the health and safety of those who live with or near her.10 The general public was largely unaware of hoarding until recent years, as the media amplified exposure through news reports, talk show interviews, and reality television programs.11 Similarly, few studies discussing hoarding as a mental disorder existed in the medical community until the last two decades.12 As scientific inquiry increased, it expanded awareness, but also bred disagreement regarding how to classify the condition medically.13 Initially, researchers categorized hoarding as a subset of obsessive- compulsive personality disorder (OCD), but over time many medical professionals started viewing hoarding as its own separate condition, believing that classifying it as a subset of another disorder results in inconsistency in studies and underestimation of hoarding’s harmful effects.14 That theory gained momentum, and the most recent edition of the Diagnostic and Statistic Manual of Mental Disorders (DSM-5), the definitive guide for the classification of mental disorders, changed to list hoarding as its own separate diagnosis.15 Although medical professionals have started to accept hoarding as a distinct disorder, it still may appear in conjunction with other mental conditions, most often with OCD, but also with schizophrenia, dementia, eating disorders, autism, mental retardation, and attention deficit-hyperactivity disorder.16 Hoarding is extremely widespread, estimated to impact roughly “two to five percent of all adults.”17 In the United States alone, compulsive hoarding affects approximately 700,000 to 1.4 million people.18

Although the states of their homes may seem to suggest otherwise, hoarders themselves do not necessarily fit the stereotype perpetuated by sensationalized media depictions of lazy, disorganized, dirty people living in a “spectacle of chaos.”19 In fact, hoarders tend to be perfectionists who are afraid to discard something that they believe will prove necessary later, assigning “distorted beliefs” of importance and emotional attachment to their possessions.20 People who suffer from hoarding can be found anywhere, and the degrees of separation between non-hoarders and hoarders often are smaller than expected; perhaps surprisingly, “[i]t seems that everyone knows someone or knows someone who knows someone” who could qualify as a hoarder.21 That surprise may be due to the secrecy that frequently surrounds hoarders. Many compulsive hoarders fail to recognize that their behavior poses problems, and therefore are very unlikely to seek treatment voluntarily, dismissing and sometimes even reacting violently toward family and friends that attempt to intervene.22 As a result, they can become socially isolated, living beneath the weight of their possessions in secret, sometimes in shame, and often in denial of the deleterious effects of their compulsive collecting.23 Because of this social seclusion, along with the tendency of many hoarders to actively try to hide their circumstances, many hoarding cases go undetected for years or even decades.24 Although not always obvious to those around them, unfortunately the clandestine environments hoarders create can be harmful or even deadly.25 Hoarders save many different items, but the most common “include newspapers, magazines, old clothing, bags, books, mail, notes, and lists.”26 The accumulation of these objects creates a significant fire hazard, both in combustibility—particularly if located near space heaters or overtaxed electrical outlets—and in access for firefighters who may not be able to reach a blaze or anyone trapped therein.27 Further, amassing large amounts of items in a comparatively small space creates other dangers, such as the risk of falling, especially if the hoarder is elderly or disabled.28 If the hoarded items include food or other perishables, contamination by rotting is likely, and dust pollen and bacteria frequently plague hoarders because their homes cannot be accessed adequately for cleaning.29

In addition to these physical hazards within the home, hoarding affects sufferers’ outside lives as well. Hoarders often experience financial insecurity, having to take time away from work or possibly losing their jobs as a result of the condition.30 Hoarders also are less likely to be married, are more likely to endure strained family relationships due to their compulsions, and they tend to be less healthy in general, experiencing higher rates of obesity and other medical ailments.31 Moreover, unsanitary conditions and those that create a risk of fire also endanger the health and safety of those living nearby,32 and cleanup costs can be a tremendous burden.33 A. Helping Object Hoarders Because hoarding stems from a mental disorder, trying to fix the problem by focusing only on the physical manifestation—the cluttered property—is not an effective long-term solution.34 Doing so is also difficult, as most hoarders either do not recognize the harmful consequences of their actions or are crippled by the inability to discard cherished possessions, and in either case rarely cooperate with interventions voluntarily.35 If an agency unceremoniously removes or attempts to remove the hoarder’s belongings in anything but a lifethreatening situation, not only is the process expensive, but it also may cause severe damage to the hoarder emotionally, mentally,36 and perhaps even physically.37 Even if such a removal appears to be successful and the hoarder’s home is rendered clean and orderly, without careful monitoring she very likely will begin compulsively collecting again, making the cleanup expense, effort, and any related trauma all for naught.38 Due to the complex nature of the disorder and the likelihood of recidivism, truly successful interventions require careful coordination between various entities, as well as monitoring over an extended period of time.39 Although such orchestrations can be expensive and time consuming, many cities have instituted task forces devoted to hoarding that have seen positive results.40 These task forces coordinate multiple agencies to address the many facets of a hoarding problem.41 A hoarding task force may include representatives from adult and child protective services, departments of health, law enforcement, fire and rescue, housing and zoning organizations, environmental associations, social services, animal control, and doctors and attorneys.42

Hoarding is a serious disorder that takes a significant toll on sufferers and those around them—their families, friends, neighbors, coworkers, and employers.43 If a hoarder’s collections include living animals, this circle of harm expands considerably to consume the lives of those actually hoarded as well. II. ANIMAL HOARDING Animal hoarding is a particularly destructive subcategory of the hoarding disorder, and it is responsible for more animal suffering and deaths in the United States than intentional acts of animal abuse.44 It is a widespread problem, with thousands of cases reported each year in every U.S. state and around the world.45 Animal hoarding shares characteristics with general46object hoarding, and many animal hoarders also amass objects. More specifically, however, animal hoarding entails the obsessive accumulation of animals to—and beyond—a point that overwhelms the keeper’s abilities to meet minimal standards of humane care.47 This combines with the failure to recognize the harm that this lack of care causes to the animals, to the environment, and to the people around them, as well as to the hoarder herself.48 Instances of animal hoarding also entail severe squalor and unsanitary living conditions more often than object hoarding cases.49 This complicates the threats to human health described above,50 adding dangers like respiratory problems caused by excessive ammonia inhalation from the buildup of urine, as well as a greater likelihood of the cultivation of and exposure to zoonotic diseases.51 Like object hoarders, many animal hoarders live in denial of the deterioration surrounding them, complicating attempts to step in and help.52 Also like non-animal hoarders, some are very skilled at keeping any evidence of their disorders hidden from the public and even from those closer to them.53 Although there are trends suggesting that many are older, single women, animal hoarders can come from any demographic—age, race, gender, socioeconomic— and some even work in human or veterinary health industries.54 Some also are adept at manipulating service industries and the legal system to ensure that they may continue their pursuits.55 Hoarding situations can grow quickly, and attempts to intervene may come too late for the animals. One may presume that detecting animal hoarding

would be easier than noticing someone who quietly hoards nonliving objects, because certain smells and sounds usually accompany large numbers of animals; unfortunately, however, that is not always the case.56 By the time authorities are notified, the hoarded animals might be too sick or traumatized to be saved, and some may have even passed away already.57 Further, even if service providers are alerted to an animal hoarding case, successful intervention can take days, weeks, or even years.58 If such an intervention does occur, the property is cleaned, and animals are removed, then without continued treatment—which itself may take years—the hoarder almost certainly will return to past habits and begin accumulating animals again.59 Without regular monitoring and treatment, the recidivism rate of animal hoarders approaches one hundred percent.60 A. Why People Hoard Animals Research has shown that hoarders of inanimate objects suffer from a mental disorder or sometimes multiple disorders,61 and the same is true of most animal hoarders.62 Unlike animal abusers motivated by anger and violence, many animal hoarders do not set out with the intention of harming the animals entrusted to their care; on the contrary, they may begin by caring for their animals capably, but then a change in circumstances or finances causes things to become unmanageable.63 Others may truly believe, despite ample conflicting evidence, that they are helping and even saving their animals.64 Understanding the different motivations behind hoarding behavior facilitates planning and delivering treatment more effectively; thus, researchers recognize three main types of animal hoarders: overwhelmed caregivers, rescuer hoarders, and exploiter hoarders.65 1. Overwhelmed Caregivers Overwhelmed caregivers begin by providing for their animals sufficiently and do not actively seek to acquire more, but eventually the animals multiply beyond their control, or significant life events make it impossible for them to provide adequate care.66 Because overwhelmed caregivers are more likely than other types of animal hoarders to recognize that they have a problem, they tend to be more compliant with authorities and accepting of—even grateful for— help.67

One example of an overwhelmed caregiver is a Las Vegas woman who was living with twenty-four cats.68 She provided them with food and water, but otherwise her home was filthy, with overflowing litter boxes and an overpowering stench of ammonia.69 She began with just her own two cats, but the number grew rapidly as she took in one abandoned litter of kittens after another, always attempting to find adoptive homes for them by contacting shelters and posting flyers.70 Her capacity to provide care for so many cats deteriorated, especially after she suffered a divorce, illness, and several car accidents.71 When her brother offered to help her deal with the situation, she cried with relief and gratefully accepted, and has made no further attempts to acquire more animals.72 There are many more examples, such as a Canadian man and his mentally disabled son who were left to care for his wife’s twenty-six cats when she was transferred into a nursing home.73 He finally reached out for assistance and surrendered the cats, and a year later had not brought any more into the home.74 Another Canadian case featured a woman who acknowledged that she could not financially or physically care for what had ballooned to one hundred cats and dogs in her home.75 She consulted with her veterinarian and willingly surrendered and transferred ownership of all of her animals after being admitted to a psychiatric facility.76 Regardless of the specific circumstances that lead to each individual’s state of affairs, overwhelmed caregivers hoard animals because their numbers of pets grow out of hand too quickly for them to handle effectively.77 2. Rescuer Hoarders While overwhelmed caregivers usually acquire animals passively, rescuer hoarders acquire them purposefully, whether by answering “free to a good home” advertisements, by adopting from shelters, by acquiring them from people selling or giving away animals outside of shopping centers, or by picking up strays.78 They may begin with adequate resources and noble intentions, but their abilities to provide proper care gradually decline as their delusions escalate.79 Rescuer hoarders are more likely to deny the harmful realities of their situations and believe that they are the only ones who are able to provide for their animals, often causing them to shift from rescuing and then adopting out the animals to rescuing only.80 These beliefs that they are the best and only

possible caregivers for their animals form the bases of their senses of selfworth81 and lead them to be less cooperative with anyone attempting to intervene.82 An example of a recent rescuer hoarding case is that of The Haven – Friends for Life No-Kill Animal Shelter (The Haven) in North Carolina.83 Linden and Stephen Spear operated The Haven for more than a decade, even as authorities received complaints and conducted failed inspections from as early as 2005.84 An agriculture department spokesman claimed that the department tried to work with the couple to bring their facility into compliance rather than shut it down, largely due to the enormity of the operation and the expense and difficulty that would ensue if they were to pursue the latter option.85 Due to the “legal wrangling” the Spears employed as they “fought every step with every legal tool available,” the state’s efforts were unsuccessful.86 Finally, after over a decade, authorities raided The Haven and seized over six hundred animals, discovering dozens of animal carcasses in the process.87 Even though the animals were found in deplorable conditions, the Spears continue to decry their challengers and urge the public to support their shelter, maintaining it is one of the best in the state.88 Another example of a rescuer hoarder is Suzanna Youngblood, although she did not claim to run a shelter.89 Instead, she kept over ninety cats in a sevenand-a-half-foot by eleven-foot trailer in California, storing it several miles away from where she lived after Animal Control officers informed her that she could keep no more than four cats in her home county.90 The cats were extremely unhealthy, malnourished, and covered in excrement; and some were missing eyes or parts of limbs.91 Nonetheless, Youngblood proclaimed that she was keeping the cats to “save” them, and even attempted to assert a necessity defense based on that delusion during her trial.92 Irrational convictions like this are typical of rescuer hoarders.93 Rescuer hoarders hoard animals because they are unrealistically mission-driven to believe that no one else can save and care for their animals as well as they can.94 3. Exploiter Hoarders The third main type of animal hoarder is the exploiter hoarder.95 Exploiter hoarders are more nefarious and difficult to handle than other types, exhibiting psychopathic tendencies, narcissism, a lack of empathy for people or animals,

and hostility toward anyone threatening their deep-seated need to exert control over their animals.96 Exploiter hoarders may appear charming and articulate at first, but they are extremely manipulative and will do anything, including lie, cheat, and break the law without remorse, to satisfy their needs and desires.97 They often understand the legal system quite well, and will use that knowledge to thwart any efforts to prosecute them or remove their animals.98 Perhaps one of the most infamous exploiter hoarders is Vikki Kittles, who left an extraordinary trail of harm and litigation across multiple U.S. states.99 Kittles was convincing and conniving, able to persuade people to supply her with animals no matter where she went.100 She was so aggressive and devious with her manipulation of the legal system that one prosecutor dropped charges against her because her history indicated that the trial would be too lengthy and expensive, and one county actually provided her with money for gas as an incentive to move away.101 Even jail was not enough to deter Kittles, who would simply move to a new state and begin hoarding again as soon as she was released.102 In another exploiter hoarder case, an elderly Canadian woman was found hoarding dozens of rabbits in terrible conditions.103 She would purchase them at local pet stores, wait a few days, and then return, claiming that the rabbits had died and that she needed more.104 She told an investigating officer who responded to a concerned veterinarian’s report that she planned to start a rabbit circus.105 Although the woman allegedly had posted a notice in the local newspaper advertising rabbits for sale, she denied everyone who attempted to acquire one, deeming them unfit to care for her animals.106 She was similarly hostile toward authorities, and when they attempted to seize the rabbits under the Canadian Animal Care Act, they found only ten at her home, although a local police officer reported observing her releasing at least one rabbit in a public park.107 The woman refused to speak to interviewers who attempted to follow up with her a year later, and due to medical confidentiality concerns, the health care worker assigned to her case could not confirm whether she had acquired more animals.108 Whether they seek to serve their emotional, monetary, or other desires, exploiter hoarders use their animals primarily for personal gratification, impervious to animal suffering.109 Exploiter hoarders excessively obtain

animals because they have a compulsive, predatory need to control, and they place their needs before those of their animals or anyone else.110 4. Other Types, Common or Combined Traits, and Mislabeling Two additional, intermediate hoarding stages are incipient hoarding and breeder-hoarding.111 Incipient hoarders meet minimal required standards of care, but are dangerously close to slipping beneath that line.112 Breederhoarders breed animals for show or sale, continuing the breeding process even as conditions gradually deteriorate.113 It is useful to be able to recognize these types of “early-onset” hoarders so that family, friends, or service providers might intercede and offer assistance before the situations grow unmanageable.114 Some animal hoarders represent a mixture of some or all of the different hoarding types’ characteristics,115 often complicated by multiple other disorders.116 One trait common to almost all people who hoard, however, whether they choose to collect objects, animals, or both, is the perceived need to control their possessions.117 An important distinction for animal hoarders is the fact that animals eventually die, and therefore they cannot be controlled forever.118 This may cause animal hoarders greater levels of anxiety, prompting many to fight desperately not to let their animals go, and leading some to refuse to acknowledge their animals’ deaths or dispose of their deceased animals’ bodies properly.119 All types of animal hoarding cases present challenges to those attempting to help, whether the hoarder is an overwhelmed caregiver amenable to assistance or an aggressive exploiter hoarder.120 Animal hoarding cases siphon more resources than object hoarding cases, from time invested and expenses incurred by service agencies to resources expended by shelters needed to house the sometimes- staggering number of animal victims.121 Addressing every hoarding case in the same manner, without acknowledging the different motivations behind the behavior, is ineffective, and renders the expenses incurred wasted when the hoarder inevitably begins acquiring animals again.122 B. Helping Animal Hoarders Much like object hoarding, animal hoarding places more individuals at risk of harm than just the hoarders themselves.123 There may be dependent human

victims living with the hoarder in unsafe squalor they cannot control.124 Animal hoarding subjects the surrounding community to dangers similar to those created by object hoarding, but with threats of additional diseases and environmental concerns.125 Along with the human victims are the animals, of course; animal hoarding can cause the long-term, abject suffering and eventual death of hundreds of animals in a single case, compounded by the thousands of cases reported each year.126 This complex web of harm and the high animal hoarding recidivism rate demonstrate the urgency of employing targeted treatment for animal hoarders.127 Because they can fall into one or several different categories and can be compelled by very different objectives, this treatment must be individualized, likely involving several different service providers.128 It would not be an effective use of resources to treat an overwhelmed caregiver in the same manner as an exploiter hoarder, for example.129 Much like object hoarders, treating animal hoarders and preventing relapse requires a substantial degree of service agency cooperation and coordination.130 Different agencies themselves have different priorities that can complicate attempts to provide treatment.131 For instance, a few of the service providers implicated in addressing an animal hoarding case may include animal protection agencies, social services, law enforcement, and prosecutors.132 The animal protection officers’ first concern will be the welfare of the animal victims; they likely will want to seize the animals, treat them, and begin the process of readying them for adoption; meanwhile, the social workers’ first concern will be the welfare of the hoarder, and they may object to removing a hoarder’s animals if doing so would be too traumatic.133 Law enforcement and prosecutors, in turn, may alienate social workers that wish to help their hoarder client and not see him or her subjected to trial and possible legal punishments.134 Although all of these missions are valid and appropriate for each individual agency, they can cause conflict and delay if there is not a plan in place that reflects understanding of competing goals.135 This plan can be tailored to meet each agency’s objectives, and such cooperation can result in a more positive and lasting outcome than a more fragmented approach to treatment.136

Different routes to effective treatment may follow different paths, whether civil, criminal, or perhaps not through the court system at all.137 Just as there are different types of animal hoarders and different types of agencies implicated in their effective treatment, there are various strategies to address animal hoarding cases.138 The laws and regulations discussed below range from civil to criminal and reach from city to state.139 III. CIVIL AND REGULATORY RESPONSES TO ANIMAL HOARDING For animal hoarders like overwhelmed caregivers, who are receptive to intervention and are less likely to revert back to previous hoarding behaviors, a civil approach might be best, if legal action is necessary in the first place.140 In fact, prosecuting such individuals criminally often is counterproductive—for the hoarder, for the prosecutor that must expend significant time and expense doing so, for the animals that often must be held as evidence until resolution, and for the shelters forced to make room and hold them.141 For hoarders responsive to a less combative approach, or for whom prosecution is not an otherwise viable option, there are a few different alternatives.142 A. Civil Forfeiture and Bonding Laws Civil forfeiture laws permit authorities to seize animals without bringing criminal charges against the hoarder.143 Forfeiture also may be linked to criminal charges, but civil forfeitures can allow for faster adjudication144—and hence resolution of ultimate custody of the animals, such as through adoption —and civil proceedings are decided based on a less strict burden of proof.145 Animals are viewed as property by the legal system, so seized animals in criminal cases usually are held as evidence, often waiting in crowded, physically and financially overburdened shelters for many months before being placed in adoptive homes.146 Civil forfeitures reduce this waiting period, often significantly.147 Bonding laws work with forfeiture laws, both civil and criminal, to help reduce the financial impediments faced by those holding the animals.148 When authorities seize animals in a suspected hoarding or other cruelty case, they must prove at a hearing that they had probable cause to seize the animals and need to retain custody, at least until the case is decided.149 The owner then has a set period of time in which to pay a designated, reasonable amount to cover the costs of care of the animals.150 If he or she does not pay that bond, he or

she forfeits ownership rights in the animals, and the relevant animal welfare group can step in and assume legal custody.151 Although bonding laws do not help find space to house the potentially enormous number of animals seized in a hoarding case, they can help with the overwhelming costs associated with caring for those animals, especially during a lengthy criminal trial.152 Either the defendant pays for the animals’ care during that time, or the shelter can begin the process of finding the animals adoptive homes.153 Bonding laws also help dissuade defendants from using the expense of providing care for their animals to bargain for reduced charges, since they know that humane groups’ main interest is gaining custody as quickly as possible, and that they may drop or downgrade charges in exchange for that right.154 About two thirds of U.S. states have bonding or civil forfeiture laws.155 While certainly helpful in some hoarding cases, these and other civil remedies do not always offer perfect solutions; in addition to possibly being inappropriate for addressing exploiter hoarders with sociopathic tendencies,156 some bonding laws apply only to certain types of cases, such as dog fighting.157 As a result, those laws cannot be used in hoarding cases.158 Further, if deterrence is a goal, when a defendant in a civil case does not comply with a court order, the consequences are not as severe as they would be in a criminal case.159 B. Other State and Municipal Laws States may equip their citizens to civilly enforce animal cruelty laws in other ways, however, such as by obtaining injunctions to stop such actions—or inactions, in neglect cases—and to seize suffering animals.160 North Carolina has such a law in place, and although it was not designed to address hoarding in particular, it permits any person, firm, corporation, town, city, or county to bring civil suits to enjoin animal cruelty.161 This includes animal protection societies, and the law grants legal standing even if they have no ownership stake in the animals and have not otherwise been “injured” by the alleged cruelty in such a manner as to constitute traditional standing to bring a lawsuit.162 Since its enactment, animal welfare proponents in North Carolina have used this statute to gain custody of hundreds of hoarded, neglected animals and provide them care and adoptive homes, including twenty-five dogs and two cats in one case,163 over 100 dogs in another,164 and over 400 dogs in another.165

If a state does not enact hoarding-specific laws or laws like the North Carolina statute, individual municipalities may elect to pass laws at that level, possibly providing for animal forfeiture or mandatory psychological assessment of hoarders.166 For instance, the city of South Bend, Indiana, has an animal hoarding ordinance that prohibits owning one or more animals without providing adequate care, and persisting in acquiring animals despite this lack of care.167 Violators face fines of $50 to $2,500, and are responsible for the cost of care if the animals are impounded.168 Further, each day that a hoarder is in violation constitutes a separate offense, and the city may seek an injunction ordering relinquishment of the animals.169 In another example, the town of Alto, Georgia, has a hoarding ordinance that declares it unlawful to keep animals without providing adequate care, to collect dead animals without disposing of them properly, or to maintain animals in a state of squalor that endangers the health of those animals, of the hoarder’s neighbors, or of those neighbors’ animals.170 Those who break this law may be fined up to $1,000 and may face jail time of up to six months.171 Similar to the South Bend ordinance, each day a violation continues counts as a separate offense, and the court may order surrender of the animals and restitution.172 C. Other Local Ordinances Jurisdictions without hoarding-specific laws may look to other local ordinances for help when dealing with or trying to prevent animal hoarding.173 For instance, zoning, fire, and health codes are designed to prevent the filth, clutter, and blocked accessibility common among hoarding cases,174 and pet licensing and shelter regulations attempt to control the health and number of animals that individuals keep.175 Some jurisdictions also limit the number of pets that one person or family may have.176 Although aimed partially at hoarding prevention, these ordinances are not ideal; people not only dislike them,177 but find them very easy to circumvent.178 Further, pet limitation laws and other ordinances that do not relate directly to hoarding do not take into account the reasons animal hoarders engage in the behavior, and hence they do not affect the recidivism that is almost guaranteed to occur.179 Overall, civil and regulatory remedies can offer some notable benefits, including speed of resolution, accessibility for plaintiffs that do not meet traditional standards of injury, lower required burden of proof, and decreased

burden on prosecutors; but they alone are insufficient remedies for all animal hoarding cases.180 Civil laws and regulations also may fail to address the magnitude of many hoarding cases or to convey to those in the legal field, as well as to the general public, the degree of both animal and human suffering involved.181 Further, without provisions for dedicated, long-term monitoring, they are unlikely to prevent the hoarder from relapsing into past behavior.182 IV. CRIMINAL RESPONSES TO ANIMAL HOARDING All fifty U.S. states have criminal animal cruelty laws, and all of these laws designate certain acts as felonies.183 Most felony provisions apply to intentional, affirmative acts, however, not to acts of omission like neglect.184 Most animal cruelty statutes treat neglect as a lesser offense, especially for firsttime offenders.185 This is true even though neglect cases like animal hoarding can harm more animals each year, cause more long-term suffering for those animals, and endanger human health on a larger scale than affirmative acts of violence.186 Further, neglectful acts of omission are described imprecisely in most statutes, often making them more difficult to prosecute.187 Statutory descriptions of neglect commonly prohibit failing to provide animals with necessary sustenance, water, and shelter, leaving the precise meanings of those terms to be determined on a case-by-case basis.188 This lack of specificity can be challenging in some cases, but ambiguity in the statutory language also can be beneficial as different types of animals in various hoarding situations and climates will have diverse needs.189 For example, precise statutory health standards determined based on the needs of one species, such as cats, will not apply to another species, such birds, or even necessarily to all breeds within the same species, or to all ages within the same breed.190 Moreover, even indefinite statutory language in animal cruelty laws has withstood constitutional challenges alleging vagueness and overbreadth in several different states.191 A. Intent Requirements of Animal Cruelty Laws Most animal cruelty statutes use terms like “malicious,” “willful,” or “aggravated” to qualify the actor’s intent.192 This also can be problematic when prosecuting animal hoarding cases, since many hoarders do not purposefully mean to harm their animals, and in fact they may believe, however erroneously, that they provide better care than anyone else could.193 Courts

have found that animal cruelty laws only require general intent, however.194 General intent crimes necessitate only that the actor mean to commit the act that results in the proscribed harm, without necessarily intending that the ensuing harm occurs.195 On the other hand, specific intent crimes do require that extra step, meaning that one must act with the prohibited harm as his or her goal.196 This distinction is significant, because it means that an animal hoarder prosecuted with a general intent animal cruelty charge need not mean to cause the suffering, illness, or death of his or her animals in order to be found guilty.197 Even though prosecutors of animal hoarding cases may not need to demonstrate specific intent, often they can show that a hoarder deliberately acquired and sought to control more and more animals despite not being able to provide adequate care.198 Further, if the animals are in such poor health that the need for medical treatment is obvious to a reasonable person—as it commonly is in hoarding and other neglect cases—a judge or jury may infer the intent or knowledge required by the relevant animal cruelty law.199 If the hoarder suffers from a mental disorder that compromises her judgment, then her ability to discern the wellbeing of her animals may be more difficult to prove, but she still will be held to an objective standard of reasonableness.200 With adequate proof and notice, however, a defendant in an animal hoarding case may be able to raise a defense of diminished mental capacity in order to be judged under a different standard and be sentenced to a mental health treatment program instead of a traditional criminal penalty like imprisonment.201 B. Outside Factors Affecting Charging and Sentencing Outside circumstances also may influence triers of fact in hoarding cases. Multiple counts of animal cruelty in the same case may be combined to encourage judicial expediency, which reduces the perceived severity of the suffering involved, as well as the sentencing of the hoarder.202 This practice can save considerable time and effort for the prosecution; however, if a defendant is charged with separate counts for each harmed animal, prosecutors must be able to link each animal with its count in order to prove it was subjected to cruelty.203 One solution is to ensure that rescue teams are ready and able to identify each individual animal upon seizure and provide that

information to prosecutors within a reasonable time.204 Another is to enact hoarding-specific legislation that conveys the severity of such cases, but allows prosecutors to charge hoarding defendants with one all-encompassing count205—and ideally that legislation would include sentencing requirements such as psychological assessment and long-term monitoring.206 Another outside issue that affects judges and juries is the media’s propagation of the image of animal hoarders as kindly, misguided rescuers who just loved animals too much.207 Although that may be an apt description for some, for others, such as exploiter hoarders, it is not.208 This perception and the absence of laws that specifically concern hoarding can make an animal hoarding defendant appear very sympathetic, and subsequently can affect the outcome of a case.209 For some defendants, reduced sentences or dropped charges are not fitting in light of the distress and damage they caused, but aggressive prosecution and tough sentencing by themselves are unlikely to prevent most hoarders from cycling back into the same behavior in the future.210 C. Other Problems with Using Animal Cruelty Laws to Prosecute Hoarding Cases Some advocate for harsher penalties for animal hoarding,211 and while this may seem necessary and even satisfying when prosecuting a manipulative exploiter hoarder who abuses the legal system, a severe punishment scheme alone usually is not effective.212 In addition to practical difficulties and the expense involved in prosecuting hoarding cases under animal cruelty statutes,213 plus the challenges of providing last-minute care and accommodations for large numbers of animals held as evidence for extended periods,214 cruelty laws also do not take into account the mental health issues that shadow most hoarding cases.215 The cruelty laws only address a symptom, as opposed to dealing with the underlying problem.216 Further, as indicated above, not all hoarders are exploiters, and some genuinely fit into the mold perpetuated by the media, making their criminal prosecution an inappropriate and ineffective use of resources.217 This lack of consideration of all aspects of the problem, and the ensuing inadequate treatment, contributes substantially to the exorbitant animal hoarding recidivism rate.218

Complicating matters even more is the fact that different courts treat hoarding cases inconsistently.219 These variations can range from the length of time between animal seizure and the conclusion of trial, to the duration of the appeal process, to the numbers and types of charges filed.220 Of course this disparity only occurs if a prosecutor brings charges in the first place, which often does not happen.221 The expense, time, and complications inherent in prosecuting and successfully treating animal hoarding cases make it easier for responding agencies to focus their resources elsewhere.222 Researchers agree that the ideal treatment for animal hoarding is a collaborative effort between multiple agencies that includes long- term monitoring, not unlike the work of task forces that focus on object hoarding.223 Although the optimal treatment of object and animal hoarders may be fundamentally similar, how these individuals are addressed initially may be very different, as criminal prosecution and jail rarely are considered for object hoarders.224 Animal hoarding can affect far more lives per case than object hoarding, making its criminalization more appropriate in some circumstances, but nonetheless, extended supervision, often spanning several years, is a key component to the successful resolution of almost all hoarding cases.225 One might argue that animals are similar to elderly, disabled, or child dependents in hoarding cases, because none are able to leave a harmful situation of their own accord.226 Thus, because elder, vulnerable adult, and child abuse laws adequately protect dependent human hoarding victims, it could be concluded that animal cruelty laws adequately protect animal hoarding victims.227 Although it seems logical initially, this argument fails to consider that a hoarder cannot easily acquire more dependent humans when others have been removed from his or her home; once service agencies relocate any dependent humans in a hoarding case, the harm the hoarder inflicts upon those within his or her care stops.228 In an animal hoarding case, on the other hand, it is all too easy for a hoarder to acquire more animals, often right away.229 Removing animals and cleaning up an animal hoarder’s property may feel like the end of the problem, but those are only beginning steps.230 Animal cruelty laws that do not provide for the unique treatment needs of hoarders do little to prevent recurrence.231 V. LEGISLATIVE RESPONSES TO ANIMAL HOARDING

One possible way to help remedy the legal inconsistency and ineffective treatment common in hoarding cases is to enact legislation that recognizes the individualized management and monitoring animal hoarders need, and that requires, or at least recommends, multi-agency collaboration in the response process.232 The fact that every state has anti-cruelty laws meant to protect animals from the infliction of pain and neglect indicates general acceptance of the importance of ensuring animal welfare, so it follows that enacting hoardingspecific laws should not be too controversial a task.233 There is opposition, however.234 Those opposed to enacting such legislation argue that anti-cruelty laws are sufficient to prosecute animal hoarders, since offenders violate the cruelty laws’ neglect provisions.235 They suggest that the only difference is that hoarding affects a larger number of animals, and therefore laws pertaining specifically to animal hoarding are redundant.236 Certainly there is a degree of overlap between hoarding cases and the inadequate care prohibited by animal cruelty laws, but there is far more to hoarding cases than just failing to provide satisfactory care for one’s animals.237 Even if courts treat cruelty laws as general intent crimes, there still are some animal hoarders who sincerely do not comprehend that their behavior causes suffering.238 Consequently, prosecution, animal seizure, and even jail have little to no impact on the likelihood that they will revert back to old habits given the first opportunity.239 If a hoarder is aware of the damage he or she causes, harsh punishment alone still is not the answer,240 even if the hoarder receives sentencing reflective of the severity of his or her case.241 Those compelled to hoard animals need assistance from specialized service agencies, and animal cruelty laws are not equipped to provide for this.242 The fact that almost all defendants in animal hoarding cases relapse back into the same conduct demonstrates the impotence of animal cruelty laws in addressing the issue.243 The misguided view of the applicability of animal cruelty laws to animal hoarding, combined with a general misunderstanding of the severity of the condition and the motivations behind it, may contribute to the present lack of state laws focused on the problem.244 Although there are several municipal ordinances available, some of which address hoarding directly, these regulations are scattered and inconsistent.245 Although not ideal, their

existence indicates a desire to address the situation outside of animal cruelty statutes and demonstrates the need for more uniform hoarding laws.246 A. The Illinois State Law Example Until late 2017, only one state, Illinois, had a law in place that explicitly deals with animal hoarding, which is contained within its Humane Care for Animals Act.247 The neglect component of this Act is more comprehensive than many other states’ cruelty laws,248 and requires owners to provide each of their animals with “(1) a sufficient quantity of good quality, wholesome food and water; (2) adequate shelter and protection from the weather; (3) veterinary care when needed to prevent suffering; and (4) humane care and treatment.”249 This section of the Act is phrased broadly enough that it can apply to many different types of animals and situations, yet it still limits the abilities of violators to escape charges on technicalities.250 For example, if a person keeps hundreds of cats in a vacant building with an open toilet as a water source and throws an open bag of cat food into the building once per week, that person may be able to argue under some state cruelty laws that technically she provided “necessary sustenance” to her animals, but that argument probably would fail in Illinois.251 Even though this neglect section is relatively expansive and could apply to hoarding cases, the Act also separately defines “companion animal hoarder” as someone who (i) possesses a large number of companion animals; (ii) fails to or is unable to provide what he or she is required to provide under Section 3 of this Act; (iii) keeps the companion animals in a severely overcrowded environment; and (iv) displays an inability to recognize or understand the nature of or has a reckless disregard for the conditions under which the companion animals are living and the deleterious impact they have on the companion animals’ and owner’s health and well-being.252 “Animals” under the statute are all living creatures except humans, whether domesticated or wild,253 and “companion animals” are those that most people, or at least the owners, understand to be pets.254 Although the Act does not quantify how many animals constitute a “large number,” the following requirement that the alleged hoarder does not provide adequate care exempts legitimate, responsible breeders, rescues, and other organizations that keep numerous animals in healthy conditions.255 The language also allows a person

to qualify as a companion animal hoarder without having to reach a predetermined number of animals.256 The Act allows for impoundment of animals that authorities find in poor conditions, impossible for the owner to resolve, or in emergency situations.257 If authorities seize companion animals, they may petition the court to order the owner to post a bond within five business days covering the reasonable costs of the animals’ care.258 If the owner does not do so, she forfeits her interest in the animals, and those in possession must either work to find adoptive homes for the animals or humanely euthanize them.259 A defendant convicted of neglect or cruelty under the Act is guilty of a misdemeanor upon the first offense and a felony thereafter, and in a neglect case, every day that the violation continues counts as a separate offense.260 The Act only defines companion animal hoarding and does not outlaw it explicitly, so if a prosecutor wishes to charge an alleged animal hoarder criminally, she must demonstrate violation of another section.261 If the prosecutor proves that a defendant violated a neglect or other cruelty provision, and also qualifies as a companion animal hoarder, “the court must order the convicted person to undergo a psychological or psychiatric evaluation and to undergo treatment that the court determines to be appropriate after due consideration of the evaluation.”262 This directive permits the court to tailor a remedy specific to the situation at hand, whether it involves fines, time in jail, community service, counseling, more intensive therapy, or a combination of these remedies.263 As a result, this law extends the reach of the animal cruelty statute and encourages courts to order sentencing that is more likely to reduce animal hoarding recidivism by focusing on the cause of the problem, rather than just reacting to the symptoms.264 1. Limitations of the Illinois Law The Illinois Act certainly seems to be a step in the right direction, and it provides more guidance for courts than cruelty laws standing alone, but the statute does have some shortcomings that are useful to explore before considering how hoarding laws might improve in the future.265 First, as noted above, the section devoted to animal hoarding only provides a definition.266 Other sections reference this definition and require a mental health evaluation if a defendant is convicted under those sections and also qualifies as a

“companion animal hoarder,” but the statute itself does not prohibit animal hoarding.267 This absence of an outright ban might limit the ability to prosecute such cases.268 The Act’s definition of “companion animal” also may prove troublesome.269 Cats and dogs are very common hoarding subjects, and most Americans consider them pets.270 An animal hoarder may not limit herself only to those species, however; some hoarders focus on more exotic animals, or animals that are not commonly thought of as pets, such as the Swedish woman authorities found living in a one- room apartment with 150 swans,271 or the Pennsylvania man who trapped and hoarded squirrels, groundhogs, raccoons, various types of birds, and other wild animals.272 The wording of the Act allows a prosecutor to prove that an alleged hoarder regarded his animals as pets even if the general public would feel differently,273 but even that may be difficult to establish. For instance, a man who hoarded sugar gliders, reptiles, ferrets, hamsters, birds, and other small animals showed no remorse as authorities confiscated them, and his hundreds of unopened electronics and multiple bags of expensive clothing with the tags still attached demonstrated that his accumulating was not a manifestation of his affection for his “pets,” but rather of his “need to be a conspicuous consumer of things.”274 The Act’s implicit exclusion of exotic, wild, and other animals less likely to qualify as traditional pets is not ideal; those animals suffer as much as more common pets do in hoarding environments, and people who hoard any type of animal could benefit from the comprehensive treatment plans for which the statute provides.275 Another potential problem is that the Act requires an alleged companion animal hoarder to keep her animals “in a severely overcrowded environment.”276 This criterion may apply in many animal hoarding cases, but like the “companion animal” definition examined above, it does not apply universally.277 For example, the wealthy man who hoarded small animals did so in a “spacious” home, but conditions still were terrible and the animals severely neglected, with authorities finding dead animals in the home, animal parts in the sink and disposal, and many other animals buried on the property.278 Yet these conditions would be unlikely to meet the Illinois “severely overcrowded” standard.279

The fourth factor in the Act’s hoarding definition requires that the hoarder not be able to recognize, or recklessly disregard, the damaging conditions in which she forces her animals to live, as well as “the deleterious impact they have on the companion animals’ and owner’s health and well-being.”280 Requiring demonstration of such harm to the owner in addition to her animals may exempt those who keep their animals in structures separate from where they live, or who present themselves to the public in ways that belie the actual states of their homes.281 Additionally, although requiring a psychological or psychiatric evaluation is important in hoarding cases, the Act does not suggest that courts ordering “appropriate” treatment consult an animal hoarding task force, or even more than one service agency, before making that determination.282 An evaluation from a single agency may not consider all aspects of an animal hoarding situation, and therefore may not provide information complete enough to enable a court to formulate an effective remedy that will keep a hoarder from relapsing.283 Another limitation is that the Act is a criminal anti-cruelty law that generally does not provide for civil remedies.284 Pursuing a criminal path may be fitting in some animal hoarding cases, but in others— such as when the hoarder is elderly and indigent—criminal charges may not be appropriate, let alone effective.285 2. Effectiveness of the Illinois Law It is not entirely clear whether the Act is working with regard to animal hoarding, even though the definition and its related provisions have been in effect for over a decade without repeal.286 Since its enactment, Illinois courts have heard some hoarding cases and ordered psychological or psychiatric evaluations of defendants, but information is not readily available regarding the framework of any ordered treatment plans, or whether the hoarders have fallen back into old patterns.287 In some cases, previously noted problems with prosecuting hoarding cases appear to persist, such as prosecutors reducing and dropping charges.288 In others, prosecutors did not reference the hoarding definition at all when trying animal neglect cases, even if a defendant otherwise appeared to have met the “companion animal hoarder” definition.289

In one Illinois animal hoarding case brought fully to trial, a woman called 911 when her disabled fourteen-year-old son stopped breathing, and responders discovered that she was living with four other children and her elderly mother in a house with no working plumbing, sharing that space with 200 living and dead animals, including cats, cockatiels, dogs, and rats.290 She claimed that the problem began when her ex-husband started bringing home animals, and after they separated she gradually became “paralyzed and didn’t know where to seek help.”291 Unfortunately her son did not recover, and the woman was found guilty of criminal charges relating to that incident, as well as three counts of animal cruelty.292 She was sentenced to probation, barred from owning any animals, and ordered to undergo a mental health evaluation.293 Although police had responded to “minor calls” regarding possible neglect occurring at the property for eight years prior to the trial, indicating systemic issues, it is not clear whether the woman’s ordered treatment has been effective.294 B. Hawaii’s Animal Hoarding Law Illinois is not the only state that has considered the animal hoarding problem, and in 2008, Hawaii became the first and only state to outlaw the practice expressly.295 That law classified animal hoarding as a misdemeanor characterized by “intentionally, knowingly, or recklessly” keeping more than fifteen dogs, cats, or a combination of both, failing to provide them with “necessary sustenance,” and keeping them “where conditions injurious to the dogs’, cats’, or owner’s health and well-being result from the person’s failure to provide necessary sustenance.”296 However, the law was repealed in 2015.297 The Hawaiian legislature’s intent in repealing the law is unclear,298 but the statutory language was not ideal.299 First, it set a minimum number of animals to possess, and it limited those animals to dogs and cats.300 As explained above, those strict parameters would exclude many hoarders who need intervention but choose to keep different species of animals,301 or who have fewer than fifteen dogs or cats but still acquire them compulsively despite not being able to care for them sufficiently.302 Second, the law only banned what it defined as animal hoarding and did not include the all-important mental health assessment and treatment aspects of successfully resolving the problem.303 Since many hoarders do not intend to

break the law and may not even be able to comprehend that they are not providing sufficient care for their animals,304 mental health evaluation and treatment, as well as long-term monitoring, are vital to include if one of the law’s purposes is to reduce recidivism.305 C. Rhode Island’s New Animal Hoarding Law Most recently, senators in Rhode Island passed a bill in late 2017 that adds animal hoarding to the state’s animal cruelty laws.306 Rhode Island law already defined “animal” broadly as “every living creature except a human being,”307 and the new law characterizes animal hoarding as “the accumulation of a large number of animals, to a point where” the alleged hoarder “fails to or is unable to . . . provide ‘adequate living conditions’, [sic] . . . adequate food, water and sustenance, or necessary veterinary care.”308 It further requires keeping the animals “in an overcrowded environment resulting in a negative impact on the health and well-being of the animals and/or the owner of said animals.”309 Interestingly, Rhode Island law also already defined “adequate living conditions” in a manner that could apply to hoarding cases, requiring that such conditions afford “a sanitary environment which is dry and free of accumulated feces and free of debris and garbage that may clutter the environment, pose a danger or entangle the animal.”310 This definition goes on to mandate that the animal’s living space “be of sufficient size so as not to inhibit comfortable rest, normal posture or range of movement.”311 The new hoarding law incorporates this definition and provides more guidance in determining whether a neglect case rises to meet hoarding standards.312 It still requires that the animals live in an “overcrowded environment,” however, and as noted above, this may exempt some people who otherwise would qualify as hoarders and benefit from intervention.313 Encouragingly, the law does not require that both the alleged hoarder and the animals suffer negative health effects as a result of that living situation, so it could apply to hoarders who live separately from their animals or otherwise appear fine in public.314 D. Proposed Animal Hoarding Bills Several other states also introduced bills in recent years attempting to add specific hoarding provisions to their animal cruelty statutes, although many of these bills never made it through the legislative process to enactment.315 Despite the deaths or pauses in the trajectories of these bills, it is useful to

examine them to assess current perceptions of animal hoarding and where state legislation concerning the issue may go in the future if no federal action is taken.316 1. Arizona Representatives in Arizona introduced a bill that prohibits “[i]ntentionally, knowingly or recklessly” hoarding animals, a practice it defined simply as possessing “animals in a quantity and manner that fails to provide minimal standards of nutrition, sanitation and medical care or treatment.”317 Present state law considers mammals, birds, reptiles, and amphibians to be “animals.”318 As of early 2016, this bill had not received sufficient votes to advance out of committee review in the Arizona House of Representatives.319 The Arizona bill would have permitted, though did not require, a court to order a psychological evaluation of a convicted hoarder prior to sentencing.320 This leniency would have allowed a court to avoid, for example, subjecting a cooperative overwhelmed caregiver to an expensive mental health assessment when she is more likely to work willingly with authorities and may be less likely to start hoarding again; but it also could have caused courts without much knowledge of animal hoarding to fail to order evaluation and treatment for a savvy, manipulative exploiter hoarder who convinced the court that it was unnecessary.321 Under this bill, if a court did order a psychological evaluation, it also could have ordered a convicted hoarder to participate in counseling at his or her own expense.322 The bill does not mention monitoring or specify the duration of counseling, but presumably for the latter the court would have found guidance on a case-by-case basis from the evaluation and the agency that conducted it.323 2. West Virginia In contrast, a proposed animal hoarding bill in West Virginia followed the Illinois Act and unfortunately, required the health of both the animals and their owner to suffer, but this bill “died in committee” in 2016.324 While the definitions of animal hoarding were strikingly similar, the West Virginia bill did go a step further than Illinois law, and deemed animal hoarding to be “unlawful and . . . prohibited,” classifying it as a misdemeanor and setting punishment at a maximum $500 fine, up to thirty days in jail, or both.325 The bill also differed

positively from the Illinois Act by not requiring an overcrowded environment.326 Although current West Virginia laws define terms such as “dangerous wild animal” and “domestic animal,” neither present law nor the proposed bill define “companion animal.”327 It is unclear whether a West Virginia court would impose limitations on the interpretation of “companion animal” like those in Illinois when deciding animal hoarding cases, although the similarity between the texts suggests it would be likely.328 Other aspects of the bill’s language would have increased its utility in dealing effectively with hoarding cases, and can inform future legislation.329 For instance, the bill dictates that animals found in hoarding conditions “shall be taken from the hoarder and turned over to an animal shelter for proper care and relocation,” thus enabling a shelter to assume both care and custody.330 The bill also requires a convicted animal hoarder to submit to a psychological or psychiatric examination and to undergo treatment if the examination finds that “a mental condition, defect, or illness” caused or contributed to the hoarding situation.331 The term “treatment” is undefined, which would allow courts to order unique plans tailored to each individual hoarder.332 Those convicted under this proposed law would be responsible for the costs of their evaluations unless they were determined by the court to be indigent, and they would not be permitted to possess, own, or live with “any animal or type of animal” for five years.333 Although prohibiting so much contact with animals may seem logical and necessary under these circumstances, for some hoarders, this complete removal could be too traumatic and may cause relapse.334 Permitting certain individuals to keep a small number of animals, with regular monitoring, actually may help them resist the urge to acquire more.335 3. New York Legislators in New York also introduced a bill that addressed animal hoarding directly.336 This proposed bill contains flaws, however, the most glaring of which is hinging the classification of animal hoarding upon “ownership, possession or custody of more than twenty-five companion animals.”337 As discussed above, assigning a minimum number of animals to a hoarding definition can be problematic.338 The bill appears to have died in

committee during the 2015–2016 legislative session,339 but it has been reintroduced in the 2017–2018 legislative session.340 The bill’s language requires that animals be “severely overcrowded,”which as previously noted could limit its applicability.341 Despite this, it further provides that these conditions only need to be “likely to jeopardize the health and well being of the animals and/or human beings living in the household.”342 This would permit the law to apply to a hoarder whose health is not affected by the manner in which she keeps her animals.343 The bill continues to modify this provision, however, by stating that such conditions are shown by “[f]ailure by the person who owns, possesses or has custody of the companion animals to maintain his or her living environment in a sanitary condition such as to pose a serious risk to the health or safety of the companion animals and/or people living in that environment.”344 It provides examples of these conditions: “excessive feces, urine, dirt, garbage or a lack of basic services that make a home habitable such as heat, hot water, ventilation or electricity.”345 So even if the alleged hoarder does not have to exhibit signs of negatively affected health, this language still appears to require that he live with his animals, which as noted previously may keep the law from applying to hoarders who house their animals in separate structures.346 Current New York law already defines “companion animal” broadly as, “any dog or cat, and . . . any other domesticated animal normally maintained in or near the household of the owner or person who cares for such other domesticated animal.”347 By stating that a companion animal is one that the owner or caretaker normally maintains, this language suggests that any animal could qualify, even wildlife or exotic species not commonly kept as pets by the general public.348 The proposed bill also references other current New York laws permitting police to seize neglected animals and transfer them to an animal welfare agency, which can petition the court for a bond to cover at least thirty days of care.349 If the defendant requests a hearing, the court sets one within ten days, and upon order the defendant must post the security within five days or forfeit his animals to the impounding welfare agency.350 Finally, the New York bill moves in a positive direction by acknowledging the mental health aspect of animal hoarding and requiring a court to order an

evaluation for a person found in violation, as well as “treatment, therapy and/or counseling” if that evaluation so warrants.351 If the court also found that the evaluation justified prohibiting the convicted hoarder from owning animals, it could issue that order “for a period of time deemed reasonable by the court.”352 The wording of this section allows flexibility in ordering treatment and consideration of whether preventing a hoarder from owning any animals at all would be detrimental to the hoarder’s recovery.353 4. New Jersey New Jersey legislators have not given up on creating a separate animal hoarding law, introducing a bill in 2016 that shows promise, closely following but building upon one introduced eight years prior.354 As of late 2016, this bill was in the second reading stage.355 An animal hoarder under this proposed law is a person who does not or cannot provide “necessary care” for his or her animals, therefore causing “at least some of the animals” to die, be injured, or suffer “other serious adverse health consequences.”356 The bill’s language does not require demonstration of any negative health effects upon the alleged hoarder, and it specifically states that the number of animals the alleged hoarder possesses, while a consideration in assessing the degree of neglect involved, “shall not be determinative of whether there has been a violation.”357 This would allow New Jersey’s suggested law to apply in more hoarding situations than laws that set a minimum number of animals, or that require the owner also to suffer negative health consequences.358 Moreover, if this bill were enacted, it would help ease the burden on prosecutors by creating one offense for each “course of conduct involving the hoarding of animals,” as opposed to requiring a separate offense for each animal involved.359 The latter makes sense for general cruelty offenses where typically a smaller number of animals are affected, but as noted above it necessitates careful record keeping for each individual animal, which can overwhelm prosecutors in hoarding cases that may involve hundreds.360 The proposed law also would apply to any animal, as the current definition of “animal” for these purposes in New Jersey “includes the whole brute creation.”361 Present state law further defines “[n]ecessary care” for animals as including “food of sufficient quantity and quality to allow for normal growth or

maintenance of body weight; adequate access to water in sufficient quantity and quality to satisfy the animal’s needs; access to adequate protection from the weather; and veterinary care to alleviate suffering and maintain health,” noting that the definition is not necessarily limited to these elements.362 The definitions of “animal” and “necessary care” would cooperate with the proposed animal hoarding law to provide guidance to those intervening in hoarding cases, yet they are broadly worded so that they may apply to different types of animals with varying needs. Those found in violation of animal hoarding under present law and under the proposed New Jersey bill have to pay restitution and perform community service for up to thirty days, possibly with an animal welfare organization.363 Unlike present law, however, the proposed bill improves upon the 2008 version by also requiring mental health evaluations of those convicted of crimes like animal hoarding, and it would permit a court to order whatever counseling that the evaluation suggests is necessary.364 Although it does not provide explicitly for long-term monitoring for convicted animal hoarders, the bill does state that “the court may order the violator to provide documentation of attendance” at any ordered counseling.365 Additionally, the court must maintain records of the outcomes of violations of the cruelty laws, including ordered mental health evaluations and counseling attendance documentation.366 Another proposed bill seeks to establish a registry of animal cruelty offenders, and requiring maintenance of these records could help facilitate implementation of such a compendium.367 Finally, the New Jersey bill also maintains present law and provides a civil cause of action for state and local societies for the prevention of cruelty to animals or municipalities’ animal control or cruelty departments.368 The bill reiterates the same definition of animal hoarding in this section, and provides that these organizations may sue a person found subjecting his or her animals to such conditions for an amount from one to three thousand dollars.369 A civil remedy is an important step toward recognizing that not every animal hoarding case is the same, and for some, criminal prosecution may be ineffective or even detrimental—if a legal remedy even is appropriate at all.370 VI. RECOMMENDATIONS

As the aforementioned bills demonstrate, support for animal hoardingspecific legislation is gaining some momentum throughout the United States, even if adoption of these laws has been slow to take hold.371 As states examine the possibility of incorporating animal hoarding laws into their statutory schemes, there are helpful points to bear in mind, as well as actions the federal government may consider that would increase awareness and acceptance of the severity of the issue, and facilitate state and local efforts to reduce the problem.372 A. Adopt an Official Definition of Animal Hoarding at the National Level One step the federal government could take that would promote greater consistency between states is to adopt a national definition of animal hoarding, communicating to lawmakers and to the public that the issue is a serious problem deserving of attention. Doing so could facilitate earlier, more effective intervention by state authorities, potentially reducing expenses by helping them recognize the signs of hoarding sooner and assign treatment that is more likely to prevent recidivism.373 1. Distinguishing Animal Hoarding and Animal Neglect It is important to define animal hoarding separately from animal neglect, even though the two may share similar outcomes.374 Some argue that animal cruelty laws encompass animal hoarding, and that once the specific number of animals is no longer the key component of a hoarding definition, the two are the same.375 This is not true, however, as the actors may have completely different motivations that require different handling of their cases.376 Because the motivations of most hoarders differ from those convicted of neglect, the treatment and sentencing assigned to each type of violation should reflect consideration of those differences, regardless of the number of animals involved in a case.377 Although some animal hoarders may not have legal intent, as noted previously, most are driven by a compulsive need to acquire animals despite being unable to provide adequate care, or they do not understand that they are not equipped to furnish that care.378 On the other hand, those guilty of animal neglect may have various explanations for their actions, whether nefarious or inadvertent.379 For example, an Ohio dog trainer was charged under the state animal cruelty statute for severely neglecting nineteen dogs that were entrusted

to his care, eight of which died of starvation.380 For months the trainer accepted payment from the dogs’ unsuspecting owners that supposedly covered board and training, but instead used it to serve his own needs— allegedly to purchase drugs—rather than those of the dogs.381 Without consideration of the trainer’s mental state and motivations, a case like this might qualify as animal hoarding.382 Although the suffering of the animals would be the same either way, sentencing neglect and hoarding cases should take into consideration a defendant’s mental health and what treatment would reduce the likelihood of recurrence.383 In another neglect case, a California woman left her golden retriever at a veterinary hospital with a 42-pound tumor on his side, falsely claiming that she found the dog abandoned.384 Although the woman did not comment to the media regarding the reasoning behind her actions, allegedly she was unable to afford the necessary treatment.385 There is no indication that she owns or is compelled to acquire more animals for which she cannot provide care, and the facts that she sought assistance and initially lied about her involvement suggest that she understood that her dog was suffering and needed help that she could not give.386 Accordingly, the resolution of her case should differ from that which would be effective for a hoarder who does not comprehend these things. An official definition of animal hoarding also can help distinguish hoarding cases from puppy mills, another type of neglect. As the name suggests, puppy mills differ from legitimate breeders in that they are large commercial dog breeding operations that value profits above all else, including the health and welfare of their animals.387 Some puppy mills operate within the boundaries of the law—often barely—but those that reduce overhead costs by not providing minimum care create animal victims similar to those found in hoarding cases.388 The motives of the actors are markedly distinct, however; puppy mill operators are able to comprehend the pain and infirmity of their animals and may have the means to improve the conditions, but they sacrifice these improvements in the quest to make more money.389 Consequently, sentencing and treatment befitting animal hoarders would not be appropriate for most who run puppy mills, even though both types of cases can result in hundreds of severely neglected animals.390

Therefore an official definition of animal hoarding should include the fact that hoarders continue to acquire animals despite not being able to provide minimum care, whether they are unable to appreciate this inability fully or if they ignore it to facilitate their compulsions.391 The definition should not hinge classification on the number or type of animals a person possesses, nor should it require a severely overcrowded environment or negative effects on the alleged hoarder’s health.392 Possible language that could apply broadly and provide initial state statutory framework might read, “An animal hoarder is a person who is compelled to accumulate animals despite the failure or inability to provide minimum standards of care, and who is unable to recognize or disregards the effects of this failure on the welfare of the animals.”393 Acknowledgment of the compulsion helps to differentiate animal hoarding from neglect and puppy mill cases.394 2. Home of the Official Definition Valuable guidance regarding animal hoarding exists in publications of the Hoarding of Animals Research Consortium (HARC),395 but it would be ideal if a respected advisory body with a more general focus—one that might reach a broader range of people—adopted a clear definition, such as the American Psychiatric Association in the DSM-5.396 In the latest version of this manual, demarcation of object hoarding as a separate disorder is a good first step, but animal hoarding is not separately defined yet.397 Because the law views animals as property, they may qualify as “possessions” under the current DSM5 hoarding diagnosis; however, the differences between object and animal hoarding are substantial enough to warrant a separate definition.398 A definition incorporated into federal law would command even more respect, and would highlight the importance and severity of the animal hoarding issue, forcing states to begin with the same basic premise when adopting their own laws.399 Federal law already applies to animal fighting, and a bill presently is traveling through Congress that would outlaw animal crushing.400 A foundational animal hoarding definition could possibly find a home within a federal statute like the Animal Welfare Act (AWA), the only federal legislation that regulates animal treatment in several fields, including certain commercial breeders, like puppy mills.401 This might be too great an

aspiration at this point, however, at least until a uniform definition achieves stronger footing in an advisory context. 3. Definition Recommendations Individual states adopting the definition may add provisions to hone it further, depending upon whether they incorporate it into civil or criminal laws, or both, but the official definition also could include suggestions to provide more guidance. For instance, in addition to defining animal hoarders generally, it might recommend that states order mental health evaluations of hoarders to confirm the rationale behind their actions and help instruct more targeted treatment plans. Because the most effective animal hoarding rehabilitation is a product of cooperation between multiple service providers, the definition might also include a recommendation that states form animal hoarding task forces to assist in determining and implementing those treatment plans.402 Another recommendation might suggest that states compile animal hoarding case information and contribute it to a national database. Doing so would allow agencies, shelters, law enforcement, and others across the country to access data regarding hoarders, including those who may have moved to a different jurisdiction and started hoarding again.403 Shelters, for example, could run a search within this database before accepting potential adopters, as that is a common way hoarders acquire more animals.404 In 2016, the Federal Bureau of Investigation (FBI) delineated animal cruelty as a separate offense in its annual Uniform Crime Reporting report.405 The FBI now tracks several categories of crimes against animals through its National Incident-Based Reporting System (NIBRS), including simple and gross neglect, which encompass animal hoarding.406 Prior to 2016, NIBRS grouped animal cruelty offenses together into a summary “All Other Offenses” category, which allowed those reading the report to glean very few details, but separating animal cruelty crimes now will provide much more comprehensive information.407 Additionally, because animal neglect and many cruelty charges are misdemeanor crimes that are not reported to other states, tracking them through NIBRS will be even more useful.408 Participation in the program is voluntary, but as awareness and understanding of the animal hoarding disorder grows, more states may opt in and contribute their data to NIBRS.409 If an official definition of animal

hoarding also recommends compilation and contribution of data concerning the issue, participation could expand further. B. Suggestions for State Laws As more states contemplate enacting hoarding legislation, they might consider some complementary provisions as well.410 These inclusions can help enhance the effectiveness of hoarding laws and reduce rampant recidivism.411 1. State Animal Abuse Registries Many localities, such as New York City412 and Cook County, the county that is home to Chicago,413 already track animal abuse convictions, and Tennessee began the first statewide effort in 2016.414 Maintaining such records at the state level not only would facilitate contributing to NIBRS, but it would assist agencies within state boundaries as well because not all hoarders move across state lines to enable their compulsions.415 States including Illinois, Massachusetts, Michigan, Missouri, New Jersey, Pennsylvania, Washington, and West Virginia are following Tennessee’s lead and have introduced bills to create statewide animal abuse registries.416 However, creating a statewide registry is not without deterrents. One is that establishing and maintaining a recordkeeping system entails some expense, but West Virginia found a creative solution in requiring those ordered to register to pay an annual fee that would contribute to maintenance of that state’s registry.417 Another issue is that some are concerned about the fairness of including all animal cruelty offenses together, from intentional torture to firsttime simple neglect that is unlikely to recur or present a danger to others.418 Acknowledging this, states like West Virginia would permit defendants to petition the court for removal from the registry in situations like the latter.419 Moreover, supplementing registry entries with the circumstances of the crimes, which NIBRS requires, also could help alleviate this concern.420 In sum, even if uniform tracking is not a perfect solution, it still is beneficial for authorities, shelters, and others interested in animal welfare to be able to refer to a record listing those convicted of animal crimes and whether they have reoffended; therefore, states should establish their own registries, and then supply the data they gather to NIBRS.421 2. State Hoarding Task Forces

Several local jurisdictions have established general hoarding task forces in recent decades,422 but establishing a hoarding task force at the state level, or at least adopting clear state guidelines for municipal task forces, can better highlight the issue and bring conformity to local agencies’ treatment plans. States like Connecticut and Delaware recognize this need and have established state hoarding task forces to streamline agency coordination, intervention, and assistance efforts.423 Although these task forces are not focused specifically on animal hoarding, they include representatives from animal control and welfare agencies to aid with animal hoarding cases.424 Assembling a hoarding task force and following through on recommended treatment and monitoring plans can be a drain on state funds.425 Resolving hoarding cases requires a significant amount of money and time for everyone involved—in addition to the suffering of both animal and human victims—but if a task force can lead to a reduction in recidivism, the expense is worthwhile and will reduce future costs.426 Although securing initial financing to form a task force may be difficult, strong leadership coordinating various existing service agencies may reveal that the necessary actors and resources are in place already and just need synchronization.427 A tactic that might help offset some task force expenses is creating a loan program. For example, Connecticut legislators recently introduced a bill to create a loan fund for the improvement of blighted property.428 The bill, which does not relate explicitly to hoarding, states that those who own blighted property in certain areas must apply for a loan from this fund.429 A fund administrator then determines eligibility, and the recipient repays her loan later via a special property assessment.430 A program like this would not work for every hoarder, but it might help those who are amenable to assistance and willing to apply, especially if the state would have endeavored to rehabilitate the hoarder and her property anyway. The repayment money then could return to the loan fund or offset some of the expenses incurred by the task force. 3. Providing for Seized Animals Because authorities who discover hoarded animals often need to seize them immediately to remove them from hazardous conditions and provide veterinary care, it is also wise to enact statutory provisions authorizing impoundment and forfeiture in both civil and criminal cases.431 Statutes

enabling private rights of action and civil forfeiture can save substantial time and money,432 but another provision states might consider is one that permits forfeiture of animals in a criminal case without a criminal conviction. Such a law could apply in two scenarios: during the course of a trial and appeals process,433 and after a trial if charges are dropped or a defendant is acquitted.434 Both situations implicate constitutional rights and are subject to fierce debate,435 but in limited circumstances, pre-conviction forfeiture can benefit not only the animals but the human owner as well. The animals can receive the care they desperately need and be placed in adoptive homes as soon as possible, rather than languishing in and using limited resources from a shelter for months or even years;436 the owner would also be relieved of the financial and physical responsibilities of ownership. To trigger pre-conviction forfeiture, the animals would need to be found in extreme distress, as determined by a qualified veterinarian; the court would have to provide a hearing; and the impounding organization would need to clearly demonstrate the need for immediate custody.437 Usually circumstances rising to this level ultimately would result in conviction,438 but that is not always true; for instance, in an Oregon case, a woman was charged with neglect after authorities seized eleven cats from her home.439 The court dismissed the charges after finding the defendant cognitively impaired, and she retained ownership of the cats, even though they were in the temporary custody of a rescue organization until she could repay its costs.440 The rescue, after incurring $32,510 in expenses for care of the cats, sued for appointment as fiduciary to place them in permanent homes.441 The court agreed, noting that the rescue “seeks to protect . . . [the defendant’s] interests as well as its own.”442 If the rescue had been able to assume ownership sooner, it would have saved a substantial amount of money and resources, the cats would have been placed in healthy homes, and the owner would have been free from her considerable debt and obligations. An impounding agency still has care and financial responsibilities for seized animals, however, regardless of when, or if, a hoarder forfeits ownership, even though the impact diminishes the sooner the agency is able to place the animals in permanent homes.443 Therefore, both civil and criminal hoarding laws should contain bonding provisions,444 or at least mirror most animal

cruelty laws and provide for reimbursement by the defendant of the costs of care from the time of seizure to the final disposition of ownership.445 4. Providing for Hoarders To reduce the astronomical recidivism rate in hoarding cases, interveners must focus on the rehabilitation of the hoarder, as opposed to addressing only the effects of the hoarding, such as the neglected animals and property.446 Punishment alone is not sufficient, however deserved it may be in some cases.447 Therefore, one of the most important aspects of a hoarding law is a provision requiring a hoarder in either a civil or criminal case to participate in a mental health assessment, followed by a treatment plan—ideally prepared upon advisement of hoarding task force members—that involves regular, longterm monitoring.448 A pre-trial psychological assessment would be especially helpful in determining whether a defendant should be tried for hoarding or neglect if the distinction is not immediately clear.449 Incorporating mental health evaluation requirements into animal cruelty laws is wise.450 Doing so at the expense of adopting hoarding-specific laws is not, however; in addition to the arguments above regarding the insufficiency of animal cruelty laws’ application to hoarding cases,451 it would not alleviate the inconsistency in hoarding decisions,452 and may also impede following a civil route to effective treatment as most animal cruelty laws are criminal in nature.453 Relatedly, enacting a law that prohibits a hoarder from owning or having contact with all animals may not be productive.454 Some researchers have found that supervised access to a limited number of animals in a shelter or in another location away from the hoarder’s residence may actually help satisfy the urge to care for animals and provide an example of how to do so in a healthy way.455 Not everyone agrees,456 but a mental health evaluation could help with this determination. 5. State Criminal Law Provisions Affording civil rights of action is important to the successful resolution of some hoarding cases.457 The use of criminal hoarding laws may be appropriate in others, however, and in addition to consideration of whether animal ownership should be forfeited prior to conviction or after acquittal,458 other provisions can make criminal hoarding laws more effective. First, many states

classify their animal cruelty laws according to a degree system.459 At a minimum, all states at least divide cruelty laws between misdemeanor and felony offenses, with a first offense garnering a lighter sentence and subsequent offenses growing more serious.460 This is a logical scheme for hoarding laws as well, especially if a first-time hoarding defendant is compliant, responds well to her treatment plan, and does not reoffend. It also may be beneficial to include the ability to charge hoarders with a single hoarding count, as opposed to one cruelty count per animal.461 Charging alleged hoarders with one all-encompassing hoarding count might cause some courts to see the offense as less severe than it really is. For example, a case involving the neglect of 100 animals seems more serious if the defendant is charged with 100 violations instead of only one.462 This perspective can change however, with increased awareness of the hoarding problem and its costs—financial and otherwise—which would be complemented by hoardingspecific laws.463 State and national registries demonstrating high recidivism rates can also can help increase appreciation of the severity of the issue.464 Moreover, because prosecutors would not face the daunting task of documenting each affected animal in a case, allowing one hoarding count may cause them to pursue these cases more often.465 This would result in more interventions before situations get any further out of control, and when combined with proven treatment and monitoring plans, it could have a substantially positive impact on the health and wellbeing of animals, hoarders, and the recidivism rate. 6. Collaborative Justice States also may consider an option in hoarding cases that balances between criminal and solely therapeutic treatment extremes: the growing area of restorative or collaborative justice.466 Balanced and Restorative Justice (BARJ), which is common in juvenile court systems, is a justice administration philosophy that focuses on the accountability of the offender, competency development, and public safety.467 Collaborative justice principles include a multidisciplinary, nonadversarial team approach with involvement from the court, attorneys, law enforcement, and community treatment and service agencies to address offenders’ complex social and behavioral problems.468

California, for example, boasts almost 400 collaborative justice courts, ranging from drug courts to mental health courts for both adults and juveniles.469 The focus on rehabilitation and the ability of collaborative justice courts to concentrate on specific types of offenses appear to make them ideal for resolving hoarding cases.470 The concept already is in practice with a connection to animals in efforts like Safe Humane Chicago’s Lifetime Bonds Program, which allows teens in the juvenile justice system to work with shelter dogs, helping the teens build trust, positivity, and skills, and improving the dogs’ chances of adoption through training.471 Many of the dogs used in the program come from Safe Humane’s Court Case Dogs program, which works with “evidence dogs,” some seized in hoarding cases, that are held by the legal system as they await resolution of their cases.472 Hoarding task forces could work with collaborative justice courts to design treatment programs that would replace more traditional remedies that often are not effective, like incarceration, and contribute to successful rehabilitation that would help hoarders, animals, and the public. VII. CONCLUSION Animal hoarding is a serious, growing, national problem.473 Thus far, state and federal laws have not been enough to deal with the issue effectively.474 Until states enact thoughtful hoarding-specific laws and engage in multidisciplinary efforts to manage and rehabilitate hoarders, they will find that their efforts are never enough. As awareness increases and laws evolve that reflect consideration of the causes of hoarding, instead of just its effects, results should include decreased overall costs and greater wellbeing for hoarders, their animals, their families, and their surrounding communities. * Associate Professor of Lawyering Skills and Director of Academic Support, University of the Pacific McGeorge School of Law. Executive Committee, Association of American Law Schools Section on Animal Law (2015–17); Chair, Association of American Law Schools Section on Balance in Legal Education (2015); Co-Founder, West Coast Consortium of Academic Support Professionals. Many thanks to Raquel Aldana, Jarrod Wong, and McGeorge

School of Law for their assistance and encouragement, and a bottomless well of gratitude to Scott Lee for his unwavering support, kindness, and patience. 1. See infra Parts III–IV . 2. See Lisa Avery, From Helping to Hoarding to Hurting: When the Acts of “Good Samaritans” Become Felony Animal Cruelty, 39 VAL. U. L. REV. 815, 817– 18 (2005). 3. HOARDING OF ANIMALS RESEARCH CONSORTIUM, ANIMAL HOARDING: STRUCTURING INTERDISCIPLINARY RESPONSES TO HELP PEOPLE, ANIMALS AND COMMUNITIES AT RISK 3 (Gary J. Patronek et al. eds., 2006) [hereinafter HARC REPORT]. 4. See infra Part I and Sections II.A, IV.C. 5. See infra Part I. 6. See infra Part II. 7. See infra Parts III–V. 8. See infra Part VI. 9. See infra Part VII. 10. Randy O. Frost et al., Hoarding: A Community Health Problem, 8 HEALTH & SOC. CARE COMMUNITY 229, 229–30 (2000) [hereinafter Frost et al., Community Health Problem]; Hoarding Disorder: Overview, MAYO CLINIC (May 4, 2017), (URL removed for reprint). 11. Susan Lepselter, The Disorder of Things: Hoarding Narratives in Popular Media, 84 ANTHROPOLOGICAL Q. 919, 920 (2011); Christopher C. Ligatti, Cluttered Apartments and Complicated Tenancies: A Collaborative Intervention Approach to Tenant “Hoarding” Under the Fair Housing Act, 46 SUFFOLK U. L. REV. 79, 79–80 (2013). 12. See Jessica R. Grisham & Melissa M. Norberg, Compulsive Hoarding: Current Controversies and New Directions, DIALOGUES CLINICAL NEUROSCIENCE 233, 233 (2010); see also Ligatti, supra note 11, at 82 (noting the recent recognition of hoarding as a medical condition). 13. Grisham & Norberg, supra note 12, at 233. 14. See id. at 233–34. 15. See id.; Highlights of Changes from DSM-IV-TR to DSM-5, AM. PSYCHIATRIC ASS’N 8 (2013), (URL removed for reprint).

16. Grisham & Norberg, supra note 12, at 237; Sanjaya Saxena et al., Cerebral Glucose Metabolism in Obsessive-Compulsive Hoarding, 161 AM. J. PSYCHIATRY 1038, 1038 (2004). 17. Ligatti, supra note 11, at 82. 18. Therese Borchard, 10 Things You Should Know About Compulsive Hoarding, PSYCHCENTRAL (July 17, 2016), (URL removed for reprint). 19. See Lepselter, supra note 11, at 927–28. 20. See Saxena et al., supra note 16, at 1038; see also Sara Solovitch, Hoarding Is a Serious Disorder – and It’s Only Getting Worse in the U.S., WASH. POST (Apr. 11, 2016), (URL removed for reprint). (detailing examples of hoarding behavior and describing the resulting distress and interference that hoarders experience). 21. Ligatti, supra note 11, at 80; see also FAIRFAX CTY. HOARDING TASK FORCE, ANNUAL REPORT 9 (2009), (URL removed for reprint). (“Hoarding does not recognize race, gender, nationality, level of education, or a socio-economic bracket.”). 22. Frost et al., Community Health Problem, supra note 10, at 230. 23. Id. at 229–30; Ligatti, supra note 11, at 80. Some studies use the terms “hoarding” and “collecting” interchangeably. SONIA S. WAISMAN ET AL., ANIMAL LAW: CASES AND MATERIALS 111 (5th ed. 2014). Others caution that doing so can mischaracterize the situation, and can even cause certain service agencies not to respond to hoarding calls. HARC REPORT, supra note 3, at 10. While a hoarder does compulsively collect large amounts of objects, if a person is a collector she is not necessarily a hoarder. Christiana Bratiotis et al., What Is Compulsive Hoarding?, INT’L OCD FOUND. (2009), (URL removed for reprint) Hoarders rarely seek to display their collections, and may actually try to keep them hidden; collectors, in contrast, “usually proudly display their collections and keep them well organized.” Id. 24. See Ligatti, supra note 11, at 81; see also Jan Hoffman, Task Forces Offer Hoarders a Way to Dig Out, N.Y. TIMES (May 26, 2013), (URL removed for reprint). (describing the tendency for hoarders to withdraw from society and noting that the negative stigma associated with hoarding presents an additional challenge).

25. Frost et al., Community Health Problem, supra note 10, at 229, 234; Bratiotis et al., supra note 23, at 1. 26. Saxena et al., supra note 16, at 1038–39; see also Frost et al., Community Health Problem, supra note 10, at 231–32 (describing the hazards created by object hoarding). 27. See Frost et al., Community Health Problem, supra note 10, at 229. 28. Id. 29. Id. 30. Grisham & Norberg, supra note 12, at 236; David F. Tolin et al., The Economic and Social Burden of Compulsive Hoarding, 160 PSYCHIATRY RES. 200, 204–06 (2008). 31. Grisham & Norberg, supra note 12, at 236. 32. See Frost et al., Community Health Problem, supra note 10, at 231, 234. 33. Tom Cobb et al., Advocacy Strategies to Fight Eviction in Cases of Compulsive Hoarding and Cluttering, 41 CLEARINGHOUSE REV. J. POVERTY L. & POL’Y 427, 440 (2007) (describing a small town that spent seventy-five percent of its budget to clean one hoarder’s home); S.F. TASK FORCE ON COMPULSIVE HOARDING, BEYOND OVERWHELMED: THE IMPACT OF COMPULSIVE HOARDING AND CLUTTERING IN SAN FRANCISCO AND RECOMMENDATIONS TO REDUCE NEGATIVE IMPACTS AND IMPROVE CARE 2 (2009), (URL removed for reprint). [hereinafter S.F. TASK FORCE REPORT] (“[W]e conservatively estimate that costs to service providers and landlords from compulsive hoarding are $6.43 million a year.”); Kayla Webley, Hoarders Purge with Help from Community Groups, TIME (July 19, 2010), (URL removed for reprint) (noting that a hoarding cleanup process “can top $50,000, and that money is rarely recouped from the hoarder, which leaves local agencies to foot the bill”). 34. CHRISTIANA BRATIOTIS ET AL., THE HOARDING HANDBOOK: A GUIDE FOR HUMAN SERVICE PROFESSIONALS 129–30 (2011); S.F. TASK FORCE REPORT, supra note 33, at 50. 35. Randy O. Frost et al., Cognitive and Behavioral Treatment of Compulsive Hoarding, 3 BRIEF TREATMENT & CRISIS INTERVENTION 323, 335–36 (2003) [hereinafter Frost et al., Cognitive and Behavioral Treatment]; Frost et al.,

Community Health Problem, supra note 10, at 234; Saxena et al., supra note 16, at 1038. 36. S.F. TASK FORCE REPORT, supra note 33, at 50; see also Tamara L. Hartl & Randy O. Frost, Cognitive-Behavioral Treatment of Compulsive Hoarding: A Multiple Baseline Experimental Case Study, 37 BEHAV. RES. & THERAPY 451, 460 (1999) (noting that hoarders often compare parting with their possessions to losing a child or loved one, or to a part of oneself dying). 37. See Anna Griffin, Hoarder Killed in North Portland House Fire Lived in Plain Sight, Leaving a Trail of Questions, OREGONLIVE (Dec. 8, 2012, 8:11 PM), (URL removed for reprint). (describing a seventy-one-year-old hoarder who fought so vigorously against city authorities attempting to clean her property that they called the police, who proceeded to knock her down and pepper spray, tase, and handcuff her). 38. Ligatti, supra note 11, at 100–01. 39. Hartl & Frost, supra note 36, at 460; Ligatti, supra note 11, at 108; S.F. TASK FORCE REPORT, supra note 33, at 50. 40. Hartl & Frost, supra note 36, at 460; see also, e.g., Ligatti, supra note 11, at 105 (demonstrating that there are task forces throughout the United States); FAIRFAX CTY. HOARDING TASK FORCE, supra note 21, at 18 (describing the task force’s process since inception); S.F. TASK FORCE REPORT, supra note 33, at 81–82 (describing the task force’s early results). 41. Ligatti, supra note 11, at 104. 42. Id. at 104–05; FAIRFAX CTY. HOARDING TASK FORCE, supra note 21, at 7. 43. S.F. TASK REPORT, supra note 33, at 45–46. 44. Avery, supra note 2, at 818. 45. Id. at 817–18. 46. Randy O. Frost et al., Comparison of Object and Animal Hoarding, 28 DEPRESSION & ANXIETY 885, 886–87 (2011) [hereinafter Frost et al., Comparison]. 47. HARC REPORT, supra note 3, at 1. There is not a set number of animals that qualifies an individual as a hoarder; the determination centers on the owner’s ability to provide proper care. Avery, supra note 2, at 821–22

(comparing a woman who died leaving one hundred cats, all of which were healthy and well cared-for, to another woman who was determined to be a hoarder upon discovery of her six cats in terrible conditions). 48. HARC REPORT, supra note 3, at 1; Victoria Hayes, Detailed Discussion of Animal Hoarding, ANIMAL LEGAL & HIST. CTR. (2010), (URL removed for reprint). 49. Frost et al., Comparison, supra note 46, at 887. 50. See supra notes 25–29 and accompanying text. 51. Avery, supra note 2, at 828; Colin Berry et al., Long-Term Outcomes in Animal Hoarding Cases, 11 ANIMAL L. 167, 169–70 (2005); Public Health for Hoarding of Animals Research Consortium, TUFTS U. CUMMINGS SCH. VETERINARY MED., (URL removed for reprint) (last visited Nov. 13, 2017). 52. See Hayes, supra note 48. 53. Avery, supra note 2, at 833, 856. 54. Id. at 820–21; Susan E. Davis, Prosecuting Animal Hoarders Is like Herding Cats, CAL. LAW., Sept. 2002, at 26, 28 (describing a “well-dressed, retired real estate agent who lives in a . . . [nice] neighborhood, drives a Mercedes-Benz, and has enough money to have bought a 1,600-square-foot, $250,000 second home” in which authorities found 200 cats, some of which were dead). 55. Avery, supra note 2, at 821; see also Animal Hoarding Case Study: Vikki Kittles, ANIMAL LEGAL DEF. FUND (URL removed for reprint) (last visited Nov. 13, 2017) (detailing the story of Vikki Kittles, a woman who, for over two decades, used multiple aliases and convincing charm, and frustrated several court systems across five states to hoard and harm hundreds of animals). 56. See, e.g., Elise Franco, Neighbors of Filthy Home in Canfield Report Nothing Out of the Ordinary, VINDY (Oct. 29, 2009, 12:10 AM), (URL removed for reprint). (recounting the astonishment of neighbors upon discovering that a couple with two young children had been hoarding ten dogs “in a house filled with mold, garbage, animal and human waste”); Animal Hoarding Discovered in Springfield; 50 Animals Saved, HAW. NEWS NOW (Oct. 12, 2015, 9:46 PM), (URL removed for reprint).

(describing a case in which neighbors were not aware that so many animals were being kept in a home that subsequently was condemned). The Author of this Article knew one person charged in the Canfield, Ohio case personally, and the home was less than a block from where the Author grew up and where her family still lives. She can verify that the home appeared orderly and normal from the outside, with no odd smells emanating from within; in fact, it was one of the nicer, more expensive homes in the area. Nothing suggested that behind its doors lay what the county dog warden called the worst case of animal abuse he had encountered in three decades, where it took him multiple days to locate all of the dogs living inside, and where a detective noted, “It was like walking in two inches of maple syrup. That’s how saturated the rugs were with urine and feces.” Elise Franco, Canfield’s ‘Filthy’ House, VINDY (Oct. 28, 2009, 12:01 AM) [hereinafter Franco, Canfield’s ‘Filthy’ House], (URL removed for reprint). , Animal Cruelty, WFMJ, (URL removed for reprint). 57. Gary J. Patronek, Hoarding of Animals: An Under-Recognized Public Health Problem in a Difficult-to-Study Population, 114 PUB. HEALTH REP. 81, 84 (1999) [hereinafter Patronek, Hoarding of Animals] (noting that animals were discovered dead or in very poor condition in forty-three of fifty-four hoarding cases studied); see also, e.g., Avery, supra note 2, at 824–25 (describing cases from different states where hoarders were found living with dozens to hundreds of both living and dead animals, and where the living animals often had to be euthanized due to poor health or socialization problems); Franco, Canfield’s ‘Filthy’ House, supra note 56 (noting that, with the exception of one dog, all animals rescued had to be euthanized immediately or died before reaching the pound). 58. See WAISMAN ET AL., supra note 23, at 113 (summarizing a North Carolina case in which local law enforcement and animal control received complaints for four years regarding a property that ultimately was found to house “close to 450 dogs, many suffering severely and all living in filth with basic health needs neglected”). 59. HARC REPORT, supra note 3, at 30, 32 (examining cooperative animal hoarding treatment strategies influenced by high recidivism rates); see also, e.g., Avery, supra note 2, at 834–35 (describing multiple incidents where authorities removed hoarders’ animals only to have them begin accumulating

animals again almost immediately, illustrating the “old adage” that animal hoarders “will pick up a stray cat on the way home from the courthouse”); Sandy Miller, Objects of Their Affection: The Hidden World of Hoarders, BEST FRIENDS MAG., Jan.–Feb. 2008, at 21, 58 (“You can remove the animals, but it doesn’t remove the hoarder’s need to continuously acquire and possess animals.”). 60. HARC REPORT, supra note 3, at 2. 61. See supra notes 14–16 and accompanying text. 62. See Frost et al., Comparison, supra note 46, at 887–88 (noting that animal hoarding may be connected to or caused by conditions like dementia, or dissociative, attachment, delusional, personality, or antisocial disorders). 63. HARC REPORT, supra note 3, at 19; see also Avery, supra note 2, at 824 (“[A]lthough animal hoarders may have a genuine interest in helping a few needy animals, because they are unable or unwilling to provide basic veterinarian care including sterilization, small and already large collections grow to overwhelming populations because animals that are not spayed or neutered are allowed to breed.”). 64. See, e.g., HARC REPORT, supra note 3, at 20; Randy O. Frost et al., The Hoarding of Animals: An Update, PSYCHIATRIC TIMES 3 (Apr. 30, 2015) [hereinafter Frost et al., Update], (URL removed for reprint). 65. HARC REPORT, supra note 3, at 19. 66. Id. (listing life changes that contribute to a decline in the capability to provide care, such as the loss of a loved one who helped with the animals, illness or disability, or a sudden change in income). 67. Id.; JENNIFER COFFEY, THE NEW YORK CITY DEPARTMENT OF HEALTH AND MENTAL HEALTH ANIMAL HOARDING PROJECT 10, 73 (2007), (URL removed for reprint) (stating that future implementation of a program designed to address the human behaviors behind animal hoarding would only be offered to overwhelmed caregivers due to their greater willingness to accept assistance and make changes). 68. Miller, supra note 59, at 60–61. 69. Id. at 60. 70. Id. 71. Id.

72. Id. at 60–61 (noting that the woman moved to a new home with about half of the cats, where she planned to keep the oldest few and continue to find homes for the younger ones). 73. Amanda I. Reinisch, Characteristics of Six Recent Animal Hoarding Cases in Manitoba, 50 CANADIAN VETERINARY J. 1069, 1070 (2009). 74. Id. 75. Id. 76. Id. 77. HARC REPORT, supra note 3, at 19; Miller, supra note 59, at 22. 78. HARC REPORT, supra note 3, at 19–20; see also Avery, supra note 2, at 823–24 (summarizing cases in which hoarders acquired animals by these methods). 79. HARC REPORT, supra note 3, at 20; see also Miller, supra note 59, at 21 (describing a case in which authorities found “around 700 cats” that were “living in horrible conditions” on the property of a nonprofit organization that was operating as a rescue under the leadership of a woman who would not permit volunteers to enter and who changed the locks regularly to prevent access). 80. HARC REPORT, supra note 3, at 20; Miller, supra note 59, at 22. 81. Miller, supra note 59, at 59 (noting that animal hoarders’ “self-esteem is very much tied into their hoarding behavior” because they believe that their animals would die without them, and that often they are trying to compensate for lacking nurturing relationships from the significant humans in their lives, such as from parents who were abusive, absent, or inconsistent); see also Gary J. Patronek & Jane N. Nathanson, A Theoretical Perspective to Inform Assessment and Treatment Strategies for Animal Hoarders, 29 CLINICAL PSYCHOL. REV. 274, 279 (examining animal hoarders’ compulsive need to serve as caregiver as a self-reparative response to rejection and abandonment by humans). 82. HARC REPORT, supra note 3, at 20; see also A Closer Look at Animal Hoarding, ASPCA, (URL removed for reprint). (listing signs indicating that an alleged rescue group may really involve hoarding, including an unwillingness to let anyone see where the animals are

kept or to disclose the number of animals kept there, and receiving new animals at a remote location to prevent access to their facilities). 83. See Laura Leslie, State Failed for Years to Hold Hoke Animal Shelter to Standards, WRAL (Jan. 29, 2016), (URL removed for reprint). 84. Id. 85. See id. (noting that the spokesman conceded that the state still should have acted sooner). This also demonstrates how ill-equipped many authorities continue to be to handle large-scale hoarding cases, and how reluctant they can be to step in as a result. See id.; see also Animal Hoarding Case Study: Vikki Kittles, supra note 55 (providing examples of authorities that dropped charges and incentivized Kittles to leave the jurisdiction rather than attempt to deal with her). 86. Leslie, supra note 83. 87. Id.; Amanda Dolasinski & Alicia Banks, Dead Animals Found Buried on Haven Shelter Property, FAYETTEVILLE OBSERVER (Jan. 28, 2016, 10:25 AM), (URL removed for reprint). 88. Dolasinski & Banks, supra note 87 (noting that the hundreds of animals on the property, including dogs, cats, horses, pigs, and birds, “waded through feces and broken glass” and were “suffering from untreated medical issues including open wounds, severe upper respiratory disease and emaciation”). The Spears are not permitted to access the property during the criminal investigation. Id. Yet, The Haven’s website continues to operate and request donations, with the following note on the front page: We are deeply saddened that, after twenty years and 35,000 adoptions, we have had to put all operations on hold. In recent days, critics have sadly chosen to ignore all the good two decades of rescuing pets have brought to the community. Don’t let their voices be the only ones. Spread the word on social media and to the press about all the positive aspects of The Haven. THE HAVEN FRIENDS FOR LIFE (URL removed for reprint) (last visited Nov. 13, 2017). The message goes on to list media contacts and “talking points” extolling the virtues of “the most successful rescue in North Carolina.” Id. 89. See People v. Youngblood, 91 Cal. App. 4th 66 (Cal. Ct. App. 2001). 90. Id. at 68–69. 91. Id. at 69.

92. Id. at 72. The court determined that the necessity defense was not available. Id. 93. HARC REPORT, supra note 3, at 20. 94. Id.; see also, e.g., Patronek & Nathanson, supra note 81, at 279 (“Indeed, by positioning him/herself as a rescuer, shelter or hospice, a hoarder may believe s/he has acquired a socially acceptable persona and use this to deflect external criticism of his/her failed efforts to properly care for animals.”); Miller, supra note 59, at 59 (“Hoarders often believe that they, and only they, can save the lives of these animals.”). 95. HARC REPORT, supra note 3, at 20. 96. Id.; Patronek & Nathanson, supra note 81, at 279; Miller, supra note 59, at 22; COFFEY, supra note 67, at 11–12. 97. HARC REPORT, supra note 3, at 20; COFFEY, supra note 67, at 12. 98. See COFFEY, supra note 67, at 11–12 (describing the activities of exploiter hoarders in New York City, including accepting help at first only to renege later, limiting access to their properties, oscillating between crying and proclaiming their love for their animals and screaming declarations of harassment, threatening lawsuits, deflecting blame, generally trying to control the situation, and demonstrating that they were using the animals for self-satisfaction). 99. Joshua Marquis, The Kittles Case and Its Aftermath, 2 ANIMAL L. 197, 197–98 (1996); Animal Hoarding Case Study: Vikki Kittles, supra note 55 (detailing Kittles’s hoarding behavior in Florida, Mississippi, Colorado, Washington, and Oregon). 100. Animal Hoarding Case Study: Vikki Kittles, supra note 55. 101. Id. (quoting one prosecutor as stating, “I held out little hope, based on how she behaved, that the trial would have been short. It could have lasted for days. . . . I don’t want to burn up the jury pool on cases like that.”). After Kittles threatened a different prosecutor, judge, and jury, that prosecutor declared, “I’m more afraid of Vikki Kittles than people I’ve put in prison (for murder).” Kelly Milner, Vikki Kittles Nationally Known for Collecting Animals, WYO. TRIB. EAGLE (July 14, 2002), (URL removed for reprint). 102. Animal Hoarding Case Study: Vikki Kittles, supra note 55. It is unclear whether Kittles began hoarding again after her latest recorded incarceration in 2003, although it is likely, considering her past behavior. See id. She is reported

to have brought a very ill dog to a veterinarian in Colorado in 2006, but she could not pay for the necessary treatment and the veterinarian euthanized the dog, after which Kittles allegedly brought legal action. Id. As of at least 2015, she appeared to have been living in Wyoming, as evidenced by a social media account purporting to belong to her. See VikkiRene Kittles, GOOGLE+, (URL removed for reprint) (last visited Nov. 13, 2017). The social media page is filled with posts specific to that state that almost entirely concern saving various types of animals, but the posts end abruptly in May 2015. Id. 103. Reinisch, supra note 73, at 1070–71 (noting that the rabbits were found in filthy, cramped cages in the basement, with no ventilation, near a very hot furnace and water heater). 104. Id. at 1071. 105. Id. 106. Id. In this sense, the woman demonstrated some overlap with the tendencies of rescuer hoarders. See HARC REPORT, supra note 3, at 20. 107. Reinisch, supra note 73, at 1071. 108. Id. 109. Id. at 1072; HARC REPORT, supra note 3, at 20. 110. HARC REPORT, supra note 3, at 20; Miller, supra note 59, at 22. 111. HARC REPORT, supra note 3, at 20. 112. Id. 113. Id. 114. See id.; see also Who Is an Animal Hoarder?, ANIMAL HOARDING PROJECT, (URL removed for reprint) (last visited Nov. 13, 2017) (“Early intervention is the key.”). 115. HARC REPORT, supra note 3, at 19. 116. Frost et al., Comparison, supra note 46, at 887; COFFEY, supra note 67, at 13. 117. Frost et al., Comparison, supra note 46, at 889; see also Patronek & Nathanson, supra note 81, at 277 (describing hoarders’ attachment to their belongings). 118. Patronek & Nathanson, supra note 81, at 277–78.

119. Id.; Frost et al., Comparison, supra note 46, at 887 (“People who hoard animals . . . often refus[e] to give up animals who are clearly sick, dying, or even already dead.”). 120. See HARC REPORT, supra note 3, at 3, 15 (listing many service agencies that play a role in resolving animal hoarding cases, including those that focus on “animal welfare, human health and mental health, housing, law enforcement, sanitation, and the environment,” and noting that “relatively uncomplicated” hoarding cases easily can cost thousands to address, while the expense associated with more complex cases may reach into six figures). 121. Avery, supra note 2, at 839 (“[A]nimal hoarder rescues can double a shelter’s population overnight; large rescues can force shelters into bankruptcy.”); Frost et al., Community Health Problem, supra note 10, at 233. 122. HARC REPORT, supra note 3, at 1, 3. 123. Id. 124. Id.; see also, e.g., LISA ANNE ZILNEY, LINKING ANIMAL CRUELTY AND FAMILY VIOLENCE 125 (2007) (describing how authorities in Colorado had to don gas masks to enter a home in which they found twenty-eight living and dead dogs and cats, stacks of trash, and a thirteen-year-old, mentally disabled girl and explaining that the girl’s guardian, a registered nurse, pleaded guilty to misdemeanor child abuse and animal cruelty); Frost et al., Comparison, supra note 46, at 887 (noting that while clutter is common to both object and animal hoarding, squalor features prominently in “nearly 100%” of animal hoarding homes, but only in a minority of object hoarding homes); Canfield Couple Plead Guilty to Child Endangering, Animal Cruelty, supra note 56 (noting that the couple in that case were charged with six counts of cruelty to animals and two counts of endangering their two children, ages two and seven). 125. See supra notes 46–51 and accompanying text. 126. Patronek, Hoarding of Animals, supra note 57, at 82–85; see also Berry et al., supra note 51, at 168 (“[A]nimal hoarding . . . causes untold suffering to many thousands of animals.”). 127. HARC REPORT, supra note 3, at 2, 13. 128. Id. at 3–12, 19. 129. See id. at 19–20 (comparing the different types of hoarders and the likelihood of their amenability to intervention).

130. Id. at 27; supra note 39 and accompanying text. 131. HARC REPORT, supra note 3, at 13, 27. 132. Id. at 3–4. 133. Id. at 3, 15–16. 134. Id. at 15. 135. Id. at 15–16. 136. Id. at 16 (noting that, for example, social services and prosecutors can work together to provide “less adversarial options” for hoarders who are disabled or ill, saving expense and time). 137. See id. at 21. 138. Id. 139. See infra Part III. 140. See HARC REPORT, supra note 3, at 21. 141. See id. (noting that criminal prosecution is often unnecessary and may be harmful to overwhelmed caregivers); see also, e.g., Madeline Bernstein & Barry M. Wolf, Time to Feed the Evidence: What to Do with Seized Animals, 35 ENVTL. L. REP. 10679, 10681–83 (exploring the problems with treating animals as evidence in criminal cases, and the complications both shelters and the animals face when impounding large numbers of animals seized in hoarding cases); William A. Reppy, Jr., Citizen Standing to Enforce Anti-Cruelty Laws by Obtaining Injunctions: The North Carolina Experience, 11 ANIMAL L. 39, 44 (2005) (observing that a civil remedy can reduce expenses in the context of prosecuting large animal fighting cases). 142. See infra Sections III.A–C. 143. James Hettinger, Solid Bonds, ANIMAL SHELTERING, May–June 2013, (URL removed for reprint). 144. Id.; see also HARC REPORT, supra note 3, at 22 (explaining that civil forfeiture laws have the potential to expedite the animal rescue process). 145. HARC REPORT, supra note 3, at 22 (noting that the burden of proof for civil forfeitures is preponderance of the evidence, as opposed to the criminal standard of beyond a reasonable doubt); see also Bernstein & Wolf, supra note 141, at 10680 (discussing the variance in forfeiture laws). 146. Bernstein & Wolf, supra note 141, at 10679, 10682; see also James Hettinger, The Cost of Care, ALL ANIMALS, Sept.–Oct. 2013, (URL removed for

reprint). (describing a case in which 161 dogs were held as evidence while the related trial lasted for over thirteen months, and noting that such trial durations are “typical” in hoarding cases). 147. See Hettinger, supra note 143. 148. Id. (listing expenses like caging, food, veterinary care, and possibly rental facilities, and noting these costs deter some groups from even attempting to take action in large hoarding cases); HARC REPORT, supra note 3, at 22. 149. HARC REPORT, supra note 3, at 22; Hettinger, supra note 143. 150. Hettinger, supra note 143 (explaining that a good bond law sets a hearing within ten days of animal seizure, and that the defendant should have to pay up front and then again every thirty days that the case continues). 151. See id. 152. Id.; supra note 121 and accompanying text. 153. See Hettinger, supra note 143. 154. Id. (noting that humane groups “often settle for a lighter charge in order to gain custody of the animals”); see also Berry et al., supra note 51, at 179–80 (describing cases in which officials opted to drop or reduce charges in exchange for more immediate custody of the animals, including one such case where the same person then engaged in three separate incidents of hoarding and neglect over the next seven years). 155. Hettinger, supra note 143. 156. Frost et al., Update, supra note 64, at 2. 157. HARC REPORT, supra note 3, at 23. 158. Id. 159. Id. at 27–28. 160. See, e.g., N.C. GEN. STAT. ANN. §§ 19A-1–A-4 (West 2017); Reppy, supra note 141, at 40–41. 161. See, e.g., §§ 19A-2–A-4; Reppy, supra note 141, at 41–43. 162. See Justice for Animals, Inc. v. Robeson Cty., 595 S.E.2d 773, 776–77 (N.C. App. 2004) (“N.C. Gen.Stat. [sic] §§ 19A-1 and 19A-2, however, express the General Assembly’s intent that the broadest category of persons or organizations be deemed ‘[a] real party in interest’ when contesting cruelty to animals.”).

163. Calloway v. Onderdonk, No. COA02-1076, 2003 WL 21499243, at *2–3 (N.C. App. July 1, 2003). Unfortunately, in this case the animals were held in limbo at the local humane society for about seven months before the court granted a permanent injunction giving the plaintiffs custody. See id. 164. Affidavit of Karen Larsen at 2, ¶ 6, Animal Legal Def. Fund v. Conyers, No. 07CVD17739 (Dist. Ct. Wake Cty. Oct. 25, 2007). Janie Conyers, the alleged hoarder, settled the case because she claimed she could not afford the time or costs of trial, although she maintained her innocence and love for her dogs. Woman Settled Animal Rights Lawsuit ‘for the Dogs,’ She Says, WRAL (Dec. 14, 2007), (URL removed for reprint). 165. See Animal Legal Def. Fund v. Woodley, 640 S.E.2d 777, 777–78 (N.C. App. 2007). 166. HARC REPORT, supra note 3, at 23 (noting that local ordinances also may be enacted more quickly than state legislation); Hayes, supra note 48. 167. SOUTH BEND, IND., MUNICIPAL CODE §§ 5-2(i), 5-24 (2005). 168. Id. § 5-111(a), (c). 169. Id. § 5-111(a)–(d). 170. ALTO, GA., CODE OF ORDINANCES § 6-16 (2010). 171. Id. § 6-41(a). 172. Id. § 6-41. 173. See Berry et al., supra note 51, at 172; see also Hoarding, HUMANE SOC’Y U.S (URL removed for reprint) (last visited Nov. 13, 2017) (explaining that “non-animal agencies,” such as the fire department or health department, can use their ordinances and codes to address hoarding). 174. See Hoarding, supra note 173; see also Frost et al., Comparison, supra note 46, at 887 (explaining that object and animal hoarding are both commonly characterized by clutter, disorganization, and lack of sanitation). 175. Berry et al., supra note 51, at 172; Gary J. Patronek et al., The Problem of Animal Hoarding, MUN. LAW., May–June 2001, at 6, 6 [hereinafter Patronek et al., The Problem]. 176. Rebecca F. Wisch, Overview of Pet Number Restrictions in Municipal Ordinances, ANIMAL LEGAL & HIST. CTR. (2004), (URL removed for reprint). 177. Patronek et al., The Problem, supra note 175, at 7.

178. See id.; see also, e.g., People v. Youngblood, 91 Cal. App. 4th 66, 69–70 (Cal. Ct. App. 2001) (demonstrating the ease with which a hoarder can evade pet limitation laws); Wisch, supra note 176 (analyzing additional rationales behind pet limitation laws, including the reduction of noise and smell nuisances, property damage, and biting and mauling injuries). 179. Berry et al., supra note 51, at 179. 180. See HARC REPORT, supra note 3, at 21–22; see also Hayes, supra note 48 (describing the aforementioned Youngblood case to demonstrate the ease with which a hoarder can evade pet limitation laws). 181. See Berry et al., supra note 51, at 172. 182. See Patronek et al., The Problem, supra note 175, at 8. 183. Brian Clausen, Animal Cruelty Laws by State: Is It a Crime to Abuse an Animal?, DOPPLR (Mar. 29, 2016), (URL removed for reprint) 184. See id. 185. WAISMAN ET AL., supra note 23, at 117. 186. See Avery, supra note 2, at 818. 187. WAISMAN ET AL., supra note 23, at 117; Miller, supra note 59, at 57. 188. Berry et al., supra note 51, at 172; see, e.g., CAL. PENAL CODE § 597(b) (West 2017) (providing vague phrases, such as “deprived [any animal] of necessary sustenance, drink, shelter” and “subjects any animal to needless suffering”); D.C. CODE ANN. § 22-1001(a)(1) (West 2017) (expanding on the typical neglect language slightly by stating, “unnecessarily fails to provide [any animal in custody] . . . with proper food, drink, air, light, space, veterinary care, shelter, or protection from the weather”); N.M. STAT. ANN. § 30-18-1(B)(2) (West 2017) (providing vague phrases, such as “failing to provide necessary sustenance to an animal under that person’s custody or control”); N.Y. AGRIC. & MKTS. LAW § 353 (McKinney 2017) (providing vague phrases, such as “deprives any animal of necessary sustenance, food or drink, or neglects or refuses to furnish it with such sustenance or drink”). 189. See ANIMAL MALTREATMENT: FORENSIC MENTAL HEALTH ISSUES AND EVALUATIONS 34 (Lacey Levitt et al. eds., 2016) (noting that statutory language such as “unnecessary suffering” may be intentionally ambiguous, which also “leaves open the possibility for legal interpretations that are

grounded in current science and modern notions of our responsibility towards animals, their care, and their capacity for suffering”). 190. See Jeannie Thomason, Species Specific Nutrition, AM. COUNCIL ANIMAL NATUROPATHY (Feb. 14, 2014 (URL removed for reprint) (“[D]ifferent species have different nutritional requirements.”); see also Cheryl Yuill, Nutrition - General Feeding Guidelines for Dogs, VCA (Nov. 5, 2011), (URL removed for reprint) 6491 (describing the varying nutritional needs of different breeds and ages of dogs). 191. Avery, supra note 2, at 845–48 (noting such unsuccessful challenges in California, Florida, and Missouri). 192. Clausen, supra note 183. 193. HARC REPORT, supra note 3, at 21; supra Section II.A.2 (describing rescuer hoarders). 194. See, e.g., People v. Alvarado, 125 Cal. App. 4th 1179, 1186–87 (Cal. Ct. App. 2005) (analyzing a California animal cruelty statute that uses the terms “maliciously” and “intentionally”); Reynolds v. State, 842 So. 2d 46, 47 (Fla. 2003) (analyzing a Florida animal cruelty statute that uses the term “intentionally” to modify the prohibited acts). 195. Reynolds, 842 So. 2d at 47. 196. Id.; see also Charging Considerations in Criminal Animal Abuse Cases, ANIMAL LEGAL DEF. FUND (URL removed for reprint) (last visited Nov. 13, 2017) (noting that it is “especially demanding” to prove a defendant’s culpable mental state when charged with a specific intent crime). To illustrate, burglary at common law is a specific intent crime that requires the breaking and entering of the dwelling house of another at night “with the intent to commit a felony therein.” ELLEN S. PODGOR ET AL., CRIMINAL LAW: CONCEPTS AND PRACTICE 109 (3d ed. 2013). If the language “with the intent to commit a felony therein” were removed, it would transform common law burglary into a general intent crime, where one need only to commit the acts of breaking and entering the dwelling house of another at night, without any further purpose. Id. 197. See Reynolds, 842 So. 2d at 47. But see Dauphine v. United States, 73 A.3d 1029, 1032–33 (D.C. 2013) (analyzing a cruelty statute that uses the term “knowingly” and holding that it requires “general intent with malice,” meaning that the actor cannot justify the behavior and was “at least aware” of the

suffering that would likely result). Dauphine was not a hoarding or neglect case and concerned the acts of a woman who allegedly attempted to poison neighborhood cats, but if a court were to apply this slightly enhanced version of general intent, that may assist some hoarders in their defenses if they could prove that they truly believed they were providing adequate care and did not recognize the compromised wellness of their animals. See id. 198. HARC REPORT, supra note 3, at 21. 199. See Martinez v. State, 48 S.W.3d 273, 276 (Tex. App. 2001). Martinez was not categorized as a hoarding case, but it did concern similar issues of neglect when an elderly woman “known in her neighborhood for taking in homeless animals” allowed one of her dogs to become extremely malnourished and develop a skin condition so severe it prevented investigators from being able to determine his color. Id. at 275. 200. See Jacob E. McKnite, Note, When Reasonable Care Is Unreasonable: Rethinking the Negligence Liability of Adults with Mental Retardation, 38 WM. MITCHELL L. REV. 1375, 1384–85 (2012) (summarizing the scholarly debate regarding holding mentally disabled individuals to the reasonable person standard, but listing examples proving that courts “have overwhelmingly treated mentally disabled defendants under the objective standard of care”). 201. See Man Who Raped, Killed Goat While on Bath Salts Declared Not Competent for Trial, CBS DC (Sept. 20, 2012, 3:18 PM), (URL removed for reprint) (noting that a judge sent a man charged with animal cruelty to a mental hospital for six years after accepting his plea of not guilty by reason of mental disease or defect); see also Cox v. State, 453 S.E.2d 471, 473 (Ga. Ct. App. 1995) (holding that evidence of a mentally retarded defendant’s diminished capacity may have been relevant to his animal cruelty charge, but that it was not erroneous for the trial court to have excluded it when the defendant did not provide adequate notice). 202. HARC REPORT, supra note 3, at 21; Berry et al., supra note 51, at 184. Recent cases in Oregon suggest that this might be starting to change, however; in one decision, the state appellate court upheld forty-five separate convictions of animal neglect for a woman who was hoarding cats. State v. Hess, 359 P.3d 288, 289–90 (Or. Ct. App. 2015). That court relied on reasoning in a case that the Oregon Supreme Court vacated earlier that year for lack of jurisdiction, in

which it otherwise would have upheld twenty separate counts of neglect for one defendant. Id.; State v. Nix, 345 P.3d 416, 418 (Or. 2015). 203. Berry et al., supra note 51, at 184. 204. Id. (noting that this practice should apply to both living and dead animals, and may be accomplished through the use of collars, photography, or microchips). 205. Hayes, supra note 48. 206. See Patronek et al., The Problem, supra note 175, at 7–8 (noting the importance of mental evaluations and continued monitoring to reducing hoarding recidivism). 207. Avery, supra note 2, at 839. See generally Arnold Arluke et al., Press Reports of Animal Hoarding, 10 SOC’Y & ANIMALS (2002) (analyzing the portrayal of animal hoarding in 100 media articles). 208. See supra Section II.A.3 (describing exploiter hoarders). 209. Avery, supra note 2, at 839; Sandra Sylvester & Curtis W. Baranyk, When Animal Hoarding Is Warehousing for Profit/Part 1, 1 TALES JUST. 1 (2011), (URL removed for reprint). 210. See Patronek, Hoarding of Animals, supra note 57, at 86; see also supra note 102 and accompanying text (summarizing the activities and relapses of an infamous exploiter hoarder). 211. See Avery, supra note 2, at 841. 212. See Patronek, Hoarding of Animals, supra note 57, at 86. 213. Id. 214. Bernstein & Wolf, supra note 141, at 10681, 10683. 215. Patronek, Hoarding of Animals, supra note 57, at 86. 216. Id. 217. See supra Section II.A.1 (describing overwhelmed caregivers). 218. Patronek, Hoarding of Animals, supra note 57, at 86. 219. Berry et al., supra note 51, at 183–84. 220. Id. (noting that some judges ordered the return of seized animals to the hoarder before trial even began, while others ordered the animals held for the duration of trial; one appeal pended trial for months, and in that time the defendant began hoarding again); see also Frost et al., Community Health Problem, supra note 10, at 233 (noting that this problem also extends to object

hoarding, where some judges issued fines and orders of condemnation and removal, whereas others were unwilling even to hear the cases). 221. Berry et al., supra note 51, at 171–72. 222. Id. 223. Berry et al., supra note 51, at 173, 188; Patronek et al., The Problem, supra note 175, at 8–9. 224. ADAM P. KARP, UNDERSTANDING ANIMAL LAW 475 (2016); see also, e.g., FAIRFAX CTY. HOARDING TASK FORCE, supra note 21, at 14, 18 (discussing the involvement of courts, not in the context of criminal prosecution, but of mandating participation in the task force’s object hoarding treatment program); S.F. TASK FORCE REPORT, supra note 33, at 49–50 (noting that the misunderstanding of those who work in the court system can be a barrier to effective care in object hoarding cases, and that legal action can be counterproductive); Introducing the Philadelphia Hoarding Task Force, COMMUNITY LEGAL SERVICES PHILA. (Feb. 11, 2015), (URL removed for reprint). People who hoard belongings or animals often face severe personal and legal consequences, including shame, depression, social withdrawal, eviction, condemnation, forced cleanout, child protective services and even criminal charges for animal hoarding.” (emphasis added)). 225. HARC REPORT, supra note 3, at 29–30. 226. KARP, supra note 224, at 475. 227. Cf. id. (implying that the mere existence of animal cruelty statutes guarantees that animal victims have statutory protections equal to their human counterparts). 228. And with a treatment plan like that provided by a task force, an object hoarder is less likely to start hoarding again, better preserving his or her own health and that of any neighbors. See Ligatti, supra note 11, at 104–07. 229. Avery, supra note 2, at 834–35. 230. See Patronek & Nathanson, supra note 81, at 279–80. 231. Patronek, Hoarding of Animals, supra note 57, at 86. 232. See Avery, supra note 2, at 857. 233. See Chris Berry, All 50 States Now Have Felony Animal Cruelty Provisions!, ANIMAL LEGAL DEF. FUND (Mar. 14, 2014 (URL removed for reprint) (noting “an undeniable trend favoring humane treatment of animals”);

see also People v. Speegle, 53 Cal. App. 4th 1405, 1418 (Cal. Ct. App. 1997) (“In the panoply of . . . [animal cruelty statutes enacted in California], the Legislature has manifested an unmistakable intent to prevent cruelty to animals and to provide for the removal of animals from the custody of those not fit to keep them.” (citing People v. Untiedt, 42 Cal. App. 3d 550, 554 (Cal. Ct. App. 1974))). 234. Jason Schwalm, Animal Cruelty by Another Name: The Redundancy of Animal Hoarding Laws, 1 J. ANIMAL & ENVTL. L. 32, 57 (2009); Hayes, supra note 48. 235. Schwalm, supra note 234, at 48; Hayes, supra note 48. 236. Schwalm, supra note 234, at 48. 237. See Hayes, supra note 48 (noting arguments that animal hoarding should be distinguished from other types of cruelty). 238. See supra Section II.A.2 (describing rescuer hoarders). 239. Patronek, Hoarding of Animals, supra note 57, at 86. 240. See id. 241. HARC REPORT, supra note 3, at 21; Berry et al., supra note 51, at 184. 242. See HARC REPORT, supra note 3, at 21; see also Patronek et al., The Problem, supra note 175, at 8 (discussing service agencies and organizations that are suited to assist in the resolution of hoarding cases). 243. Patronek, Hoarding of Animals, supra note 57, at 86. 244. Hayes, supra note 48. 245. See supra notes 167–72 and accompanying text (summarizing two example municipal hoarding ordinances). 246. See supra notes 167–72 and accompanying text. 247. Humane Care for Animals Act, 510 ILL. COMP. STAT. ANN. 70/2.10– 70/3 (West 2017); see also infra Section V.C (discussing Rhode Island’s new animal hoarding law). 248. See supra note 188 (noting various states’ animal neglect provisions). 249. Humane Care for Animals Act 70/3(a). 250. See Megan L. Renwick, Note, Animal Hoarding: A Legislative Solution, 47 U. LOUISVILLE L. REV. 585, 595 (2009). 251. Id.; Berry et al., supra note 51, at 172. 252. Humane Care for Animals Act 70/2.10.

253. Id. at 70/2.01. 254. Id. at 70/2.01(a). 255. Id. at 70/2.10; see also Avery, supra note 2, at 821–22 (noting that hoarding should be identified based on the owner’s ability to provide care, not the number of animals she keeps). 256. Humane Care for Animals Act 70/2.10; see also Renwick, supra note 250, at 599, 604 (noting this potential problem with a different state’s hoarding law that did set forth a minimum number of animals). 257. Humane Care for Animals Act 70/12(a)–(b). 258. Id. at 70/3.05(a), (c). 259. Id. at 70/3.05(c). 260. Id. at 70/3(d), 70/3.01(d). 261. Hayes, supra note 48. 262. Humane Care for Animals Act 70/3(d), 70/3.01(d). 263. See id. at 70/3.01(d). 264. See Renwick, supra note 250, at 599 (“This requirement is the most promising way to prevent hoarders from harming more animals in the future, because it addresses the mental health component of hoarding.”). But see Kathryn M. Campbell, The Paradox of Animal Hoarding and the Limits of Canadian Criminal Law, ANIMAL LEGAL & HIST. CTR. (2012), (URL removed for reprint) (noting that this provision of the Illinois statute is “laudable” on its face, but that a court order mandating psychological or psychiatric evaluation might encroach upon a defendant’s civil liberty rights). 265. See Renwick, supra note 250, at 599. 266. Humane Care for Animals Act 70/2.10. 267. See id. at 70/3(d), 70/3.01. Even though the Act does not proscribe animal hoarding explicitly, just including acknowledging the condition within the law in the first place “encourages the legal system, the media, and Illinois citizens to take animal hoarding seriously.” Renwick, supra note 250, at 599. 268. See Hayes, supra note 48. If a hoarder has not committed acts that meet the statutory standards of neglect, however, then perhaps criminal prosecution is not the best option. See HARC REPORT, supra note 3, at 21. 269. Renwick, supra note 250, at 600–01.

270. Patronek et al., The Problem, supra note 175, at 6; Hayes, supra note 48; see also Humane Care for Animals Act 70/2.01(a) (“‘Companion animal’ includes, but is not limited to, canines, felines, and equines.”). 271. Ingvar Svanberg & Arnold Arluke, The Swedish Swan Lady: Reaction to an Apparent Animal Hoarding Case, 24 SOC’Y & ANIMALS 63, 69–70 (2016). 272. Amy Worden, PA Man Busted for Wild Animal Hoarding, PHILLY.COM (Nov. 1, 2009, 12:53 PM), (URL removed for reprint). 273. See Humane Care for Animals Act 70/2.01(a). 274. Miller, supra note 59, at 22 (quoting the founder of the rescue organization that impounded some of the man’s birds). 275. See Humane Care for Animals Act 70/2.01(a); see also HARC REPORT, supra note 3, at 30 (noting that animal hoarding in general “requires constant follow-up and support”). 276. Humane Care for Animals Act 70/2.10. 277. See Renwick, supra note 250, at 601 (noting that what matters in identifying a hoarding case is not necessarily the amount of space available to the animals, but the condition of that space and the motivations of the alleged hoarder). 278. Miller, supra note 59, at 22. 279. See Humane Care for Animals Act 70/2.10; see also supra note 56 (describing a large home where a couple kept ten dogs that had space but still were gravely neglected and kept in squalor). 280. Humane Care for Animals Act 70/2.10 (emphasis added). 281. Renwick, supra note 250, at 596–97; see also, e.g., HARC REPORT, supra note 3, at 20 (noting that some hoarders are “very articulate . . . and capable of presenting an appearance that conveys believability and competence to officials, the public, and the media”); supra notes 54, 90 and accompanying text (describing cases in which hoarders kept their animals in separate structures). 282. See Renwick, supra note 250, at 596–99. 283. See Patronek et al., The Problem, supra note 175, at 8 (“Cooperation of a broad spectrum of municipal agencies and social service organizations can optimize the resolution of hoarding cases.”). 284. See Hayes, supra note 48. The Act does set forth a civil remedy to an owner whose animal was harmed or killed in bad faith by a third party who was

found guilty under the Act; that owner may pursue a civil action against the guilty party for damages. Humane Care for Animals Act 70/16.3. Of course, this remedy would not be useful in hoarding cases. 285. See, e.g., Martinez v. State, 48 S.W.3d 273, 278 (Tex. App. 2001) (Lopez, ́ J., concurring) (noting that the defendant was elderly and living on a fixed income, and that “[w]hile the jury faced with the evidence discussed in the majority opinion had no choice but to find Martinez guilty [of animal cruelty arising from neglect], I question why this case was ever prosecuted at all. . . . [W]hat purpose was served by prosecuting this little old woman?”). 286. See Humane Care for Animals Act 70/2.10 (noting that the effective date was January 1, 2002). 287. See, e.g., Harry Hitzeman, Animal Hoarding: When ‘Compassion’ Can Become a Crime, DAILY HERALD (Feb. 23, 2014, 6:59 AM), (URL removed for reprint) (describing a case in which police found a man living in squalor with 378 live and 120 dead birds and explaining that the man pleaded guilty to animal cruelty and was sentenced to a year of probation); Harry Hitzeman, Probation, Evaluation in 2012 Elgin Animal Cruelty Case, DAILY HERALD (Sept. 11, 2014, 5:36 PM), (URL removed for reprint) (describing a 2012 case in which a man found with four live and dozens of dead cats, and who faced allegations of animal neglect from as far back as 2006, pleaded guilty to violating the Act’s neglect provision and the Dead Animal Disposal Act in exchange for the dismissal of other charges and explaining that the court ordered a psychological evaluation and prohibited the man from owning any pets during his eighteenmonth probation). 288. See Berry et al., supra note 51, at 179 (noting this tendency in hoarding prosecutions); see also Elgin Man’s 2012 Cat-Hoarding Case Continues, CBS CHI. (Mar. 17, 2014, 6:09 AM), (URL removed for reprint) (summarizing a case in which prosecutors dropped animal cruelty and neglect charges against three people who lived in a home with twenty-two dogs and four cats in exchange for their guilty pleas on inoculation charges, fines, and promises to limit or not own any more animals). 289. See People v. Curtis, 944 N.E.2d 806, 808–11 (Ill. App. Ct. 2011). Curtis called animal control to remove eighty-seven cats, most of which suffered from infections, from her filthy two-bedroom townhouse. Id. at 808–09. She was

convicted of violating the Act’s neglect provision with respect only to one cat, however. Id. at 811. The case does not mention the hoarding definition, perhaps because Curtis claimed that she only considered five of the cats to be her pets, keeping them in a separate room and providing them necessary veterinary care, and that the rest “just came to the door at night.” Id. at 810. The case seemed ripe for a hoarding designation, but even though there is no mention of a mental health evaluation, the court did order Curtis not to own any companion animals for two years, during which time the county animal services department would conduct monthly searches of her home to ensure compliance. Id. at 811. Research did not reveal any published incidences of Curtis hoarding again. 290. Christy Gutowski, Berwyn Mom: I’m No Monster, CHI. TRIB. (Oct. 3, 2011), (URL removed for reprint) Clifford Ward, Woman Convicted of Animal Cruelty Sentenced to Probation, Must Have Mental Evaluation, CHI. TRIB. (Aug. 12, 2014, 12:23 PM), (URL removed for reprint) 291. Gutowski, supra note 290. 292. Ward, supra note 290. 293. Id. 294. See Gutowski, supra note 290. 295. Hayes, supra note 48. 296. Hawaii Revised Statutes Annotated, ANIMAL LEGAL & HIST. CTR., (URL removed for reprint) (last updated Feb. 2017). 297. HAW. REV. STAT. ANN. § 711-1109.6 (repealed 2015). 298. See S. 25-85, Reg. Sess., at 2 (Haw. 2009). 299. See infra notes 300–05 and accompanying text (describing Hawaii’s animal hoarding law). 300. Hawaii Revised Statutes Annotated, supra note 296. 301. See supra notes 271–72 and accompanying text (describing cases in which hoarders kept animals other than dogs and cats). 302. Renwick, supra note 250, at 604. 303. Id. 304. See supra Sections II.A.2–3 (describing rescuer and exploiter hoarders).

305. Renwick, supra note 250, at 599; see also HARC REPORT, supra note 3, at 1, 11 (noting that failure to address the mental health component of hoarding is one of the reasons hoarding intervention fails to prevent recidivism). 306. S. 2522, 2016 Gen. Assemb., Jan. Sess. (R.I. 2016). 307. 4 R.I. GEN. LAWS ANN. § 4-1-1(a)(1), (5) (West 2017). 308. S. 2522 (proposing to amend section 4-1-1(a) by adding subsection (6)). 309. Id. (proposing to amend section 4-1-1(a) by adding subsection (6)). 310. § 4-1-1(a)(5). 311. Id. As is the case in many state animal cruelty laws, this law does not apply to livestock used for food or fiber. Id. §§ 4-1-1(a)(5), 4-26-3(7). 312. S. 2522 (proposing to amend section 4-1-1(a) by adding subsection (6)). 313. Id.; see also supra notes 277–79 and accompanying text (describing hoarding cases where animals were not kept in overcrowded conditions). 314. See S. 2522 (proposing to amend section 4-1-1(a) by adding subsection (6)). 315. See Hayes, supra note 48 (describing failed hoarding bills in Montana, New Mexico, and Vermont); see also, e.g., H.R. 5946, 94th Leg., Reg. Sess. (Mich. 2008) (noting a failed Michigan hoarding bill); Assemb. 2981, 213th Leg., Reg. Sess. (N.J. 2008) (noting a failed New Jersey hoarding bill). 316. See infra Sections V .D.1–4. 317. H.R. 2330, 52d Leg., 2d Reg. Sess. (Ariz. 2016). 318. ARIZ. REV. STAT. ANN. § 13-2910(H)(1) (West 2017); see also H.R. 2330 (proposing to amend section 13-2910(H)(1) to be section 13-2910(I)(1)). The proposed bill would exempt livestock and poultry used in agriculture from the cruelty laws, likely because agricultural animals often are kept in confined spaces and euthanized in manners that may be considered cruel if employed outside of that industry. See id.; see also Kelly Levenda, Customary Cruelty in the Farm Industry: When Animal Abuse Is Legal, ANIMAL LEGAL DEF. FUND (Apr. 3, 2015), (URL removed for reprint) (explaining that state anti-cruelty laws typically create an exception for agricultural animals due to “customary farming practices”). 319. Bill History for HB2330, ARIZ. ST. LEGISLATURE, (URL removed for reprint) (indicating that the bill is “Held in Committees”). 320. H.R. 2330 (proposing to amend section 13-2910(G)).

321. See id. The near-total recidivism rate applies to animal hoarders in general, however, not just to exploiter hoarders. See HARC REPORT, supra note 3, at 2. This is true even though overwhelmed caregivers are “more likely to respect the system and comply with recommendations.” See id. at 19. Therefore, even cooperative overwhelmed caregivers may benefit from mental health evaluations and treatment. See id. (noting that overwhelmed caregivers develop strong attachments to their animals and tend to suffer from other psychological disorders). 322. H.R. 2330 (proposing to amend section 13-2910(G)). 323. See id. (proposing to amend section 13-2910(G)). But see supra note 283 and accompanying text (suggesting that although requiring mental health evaluations for those convicted of animal hoarding is a good idea, consulting multiple agencies in determining treatment is ideal). 324. H.D. 4667, 2016 Leg., Reg. Sess. (W. Va. 2016) (proposing to amend W. VA. CODE ANN. § 61-8-19(d) (West 2017) by adding subsection (1)); West Virginia House Bill 4667, LEGISCAN, (URL removed for reprint) 2008 (last visited Nov. 13, 2017); see also supra note 252 and accompanying text (providing the definition of “companion animal hoarder” in the Illinois Act). 325. H.D. 4667 (proposing to amend section 61-8-19(d) by adding subsection (1)); see also supra notes 260–61 and accompanying text (explaining that under the Illinois Act, a prosecutor must charge an animal hoarder with violation of another crime, such as neglect or cruelty). 326. See H.D. 4667 (proposing to amend section 61-8-19(d) by adding subsection (1)); see also supra note 252 (providing the definition of “companion animal hoarder” in the Illinois Act, which includes the requirement of a “severely overcrowded environment”). 327. W. VA. CODE ANN. § 19-34-2(2)–(3) (West 2017). The definition of “domestic animal” does refer to companion animals, but does not specifically construe that term: “Domestic animal” means an animal which, through extremely long association with humans, has been bred to a degree which has resulted in genetic changes . . . to an extent that makes it unique and distinguishable from a wild individual of its species, and includes an animal that has been bred as a companion animal. Id. § 19-34-2(3). If a court were to rely on this definition, it could interpret it as excluding exotic pets, birds,

livestock, and other animals that have been victims of hoarding cases. See supra notes 270–72. 328. See supra notes 269–75 and accompanying text (exploring the potential problems with strict interpretation of the term “companion animal”). 329. See infra notes 331–33 and accompanying text. 330. H.D. 4667 (proposing to amend section 61-8-19(d) by adding subsection (2)). 331. Id. (proposing to amend section 61-8-19(d) by adding subsection (3)). 332. See id. 333. Id. (maintaining the current law under section 61-8-19(i) and setting the period of time at five years for a misdemeanor conviction like animal hoarding, and fifteen years for a felony conviction such as animal fighting). 334. HARC REPORT, supra note 3, at 28. 335. Id. 336. Assemb. 1265, 2015 State Assemb., Reg. Sess. (N.Y. 2015). 337. Id. (proposing to amend N.Y. AGRIC. & MKTS. LAW § 353 (McKinney 2017) by adding subsection 353-g(1)). 338. Renwick, supra note 250, at 604. 339. A01265 Summary, N.Y. ST. ASSEMBLY, (URL removed for reprint) (last visited Nov. 13, 2017). 340. Assembly Bill A44, N.Y. ST. SENATE, (URL removed for reprint). 341. Assemb. 1265 (proposing to amend section 353 by adding subsection 353-g(1)(a)); see also supra note 278 and accompanying text (providing the example of the wealthy man with a large, spacious home in which the conditions were still terrible and the animals were neglected). 342. Assemb. 1265 (proposing to amend section 353 by adding subsection 353-g(1)) (emphasis added). 343. See id. (proposing to amend section 353 by adding subsection 353-g). 344. Id. (proposing to amend section 353 by adding subsection 353-g(1)(b)) (emphasis added). 345. Id. (proposing to amend section 353 by adding subsection 353-g(1)(b)). 346. See supra notes 54, 90 and accompanying text (summarizing cases in which hoarders lived separately from their animals).

347. N.Y. AGRIC. & MKTS. LAW § 350(5) (McKinney 2017). Farm animals “raised for commercial or subsistence purposes” are excluded from this definition, but presumably it could apply to hoarded livestock not kept for these reasons. Id. § 350(4)–(5). 348. See id. § 350(5). It is possible, however, that a court could interpret the word “domesticated” generally as meaning animals typically bred to be pets, as opposed to applying to the particular animals involved in each individual case. 349. Assemb. 1265 (proposing to amend section 353 by adding subsection 353-g(2)); see, also, e.g., §§ 373(2), 373(6)(a). 350. § 373(6)(b)(1)–(2). 351. Assemb. 1265 (proposing to amend section 353 by adding subsection 353-g(2)). 352. Id. (proposing to amend section 353 by adding subsection 353-g(2)). 353. See id. (proposing to amend section 353 by adding subsection 353-g(2)). 354. Assemb. 3638, 217th Leg., Reg. Sess. (N.J. 2016); see also Hayes, supra note 48 (analyzing the 2008 New Jersey animal hoarding bill). 355. Assemb. 3638. Bills typically move to the third reading stage within two to three days, so unfortunately after a delay of several months, this proposed law may not advance further. See TOMMY NEAL, LAWMAKING AND THE LEGISLATIVE PROCESS: COMMITTEES, CONNECTIONS, AND COMPROMISES 90 (1996) (noting the usual amount of time between readings); see also How a Bill Becomes Law in New Jersey, N.J. LEGISLATURE, (URL removed for reprint) (last visited Nov. 13, 2017) (clarifying that a New Jersey bill may not go through the second and third reading on the same day unless by emergency vote). 356. Assemb. 3638 (proposing a new section to existing animal cruelty law addressing and defining hoarding). 357. Id. (proposing a new section to existing animal cruelty law addressing and defining hoarding). 358. See id.; see also supra Sections V.A–B (discussing Illinois and Hawaii’s animal hoarding laws). 359. See Assemb. 3638 (proposing a new section to existing animal cruelty law addressing and defining hoarding).

360. See supra notes 203–05 and accompanying text (examining strategies and benefits of prosecuting animal hoarding under one overall count). But see supra note 202 and accompanying text (noting that proceeding under one allencompassing charge might cause courts to view hoarding as less serious than it really is). 361. N.J. STAT. ANN. § 4:22-15 (West 2017). Another introduced bill proposes to add: “The term ‘animal’ shall not include human beings.” Assemb. 3162, 217th Leg., Reg. Sess. (N.J. 2016) (proposing to amend section 4:22-15’s definition of “animal”). 362. § 4:22-15. 363. Id. § 4:22-17(e); see also Assemb. 3638 (maintaining the current penalty of community service, but amending section 4:22-17(e) by placing the community service penalty provision in subsection (1)). 364. Assemb. 3638 (amending section 4:22-17(e) by adding subsection (2)). 365. Id. (amending section 4:22-17(e) by adding subsection (2)). 366. Id. (amending section 4:22-17(e) by adding subsection (h)). 367. See S. 2295, 217th Leg., Reg. Sess. (N.J. 2016) (proposing a new section to existing animal cruelty law). 368. § 4:22-26(cc); see also Assemb. 3638 (maintaining the current civil cause of action that may be brought by various societies). 369. § 4:22-26(cc); see also Assemb. 3638 (maintaining the same penalties provided in the current law). 370. See HARC REPORT, supra note 3, at 21. The fact that this civil provision restates the same definition classified earlier in the bill as criminal behavior suggests that it may work in tandem with criminal charges; if a defendant meets the description of an animal hoarder so that she would have to pay the fine, then most likely she also would meet the criminal standard. See Assemb. 3638 (using the same hoarding definition provided in section 4:22-17, addressing criminal penalties, as in section 4:22-26, addressing civil penalties). Even if so, however, prosecutors can choose not to charge a defendant criminally, so it is possible for a defendant only to be subject to the civil action. See United States v. Batchelder, 442 U.S. 114, 124 (1979) (“Whether to prosecute and what charge to file or bring before a grand jury are decisions that generally rest in the prosecutor’s discretion.”).

371. See supra Part V. 372. See infra Sections VI.A–B. 373. See Renwick, supra note 250, at 590. 374. See id. at 591–94. 375. Schwalm, supra note 234, at 50–51. 376. See supra Section II.A (describing the motivations of the main types of animal hoarders). 377. See supra notes 127–30 and accompanying text. 378. See supra Section II.A. 379. See Our Story, NITRO FOUND., (URL removed for reprint) (last visited Nov. 13, 2017). 380. Id. 381. Id. 382. See supra notes 44–48 and accompanying text. 383. See supra note 65 and accompanying text. That is not to say that one who is convicted of neglect would not benefit from mental health evaluation and treatment, but the treatment schemes may be very different. The defendant in the Ohio neglect case may deserve punishment, including jail time, fines, a prohibition on owning or caring for more animals, and perhaps drug rehabilitation; but that treatment may be inappropriate for a rescuer hoarder, for instance, who might need more intense therapy, counseling, and longerterm monitoring. See supra Section II.A.2 (describing the mental states of rescuer hoarders). In fact the Ohio defendant was sentenced only on four misdemeanor charges and served four months in county jail, resulting in enactment of a new law that provides for felony charges against animal custodians and caretakers who engage in cruelty and neglect. Our Story, supra note 379; Signed into Law and in Effect 2013!, NITRO FOUND., (URL removed for reprint) (last visited Nov. 13, 2017); see also OHIO REV. CODE ANN. §§ 959.131(E)(2), 959.99(E)(4) (West 2017). 384. Wire Services & Jonathan Lloyd, Woman Accused of Dropping Dog with 42-Pound Tumor Off at Shelter Faces Animal Neglect Charges, NBC4 L.A. (Dec. 14, 2016, 1:33 PM), (URL removed for reprint) 385. See id. 386. See id.

387. About Puppy Mills, PUPPY MILL PROJECT, (URL removed for reprint) (last visited Nov. 13, 2017). 388. See Puppy Mills: Frequently Asked Questions, HUMANE SOC’Y U.S. [hereinafter Puppy Mills FAQs], (URL removed for reprint) (last visited Nov. 13, 2017). 389. About Puppy Mills, supra note 387 (“The bottom line is that puppy mills are all about profits. Any money spent on veterinary care, quality food, shelter, or staff to care for the dogs cuts into the profit margin.”). 390. See Puppy Mills FAQs, supra note 388. 391. See HARC REPORT, supra note 3, at 1. 392. See Renwick, supra note 250, at 604; see also supra notes 271–81 and accompanying text (discussing the limitations of the Illinois Act). 393. This suggested definition presumes that “minimum standards of care” is defined elsewhere in the relevant state law. Model Laws: Animal Hoarding, ANIMAL L. & RESOURCE CTR., (URL removed for reprint) (last visited Nov. 13, 2017); see also, e.g., HARC REPORT, supra note 3, at 1 (providing the four main characteristics of animal hoarders); supra Part V (examining various state statutory language). 394. See supra Section II.A (explaining the different types of animal hoarders). 395. See generally HARC REPORT, supra note 3. 396. See Frost et al., Update, supra note 64, at 1 (noting that animal hoarding is not separately defined in the DSM-5). 397. Id. 398. See id. (noting that the question of whether animals can be seen as “possessions” under the DSM-5 “is not yet resolved in the psychiatric literature”); see also Frost et al., Comparison, supra note 46, at 886 tbl.1 (portraying the similarities and differences between object and animal hoarding). 399. See supra notes 401–02 and accompanying text. 400. 7 U.S.C. § 2156 (2014); Preventing Animal Cruelty and Torture Act, S. th

1831, 114 Cong. § 48 (2015). Animal crushing entails people killing small animals by standing on them with high-heeled shoes or bare feet, literally crushing them to death, allegedly satisfying a sexual fetish for those watching.

See Bill Mears, Obama Signs Law Banning ‘Crush Videos’ Depicting Animal Cruelty, CNN (Dec. 10, 2010, 4:48 PM), (URL removed for reprint) Federal law already bans making and selling animal crush videos, and this bill would criminalize the activity itself. S. 1831; Mears, supra. 401. See 7 U.S.C. §§ 2131–2159 (2012); TADLOCK COWAN, CONG. RESEARCH SERV., RS22493, THE ANIMAL WELFARE ACT: BACKGROUND AND SELECTED ANIMAL WELFARE LEGISLATION 1–2 (2016). 402. See Patronek et al., The Problem, supra note 175, at 8–9 (listing the different agencies that should be involved in animal hoarding treatment). 403. See Berry et al., supra note 51, at 181 (providing examples of the problems that result when departments do not share information about past cruelty offenses, and noting that these problems are amplified when dealing with crimes committed in other states). 404. See id.; see also Frost et al., Comparison, supra note 46, at 887 (listing the methods hoarders often use to acquire animals). 405. Tracking Animal Cruelty, FBI (Feb. 1, 2016), (URL removed for reprint) 406. FED. BUREAU OF INVESTIGATION CRIMINAL JUSTICE INFO. SERVS. DIV., U.S. DEP’T OF JUSTICE, NATIONAL INCIDENT-BASED REPORTING SYSTEM (NIBRS) TECHNICAL SPECIFICATION 39 (2017), (URL removed for reprint) 407. See Tracking Animal Cruelty, supra note 405. 408. See Berry et al., supra note 51, at 181 (noting that misdemeanor animal cruelty charges are not reported to other states, making it difficult to monitor animal hoarders); see also FED. BUREAU OF INVESTIGATION, U.S. DEP’T OF JUSTICE, UNIFORM CRIME REPORTING HANDBOOK 2, 27, 31 (2004), (URL removed for reprint) view (noting that the Committee on Uniform Crime Records “formulated standardized offense definitions” that allow for uniform conviction reporting regardless of local felony or misdemeanor status). 409. Tracking Animal Cruelty, supra note 405. 410. See infra Sections VI.B.1–6. 411. See infra Sections VI.B.1–6. 412. Animal Abuse Registry, NYC HEALTH, (URL removed for reprint) (last visited Nov. 13, 2017).

413. Hal Dardick, Animal Abusers Would Be Tracked Under Plan Approved by Cook County Panel, CHI. TRIB. (May 10, 2016, 5:23 PM), (URL removed for reprint) 414. Karin Brulliard, Animal Abusers Are Being Registered like Sex Offenders in These Jurisdictions, WASH. POST (Sept. 13, 2016), (URL removed for reprint). 415. E.g., Patronek et al., The Problem, supra note 175, at 8 (“Even when monitoring is practical, hoarders can escape enforcement by moving to a new jurisdiction, often only across town or county lines.”); Bobbie Hanstein, Jury Convicts New Sharon Woman of Contempt Charge After Animals Are Seized, DAILY BULLDOG (Nov. 16, 2016), (URL removed for reprint) (summarizing the convictions of a Maine hoarder from whom authorities seized a total of around 100 animals between 2004, 2010, and 2014). 416. New State Animal Abuser Registries Proposed in 2016, NAT’L ANTIVIVISECTION SOC’Y (Jan. 21, 2016), (URL removed for reprint) 417. H.D. 4667, 2016 Leg., Reg. Sess. (W. Va. 2016) (proposing to amend West Virginia’s Public Safety article by adding several new provisions establishing an animal abuse registry). 418. Brulliard, supra note 414 (“Shaming . . . [those who neglect their own animals and are unlikely to harm other people or pets] with a public Internet profile is unlikely to affect their future behavior – except perhaps to isolate them further from society and promote increased distrust of authority figures trying to help them.”). 419. H.D. 4667 (proposing to amend West Virginia’s Public Safety article by adding section 15-14-9, which would allow a person convicted of an animal abuse crime to petition the court for removal from the registry). 420. Cf. Tracking Animal Cruelty, supra note 405 (“With the incident-based [reporting], it’s more granular. It tells the story.”). 421. See generally Brulliard, supra note 414 (quoting an animal adoption counselor as saying that a registry “will be a very useful and objective tool for us to lean on when it comes to denying adopters”). 422. See supra notes 40–42 and accompanying text (referencing two cities’ object hoarding task forces and listing various agencies involved). 423. S. 119, 2016 Gen. Assemb., Feb. Sess., An Act Establishing a Task Force to Study Hoarding, 2016 Conn. Acts 16-2 (Spec. Sess.); Kelly Bothum, Delaware

Task Force to Target Hoarding, USA TODAY (Dec. 10, 2013, 8:37 PM), (URL removed for reprint). 424. See S. 119, 2016 Conn. Acts 16-2; Bothum, supra note 423. 425. See THE OXFORD HANDBOOK OF HOARDING AND ACQUIRING 326 (Randy O. Frost & Gail Steketee eds., 2014) [hereinafter OXFORD HANDBOOK]. 426. HARC REPORT, supra note 3, at 15 (noting the costs of animal hoarding cases); see also Patronek et al., The Problem, supra note 175, at 8–9 (explaining the value of hoarding task forces). 427. See OXFORD HANDBOOK, supra note 425, at 326 (listing various resources offering examples, tools, and information for those seeking to organize a multidisciplinary hoarding program). 428. H.R. 5480, 2016 Gen. Assemb., Feb. Sess. (Conn. 2016). 429. Id. 430. Id. 431. See supra Section III.A (analyzing the effectiveness of civil forfeiture and bonding laws in an animal hoarding context). 432. See supra Section III.A. 433. See supra Section III.A. 434. See supra Section III.A. 435. WAISMAN ET AL., supra note 23, at 117 (noting that forfeiture laws are “hotly contested”); Bernstein & Wolf, supra note 141, at 10683–84 (noting that animal ownership is a right, but also a privilege that can be lost if abused and discussing the due process concerns relating to forfeiture). 436. See Bernstein & Wolf, supra note 141, at 10681; see also Berry et al., supra note 51 at 183 (noting hoarding cases that were still pending trial after two years). 437. This type of law differs from bonding laws in that ownership is conditioned upon the alleged hoarder’s ability and willingness to provide care, not upon payment of a bond. Cf. supra Section III.A (describing bonding laws). 438. See Cox v. State, 453 S.E.2d 471, 472 (Ga. Ct. App. 1995) (reasoning that animal cruelty has a relatively low burden of proof requiring only an individual’s actions to cause unjustifiable pain or suffering to an animal regardless of intent or malice).

439. Cat Champion Corp. v. Primrose, 149 P.3d 1276, 1277 (Or. Ct. App. 2006). 440. Id. at 1277–78. 441. Id. at 1278. 442. Id. at 1281. 443. See Bernstein & Wolf, supra note 141, at 10683–84 (recommending prompt forfeiture proceedings). 444. See supra Section III.A (discussing bonding laws). 445. See CAL. PENAL CODE § 597(g)(1) (West 2017) (establishing liability for those convicted of animal cruelty for “all costs of impoundment from the time of seizure to the time of proper disposition”). 446. See Patronek, Hoarding of Animals, supra note 57, at 86 (noting that relying only on animal cruelty laws to address hoarding is “inefficient and expensive” and “can impede timely recognition of important health issues and delivery of needed services”). 447. See id. (“Prosecution offers at best an incomplete solution in the majority of . . . [animal hoarding] cases.”). 448. Cf. Patronek et al., The Problem, supra note 175, at 8–9 (“Be prepared for a long term process and frequent monitoring of the situation.”). 449. Cf. supra Section VI.A.1 (examining the need to distinguish between animal hoarding and neglect). 450. THE HUMANE SOC’Y OF THE U.S., FIRST STRIKE: THE VIOLENCE CONNECTION 10 (2008), (URL removed for reprint) 451. See supra Section IV.C (analyzing the inadequacies of using animal cruelty laws to address hoarding cases). 452. Cf. Berry et al., supra note 51, at 183–84 (noting the inconsistency in hoarding case management and resolution). 453. See id. at 176 (noting that, in the majority of cases studied, the defendant was charged with misdemeanors for animal cruelty). 454. See HARC REPORT, supra note 3, at 28. 455. Id. 456. First Strike and You’re Out: A Model Law, ANIMAL LEGAL DEF. FUND, (URL removed for reprint) (last visited Nov. 13, 2017). 457. See supra Section III.A (discussing civil forfeiture and bonding laws).

458. See supra Section VI.B.3 (examining the potential benefits of preconviction or post-acquittal forfeiture). 459. See, e.g., OHIO REV. CODE ANN. § 959.99 (West 2017); OR. REV. STAT. ANN. §§ 167.315–167.330 (West 2017). See generally Animal Protection Laws of the United States of America and Canada, ANIMAL LEGAL DEF. FUND, (URL removed for reprint) / (last visited Nov. 13, 2017) (featuring an interactive map of each state’s cruelty laws). 460. See, e.g., Berry, supra note 233; Animal Protection Laws of the United States of America and Canada, supra note 459. 461. See Hayes, supra note 48 (noting that allowing one hoarding count eases the burdens on both prosecutors and courts). But see Berry et al., supra note 51, at 184–85 (suggesting that courts should accept multiple hoarding counts to better reflect the suffering involved in such cases). 462. HARC REPORT, supra note 3, at 21; Berry et al., supra note 51, at 184. 463. Hayes, supra note 48. 464. See Tracking Animal Cruelty, supra note 405 (“[Animal cruelty is] a crime against society . . . . By paying attention to [these crimes], we are benefiting all of society.”). 465. See Hayes, supra note 48. 466. HARC REPORT, supra note 3, at 25–26. 467. OFFICE OF JUVENILE JUSTICE & DELINQUENCY PREVENTION, U.S. DEP’T OF JUSTICE, GUIDE FOR IMPLEMENTING THE BALANCED AND RESTORATIVE JUSTICE MODEL 1–2(1998), (URL removed for reprint). 468. Fact Sheet: Collaborative Justice Courts, JUD. COUNCIL CAL. (Mar. 2017), (URL removed for reprint). 469. Id. 470. See HARC REPORT, supra note 3, at 25–26. 471. A New Leash on Life, SAFE HUMANE CHI., (URL removed for reprint) (last visited Nov. 13, 2017). 472. Arin Greenwood, Hundreds of Abused Dogs Have a Second Chance Thanks to This Amazing Chicago Rescue Program, HUFFPOST (Nov. 18, 2014), (URL removed for reprint) 473. Avery, supra note 2, at 818. 474. See Hayes, supra note 48.

Chapter 2 Animal protective orders

Introduction to animal protective orders Nevada Massachusetts Alaska Introduction to animal protective orders Domestic violence abusers often use a family pet as a tool to control their victims. Domestic violence advocates recognize that there is a link between animal abusers and domestic violence perpetrators. The term used to describe the situation where animal abusers abuse humans is known as "the link." Animal orders of protection are as much to protect humans as they are to protect animals. These laws give judges the power to issue orders of protection for domestic animals that live in an abusive household. Some statutes allow the abuse victim to take pets with them regardless of who owns the animal. Some laws allow judges to order that the abuser does not harm animals living in the household. While everyone recognizes that a protective order is a mere piece of paper, these protective orders are a tool that can be used by law enforcement and the courts to reduce domestic violence and animal abuse.

Dianna J. Gentry in the Yale Journal of Law and feminism describes the link and the importance of these animal protective orders. Gentry starts with a chilling description of the domestic abuse situation in the state of Oregon. Diana Gentry's article is reprinted by permission. Nevada Title 3. Remedies; Special Actions and Proceedings. Chapter 33. Injunctions. Orders for Protection Against Domestic Violence. Primary Citation: N. R. S. 33.018, 33.030 33.018. Acts which constitute domestic violence 1. Domestic violence occurs when a person commits one of the following acts against or upon the person's spouse or former spouse, any other person to whom the person is related by blood or marriage, any other person with whom the person has had or is having a dating relationship, any other person with whom the person has a child in common, the minor child of any of those persons, the person's minor child or any other person who has been appointed the custodian or legal guardian for the person's minor child: (a) A battery. (b) An assault. (c) Compelling the other person by force or threat of force to perform an act from which the other person has the right to refrain or to refrain from an act which the other person has the right to perform. (d) A sexual assault. (e) A knowing, purposeful or reckless course of conduct intended to harass the other person. Such conduct may include, but is not limited to: (1) Stalking. (2) Arson. (3) Trespassing. (4) Larceny. (5) Destruction of private property. (6) Carrying a concealed weapon without a permit. (7) Injuring or killing an animal. (f) A false imprisonment.

(g) Unlawful entry of the other person's residence, or forcible entry against the other person's will if there is a reasonably foreseeable risk of harm to the other person from the entry. 2. As used in this section, “dating relationship” means frequent, intimate associations primarily characterized by the expectation of affectional or sexual involvement. The term does not include a casual relationship or an ordinary association between persons in a business or social context. Credits Added by Laws 1985, p. 2283. Amended by Laws 1995, p. 902; Laws 1997, c. 476, § 12; Laws 2007, c. 40, § 1; Laws 2007, c. 318, § 5; Laws 2017, c. 496, § 7.5, eff. Jan. 1, 2018. 33.030. Contents of order; interlocutory appeal 1. The court by a temporary order may: (a) Enjoin the adverse party from threatening, physically injuring or harassing the applicant or minor child, either directly or through an agent; (b) Exclude the adverse party from the applicant's place of residence; (c) Prohibit the adverse party from entering the residence, school or place of employment of the applicant or minor child and order the adverse party to stay away from any specified place frequented regularly by them; (d) If it has jurisdiction under chapter 125A of NRS, grant temporary custody of the minor child to the applicant; (e) Enjoin the adverse party from physically injuring, threatening to injure or taking possession of any animal that is owned or kept by the applicant or minor child, either directly or through an agent; (f) Enjoin the adverse party from physically injuring or threatening to injure any animal that is owned or kept by the adverse party, either directly or through an agent; and (g) Order such other relief as it deems necessary in an emergency situation. 2. The court by an extended order may grant any relief enumerated in subsection 1 and: (a) Specify arrangements for visitation of the minor child by the adverse party and require supervision of that visitation by a third party if necessary; (b) Specify arrangements for the possession and care of any animal owned or kept by the adverse party, applicant or minor child; and

(c) Order the adverse party to: (1) Avoid or limit communication with the applicant or minor child; (2) Pay rent or make payments on a mortgage on the applicant's place of residence; (3) Pay for the support of the applicant or minor child, including, without limitation, support of a minor child for whom a guardian has been appointed pursuant to sections 2 to 157, inclusive, of this act or a minor child who has been placed in protective custody pursuant to chapter 432B of NRS, if the adverse party is found to have a duty to support the applicant or minor child; (4) Pay all costs and fees incurred by the applicant in bringing the action; and (5) Pay monetary compensation to the applicant for lost earnings and expenses incurred as a result of the applicant attending any hearing concerning an application for an extended order. 3. If an extended order is issued by a justice court, an interlocutory appeal lies to the district court, which may affirm, modify or vacate the order in question. The appeal may be taken without bond, but its taking does not stay the effect or enforcement of the order. 4. A temporary or extended order must specify, as applicable, the county and city, if any, in which the residence, school, child care facility or other provider of child care, and place of employment of the applicant or minor child are located. 5. A temporary or extended order must provide notice that a person who is arrested for violating the order will not be admitted to bail sooner than 12 hours after the person's arrest if: (a) The arresting officer determines that such a violation is accompanied by a direct or indirect threat of harm; (b) The person has previously violated a temporary or extended order for protection; or (c) At the time of the violation or within 2 hours after the violation, the person has: (1) A concentration of alcohol of 0.08 or more in the person's blood or breath; or (2) An amount of a prohibited substance in the person's blood or urine, as applicable, that is equal to or greater than the amount set forth in subsection 3 or 4 of NRS 484C.110.

Credits Added by Laws 1985, p. 2284. Amended by Laws 1995, p. 219; Laws 2001, c. 268, § 2; Laws 2007, c. 40, § 2; Laws 2007, c. 276, § 1; Laws 2007, c. 318, § 6; Laws 2017, c. 76, § 10, eff. July 1, 2017; Laws 2017, c. 172, § 195, eff. July 1, 201 Massachusetts Massachusetts General Laws Annotated. Part II. Real and Personal Property and Domestic Relations (Ch. 183-210). Title III. Domestic Relations (Ch. 207210). Chapter 209A. Abuse Prevention. § 11. Possession, care and control of domesticated animal owned by persons involved in certain protective orders; notice to law enforcement upon finding of imminent threat to household member or animal Primary Citation: M.G.L.A. 209A § 11 (a) Whenever the court issues a temporary or permanent vacate, stay away, restraining or no contact order or a judgment under section 18, 34B or 34C of chapter 208, or under section 32 of chapter 209, or under section 3, 4 or 5 of this chapter, or under section 15 or 20 of chapter 209C, or under section 3 to 7, inclusive, of chapter 258E or a temporary restraining order or preliminary or permanent injunction relative to a domestic relations, child custody, domestic abuse or abuse prevention proceeding, the court may order the possession, care and control of any domesticated animal owned, possessed, leased, kept or held by either party or a minor child residing in the household to the plaintiff or petitioner. The court may order the defendant to refrain from abusing, threatening, taking, interfering with, transferring, encumbering, concealing, harming or otherwise disposing of such animal. (b) A party to any proceeding listed in subsection (a) may petition the court for an order authorized by said subsection (a). (c) Whenever the court issues a warrant for a violation of a temporary or permanent vacate, stay away, restraining or no contact order or a judgment issued under section 18, 34B or 34C of chapter 208, or under section 32 of chapter 209, or under section 3, 4 or 5 of this chapter, or under section 15 or 20 of chapter 209C, or section 3 to 7, inclusive, of chapter 258E or otherwise becomes aware that an outstanding warrant for such a violation has been issued against a person before the court, the judge may make a finding, based

upon the totality of the circumstances, as to whether there exists an imminent threat of bodily injury to any party to such judgment or the petitioner of any such protective order, a member of the petitioner's family or household or to a domesticated animal belonging to the petitioner or to a member of the petitioner's family or household. If the court makes a finding that such an imminent threat of bodily injury to a person or domesticated animal exists, the court shall notify the appropriate law enforcement officials of such finding and the law enforcement officials shall take all necessary actions to execute any such outstanding warrant as soon as is practicable. CREDIT(S) Added by St.2012, c. 193, § 50, eff. Oct. 31, 2012. HISTORICAL AND STATUTORY NOTES 2012 Legislation St.2012, c. 193, § 50, was approved Aug. 2, 2012, effective Oct. 31, 2012. Alaska Title 18. Health, Safety, Housing, Human Rights, and Public Defender. Chapter 65. Police Protection. Article 7. Domestic Violence Share| Primary Citation: AS § 18.65.510 - 590 Country of Origin: United States Last Checked: September, 2018 more + § 18.65.510. Domestic violence and sexual assault training § 18.65.515. Duties of peace officer in a crime involving domestic violence § 18.65.520. Notification to victims of domestic violence § 18.65.530. Mandatory arrest for crimes involving domestic violence, violation of protective orders, and violation of conditions of release § 18.65.540. Central registry of protective orders § 18.65.590. Definition § 18.65.510. Domestic violence and sexual assault training (a) Each established police training program in the state shall provide training that acquaints police officers with

(1) laws relating to substantive crimes and rules of criminal procedure applicable in cases involving domestic violence and sexual assault; (2) techniques for handling incidents of domestic violence and sexual assault that promote the safety of the victim and the officer and that reduce the likelihood of recurrence; (3) the investigation and management of cases involving domestic violence and sexual assault, including the protocols under AS 18.68.020, and report writing for those cases; (4) organizations in the state that offer aid or shelter to victims of domestic violence and sexual assault; (5) procedures applicable in the prosecution of cases involving domestic violence and sexual assault; (6) orders that may be issued by or filed with a court under AS 18.66.10018.66.180; (7) the notification to be given to victims of domestic violence under AS 18.65.520; and (8) the subjects set out in AS 18.66.310(d). (b) In providing a training program under this section, each agency or institution offering an established police training program shall consult with the Council on Domestic Violence and Sexual Assault and interested individuals and organizations providing assistance to victims of domestic violence and sexual assault. (c) In this section, “sexual assault” has the meaning given in AS 18.66.990. Credits SLA 1980, ch. 139, § 3; SLA 1996, ch. 64, § 26. Amended by SLA 2018, ch. 48, §§ 2, 3, eff. July 1, 2018. § 18.65.515. Duties of peace officer in a crime involving domestic violence (a) A peace officer investigating a crime involving domestic violence shall protect the victim and any member of the victim's family and prevent further violence by (1) transporting an adult victim and any member of the victim's family from the place of the offense or the place of contact, to a location within the community where the offense occurred that is a shelter, a safe home, or another location in the community requested by the victim;

(2) assisting the victim in removing from the residence essential items belonging to the victim, such as clothing, vehicles, medication, personal records, and legal documents; (3) assisting the victim and any member of the victim's family in obtaining medical treatment necessitated by the offense, by contacting emergency medical services or by transporting the victim to a local medical facility, if available in the community where the offense occurred; and (4) providing notice of the rights of victims and services available to victims of domestic violence as provided in AS 18.65.520. (b) If a peace officer investigating a crime involving domestic violence determines that it is necessary to protect the victim or the victim's family from domestic violence or to protect the officer or the public during the investigation, the officer may (1) seize a deadly weapon in plain view of the officer, and (2) if a deadly weapon was actually possessed during or used in the domestic violence, seize all deadly weapons owned, used, possessed, or within the control of the alleged perpetrator. If the weapon is not needed as evidence in a criminal case, the law enforcement agency having custody of the weapon, within 24 hours of making the determination that the weapon is not needed as evidence in a criminal case, shall make the weapon available for pickup by the owner of the weapon during regular business hours. Credits SLA 1996, ch. 64, § 27. § 18.65.520. Notification to victims of domestic violence (a) A peace officer investigating a crime involving domestic violence shall orally and in writing inform the victim of the rights of victims of domestic violence and the services available to them. The notice must be in substantially the following form: If you are the victim of domestic violence and you believe that law enforcement protection is needed for your physical safety, you have the right to request that the officer assist in providing for your safety, including asking for an emergency protective order. You may also request the officer to assist you in obtaining your essential personal belongings and locating and taking you to a safe place, including a designated meeting place or shelter, the residence of a household member or

friend, or a similar place of safety. In some places in Alaska there are organizations that provide aid and shelter to victims of domestic violence. The nearest organization is located at (insert). If you are in need of medical treatment, you may request that the officer assist you in obtaining medical treatment. You may obtain information about whether the prosecuting attorney will file a criminal complaint about the domestic violence. Additionally, the victim/witness assistance program of the Department of Law may be able to help you. This information is available from the district attorney's office, which is located at (insert). You also have the right to file a petition in court requesting a protective order that may include any of the following provisions: (1) prohibit your abuser from threatening to commit or committing further acts of domestic violence; (2) prohibit your abuser from stalking, harassing, telephoning, contacting, or otherwise communicating with you, directly or indirectly; (3) remove your abuser from your residence; (4) order your abuser to stay away from your residence, school, place of employment, or any other specified place frequented by you or another designated household member; (5) prohibit your abuser from entering your vehicle or a vehicle you occupy; (6) prohibit your abuser from using or possessing a deadly weapon if the court finds your abuser was in the actual possession of or used a weapon during the commission of your abuse; (7) direct your abuser to surrender any firearm owned or possessed by that person if the court finds your abuser was in the actual possession of or used a firearm during the commission of your abuse; (8) request a peace officer to accompany you to your residence to ensure your safe possession of the residence, vehicle, or other items, or to ensure your safe removal of personal items from the residence; (9) award temporary custody of a minor child to the petitioner and may arrange for visitation with a minor child if the safety of the child and the petitioner can be protected;

(10) grant you possession and use of a vehicle and other essential personal items, including a pet, regardless of the ownership of those items; (11) prohibit your abuser from consuming controlled substances; (12) require your abuser to pay support for you, a minor child in your care, or a pet in your care if there is an independent legal obligation of your abuser to support you, the child, or the pet; (13) require your abuser to reimburse you for your expenses caused by domestic violence, including medical bills, or for your costs in getting a protective order; (14) order your abuser to participate in an intervention program for batterers; and (15) other relief the court determines to be necessary for your safety. The forms you need to obtain a protective order are available from the nearest court. It is not necessary to have an attorney to obtain a protective order, but you may consult an attorney if you choose. If you would like help obtaining a protective order, you may contact the nearest domestic violence program located at (insert). The program can also tell you about other resources available in this community for information about domestic violence, treatment of injuries, and places of safety and shelter. You may also qualify for compensation from the Violent Crimes Compensation Board. The board may be contacted at (insert). (b) If the victim of domestic violence does not understand English, the police officer shall make reasonable efforts to inform the victim of the services and rights specified in (a) of this section in a language the victim understands. (c) Repealed by SLA 1996, ch. 64, § 72, eff. July 1, 1996. Credits SLA 1980, ch. 139, § 3; SLA 1982, ch. 61, §§ 14, 15; SLA 1991, ch. 64, § 7; SLA 1996, ch. 64, §§ 28, 72. Amended by SLA 2016, ch. 60, § 13, eff. Jan. 17, 2017 § 18.65.530. Mandatory arrest for crimes involving domestic violence, violation of protective orders, and violation of conditions of release (a) Except as provided in (b) or (c) of this section, a peace officer, with or without a warrant, shall arrest a person if the officer has probable cause to believe the person has, either in or outside the presence of the officer, within the previous 12 hours,

(1) committed domestic violence, except an offense under AS 11.41.100-11.41.130, whether the crime is a felony or a misdemeanor; (2) committed the crime of violating a protective order in violation of AS 11.56.740(a)(1) or (2); (3) violated a condition of release imposed under AS 12.30.016(e) or (f) or 12.30.027. (b) If a peace officer receives complaints of domestic violence from more than one person arising from the same incident, the officer shall evaluate the conduct of each person to determine who was the principal physical aggressor. If the officer determines that one person was the principal physical aggressor, the other person or persons need not be arrested. In determining whether a person is a principal physical aggressor, the officer shall consider (1) prior complaints of domestic violence; (2) the relative severity of the injuries inflicted on each person; (3) the likelihood of future injury from domestic violence to each person; and (4) whether one of the persons acted in defense of self or others. (c) A peace officer is not required to make an arrest under (a) of this section if the officer has received authorization not to arrest from a prosecuting attorney in the jurisdiction in which the offense under investigation arose. (d) When investigating a crime involving domestic violence, a peace officer may not threaten or suggest the possible arrest of all persons involved in the same incident in a manner that would have a tendency to discourage requests for intervention by law enforcement in incidents involving domestic violence. (e) In addition to the contents of any other report, a peace officer who does not make an arrest after investigating a complaint of domestic violence, or who arrests two or more persons based on the same incident, shall describe in writing the reasons for not making an arrest or for arresting more than one person. (f) A person may not bring a civil action for damages for a failure to comply with the provisions of this section. Credits SLA 1996, ch. 64, § 29; SLA 2003, ch. 87, § 3; SLA 2006, ch. 36, § 2, eff. Aug. 16, 2006. Amended by SLA 2010, ch. 19, § 21, eff. July 1, 2010; SLA 2012, ch. 71, § 12, eff. July 1, 2012.

§ 18.65.540. Central registry of protective orders (a) The Department of Public Safety shall maintain a central registry of protective orders issued by or filed with a court of this state under AS 13.26.207--13.26.209, AS 18.65.850--18.65.870, or AS 18.66.100--18.66.180. The registry must include, for each protective order, the names of the petitioner and respondent, their dates of birth, and the conditions and duration of the order. The registry shall retain a record of the protective order after it has expired. (b) A peace officer receiving a protective order from a court under AS 13.26.207, 13.26.208, AS 18.65.850--18.65.855, or AS 18.66.100--18.66.180, a modified order issued under AS 13.26.209, AS 18.65.860, or AS 18.66.120, or an order dismissing a protective order shall take reasonable steps to ensure that the order, modified order, or dismissal is entered into the central registry within 24 hours after being received. (c) A petitioner or respondent who is the subject of a protective order may request the Department of Public Safety to correct information about the order in the central registry. The person requesting the correction has the burden of proving that the information is inaccurate or incomplete. The person may appeal an adverse decision to the court under applicable court rules for appealing the decision of an administrative agency. On appeal, the appellant has the burden of showing that the department's action was an abuse of discretion. An appeal filed under this subsection may not collaterally attack a protective order, challenge the grounds upon which the order was based, or challenge the evidence submitted in support of the order. (d) The Department of Public Safety may adopt regulations to implement this section. (e) A person may not bring a civil action for damages for a failure to comply with the provisions of this section. Credits SLA 1996, ch. 64, § 29; SLA 2003, ch. 87, § 4; SLA 2006, ch. 36, § 3, eff. Aug. 16, 2006. Amended by SLA 2012, ch. 71, §§ 13, 14, eff. July 1, 2012. § 18.65.590. Definition In AS 18.65.510--18.65.590, (1) “domestic violence” has the meaning given in AS 18.66.990;

(2) “pet” means a vertebrate living creature maintained for companionship or pleasure, but does not include dogs primarily owned for participation in a generally accepted mushing or pulling contest or practice or animals primarily owned for participation in rodeos or stock contests. Credits SLA 1996, ch. 64, § 29. Amended by SLA 2016, ch. 60, § 14, eff. Jan. 17, 2017. INCLUDING COMPANION ANIMALS IN PROTECTIVE ORDERS: CURTAILING THE REACH OF DOMESTIC VIOLENCE 13 Yale J.L. & Feminism 97 Yale Journal of Law & Feminism 2001 Article Dianna J. Gentryd1 Copyright (c) 2001 Yale Journal of Law and Feminism; Dianna J. Gentry INCLUDING COMPANION ANIMALS IN PROTECTIVE ORDERS: CURTAILING THE REACH OF DOMESTIC VIOLENCE The time is coming, however, when people will be astonished that mankind needed so long a time to learn to regard thoughtless injury to life as incompatible with ethics.1 I. INTRODUCTION Barbara Beardsley, a forty-four-year-old woman, works as a receptionist in Portland, Oregon. Barbara grew up in Beaverton and has lived in the Portland area her entire life. She met Dick when she was only eighteen years old and they were married with a baby by the time she was twenty. Prior to marriage, Dick never hit Barbara. Within a month of getting married, that changed. For the next twenty years, Dick would systematically abuse, threaten, beat and choke Barbara. In addition to the violence against his wife, Dick also perpetrated violence upon his two daughters and many of the companion animals that shared their home.2 Barbara, her daughters, and their companion animals represent the classic ‘link’ between domestic violence, child abuse, and animal abuse. This paper - the research and proposed change to statutory law - is

dedicated to Barbara, her daughters, and all the victims of domestic violence, both human and non-human. Barbara Beardsley's story is not uncommon. Nationwide, state laws fail to provide assistance to domestic violence victims by failing to safely remove and place their companion animals in a safe environment. This paper analyzes the problematic lack of assistance to domestic violence victims regarding their companion animals and offers model legislation, proposed in Oregon, which legislators should adopt in jurisdictions throughout the country. Currently, the relevant Oregon statute allows one-time police assistance to domestic violence victims to return to their home to pick-up “essential personal effects.”3 The law allows for removal of “essential personal *98 effects” of children if the person seeking a protective order (petitioner) is their legal custodian.4 The statute does not include assistance with removal of the family pet.5 This gap in the law may stem from the fact that typically, both partiesabuser and victim-maintain co-ownership of the family's companion animals. The failure of the statute to include companion animals means that these animals are at risk of injury or even death while remaining with the abuser.6 The animals are at risk because abusers often use animals as tools to control women and children in the domestic violence setting.7 Additionally, studies reveal that many violent individuals are likely to perpetrate violence upon both human and non-human living beings.8 Therefore, the law does not adequately protect animals when intervening in a battering relationship. The first purpose of this paper is to address the problem of animal abuse in the domestic violence setting. Second, the paper proposes a change to statutory law. Part II of this paper offers a brief legal history of animals in the law. Part III discusses the link between domestic violence, child abuse and animal abuse. This includes survey data as well as common law and statutory recognition of the link. Part IV includes an overview of current statutory law in each of the fifty states. Part V enumerates public policy reasons for amending current statutes. Part VI proposes model legislation for defining and including companion animals in protective orders. Because the law classifies animals as property, Part VII addresses due process concerns and why the ‘best interest of the animal’ should be the standard for awarding custody. Part VIII concludes that companion *99 animals are sentient beings usually considered members of the

family and as such, deserve removal from violent households when victims seek police assistance. Minor amendment to current domestic relations' law is an important step in assisting domestic violence victims. Oregon has the opportunity to lead this effort, and other jurisdictions should follow. II. A BRIEF LEGAL HISTORY OF ANIMALS There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property; or that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.9 Historically, statutes have classified animals as property.10 However, both courts and legislatures have recognized that animals are more than mere chattel. For example, Boulder, Colorado recently amended its animal ordinances to incorporate use of the word animal “guardian” rather than animal “owner.”11 State jurisdictions are also beginning to recognize that animals are not property in the same way that cars or furniture are property.12 In Corso v. Crawford Dog and Cat Hosp., Inc., a pet funeral business lost a dog's body. The dog owner discovered this when she opened the pet's casket and discovered a dead cat instead.13 The court, explicitly overruling previous New York law, held that “a pet is not just a thing but occupies a special place somewhere in between a person and a piece of personal property.”14 In another case, the court refused to enforce a will ordering the destruction of decedent's horses.15 Less than one month before his death, Howard Brand amended his will, instructing his executor to crush his Cadillac and destroy his horses.16 The court maintained that, while Brand's animals fell “within the realm of property law,” they were nevertheless a “unique type of ‘property” ’ and merited special consideration.17 The court supported this conclusion based on similar findings in other state jurisdictions and the fact that the court received an outpouring of letters against destruction of the animals and “not a single communication addressing Mr. Brand's desired destruction of his perfectly good *100 Cadillac.”18 The court held the will's clause ordering destruction of the horses void on public policy grounds.19 The oldest recorded laws prohibiting animal abuse date to 1641 in the Massachusetts Bay Colony.20 Most Americans recognize that kindness to

animals, or at least an aversion to the intentional infliction of animal suffering, is one of the core values in a civilized society.21 Unfortunately, animal abuse is often just another form of violence for the perpetrators of violence against humans. Nowhere is this more prevalent than in the domestic violence settingwhere abusers use animals as a tool to control human victims.22 The degree to which women and children are emotionally attached to a family pet is the degree to which an abuser can harm them by harming the animal.23 III. “THE LINK” When children are taught from the beginning by watching the adults around them and from interaction with their peers they learn the proper way to behave around animals. . . It involves care and love.24 “The link” refers to the connection between some forms of violent antisocial behavior towards women and children and the abuse of animals.25 Society has recognized the link concept for several centuries.26 Animal abuse is part of a continuum of family violence and legislators, and courts should consider it an indicator of other problems in dysfunctional and violent households.27 Victims of family violence share common traits. Women, children, and family pets share the abuse from the male perpetrator's misuse of power and control. They share economic dependence, strong emotional bonds, and an enduring sense of loyalty to their abusers.28 *101 Some scholars of feminist jurisprudence believe that framing the law around family issues in terms of privacy is detrimental to victims of domestic violence.29 “The patriarchal oppressive contexts to keep human male sexual violence toward women, children, and pets out of the higher status political areas and in the inferior, out-of-police-concern private arena . . . is to the detriment of women, children, pets, and the entire culture.”30 Domestic violence and animal abuse configure together in three significant ways.31 The first is the threatening, injuring or killing of an animal, usually a pet, as a way of establishing or maintaining control over women and children.32 Second is the use of animals to sexually violate women or children, or the use of animals to gain some sort of sexual gratification, i.e., bestiality.33 Third is injury to animals by children who are themselves the victims of abuse.34

Acknowledgement and documentation of the link exists in nationwide studies, case law from jurisdictions around the country and state statutory laws. This paper documents each of these three sources, illustrating existing data and legal precedent. Study data, common law, and current statutory law support the notion that state statutes need strengthening to protect domestic violence victims. Section III A explores several key studies, conducted and published in the past two decades, in order to better understand the link and associated social consequences. Section III B looks at case law regarding domestic violence and animal abuse. Finally, Section III C discusses legislative acknowledgement of the link. A. Studies on Domestic Violence and Animal Abuse Studies of the link illustrate some of the key concerns surrounding violence perpetrated upon women, children and animals. Included is the problem of women refusing to leave a domestic violence situation or postponing leaving because of fear for an animal's safety.35 *102 In 1998, current or former spouses, boyfriends, or girlfriends committed about one million violent crimes against their partners.36 The overwhelming majority of intimate partner violence, 85%, was against women.37 National studies on domestic violence estimate that male partners assault 1 out of every 9 to 12 women.38 The U.S. Surgeon General cites violence against women as the leading cause of injury to American women - and a national epidemic.39 Many Americans, including the victims of domestic violence, have significant relationships with animals. A 1983 study designed to determine the role of pets in the family system revealed that 87% of the respondents considered their pet to be a member of the family.40 Seventy-nine percent of individuals celebrate a pet's birthday.41 Like our relationships with other humans, our relationship with our companion animals continues even after death of the animal, as evidenced by more than 600 pet cemeteries in the United States.42 It is because of this relationship with animals that abusers readily have the ability to exercise control over domestic violence victims through their pets.43 A family pet may be the one and only source of love that a domestic violence victim receives. Consequently, the relationship between victim and companion animal is a vulnerable one and an easy target for the abuser.

The majority of domestic violence victims seek assistance from a friend or family member.44 Obtaining data on domestic violence from these victims is next to impossible. For those who are unable to seek refuge with family or friends, women's crisis shelters are sometimes available.45 Researchers can obtain data more readily from this population of identifiable victims. One study reveals that 18% of women seeking shelter at a crisis center would have done so *103 sooner, except that they feared for the safety of their companion animals.46 In one study, almost three-quarters (71%) of women entering the shelter who were pet owners reported that their male partner had threatened to, or actually had hurt or killed one or more of their pets.47 While overwhelmingly the problem is male violence directed at female victims, there are some cases in which the female is the perpetrator.48 A 1998 study of battered women seeking shelter in safehouses revealed that 74% were pet owners, and of those, 71% reported that their partners had threatened or actually done harm to or killed a companion animal.49 Of these women, 62% reported that their children had witnessed animal abuse, and 32% reported that their children were also abusive towards animals.50 A survey conducted by the author illustrates that women entering Oregon shelters are concerned about the safety of their companion animals.51 On average, 40% of women entering Oregon shelters in March 2000 were concerned about the safety of their companion animals.52 One shelter reported that as many as 80% of women entering the shelter shared the concern about the safety of their pets.53 In addition to nationwide and state studies and surveys, case law supports the proposition that domestic violence, child abuse (including sexual abuse), and animal abuses are serious problems. The extent of common law on issues of domestic violence involving pets reflects a small fraction of the occurrence of these violent incidents. This is primarily because most cases of domestic violence never reach the level of the court system that reports case law.54 B. Common Law Recognition of “The Link” [T]he evidence before the jury showed . . . the microwave contained a large volume of cat hair and fluids stuck to the door and interior walls.55 *104 Under the current criminal charging process, parties settle most animal cruelty charges in the plea bargaining phase.56 This happens for several reasons. First,

when prosecutors include animal abuse with more serious offenses, such as assault and battery or homicide, the prosecutor may drop the animal abuse charges as part of a negotiating strategy.57 Second, most perpetrators of animal abuse do not want to go to trial on this issue because it is unpalatable, even to most abusers, to publicly disclose facts surrounding animal abuse.58 Additionally, even if the prosecutor elects to include animal abuse in the charging instrument, a judge may decide that the victim is “just an animal” and not worth the court's time.59 Available written court opinions including animal abuse in the domestic violence context often exhibit similar fact patterns. In a Texas case, the male perpetrator testified that he believed his live-in girlfriend paid more attention to her cats than to him.60 Celinski describes the type of suffering that the two cats endured at the hands of defendant Celinski.61 Autopsies revealed the defendant poisoned both cats with acetaminophen and had cooked one in the microwave long enough to burn his flesh without immediately killing him.62 Both cats died from their injuries.63 In addition to illustrating a “classic” form of animal abuse in domestic violence situations, Celinski illustrates the importance of an adequate veterinary exam and report following animal cruelty.64 A handful of states, including Oregon, protect veterinarians from liability arising from good faith reporting of suspected animal abuse to the police, animal control officers or humane societies.65 In another case, a court linked animal abuse with child sexual abuse.66 Floyd and Barbara Schambon were found guilty of eight counts of first degree sodomy, three counts of first degree criminal abuse, twenty-one counts of second degree sodomy, and twenty-eight counts of second degree cruelty to animals. The court also convicted appellant Barbara Schambon of one count of incest.67 The Schambons lived in a residential neighborhood with their four children and dozens of sick and malnourished animals including dogs, cats and guinea pigs.68 On appeal, the Schambons argued, in part, that the trial court erred when it *105 declined to sever the animal cruelty charges from the sexual assault charges.69 When two or more offenses arise from the same act or transaction and are part of a common scheme or plan, Kentucky statutory law permits joinder of the offenses.70 The trial court concluded that the animal abuse was intertwined with the sex offenses and the appellate court agreed.71

Both Barbara and Floyd Schambon had been sexually assaulting their children for years. Included in this deviant behavior was the use of animals for sexual gratification. In an Oregon case, the jury convicted Charles Smith of the aggravated felony murder of his pregnant 27-year old wife, Alice Smith.72 Charles was undergoing therapy at a treatment facility as a condition of his probation for an assault conviction, and obtained a pass to leave the treatment facility. He phoned his wife Alice, to pick him up. When Alice arrived, a witness saw Charles getting into the car with a length of electrical wire. That same day, Charles drove his wife to a remote area of Coos County, “hog-tied” her feet and hands behind her back, and left her to die of exposure. One month later, a man out walking his dog discovered Alice's body. The District Attorney presented Charles Smith's long and disturbing history of criminal violence at the trial. In Smith, the court described both the repeated acts of violence against women and animals. The defendant had been married twice before his marriage to Alice. Throughout the course of these relationships, Smith abused his partner's animals. He killed six of his first wife's ducklings by throwing them against a tree in her presence; he severely beat a dog that got in the way of his bicycle; he threw a kitten into a burning woodstove; and he kicked Alice's puppy to death.73 Many of these acts occurred more than a decade before Smith murdered his wife Alice. There were warning signs throughout Smith's life of his violence towards both human and non-human animals. Currently, laws surrounding violence and cruelty focus on the victim rather than the perpetrator. Several prominent authorities on the issue of domestic violence believe that the solution to a violent society should focus on characterization of the offender and not the victim.74 Legislatures have the power to pass laws that prevent opportunities for perpetrators to continue their abuse. *106 C. Recognition of “The Link” by State Legislatures State anti-cruelty laws75 reflect, in part, recognition of the link.76 In addition to anti-cruelty statutes, states are beginning to recognize the need for crossreporting.77 Traditionally, animal protection organizations, child welfare services, and domestic violence agencies have been isolated from one another; there are few program protocols to connect human services with humane services.78 This situation has spurred some states to pass cutting-edge

legislation requiring or allowing for cross-reporting between organizations that serve child welfare and those that serve animal welfare. Currently, only California has mandatory cross-reporting requirements, where laws include state humane officers as one of the mandated reporters of child abuse.79 Three other states and the District of Columbia have discretionary cross-reporting laws that permit animal humane officers to report suspected or known child abuse.80 In Oregon, the Oregon Veterinary Medicine Association (OVMA) is spearheading an effort to introduce mandatory cross reporting legislation in 2001.81 Many experts on the connection between violence against humans and other animals, as well as others that work in the domestic violence field, believe that in order to progress, cross-reporting is necessary.82 In addition to lack of mandatory cross-reporting requirements, resources for animal welfare groups, child services and domestic violence programs are typically strained. Therefore, an integration of the strengths of all three domains might achieve more effective utilization of limited resources and pull more political weight. IV. NATIONWIDE LAWS CONCERNING PEACE OFFICER ASSISTANCE TO DOMESTIC VIOLENCE VICTIMS One or more areas of a state's statutory code may address assistance to domestic violence victims. In the broadest sense, there are two categories of *107 statutes. First are the statutes that address assistance from peace officers to domestic violence victims at the scene. The second broad category addresses assistance under a protective order. Under the second category, some states expressly describe peace officer duties under the protective order while other states do not have express language regarding peace officer duties under the protective order. Some states' statutes address assistance by the peace officer with the removal of personal effects. When victims of domestic violence flee abusive situations, they frequently leave without any possessions. Many states provide in some way for the victim to regain possession of the home, an automobile, and “essential personal effects” such as medications, clothing, diapers and the like. Currently, no state has statutory language that specifically names

assistance with removal of a companion animal, at the scene or later, in a protective order along with personal effects. A. Duties of Peace Officers - Assistance at the Scene of Domestic Violence Under the category of states that focus on duties of the police at the scene, there are two sub-categories: 1) states that do not provide for assistance with essential personal effects83 and 2) those that do.84 For those states that provide for police assistance at the domestic violence scene, the duties of police officer are limited to things like providing information to the victim of her legal rights, providing prevention information, and offering transportation to receive medical treatment or to seek shelter. In these states, there is no mention of police assistance with removal of essential personal effects. The second subcategory under police assistance at the scene are those states that provide for police investigation of a crime of domestic violence in order to remove essential personal effects. B. Later Peace Officer Assistance under a Protective Order The second broad category focuses on the protective order rather than police assistance at the scene. Within this category are several subcategories: 1) protective orders that do not specifically address personal property or assistance by police;85 2) protective orders which exclude the abuser from use of the residence, but say nothing about law enforcement assistance for those who do *108 not want to return to the residence;86 3) protective orders that may provide exclusive possession of the property and assistance of a peace officer;87 4) protective orders that provide for assignment of specified personal property (or personal property generally) but do not mention assistance of the police;88 5) assistance from the police for removal (or transfer) of essential personal effects or property-- subcategories here may include states providing no definition for personal effects/property89 and those enumerating lists (at least in-part);90 and 6) a final subcategory that focuses on the respondent rather than assisting the petitioner.91 V. Public policy supports inclusion of companion animals in protective orders State legislatures need to amend current statutes that provide assistance to domestic violence victims to include naming companion animals in protective orders. No statute currently exists that adequately addresses this issue. Because

this is an issue of first impression, public policy considerations should be included in constructing the statute and in later interpretation of the statute. Courts have defined the term “against public policy” as “that which conflicts with the morals of the time and contravenes any established interest in society.”92 It is currently against public policy to condone domestic violence.93 Animal *109 abuse, both neglect and cruelty, are also against public policy.94 State common law recognizes that mistreatment of animals is against public policy.95 When a victim of domestic violence obtains a restraining order, the law in Oregon, for example, allows for removal of “essential personal effects” and onetime assistance of the police.96 The police are routinely involved in assisting with and enforcing restraining orders.97 Presently, assistance with “essential personal effects” does not include companion animals.98 This presents problems for many domestic violence victims and their companion animals because the law is silent or unclear. Neither the courts nor the police have received direction from the legislature on the status of companion animals in a domestic violence situation. One experience of a domestic violence victim's advocate illustrates the problem. The advocate reported including companion animals in a majority of the restraining orders she prepared.99 The reviewing Clackamas County judge allowed inclusion of the companion animal about one-third of the time but decided two-thirds of the time not to include the animal. It was never clear to the victim's advocate why the judge allowed inclusion in some cases but not in others.100 Later discussion with the judge revealed that inclusion of the animal under “other relief” was acceptable. When the terms of custody named the animal along with the children, the judge routinely refused to allow including the animal in the order.101 The Oregon legislature needs to amend current law because helping domestic violence victims is the right thing to do and animal cruelty is an indicator of other types of violent behavior in the home-typically towards women and children. There is an overriding public interest in 1) making sure companion animals are not at risk of injury or death; 2) assisting victims of domestic violence who may not leave an abusive situation if they are unable to take their animals with them; 3) refusing to ‘reward’ the perpetrator by allowing

him to keep the animal; and 4) preventing further victimization of both the animal and the co-owner-the domestic violence victim. *110 VI. PROPOSED STATUTORY CHANGE Every state has some form of statutory law, criminal or civil, addressing procedures for assisting domestic violence victims under a protective order-an ex parte emergency order and/or an order issued after notice.102 Because assistance to domestic violence victims' law varies among jurisdictions, amended language will also need to vary to meet the needs of each state. Companion animal and domestic violence advocates, seeking to amend current state code, will need to be both thorough and creative: thorough, because protective orders appear in different sections of state codes, and the codes do not always cross-reference other relevant sections; and creative, because each state's approach to code construction varies, and in some cases amending current code will be more challenging than others. There is also a catch-22: assisting non-human victims of domestic violence may reinforce the concept that animals are property. Drafting amended language to current code may be a simple task, but it will continue to categorize animals with inanimate property. If this is the case, an individual writing new language may decide to go beyond simply adding the words “companion animal” to a broadly written statute. California code serves as an example. Specifically, California Family Code Section 6324 states, “The court may issue an ex parte order determining the temporary use, possession, and control of real or personal property of the parties . . . “103 If the language “including companion animals” were added to follow “personal property” the code section would fail to distinguish animals from inanimate property. In lieu of simply adding the words “companion animal,” a drafter may need to go a little further. The same California code section might read something like “the court may issue an ex parte order determining the temporary use, possession, and control of real or personal property of the parties. The court may determine which of the parties shall take possession and care of companion animals co-owned by the parties.” Going one step further, a third and better alternative would leave companion animals out of the “real or personal property” section altogether. A code drafter might simply add a new category to California Family Code - something like - “Section 6328. Ex parte order regarding companion animals.” Once again, statutes need

to express language regarding companion animals because current law provides little or no direction to courts and peace officers on assisting domestic violence victims with the safe removal of their pets. Every state, with the exceptions of Alabama, Colorado, Nebraska, Oklahoma, and Vermont, expressly provides a category for “other relief” under an ex parte order and/or order issued after notice.104 Therefore, a majority of *111 states could amend the “other relief” section to include language about companion animals. New York law serves as a good example of multiple possibilities for companion animal inclusion in protective orders. Under New York's code, a petitioner may remove personal property pursuant to protective orders included in the child custody section. Section 240 of New York domestic relations law permits “a designated party to enter the residence during a specified period of time in order to remove personal belongings not in issue in a proceeding or action under this chapter or the family court act.”105 The New York legislature could amend section 240 by inserting, “including companion animals,” following “remove personal belongings.” Section 240 also crossreferences the “Family Court Act:” an order may require the petitioner or respondent “(d) to permit a designated party to enter the residence during a specified period of time in order to remove personal belongings . . . .”106 Again, the legislature could amend the Family Court Act to include protection for companion animals. Section 842 (i) states, “to observe such other conditions as are necessary to further the purposes of protection . . . .”107 “Other conditions” should include directing courts to order the removal of companion animals from the custody and control of the abuser. Oregon statute provides a direct and simple opportunity for amending current language because Oregon is one of the states that offers police assistance with removal of “essential personal effects.” The following section details how Oregon, which allows removal of property under an ex parte emergency order, can amend current law to assist victims of domestic violence with safe removal of companion animals from the abusive setting. A. Defining Companion Animal The legislature should amend the Family Abuse Prevention Act108 to include the term companion animal. ‘Companion animal’ means any non-human

mammal, bird, or reptile. Obviously, this definition is broad. It raises issues concerning things like farm animals and commercial livestock. An alternative and narrower definition of ‘companion animal’ might be any non-human mammal, bird, or reptile for the primary purpose of providing companionship to the owner, rather than for business or agricultural purposes. B. The Model Statute The legislature should amend109 ORS 107.718(1)110 to read: *112 When a person files a petition under ORS 107.710, the circuit court shall hold an ex parte hearing in person or by telephone on the day the petition is filed or on the following judicial day. Upon a showing that the petitioner has been the victim of abuse committed by the respondent within 180 days preceding the filing of the petition and that there is an immediate and present danger of further abuse to the petitioner, the court shall, if requested by the petitioner, order, for a period of one year or until the order is withdrawn or amended, or until the order is superseded as provided in ORS 107.722, whichever is sooner . . . . (d) That a peace officer accompany the party who is leaving or has left the parties' residence to remove [the companion animal(s)] and any essential personal effects of the party or the party's children, or both, including but not limited to clothing, toiletries, diapers, medications, social security cards, birth certificates, identification and tools of the trade. . . . The legislature should amend ORS 107.719111 to read: (1) A peace officer who accompanies a party removing [companion animals, and] essential personal effects pursuant to an order issued under ORS 107.718 shall remain for up to 20 minutes and may temporarily interrupt the removal of property at any time. Nothing in this subsection shall affect a peace officer's duty to arrest under ORS 133.055 and 133.310. (2) The party removing [companion animals, and] essential personal effects from the residence pursuant to an order issued under ORS 107.718 is entitled to be accompanied by a peace officer on one occasion only. (3) A peace officer who accompanies a party removing [companion animals, and] essential personal effects pursuant to an order issued under ORS 107.718 shall have immunity from any liability, civil or criminal, for any actions of the party committed during the removal of essential personal effects.

A law instructing the police to assist victims of domestic violence with the removal of their companion animals while affording the police immunity from liability is a modest extension of already existing domestic relations law. Inclusion of companion animals in the Family Abuse Prevention Act does not extend police power beyond what the current law already directs them to doassist victims when returning to the home to obtain essential personal effects. Yet, the benefits to victims of domestic violence, both human and non-human, are potentially significant. *113 Because some shelters are not equipped to handle companion animals, concerns may arise regarding the placement of pets for those women entering shelters.112 However, some communities, including Portland113 and Bend114 have well-organized pet fostering programs for domestic violence victims. Additionally, numerous and detailed examples of how to set-up a community program for sheltering pets are available.115 In addition to the concern for animal placement is the concern surrounding animal ownership. Companion animals in the family setting are typically coowned by the household's adults. Therefore, due process issues may arise. VII. DUE PROCESS Due process, unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.116 Generally, the two requirements of procedural due process are notice and hearing.117 In some circumstances the hearing may be post rather than preseizure.118 In most cases where the court grants an ex parte protective order to a petitioner, the respondent will have an opportunity to respond to the order. In Oregon, prior to the hearing, the petitioner-with the assistance of a peace officer-is entitled to remove “essential personal effects” from the home. If the respondent chooses to contest removal of the items, he will have an opportunity to do so at the contest hearing. Companion animals warrant removal under emergency protective orders, and thus pre-hearing seizure, because of the probability of danger to the animal when left with the abuser. A. Procedural Due Process Regarding Removal of Companion Animals First, due process may only become an issue in a post-seizure hearing, if the co-owners contest ownership of the animal. At the time the police are assisting the victim with removal of the animal, the State is merely present to protect the

rights of the victim co-owner, not to take possession of companion animals and essential personal effects itself. In other words, it is the victim acting, not the State. *114 Second, while the procedural due process provisions of the federal119 and Oregon state constitutions120 impose constraints on State actions that deprive individuals of their private property, companion animals are not the same as inanimate objects. When a court “determin[es] what is due process of law [it must] consider the nature of the property, the necessity for its sacrifice, and the extent to which it has . . . been regarded as within the [State's] police power.”121 Here, the nature of the property is that of a living animal, a sentient being. Living animals warrant removal in emergency situations because they are not like a piece of antique furniture or a boat. Increasingly, modern courts recognize that pets generally do not fit neatly within traditional property law principles.122 As personal property, companion animals may have a monetary market value.123 However, some jurisdictions recognize a heightened “actual or intrinsic value” in companion animals for their owners.124 Because animals are not inanimate objects like the vast majority of property, state legislatures and courts must fashion rules that protect the interests of both owners and animals. Later, at a post-seizure hearing, if the abuser decides to assert ownership interest in the animal, the court should adopt a ‘best interest of the animal’ approach. B. Companion Animal Custody Rights - Best Interest of the Animal The current legal system presumes that an individual is entitled to notice and opportunity for a hearing prior to the State's permanent deprivation of a property interest.125 In some cases of domestic violence, notice and opportunity for a hearing prior to depriving an abuser of the animal may be possible. However, it is when the victim needs to return home briefly to remove essential items, including an animal that may be at risk, that a pre-deprivation hearing may not be in the best interest of the co-owner victim or the animal. In most cases of domestic violence victims seeking court orders, there is a need to act quickly. A dangerous time for victims of domestic violence--when they are at increased risk--is the period immediately after fleeing the abuser.126 *115 The law already recognizes the necessity for police assistance to victims in returning to the home to retrieve belongings.127 It logically follows that

animals, typically loved and cherished by the victims, are also at increased risk during this period. While the State may be depriving one owner of a property right, it is also assisting a co-owner with protection of that same right. If the victim believes an animal is at risk of injury or even death, how harmful can the deprivation be to the perpetrator? So long as the victim's safety is not in jeopardy, the law should allow a postdeprivation hearing. In other words, there is no reason not to provide the coowner with a post-deprivation hearing opportunity, unless extenuating circumstances exist that would place the victim in harms way - such as the abuser being able to find out where the victim resides. When there is a hearing and a co-owner challenges custody of the animal, courts should award custody based on best interest of the animal.128 VIII. SUMMARY Domestic violence touches each of us. Over 50% of all women will experience physical violence in an intimate relationship, and for 24-30% of those women, the battering will be regular and ongoing.129 In the United States, the crime of battering occurs every 15 seconds.130 Violence begets violence. Included in the battering against women is the physical abuse of children and companion animals. The American Bar Association's Commission on Domestic Violence believes that domestic violence arises in so many areas of legal practice that, as a matter of professional competency, lawyers must screen for domestic violence, and all law schools must require law students to study domestic violence.131 With America's ever-growing awareness of domestic violence issues, people must realize that victims need assistance and relief. Historically, the legal system has been a source of that relief, but more needs to be done. *116 With some exceptions, the law of domestic relations traditionally belongs to state jurisdictions.132 Therefore, the responsibility for preventing domestic violence and protecting its victims lies within the power of the state legislature and judiciary. Currently, however, there is no direction from either the legislature or the judiciary regarding assistance to victims with the safe removal of their companion animals from an abusive situation. Because of this lack of

assistance, victims are remaining in violent households or returning to violent households in order to protect their beloved companion animals. The Oregon legislature has the opportunity to lead the nation by amending existing domestic relations law in order to provide needed assistance to victims of domestic violence. Including the term “companion animal” in the Family Abuse Prevention Act133 is a minor amendment with a potentially significant impact. Currently, the law entitles domestic violence victims who have fled an abusive relationship to retrieve items such as dresses, diapers and deodorant--surely the family dog, cat or hamster is worth including in the list of items necessary to the victim. Additionally, ensuring that the victim and not the abuser maintain custody of the family pet is in the best interest of the animal. This paper offers a simple and straightforward approach to amending a current statute. By simply adding the term “companion animal” to a current statute, both human and non-human victims of domestic violence will benefit. Footnotes d1 Ms. Gentry is a third year law student at Northwestern School of Law of Lewis and Clark College in Portland, Oregon. She plans to graduate in May 2001 and with any luck pass the bar and begin a private law practice. Ms. Gentry thanks Pamela Frasch, animal advocate extraordinaire, for her inspiration; Douglas Beloof, preeminent victims' rights advocate, for his critical advice; Lauren Rule, smartest kid in law school, for her active voice and Jeffrey Hogle, best friend, for his kindness and love. 1 Albert Schweitzer, The Philosophy of Civilization 311 (C.T. Campion trans., 1949). 2 Interview with Barbara Beardsley, Receptionist, Northwestern School of Law of Lewis and Clark College, in Portland, Or. (June 21, 2000) (transcription and tape on file with author). 3 Family Abuse Prevention Act, Or. Rev. Stat. § 107.718 (1)(d) (1999) (allowing that when a victim of domestic violence files a petition, a peace officer may accompany the party who is leaving or has left the parties' residence to remove essential personal effects, including those of the party's children, including but not limited to clothing, toiletries, diapers, medications, social security cards,

birth certificates, identification and tools of the trade); Or. Rev. Stat. § 107.719 (1), (2) (1999) (stating that a peace officer who accompanies a party removing essential personal effects pursuant to an order shall remain for up to 20 minutes and may temporarily interrupt the removal of property at any time; party removing essential personal effects from the residence pursuant to an order is entitled to be accompanied by a peace officer on one occasion only). 4 Or. Rev. Stat. § 107.718 (5) (1999) (describing petition form that “shall be available from the clerk of court” with the following check-list language included: [ ] 6. Respondent shall move from and not return to the residence located at__________ except with a peace officer in order to remove essential personal effects of the respondent, and if the respondent is the legal custodian, essential personal effects of respondent's children, including, but not limited to: clothing, toiletries, diapers, medications, social security cards, birth certificates, identification and tools of the trade (emphasis added). [ ] 7. A peace officer shall accompany the petitioner to the parties' residence in order to remove essential personal effects of petitioner, and if the petitioner is the legal custodian, essential personal effects of the petitioner's children, including, but not limited to: clothing, toiletries, diapers, medications, social security cards, birth certificates, identification and tools of the trade) (emphasis added). 5 The terms “pet” and “companion animal” are used interchangeably throughout the paper. 6 See Frank R. Ascione, Safe Havens for Pets; Guidelines for Programs Sheltering Pets for Women Who Are Battered 1 (2000). A female client at a women's shelter in Wisconsin had to return home to try and save her dog's life, while she was at the shelter, her abusive husband took photos of himself chopping of the ears of her dog with gardening shears and mailed both the photos and ears to the client's mother. 7 Carol J. Adams, Women Battering and Harm to Animals, in animals and women, feminist theoretical explorations 56 (Carol J. Adams & Josephine Donovan eds., 1995). 8 Id. at 59. 9 2 William Blackstone, Commentaries *2.

10 Id. at *4. 11 Boulder, Colo., Ordinance 4719 (2000). 12 See, e.g., Corso v. Crawford Dog and Cat Hosp., Inc ., 415 N.Y.S.2d 182 (1979). 13 Id. at 183. 14 Id. (emphasis added). 15 In re Estate of Brand, No. 28473 (Vt. Prob. Ct., Chittenden County, Mar. 17, 1999). 16 Id. slip op. at 2. 17 Id. slip op. at 4. 18 Id. 19 Id. slip op. at 6. 20 Animal welfare institute, Animals and Their Legal Rights 1 (4th ed. 1990) (discussing the Massachusetts Bay Colony “Body of Liberties” - Nos. 92 & 93). 21 David Favre & Vivien Tsang, The Development of Anti-Cruelty Laws During the 1800s, 1993 Det. C.L. Rev. 1 (1993). 22 Adams, supra note 7, at 56. 23 Id. at 77. 24 Mother Hildegard George, The Role of Animals in the Emotional and Moral Development of Children, in Child Abuse, Domestic Violence, and Animal Abuse 380, 390 (Frank R. Ascione & Phil Arkow eds., 1999). 25 Phil Arkow, The Evolution of Animal Welfare as a Human Welfare Concern, in Child Abuse, Domestic Violence, and Animal Abuse, supra note 24, at 19, 23. 26 Randall Lockwood, Animal Cruelty and Violence Against Humans: Making the Connection, 5 Animal L. 81, 82 (1999). 27 Phil Arkow, Breaking the Cycles of Violence: A Practical Guide 3 (Latham Found., Alameda, Cal. 1995). 28 Charlotte Lacroix, Another Weapon for Combating Family Violence: Prevention of Animal Abuse, in Child Abuse, Domestic Violence, and Animal Abuse supra note 24, at 62, 64. 29 See generally Janell D. Schmidt & Lawrence W. Sherman, Does Arrest Deter Domestic Violence, in Do Arrests and Restraining Orders Work 43, 49 (Eve S. Buzawa & Carl G. Buzawa eds., 1996); Carol J. Adams, Bringing Peace

Home: A Feminist Philosophical Perspective on the Abuse of Women, Children, and Pet Animals, 9 Hypatia 74-79 (1994). 30 Adams, supra note 29, at 76. 31 Frank R. Ascione, Battered Women's Reports of Their Partners' and Their Children's Cruelty to Animals, in Cruelty to Animals and Interpersonal Violence 290, 292-93 (Randall Lockwood & Frank R. Ascione eds., 1998). 32 Id. 33 Id. 34 Frank R. Ascione, Children Who Are Cruel to Animals: A Review of Research and Implications for Developmental Psychopathology, in Cruelty to Animals and Interpersonal Violence, supra note 31, at 96 (parental reports of cruelty to animals were 35% for abused boys and 27% for abused girls; the percentages were 5% for non-abused boys and 3% for non-abused girls). 35 See Ascione, supra note 6, at 1; Ascione, supra note 31; C.F. Flynn, Animal Abuse in Childhood and Later Support for Interpersonal Violence in Families, 7 Soc'y & Animals 161 (1999). 36 Callie Marie Rennison & Sarah Welchas, U.S. Dep.'t of Justice, Intimate Partner Violence 1 (2000). 37 Id. 38 Governor's Council on Domestic Violence, 1998 Oregon Domestic Violence Needs Assessment 6 (1998) (on file with author). 39 Douglas E. Beloof, Victims in Criminal Procedure 76 (1999) (citing the Surgeon General, 264 JAMA 3132 (1992)). 40 Lacroix, supra note 28, at 64 (internal citation omitted). 41 Id. (citing a survey conducted by the American Animal Hospital Association in 1995). 42 Sara A. Wiswall, Animal Euthanasia and Duties Owed to Animals, 30 McGeorge L. Rev. 801, 801 (1999) (citing the International Association of Pet Cemeteries in 1998). 43 Star Jorgensen & Lisa Maloney, Animal Abuse and the Victims of Domestic Violence, in Child Abuse, Domestic Violence, and Animal Abuse, supra note 24, at 143, 144 (describing different forms of animal abuse used to threaten and intimidate female victims of domestic violence, including kicking the dog or cat, hanging the family pet, breaking an animal's legs, taking an animal to an

open field and shooting it with the human victim present, cutting a cat's ears with shears and setting its tail on fire, and making the dog sit in the corner and tying it down with weights). 44 Governor's Council on Domestic Violence, 1998 Oregon Domestic Violence Needs Assessment iii (1999) (on file with author). 45 Interview with Erika Silver, Director, Bradley-Angle House, in Portland, Or. (June 6, 2000). Currently, shelters in Oregon's ‘tri-county’ area - Clackamas, Multnomah, and Washington - are in such demand that only one in ten women seeking shelter can find it. 46 Ascione, supra note 31, at 296 (finding that 18% of 38 women surveyed in a Utah battered women's shelter reported that their concern for their animals' welfare had prevented them from coming to the shelter sooner). 47 Id. 48 Telephone Interview with Julie Justman, Peace Officer, Humane Society of Pikes Peak Region, Or. (Mar. 13, 2000) (Officer Justman stated that she recently responded to a call regarding a woman who had a history as a domestic violence perpetrator, and on this occasion she had placed the family cat in a microwave for 30 minutes, killing it); see also Alan B. Felthous & Bernard Yudowitz, Approaching a Comparative Typology of Assaultive Female Offenders, in Cruelty to Animals and Interpersonal Violence, supra note 31 at 278. 49 Ascione, supra note 31, at 290, 296. 50 Id. at 296. 51 Survey Results for Domestic Violence Shelters in Oregon Communities, conducted Mar. 2000 and compiled May 22, 2000 (participating shelters and original results on file with author). 52 Id. (survey questions and responses on file with author). 53 Id. 54 Telephone Interview with Josh Marquis, District Attorney in Clatsop County, Or. (Oct. 23, 2000) (District Attorney Marquis stated that 90% of criminal cases are settled in the plea bargain phase and that 95%-98% of animal cases are plea-bargained, never reaching the trial phase). 55 Celinski v. State, 911 S.W. 2d 177, 180-81 (Tex. Ct. App. 1995). 56 Marquis, supra note 55.

57 Id. 58 Id. 59 Joyce Tischler, Zero Tolerance for Cruelty: An Approach to Enhancing Enforcement of State Anticruelty Laws, in Child Abuse, Domestic Violence, and Animal Abuse, supra note 24 at 297, 298 (listing examples of judges failing to recognize animal abuse issues). 60 Celinski, 911 S.W.2d at 179. 61 Id. at 179-180. 62 Id. 63 Id. 64 Pamela Frasch et al., Animal Law 616 (2000). 65 Phil Arkow, Legislative Update: California and Oregon Enact “Link” Laws, The Latham Letter (Latham Found., Alameda, Cal.) Winter 1999, at 10 (discussing laws in Arizona, California, Idaho, Oregon and West Virginia). 66 Schambon v. Commonwealth, 821 S.W.2d 804 (Ky. 1991). 67 Id. 68 Id. at 806. 69 Id. at 808. 70 Id. 71 Id. at 811. 72 State v. Smith, 791 P.2d 836 (Or. 1990). 73 Id. at 848. 74 See generally Lacroix, supra note 28, at 62; Tischler, supra note 60, at 299 (arguing that judges and prosecutors should focus on the course of conduct rather than the victim; violent behavior is violence whether the victims are human or non-human sentient beings); cf. Elizabeth Pleck, Domestic Tyranny, The Making of Social Policy Against Family Violence from Colonial Times to the Present 187 (1987) (rejecting the idea that the wife should go into hiding while the assailant goes free). 75 See generally Pamela D. Frasch et al., State Animal Anti-Cruelty Statutes: An Overview, 5 Animal L. 69 (1999). 76 See Hearings on Or. H. 3377 Before the Senate Comm. on the Judiciary, 1995 Leg., 68th Reg. Sess. (May 10, 1995), (URL removed for reprint) (statement

from Sharon Harmon, Director, Oregon Humane Society, testifying that in 80% of homes in which child abuse occurs, animal abuse also occurs). 77 Pamela Frasch et al., Animal Law 695 (2000). 78 Arkow, supra note 25 at 26 (discussing the challenges of cross-reporting with respect to animal welfare). 79 Cal. Penal Code § 11165.16 (West 1999) (amended in 1993 to add “Humane Society Officer” and “Animal Control Officer” to the list of those mandated to report child abuse). Needs to be fixed--Westlaw indicates that this statute was repealed by Stats.2000, c. 916 (A.B.1241), §§ 13 to 15. 80 Conn. Gen. Stat. § 46b-129(a) (1995) (While not explicitly named, Connecticut includes humane society officers under the category of “welfare department personnel.”); Fla. Stat. Ann. § 828.03(1) (West 1999); Ohio Rev. Code Ann. §§ 1717.04..06, .09, .14 (West 1994); D.C. Code Ann. §§ 32-908 & 909 (1996). 81 Interview with Dr. Bob Franklin, Past President, Oregon Veterinary Medicine Assoc., in Keiser, Or. (May 3, 2000). 82 E.g., Lacroix, supra note 28 at 67-71. 83 Colo. Rev. Stat. § 18-6-803.6 (1999); Conn. Gen. Stat. Ann. § 46b-38b (West 2000); Iowa Code Ann. § 236.12 (West 1994); Kan. Stat. Ann. § 403.785 (1999); La. Rev. Stat. Ann. § 46:2140 (West 1999); Me. Rev. Stat. Ann. tit. 19-A, § 4012 (West 1998); Mass. Gen. Laws Ann. ch. 209A, § 6 (West 1998); Mich. Stat. Ann. § 28.1274(3) (Michie 1996); Nev. Rev. Stat. § 171.1225 (1999); Utah Code Ann. § 30-6-8(2) (1998). 84 Alaska Stat. § 18.65.515(a)(2) (Michie 1998); Md. Code Ann. Fam. Law § 798(2)(ii) (1999); Miss. Code Ann. § 93-21-28 (1999); N.M. Stat. Ann. § 40-137B(3) (Michie Supp. 1999); S.D. Codified Laws § 23-3-39.8 (Michie 1998); Wyo. Stat. Ann. § 35-21-107 (b)(iii) (Michie 1999). 85 Ohio Rev. Code Ann. § 2919.26 (West Supp. 1999); Okla. Stat. Ann. tit. 22, § 60.4 (West Supp. 2000). 86 Cal. Fam. Code §§ 6321(a), 6324 (West 1999); Colo. Rev. Stat. § 14-4-103(3) (b) (1999); Iowa Code Ann. § 236.5(2)(b) (West Supp. 1999); Md. Code Ann. Fam. Law §§ 4-505, 4-506 (1999); Tenn. Code Ann. § 36-3-606 (a)(4) (1998). 87 Ariz. Rev. Stat. Ann. §§ 13-3624 (D)(2), 13-3601 (c), (j) (West Supp. 1999); Fla. Stat. Ann. § 741.30.(7)(a)(2) (West Supp. 2000); Haw. Rev. Stat. § 586-7

(1993); N.D. Cent. Code § 14.07.1-04 (1997); Pa. Cons. Stat. Ann. §§ 6105, 6108 (West Supp. 1999); R.I. Gen. Laws § 15-15-5 (1996); Wis. Stat. Ann. § 813.12 (West Supp. 1999). 88 Del. Code Ann. tit. 10, § 1045(a)(4) (1999); Mo. Ann. Stat. § 455.050 (3), (7) (West Supp. 2000); N.Y. Dom. Rel. Law § 240- 3.a. (4) (McKinney 1999); Tex. Fam. Code Ann. § 85.021 (Vernon Supp. 2000); Va. Code Ann. § 16.1-253.1 (Michie 1998). 89 Ark. Code Ann. § 9-15-208 (Michie Supp. 1999); Ga. Code Ann. § 19-134(a)(5),(a)(8),(d) (1999); 725 Ill. Comp. Stat. Ann. 5/112A-30(a)(3) (West Supp. 1999); Mont. Code Ann. § 40-15-201(2)(h) (1999); N.C. Gen. Stat. § 50B-3 (1996); Or. Rev. Stat. § 107.719 (1997); S.C. Code Ann. § 20-4-60(c)(5) (Law. Co-op 1996); Wash. Rev. Code Ann. § 26.50.080 (West 1997); W. Va. Code § 48-2A-6 (a) (9) (1999). 90 N.H. Rev. Stat. Ann. § 173-B:10(c) (1999); N.J. Stat. Ann. § 2C:25-29(b)(9), (12) (West Supp. 1999); Or. Rev. Stat. § 107.718(1)(d) (1999). 91 Idaho Code § 39-6308(1)(b),(d),(g) (1998); Ind. Code Ann. § 34-26-2-2, § 2(3)(C), (D) (Michie Supp. 1999). 92 Eyerman v. Mecantile Trust Co., 524 S.W.2d 210, 217 (Mo. 1975). 93 See, e.g., 42 U.S.C. §§ 13931-14040 (1994) (Violence Against Women Act of 1994, Pub.L. 103-322, Title IV, 108 Stat. 1902 (1994)); Navarro v. Block, 72 F.3d 712 (9th Cir. 1995) (court made decision in part on “good public policy” to allow relatives of murdered domestic violence victim to move forward with their equal protection claim, because no rational basis existed for alleged policy of affording victims of domestic violence less police protection than other victims when calling 911); Soto v. Flores, 103 F.3d 1056, 1068 (1st Cir. 1997) (Puerto Rico's Domestic Abuse Prevention and Intervention Act recognizes that the problem of domestic violence impacts women most heavily, and in developing the public policy on this matter the legislature gave special attention to the difficulties that domestic abuse presents, especially for women and children); Blackman v.Commissioner, 88 T.C. 677, 683 (1987) (Maryland has an articulated public policy against domestic violence--court refused to encourage couples to settle their disputes with fire). 94 This is evidenced by the fact that every state in the country has some form of animal anti-cruelty statute. See Frasch, supra note 76, at 69; see generally

Ascione, supra note 34, at 85 (defining working definition for cruelty to animals as “socially unacceptable behavior that intentionally causes unnecessary pain, suffering, or distress to and/or death of an animal”). 95 See, e.g., In re Estate of Brand, No. 28473 (Vt. Prob. Ct., Chittenden County, Mar. 17, 1999). 96 Or. Rev. Stat. § 107.719 (1997) (peace officer who accompanies a party removing essential personal effects pursuant to an order shall remain for up to 20 minutes and may temporarily interrupt the removal of property at any time; party removing essential personal effects from the residence pursuant to an order is entitled to be accompanied by a peace officer on one occasion only). 97 Governor's Council on Domestic Violence, supra note 45, at 19 (22% of physically abused women obtain a restraining order) (on file with author). 98 Or. Rev. Stat. § 107.718(1)(d) (1999) (stating that essential personal effects include but are not limited to “clothing, toiletries, diapers, medications, social security cards, birth certificates, identification and tools of the trade”). 99 Interview with Char Palnes, Victim's Advocate, Victims Assistance, Clackamas County District Attorney's Office, in Keiser, Or. (May 3, 2000). 100 Id. 101 Telephone Interview with Char Palnes, Victim's Advocate, Victims Assistance, Clackamas County District Attorney's Office (June 1, 2000). 102 Leonard Karp & Cheryl L. Karp, Domestic Torts, Family Violence, Conflict and Sexual Abuse § 1.17, at 33 & n.110 (West Supp. 2000). 103 Cal. Fam. Code § 6324 (West 1999). 104 Id. at App. A . I can't find what this footnote is referring to. 105 N.Y. Dom. Rel. Law § 240 3.(4) (McKinney Supp. 2001). 106 N.Y. Fam. Ct. Act § 842(d) (McKinney 2000). 107 N.Y. Fam. Ct. Act §842(i) (McKinney 2000). 108 Or. Rev. Stat. § 107.718 (2000); Or. Rev. Stat. § 107.719 (2000). 109 Proposed language in brackets. 110 Or. Rev. Stat. § 107.718. 111 Or. Rev. Stat. § 107.719. 112 Survey Results for Domestic Violence Shelters in Oregon Communities, supra note 53. Survey conducted by author shows evidence that several of

Oregon's women's shelters provide some type of assistance with an animal either in house care or pet foster care placement. 113 Dove Lewis Animal Hospital. 114 Central Oregon Humane Society. 115 E.g., Ascione, supra note 6, at app. 116 Cafeteria Workers v. McElroy, 367 U.S. 886, 895 (1961) (quoting Justice Frankfurter's concurring opinion in Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123 (1951)). 117 Fuentes v. Shevin, 407 U.S. 67, 80 (1972). 118 Id. at 82. Due process requires “that an individual be given an opportunity for a hearing before he is deprived of any significant property interest, except for extraordinary situations where some valid governmental interest is at stake that justifies postponing the hearing until after the event” (quoting Boddie v. Connecticut, 401 U.S. 371, 378-79 (1971)). 119 U.S. Const. amend. XIV § 1. 120 Or. Const. art. I, § 9. 121 Sentell v. New Orleans & Carrollton R.R. Co., 166 U.S. 698, 704 (1897). 122 E.g., Corso v. Crawford Dog and Cat Hosp., Inc., 415 N.Y.S.2d 182 (1979) (recognizing that animals are not like other property in landlord tenant cases, tort actions, and domestic relations/custody cases). 123 Green v. Leckington, 236 P.2d 335 (Or. 1951). 124 Corso, 415 N.Y.S.2d at 183 (stating that dog owner is entitled to more than market value of dog): [A] pet is not just a thing ... [a]n heirloom while it might be the source of good feelings is merely an inanimate object and is not capable of returning love and affection. It does not respond to human stimulation; it has no brain capable of displaying emotion which in turn causes a human response... [b]ut a dog is something else. To say it is a piece of personal property and no more is a repudiation of our humaneness. Id. 125 Logan v. Zimmerman Brush Co., 455 U.S. 422, 428 (1982) (citing Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950)). 126 See Barbara Hart, Battered Women and The Criminal Justice System, in Do Arrests and Restraining Orders Work 98, 99 (Eve S. Buzawa & Carl G. Buzawa, eds., 1996) (stating that fifty percent of battered women fear retaliation if they participate in prosecution and 32% of women are re-victimized within

six months of criminal justice intervention as opposed to 13% of victims of stranger-committed crimes). 127 Or. Rev. Stat. § 107.718(1)(d) (1999). 128 Raymond v. Lachmann, 695 N.Y.S.2d 308, 309 (1999) (ordering the parties to work out a visitation schedule that did not shift custody of their cat back and forth, because moving the cat around all the time was not in cat's best interest); see also Brooke A. Masters, In Courtroom Tug of War Over Custody, Roommate Wins the Kitty, Wash. Post, Sept. 13, 1997, at B1 (reporting that the court had decided that it was in best interest of their cat to award the animal to the roommate that provided the most care). 129 National Coalition Against Domestic Violence, The Problem: Who is Battered, at (URL removed for reprint) (last visited July 9, 2000). 130 Id. 131 American Bar Association Commission on Domestic Violence, Teaching Domestic Violence Law, (URL removed for reprint) (last visited April 25, 2001). 132 Ankenbrandt v. Richards, 504 U.S. 689 (1992) (finding an exception to the general rule that federal courts have no diversity jurisdiction over domestic relations in an action for alleged sexual and physical abuse of children committed by their father and his girlfriend). 133 Or. Rev. Stat. § 107.718 (1)(d) (1999)

Chapter 3 Anti vivisection

Introduction Anti vivisection and dissection New Hampshire Illinois Florida Humane Education, Dissection, and the Law Introduction anti-vivisection and dissection Many students are appalled at the thought of killing an animal in class to dissect that animal. Many parents have the same beliefs. However, others don't share those feelings. We are long past the days when we need to dissect a frog to understand basic biology. In many ways, computer models and other learning exercises teach students more than examining animals.

Statutes that deal with these topics often recognize that this is a controversial area in science education. Florida bans operating on live animals in K- 12 classrooms. Florida also allows opting out of dissecting animals. Illinois recognizes that there are other educational tools available and gives students the right to take advantage of those alternatives. Maybe more importantly, Illinois prohibits schools from penalizing students who choose to learn from a computer model or some other virtual experience. Marcy Goodman Kramer discusses the variety of laws that exist concerning dissecting animals in the classroom. Then moves on to point out strategies’ students can use to fight being forced to participate in dissection class projects. New Hampshire Board of Education Student Choice Policy Adopted March 26, 2014 Educators in New Hampshire understand that the most successful teaching and learning results when performance-based lessons are personalized and students have a voice in directing their own learning pathways. Activities that support learning must address social, emotional, physical, and cognitive aspects of learning and provide comprehensive supports for students who might not be comfortable with certain learning activities. An activity in which living or dead animals are viewed, cut, killed, inspected, touched, handled, preserved, mounted, or otherwise manipulated in ways which may cause harm to them, is a potential source of ethical conflict or sensitivity that may adversely affect student learning. This policy provides an opportunity for students to replace such instructional activities with choices that are more engaging for them without loss of academic value. The regulations and requirements set in this policy will cover all K-12 students in the school district and will be in place for all courses of study involving life science curriculum for which the use of animals, living or dead, might be considered a potential learning activity. Any activities that may cause ethical conflicts for students due to potential harm or death to animals shall fall under this Student Choice Policy. An animal is considered to be any organism, living or dead that is classified in the Kingdom Animalia. Any student, for any reason, may choose to replace an activity that causes harm to

animals, whether they be already dead, such in dissections, or living, such as animal testing, with an alternative activity that does not. Those instructors that teach dissection/vivisection in their classes should verbally announce the Student Choice Policy to all students on the first day of their class, and include the policy in their course syllabus. The policy is also available for review on the district website. Teachers should also inform their students that alternatives to killing, harming, or dissecting animals will be made available to them at the time of the activity in which animals will be used. Students must inform their teachers of their intention to replace an activity prior to the start of that activity. Teachers should include alternatives to the activities covered by this policy in their curriculum, and syllabi, and information on the replacement process should be provided in course syllabi and Program of Studies, or Course Catalogue. While students should be given a voice in their alternative choices, the teacher has the responsibility of determining, which alternate activities will allow students to meet the standards and learning objectives intended by the original activity. The teacher should maintain an updated list of approved alternate activities that still provide students with opportunities to meet competency for the standards being taught. Alternative activities should not be more difficult, or require more work or time than the original activity with which the student had ethical conflicts. These may include computer simulations, models, videos, and charts, all of which should be readily available to incorporate into life science exercises. A student’s grade will not be affected in any way due to the choice of alternative to animal dissection or activities, which harm animals. Likewise, the alternative choices will be comparable in depth and scope to the learning outcomes of the dissection activity and help the student meet competency in the standards. Illinois Public Act 91-0771 AN ACT in relation to alternatives to dissection. Be it enacted by the People of the State of Illinois, represented in the General Assembly: Section 1. Short title. This Act may be cited as the Dissection Alternatives Act.

Section 5. Findings and purpose. (a) The General Assembly finds and declares that the appropriate use of dissection in research and education has contributed a great deal to the advancement of medical and biological science. Without dissection the science of anatomy could not have advanced, and it is the bedrock supporting the modern practice of surgery in its many forms. The appropriate use of dissection has brought many benefits to the people of this State, and it continues to play important roles in medical and veterinary practice, research, and education. (b) The General Assembly also finds that the remarkable progress of the last few decades has produced significant advances in computing and the graphic and representational arts, and that these developments have resulted in the creation of many new technologies for teaching anatomy, physiology, and other medical and biological sciences. In certain circumstances these new technologies are capable of providing an educational experience superior to dissection, and they have often proven to be less expensive and more humane. (c) The General Assembly also finds that the use of dissection, when inappropriate or poorly supervised, can result in the inhumane treatment and unnecessary suffering of animals. The inappropriate or careless use of dissection in schools has also in some instances traumatized students and contributed to a failure to teach proper respect for life and living creatures. (d) It is the purpose of this Act to encourage schools in this State to make available and use alternatives to dissection when those alternatives are appropriate and can provide an educational experience that is equal or superior to the traditional use of dissection. It is not in any way the intention of this Act to discourage the appropriate use of dissection in research or when it provides a valuable educational experience to students. Section 10. Definitions. For the purposes of this Act, unless the context otherwise requires: “Student” means a pupil at a public or private elementary or secondary school in Illinois. “Teacher” means a person who is teaching at a public or private elementary or secondary school in Illinois, regardless of whether that teaching is on a fulltime or part-time, temporary or permanent, or regular or substitute basis.

“Dissection” includes cutting, killing, preserving, or mounting of living or dead animals or animal parts for scientific study; but does not include the cutting, preserving, or mounting of (1) meat or other animal products that have been processed for use as food or in the preparation of food or (2) wool, silk, glue, or other commercial or artistic products derived from animals. Section 15. Alternative student projects. A school may excuse a student enrolled in a course in which students are ordinarily expected to perform, participate in, or observe dissection who objects for any reason to performing, participating in, or observing that dissection and instead allow the student to complete an alternative project. The alternative project should be nonpunitive and should be reasonably chosen to provide the student, through means other than dissection, with knowledge similar to that expected to be gained by other students in the course who perform, participate in, or observe the dissection. The alternative project should be consistent with any guidelines for alternative projects that have been adopted by the State Board of Education. Section 20. Guidelines for notification of students and parents. (a) The State Board of Education shall develop and make available guidelines that may be used by the public elementary and secondary schools within this State to give appropriate notice of the following to students and their parents or legal guardians: (1) Which, if any, of the courses taught at the school ordinarily require or allow the student to perform, participate in, or observe dissection. (2) Whether or not the school makes available to students the opportunity to complete an alternative project. (b) When offering high school students an opportunity to choose between dissection or an alternative project, teachers should encourage the students to take into consideration the expectations and requirements of the colleges and graduate programs that they may be interested in attending. Section 25. Discrimination prohibited. A student may not be penalized or discriminated against in any way for refusing to perform, participate in, or observe dissection. Section 99. Effective date. This Act takes effect upon becoming law and first applies to the 2000-2001 school year.

Florida Florida Statutes Education 233.0674 Biological experiments on living subjects: (1) Legislative intent.– (a) The legislature finds that: 1. Biological experimentation is essential for an understanding of the complexity and diversity of life processes; 2. Such studies should lead to a broader awareness of living systems; 3. Capable students anxious to pursue careers in biological sciences should receive appropriate encouragement and guidance; and 4. Biological experimentation should be within the comprehension and capabilities of the student undertaking the study. (b) The Legislature recognizes that the use of live animals in some kinds of experiments by students in grades K through 12 may be distasteful or traumatizing to immature students. (2) State Policy.– It is therefore the intent of the Legislature with respect to biological experiments involving living subjects by students in grades K through 12 that: (a) No surgery or dissection shall be performed on any living mammalian vertebrate or bird. Dissection may be performed on any non-living mammals or birds secured from a recognized source of such specimens and under supervision of qualified instructors. Students may be excused upon written request of a parent or guardian. (b) Lower orders of life and invertebrates may be used in such experiments. (c) Non-mammalian vertebrates, excluding birds, may be used in biological experiments, provided that physiological harm does not result from such experiments. Anatomical studies shall only be conducted on models which are anatomically correct for the animals being studied or on non-living nonmammalian vertebrates secured from a recognized source of such specimens and under the supervision of qualified instructors. Students may be excused from such experiments upon written request of the parent or guardian.

(d) Observational studies of animals in the wild or in zoological parks, gardens, or aquaria, or of pets, fish, domestic animals, or livestock may be conducted. (e) Studies of vertebrate animal cells, such as red blood cells or other tissue cells, plasma or serum, or anatomical specimens, such as organs, tissues, or skeletons, purchased or acquired from biological supply houses or research facilities or from wholesale or retail establishments which supply carcasses or parts of food animals may be conducted. (f) Normal physiological and behavioral studies of the human animal may be conducted, provided that such projects are carefully selected so that neither physiological or psychological harm to the subject can result from such studies. (g) All experiments shall be carried out under the supervision of a competent science teacher who shall be responsible for ensuring that the student has the necessary comprehension for the study to be undertaken. Whenever feasible, specifically qualified experts in the field should be consulted. (h) Live animals on the premises of public and nonpublic elementary and secondary schools shall be housed and cared for in a humane and safe manner. Animals shall not remain on the premises of any school during periods when such school is not in session, unless adequate care is provided for such animals. (3) Exemptions.– The provisions of this section shall not be construed to prohibit or constrain conventional instruction in the normal practices of animal husbandry or exhibition of any livestock in connection with an agricultural program or instruction of advanced students participating in advanced research, scientific studies, or projects HUMANE EDUCATION, DISSECTION, AND THE LAW By Marcia Goodman Kramer* Students regularly encounter animal dissection in education, yet humane education receives little attention in animal law. This article analyzes the status of humane education laws in the United States. It discusses the range of statutory protections, from student choice laws to bans on vivisection. The article then analyzes the litigation options for students who do not wish to dissect, including constitutional claims and claims arising under student choice

laws. The article concludes by calling for additional legislation to protect students who have ethical objections to dissection. INTRODUCTION II. OVERVIEW OF HUMANE EDUCATION LAWS A. Kindness to Animals 282 B. Vivisection: Experiments on Live Animals C. Dissection: Animals Killed for Educational Use III. CASE LAW SCENARIO IV. CONSTITUTIONAL BASIS FOR ABSTENTION FROM DISSECTION V. HISTORY OF LITIGATION ON EDUCATION ISSUES VI. OPPOSITION TO DISSECTION LITIGATED VII. APPLICABILITY TO FUTURE CHALLENGES A. Model for Litigation: The Graham Case B. Settlements in Related Cases VIII. CONCLUSION 298 I. INTRODUCTION In examining the current field of animal law, few practitioners— and only some animal advocates—include issues in education, even humane education, as an element for consideration in their discussion of how animals are used and abused in our society. Litigation in this area is limited and a relatively small number of animals are used for vivisection or dissection in schools in comparison with the number of animals used for agricultural purposes or in research. Yet education falls squarely into the latter categorization of re- search, as students are exposed to life science education that involves the death of living creatures. It is arguable that all research on animals begins in the classroom, from the first earthworm or frog in elementary or middle school to fetal pigs and cats in secondary education. Advanced education in the life sciences begins where high school ends and may continue right up through the laboratory doors with intern- ships and fellowship opportunities through graduate school. What protection has the law provided to students with ethical objections to dissection in middle and high school, as well as at the college level? This article will discuss generally the state of the law regarding dissection, as well as look at

case law remedies that are arguably available for students who object to participating in or watching a dissection as part of the educational experience. The aim of this article is to provide effective strategies for enforcement of an individual’s moral stance regarding the harming of animals in the name of education. II. OVERVIEW OF HUMANE EDUCATION LAWS While there is little litigation involving humane education issues, a number of state laws have been passed directing schools to take into account ethical objections from students and/or their parents in enforcing participation in one element of the curriculum.1 This issue has social implications for the humane treatment of animals and also affects religious and moral freedoms guaranteed by the First Amendment of the United States Constitution. A. Kindness to Animals The issue of humane education generally has been subject to a fair number of legislative endeavors over the past few years. Some states have long incorporated humane standards in their educational curriculum 2 and others are only now considering the notion that “[t]he great- ness of a nation and its moral progress can be judged by the way its animals are treated.”3 Five states— California, 4 Illinois, 5 Louisiana, 6 New York, 7 and Washington8—currently require instruction in the worth of all living things or the humane treatment of animals. By 2005, four states— Connecticut, 9 New Jersey, 10 New York, 11 and Virginia12—had pro- posed revisions to their education laws that included the “humane treatment of animals”13 or “kindness toward domestic pets,”14 along with an array of other ethical concerns, such as racial tolerance and concern for the environment.15 As schools look at their codes of conduct and the social messages they feel are appropriate to emphasize in their curriculums, consideration for animals definitely has a place. B. Vivisection: Experiments on Live Animals More specifically, a few states prohibit vivisection on animals in schools. Vivisection differs from dissection in that the animal is alive during any procedure practiced upon it.16 States that prohibit or re- strict experiments on live animals in their schools include Florida, 17 Massachusetts, 18 Maine, 19 and New York.20 Such prohibitions become an issue when students, as part of a science fair project, perform invasive procedures on live animals. New York has

a system of waivers available for experiments done in a laboratory for the purpose of a science fair, 21 but only three waivers have been filed, and none of them were approved, 22 despite a number of invasive projects documented over the years at the Intel International Science and Engineering Fair.23 Most often, students perform invasive experiments on live animals within the confines of a research laboratory under the auspices of a supervising scientist; thus, the fact that vivisection is prohibited for school projects by state law is largely ignored. Some science fair rules, while not actively promoting animal experimentation, are certainly written with an understanding that these projects will take place.24 And some science fair administrators are unwilling to require that projects comply with the law of their originating states. Monitors of science fair activities, including the National Anti- Vivisection Society (NAVS), are reluctant to demand enforcement of these provisions when the violations are discovered, because the impact will land solely on the students at a time and place when they are celebrating their advancement in the sciences.25 It is the school officials and mentors who should be held responsible for ensuring that high school students know what rules apply to their projects, and science fair monitors’ efforts to work with the states have resulted in little cooperation. C. Dissection: Animals Killed for Educational Use A third type of humane education law impacts the use of animals in classrooms for grades K-12 by addressing the concerns of students who have an ethical objection to performing a dissection exercise on animals as part of their science curriculum. These laws, commonly known as “student choice” laws, have been passed in nine states, and hundreds of school districts and boards have policies that similarly provide students with a choice not to dissect.26 To dissect or not to dissect is a matter that can consume the attention of middle school, high school, and even college students through- out their academic careers, whether or not the student has an interest In studying biology, zoology, or one of the health sciences as a major or career choice. With science a requirement for graduation in many high schools and dissection a mandatory exercise in some science classes in grade school, the question of whether or not to participate in dissection affects millions of students nationwide.

For many students this is not a concern. Not all schools participate in dissection activities and over the years many schools have developed policies to exempt students who object to this exercise.27 Also, a vast number of students take no stand on the matter, but accept— and possibly anticipate—the dissection unit of their life science courses. Without a state dissection choice law, schools in many states may still require animal dissection as part of their curriculum without providing an alternative. New Jersey was the most recent state to adopt a law requiring schools to accommodate students stating an objection to dissection.28 Bills were considered in the 2005–2006 legislative sessions for Michigan29 and Massachusetts.30 Why is the subject of dissection important in the field of animal law? Any debate on the subject has as much to do with the sensibilities of animal advocates as the animals themselves. While animals commonly used for dissection range from fish, earthworms, and frogs to fetal pigs and even cats, 31 the law regarding dissection does not ad- dress the harm done to the animals or the ecosystem in collecting these animals. The law does not address the role of animal shelters that sell euthanized animals to biological supply houses—often on a demand basis that may conflict with a chartered mission to adopt out as many animals as possible. The law instead focuses on the ability of students to receive a quality science education without having to choose between their grades and their ethical beliefs. The policy implications of this accommodation are overwhelming. Science—even biology—can be taught without harming animals.32 It is a simple concept, but one that can be extrapolated into more advanced scientific studies, where students choose to engage in biomedical testing or even drug development, using no animal methodologies to study human responses. Student choice opens up the door to a new generation of scientists who, from their earliest leanings, approach science as an intrinsically humane process that neither wastes nor abuses animal life. So what is the law—both statutory and case law—supporting a student’s right not to dissect? On the statutory basis, nine states—Cal- ifornia, 33 Florida, 34 Illinois, 35 New Jersey, 36 New York, 37 Oregon, 38 Pennsylvania, 39 Rhode Island, 40 and Virginia41—have student choice laws. These laws range from basic accommodation provisions to parental notification to specific class

exemptions.42 all apply only to students through grade twelve, 43 and some apply only to public school students.44 Many individual schools and school boards have also developed policies that require teachers to accommodate students with ethical or moral objections to dissecting animals.45 A majority of county boards in the state of Maryland have adopted a provision for accommodtion, 46 and Clark County, Nevada (which includes the city of Las Vegas) passed a school board policy as a result of a student’s protest.47 Even at the level of advanced education, individual institutions have developed policies to accommodate students’ objections, especially regarding terminal animal labs.48 The “dog labs” once required by medical schools have been revised or replaced with nonterminal laboratory work—using sophisticated alternatives or even human cavers in a number of prestigious universities, including Emory, Harvard, Tufts, Yale, and dozens of other medical schools.49 But what options are open to students whose ethical objections are not accommodated at their schools? Once appeals to the principal, superintendent, or dean are exhausted, is there a remedy available to these students through the courts? III. CASE LAW SCENARIO Before looking at specific case law that may or may not support a legal remedy, it is helpful to look at a hypothetical case where a legal remedy is needed. This scenario is typical of situations that are brought to the attention of NAVS’ Dissection Hotline. The Dissection Hotline, a toll-free number that offers counseling to students who are faced with dissection in the classroom, offers most students assistance that results in a non-litigious solution to their problem.50 The scenario generally goes something like this: Jane Doe is taking a biology class in a high school in Iowa. She is notified a week ahead of time that students will be performing dissection on frogs in their classroom. Students who do not wish to participate may abstain, but they must watch the dissection and will be tested on the dissected specimens at the end of the unit. Jane does not want to dissect or watch a dissection. She is a vegetarian who volunteers for an animal shelter on the weekends. She approaches her teacher, who says that the dissection unit is necessary to the biology class. If Jane misses the classes, she will receive a failing grade for that unit.

Alternatively, Jane can drop biology, but she may receive a penalty for late withdrawal. Jane has a strong and deep-seated belief in the sanctity of life and feels that it is unnecessary to kill an animal—or study an animal who was killed—to meet the requirements of the class. She proposes the use of a model frog or a computer dissection program on frog anatomy instead, but her teacher refuses to allow her to use either alternative. Jane takes her proposal through the channels of the school administration without success. Meanwhile, the dissection unit has begun and she has skipped these classes. Jane’s parents support her actions. She chooses to bring suit against the school for violation of her First Amendment rights, for failure to provide or allow the use of an alternative to the dissection of an animal and for denying her the right to pursue a course of study at the school without violating her ethical beliefs.51 Does Jane have a First Amendment basis for claiming that she should not have to dissect? IV. CONSTITUTIONAL BASIS FOR ABSTENTION FROM DISSECTION There are certainly grounds for arguing that individuals whose objection to dissection is based on a religious or moral stance that it is wrong to harm animals have a free exercise claim under the United States Constitution. The Constitution’s First Amendment reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”52 In addition to claims under the Free Exercise Clause, the Due Process Clause of the Fifth Amendment has been invoked to assert the right of parents to make determinations regarding their children’s education: 53 “No person shall . . . be deprived of life, liberty, or property, without due process of law.”54 The Due Process Clause applies to the states under the provisions of the Fourteenth Amendment: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.55 V. HISTORY OF LITIGATION ON EDUCATION ISSUES Chronologically, the case of Pierce v. Society of Sisters first challenged Oregon’s compulsory education law requiring parents and guardians of children ages eight through

sixteen to send their children to public school.56 The claimants contended that the enactment of this law “conflict[ed] with the right of parents to choose schools where their children will receive appropriate mental and religious training, the right of the child to influence the parents’ choice of a school, [and] the right of schools and teachers therein to engage in a useful business .” 57 The Supreme Court upheld a lower court decision barring enforcement of this Act, stating: [W]e think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control. The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.58 Although the challenge to the constitutionality of the statute was brought by privately run schools claiming that their business interests in providing education were being harmed by this provision, the Court’s ruling recognizes the parents’ constitutional Due Process rights with regard to the education of their children.59 In formulating an argument that an act of the government prohibits the free exercise of one’s religion, we traditionally look at the standard applied in Sherbert v. Verner.60 This case involved a denial of state employment security benefits to a member of the Seventh-Day Adventist Church who was fired from her job after she refused to work on Saturday, her Sabbath day of faith.61 The Court applied a test to determine whether an individual’s right to religious free exercise has been violated by the government. Courts must first determine whether the person has a claim involving a sincere religious belief and whether the government action is a substantial burden on the person’s ability to act on that belief.62 If those elements are established, according to the test set out in Sherbert, the government must prove that there is a compelling state interest and that it has pursued that interest in a manner that is the least restrictive, or least burdensome, to religion.63 When it comes to forcing students to dissect in the classroom, two questions are involved: (1) whether there is “a sincere religious belief” at stake, and (2) whether the state is applying a “compelling state interest” in the least restrictive way.64 Before addressing the specifics of how the courts have viewed these elements, it is worthwhile to discuss how they

have viewed education issues generally, and then specifically, how they have applied the compelling state interest element of a claim. In Pierce, the Supreme Court recognized the strong interest parents have in the upbringing of their children, an interest that was later upheld in Wisconsin v. Yoder.65 In this seminal education case, Amish parents protested against a compulsory school attendance law that violated the Amish custom of educating their children only through the eighth grade.66 The Court applied the test established in Sherbert and affirmed that additional deference was in order, because it was a hybrid case that combined free exercise with parental due process rights.67 The hybrid nature of the claim added strength to the free exercise claim, because it was joined with an additional constitutional element. More recently, the court in Hicks v. Halifax County Board of Education, a case regarding a school dress code, agreed with this approach by denying the school board’s motion for summary judgment on one count that involved free exercise.68 Where a parent’s free exercise right may not be sufficient to justify an exemption from a neutral, generally applicable law, that right, when combined with the constitutional right of the individual, as a parent, to direct her child’s upbringing may be sufficient. Whether or not the second constitutional interest is independently viable is not at issue. It is the mere presence of the interest, as a genuine claim, supported by evidence in the record, that triggers the heightened scrutiny of the free exercise claim.69 If this standard were applied today, there would be no question that a compelling state interest would be needed to force a student to dissect in the classroom. However, the standard changed in 1990 in Employment Division, Department of Human Resources of Oregon v. Smith, which challenged the federal government’s restriction on the use of peyote for a Native American religious ritual.70 The Court found that “religion-neutral laws that have the effect of burdening a particular religious practice need not be justified by a compelling governmental interest.”71 The Court thereby set a much higher standard to challenge the restriction of the free exercise of religion. The dissent, however, argued that the burdens on free exercise of religion “may stand only if the law in general, and the State’s refusal to allow a religious exemption in

particular, are justified by a compelling interest that cannot be served by less restrictive means ”72 The Employment Division decision was superseded by the passage of the Religious Freedom Restoration Act of 1993 (RFRA).73 The RFRA adopts the minority view that the government must have a compelling interest and that the federal government cannot substantially burden a person’s exercise of religion, even if the burden results from a rule of general applicability.74 The government must also show that the restriction on free exercise is the least restrictive means of furthering that compelling interest.75 The RFRA’s view was upheld in the recent federal case of Gonzo- les v. O Centro Espirita Beneficente Uniao Do Vegetal, where the Supreme Court upheld the church’s use of a ritual tea made from a hallucinogen regulated under Schedule I of the Controlled Substances Act.76 The Court ruled that the RFRA’s strict scrutiny test “require[d] the Government to demonstrate that the compelling interest test [was] satisfied through application of the challenged law ‘to the person’—the particular claimant whose sincere exercise of religion is being substantially burdened.”77 However, the RFRA’s application to the states was short-lived. In City of Boerne v. Flores, the Supreme Court declared that the RFRA was unconstitutional with regard to the states and that Congress had exceeded its enforcement power under Section Five of the Fourteenth Amendment.78 Although Congress may certainly enact legislation en- forcing the constitutional right to the free exercise of religion, the Court found that the “RFRA contradicts vital principles necessary to maintain separation of powers and the federal balance.”79 As a result, the standard applied in Employment Division was affirmed, though the Court suggested—and several states have passed—a state version of the RFRA that does require the state government to apply a “compelling interest” and “least restrictive means” test to free exercise cases.80 States that have already adopted a state version of the RFRA include Alabama, 81 Arizona, 82 Connecticut, 83 Florida, 84 Idaho, 85 Illinois, 86 Missouri, 87 New Mexico, 88 Oklahoma, 89 Pennsylvania, 90 Rhode Island, 91 South Carolina, 92 and Texas.93 For a challenge in one of the states listed above, a suit can be filed in state court alleging a violation of religious rights.

Under the standard applied by the RFRA, the state institution—the school— must meet both the compelling interest and least restrictive means tests set out in Sherbert. In this circumstance, the plaintiff would most likely prevail. However, the RFRA standard of review is applied only to those states that have passed their own version of this legislation. As such, it is necessary to look at another line of cases that reinforce the application in Yoder of a heightened protection for issues involving hybrid claims—both free exercise and the parental assertion of the Due Process Clause—when it comes to educational issues. The Due Process Clause guarantees more than fair process, and the “liberty” it protects includes more than the absence of physical restraint. The Clause also provides heightened protection against government interference with certain fundamental rights and liberty interests. In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the “liberty” specially protected by the Due Process Clause includes the [right] . . . to direct the education and upbringing of one’s children 94 The line of cases referenced above provides strong support for objections to dissection brought by the parents of minors, where the free exercise claim of the child is coupled with the parents’ own objections regarding the application of a particular curriculum in a public school setting. However, education policy and requirements are not subject to a federal mandate, but instead fall under the purview of state and local governments.95 The Fourteenth Amendment requires the states to ape- ply First Amendment protections to their own actions, so even state, county, or individual school policies would fall under the Constitutional protection offered by the Free Exercise Clause.96 But does an ethical objection to harming animals and participating in dissection rise to the level of a protected religious interest under the First Amendment? Whether a particular idea or belief is a “religious” idea is addressed by the Supreme Court in Thomas v. Review Board of the Indiana Employment Security Division.97 The Court held that “religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.”98 The case dealt with any objection to the substance of a religious claim, which the Court has been careful to characterize

as a “sincerely held belief,” without any requirement that it be connected with the dogma of an organized religious order.99 VI. OPPOSITION TO DISSECTION LITIGATED To date, only one published case specifically deals with the issue of dissection as a protected free exercise claim—Kissinger v. Board of Trustees of Ohio State University College of Veterinary Medicine.100 In 1990, a veterinary student named Jennifer Kissinger, who was attending school at Ohio State’s College of Veterinary Medicine, requested that she be allowed to use an alternative curriculum to that typically designated for third year veterinary students.101 The standard curriculum included surgery on live animals obtained solely for use of the students; the animals were subsequently euthanized.102 At first, the college considered developing an alternative curriculum and set up a committee to develop that curriculum.103 Then, in September 1990, Ms. Kissinger received a letter from the college’s attorneys indicating that no alternative curriculum would be provided; she had to complete the course requirements—including the live animal surgery—or fail.104 Instead, Ms. Kissinger filed a suit in the United States District Court for the Southern District of Ohio.105 The suit contended that the college had denied her rights to the free exercise of religion, free speech, freedom of association, and equal protection.106 In April 1991, the alternative curriculum committee finally offered Ms. Kissinger an acceptable alternative to the live animal surgery.107 The case would have ended, except that Ms. Kissinger filed a suit to recover attorneys’ fees as the “prevailing party” in the litigation.108 The district court denied—and the court of appeals affirmed—Ms. Kissinger’s motion for attorneys’ fees based on the merits of her claim.109 In determining whether Ms. Kissinger was entitled to attorneys’ fees as the “prevailing party” in a suit that was settled, the court applied a two-prong test: (1) whether the civil rights action was a catalyst for the settlement in favor of the plaintiff and (2) whether the civil rights claims were “frivolous, unreasonable or groundless.”110 The court held that the suit was a catalyst for the settlement because it reversed the college’s position expressed in the letter sent by its attorneys in September 1990.111 However, the court also found that the

plaintiff did not have a basis in law for her First Amendment, due process, or equal protection challenges.112 This is where the case becomes interesting. The holdings in Nadeau v. Helgemoe and Johnston v. Jago established that a court may consider whether a suit has merit without a full trial on the merits.113 The Kissinger court asserted that it was not restricted to the pleadings in determining whether there was legal merit and it could consider all of the facts and law in the case.114 Citing Employment Division, the Kissinger court stated that the “Free Exercise Clause does not, however, ‘relieve an individual of the obligation to comply with a “valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).”’”115 In Vandiver v. Hardin County Board of Education, the Sixth Circuit extended the Employment Division holding to a plaintiff who claimed that high school equivalency testing requirements violated his religious beliefs and thus were prohibited by the Free Exercise Clause.116 The court found that the testing requirement was “a valid and neutral law of general applicability within the meaning of [Employment Division], so that a free exercise challenge is presumably precluded.”117 In Kissinger, the court followed Vandiver, holding that: Although compliance with the curriculum may have required conduct of the plaintiff that was offensive to her religious beliefs, “the first amendment does not prevent the government from regulating behavior associated with religious beliefs.” This is especially true where the conduct is required as a result of wholly voluntary attendance at an educational institution.118 To summarize, the Kissinger court discounted the “hybrid claim,” because it found that all of the other claims stemmed from the free exercise claim and were not independent constitutional infractions.119 The Court recognizes no right, constitutional or otherwise, of a student that requires an educational institution to tailor its curriculum or method of teaching to that student’s personal beliefs, particularly where attendance at the educational institution is purely at the will of the student. An educational institution has a strong interest in developing a standard curriculum for all students to follow, without numerous individual exceptions to fit individual beliefs which might compromise the quality of the education or the reputation

of the institution. Students have no right to tell their teachers how they are to be taught.120 Kissinger was affirmed on appeal in 1993.121 The appellate court made a substantial distinction based on the fact that Ms. Kissinger had chosen to attend the university at issue, knowing its policies, rather than being compelled to attend.122 VII. APPLICABILITY TO FUTURE CHALLENGES The specifics of the ruling in the Kissinger case leave more room for a definitive decision in favor of—rather than against—a constitutional free exercise claim, especially with regard to students in grades K-12. Even without the availability of a “compelling interest” requirement under a state RFRA, the hybrid nature of a claim should prevail. The free exercise claim of a minor, coupled with a due process claim by the parents, creates a heightened level of scrutiny that would be difficult to overcome. First, no state mandates dissection in grade school as a requirement for graduation. It would be difficult to show that a school or district policy requiring dissection rises to the level of a state law, especially when it does not have the compelling interest of enforcement. Second, lesser means are available to accommodate the religious objections of students, means that have already been widely implemented throughout the country.123 In addition to looking at the specific elements of a constitutional challenge, the elements of the case, and the standard of review, it is helpful to see how such a case would be—and has been—treated in the courts. The dearth of dissection choice cases or similar litigation poses a challenge in arguing precedent, but filings and pleadings can be helpful in setting forth the elements of a successful case. A. Model for Litigation: The Graham Case In one very relevant case, Graham v. Board of Trustees of the Victor Valley Union High School District, a tenth grader refused to dissect, citing her own deeply held moral beliefs and her mother’s religious beliefs in the universal brotherhood of life.124 The school principal refused to accept this protest, as it was not based on an organized religion that he recognized.125 A Board of Trustees policy required dis- section with no exceptions; otherwise, the Board would lower Ms. Graham’s grade and put a notation in her record.126 The State

Education Code required the science class at issue, though not the dissection element of the class.127 Ms. Graham and her mother filed claims for free exercise and due process, based on damage to Jenifer’s reputation, standing, and property interest in her education.128 An additional discrimination charge was brought for failure to give consideration to Ms. Graham’s individual religious beliefs, simply because they were not part of an organized religion.129 The federal court dismissed the case in 1988 with the provision that the school provide Ms. Graham with a frog that had died of “natural causes” so she could fulfill the dissection requirement.130 No such frog was forthcoming.131 Ms. Graham appealed, the court of appeals ordered counsel to submit settlement statements, and the case was settled in December 1990.132 The school removed all negative notations from Jenifer’s record and graded her independent tutorial on the anatomy unit with an A.133 The school agreed to pay Ms. Graham’s legal fees.134 Because these cases were settled and not fully adjudicated, only the pleadings are still available, and no legal precedent was set. Yet it was a classic example of how litigation goes on the issue of dissection. On a side note, during the course of this suit, the state of California passed a law mandating that students who object to dissection be given an alternative.135 The Animal Legal Defense Fund launched a Dissection Hotline at the request of Pat Graham, Ms. Graham’s mother, in order to provide a legal resource for students like Ms. Graham.136 Finally, in 1989, CBS produced an after school special entitled “Frog Girl: The Jenifer Graham Story,” which received a Genesis Award and continues to be viewed nationwide.137 While the Graham case is not the only challenge that has found its way into court, it re- mains the most thorough treatment of the possibilities of litigation challenging mandatory classroom dissection. The outcome surpassed its intention, giving relief to this student and ultimately to all students in the state of California by prompting the passage of a student choice law. B. Settlements in Related Cases Most mandatory dissection cases settle soon after they are filed, so no case law is available on point. In a majority of cases, the information enters the public record once the controversy reaches the press. News stories are the most

common source of information in tracking challenges to dissection, along with the assistance given to many of these students by NAVS through its Dissection Hotline.138 The following are among the highest profile cases documented. In 1989, Maggie McCool was given a grade of zero for each dissection assignment she refused to perform.139 Ms. McCool’s father, Joe McCool, brought a proceeding against the Woodstown-Pilesgrove School in New Jersey, with assistance from the American Civil Liberties Union.140 The suit was ultimately settled, Ms. McCool’s grade was recalculated without the grades of zero, and her refusal to dissect was removed from her re- cord.141 In addition, the high school determined that all students with religious objections would be provided with alternatives to dissection in the future.142 In Routh v. State University of New York at Stony Brook, another biology frog dissection case, Ms. Routh was told that she would receive a grade of zero for the lab if she did not dissect.143 Ms. Routh attended the lab, studied a model, took the test, and was not penalized.144 She dropped the suit.145 Meanwhile, the availability of alternatives to dissection has be- come widespread and the quality of these alternatives has improved greatly over the years, making arguments against their use less credible.146 Many universities have forsaken dissection as a mandatory teaching practice, and others have adopted policies that allow for alter- native procedures.147 Of course, where state dissection choice laws are in place, the out- come of a request not to dissect is assured. In 2001, Heather Evanoff, a student at Granite City High School in southern Illinois, refused to dissect.148 The Illinois legislature had passed a student choice law the previous year.149 Ms. Evanoff was refused accommodation by her school, with the faculty and administration adamantly opposed to her request.150 However, the school district relented when a NAVS lawyer contacted the school’s attorney on Ms. Evanoff’s behalf.151 Even without state dissection choice laws, students frequently receive accommodation for requests for alternatives to dissection, if not immediately, when their decision to take further action is asserted. In 2002, Jennifer Watson —a student in Baltimore County, Maryland was refused an alternative and forced to drop an honors science class after being told that she could not complete the course without dissect- ing.152 Two days later, Ms. Watson was

back in class after the school district’s Office of Science announced an unwritten policy of providing alternatives to dissection.153 In 2001, Trulie Nobis—a student at Monroe Community College in New York —was refused an alternative to dissection in her biology class by school officials.154 Although New York has a law that covers students in grades K-12, college level courses are not included.155 Ms. Nobis was told that there were no alternatives to animal dissection and that her religious belief would not be accommodated.156 When Ms. Nobis indicated that she would file suit, the college agreed to extend partial credit for the course, reclassifying her time spent in the non dissection portion of the class as an independent study.157 In addition, the college agreed to establish a specific policy regarding students’ objections to dissection and to sponsor a campus-wide discussion on this topic.158 VIII. CONCLUSION The question remains: is there a constitutionally protected right not to dissect? The answer remains: maybe. Grounds for making the claim certainly exist, as well as case law arguments that can be made with credibility. Where the issue is not “frivolous, unreasonable, or groundless,” and, where a state RFRA exists requiring the application of a “compelling need” test, there is no doubt that a plaintiff would prevail. Under the application of the Employment Division test, how- ever, it may be necessary to invoke a hybrid First and Fifth Amendment claim by both the minor student and a parent or guardian in order to prevail.159 The need for dissection choice legislation is not as urgent as it once was, because schools overall are more accommodating of students’ ethical objections. But no student should be barred from a career in the sciences because he or she is too humane to pass a course that requires dissection. More and better laws are needed to ensure that ethical students—and ultimately, ethical scientists—receive the protection and humane alternatives they deserve. * Marcia Goodman Kramer 2007. Marcia Kramer is the director of legal and leg- isolative programs for the National Anti-Vivisection Society (NAVS), based in Chicago, Illinois, where she has worked since 1995. She received her J.D. from DePaul University in Chicago in 1987 and worked as an editor for

Commerce Clearing House, Inc., on Nuclear Regulation Reports and Utilities Law Reports. The author wishes to acknowledge- edge NAVS’ paralegal, Julie Ireland, and legal research assistants, Mary Ellen Barrett and Beth Heffernan, for their help in assuring the accuracy of current case law for this article. 1 See generally e.g. Cal. Educ. Code Ann. §§ 32255.1, 32255.3–32255.6 (West 2002) (allowing students to be excused from classroom dissection). 2 See generally e.g. La. Stat. Ann. § 17:266 (2006) (1916 Act directing the state board of education to take steps to provide for the teaching of kindness to dumb animals). 3 The Extended Circle: A Commonplace Book of Animal Rights 91 (Jon Wynne-Ty- son comp. 1st Am. Ed., Paragon H. 1989) (quoting Mohandas Karamchand Gandhi) 4 Cal. Educ. Code Ann. § 51540 (West 2006). 5 105 Ill. Comp. Stat. Ann. 5/27-13.1 (West 2006). 6 La. Stat. Ann. § 17:266. 7 N.Y. Educ. Law § 809 (McKinney 2000). 8 Wash. Rev. Code Ann. § 28A.230.020 (West 2006). 9 Conn. H. 5443, 2006 Gen. Assembly, Feb. Sess. 1 (Feb. 2006). 10 N.J. Assembly 4023, 2004-2005 Reg. Sess. 2 (May 5, 2005). 11 N.Y. Sen. 1233, 228th Reg. Sess. § 1 (Jan. 26, 2005) (available at WL, STBILLTXT database). 12 Va. H. 209, 2006 Sess. (Feb. 8, 2006) (bill tabled in rules) (available at: (URL removed for reprint)). 13 Id. (URL removed for reprint) 14 N.Y. Sen. 1233, 228th Reg. Sess. at § 1. 15 See e.g. id. at § 1 (requiring “sensitivity training regarding diversity of race, ethnicity, and religion”); Conn. H. 5443, 2006 Gen. Assembly, Feb. Sess. at 1 (suggesting curriculum topics include Native American, African American, and Puerto Rican American history, as well as Holocaust awareness). 16 Webster’s Third New International Dictionary 656, 2560 (Philip Babcock Gove, Ed., Merriam-Webster Inc. 1986). 17 Fla. Stat. Ann. § 1003.47 (West 2004 & Supp. 2007) (Section 1003.47(1)(a) bans vivisections on living mammalian vertebrates and birds. 1003.47(1)(c)

allows biological experiments not resulting in physiological harm on nonmammalian vertebrates, but not birds.). 18 Mass. Gen. Laws Ann. ch. 272, § 80G (West 2000) (No live vertebrate may be used “as part of a scientific experiment or for any other purpose in which said vertebrates are experimentally medicated or drugged in a manner to cause painful reactions or to in- duce painful or lethal pathological conditions, or in which said vertebrates are injured through any other type of treatment, experiment, or procedure including but not limited to anesthetization or electric shock, or where the normal health of said animal is interfered with or where pain or distress is caused.”). 19 7 Me. Rev. Stat. Ann. § 3971(1) (2002) (prohibiting vivisection for all school activities). 20 N.Y. Educ. Law § 809(5)(a)–(b) (prohibiting “the performance of a lesson or experimental study on a live vertebrate animal in any such school or during any activity conducted under the auspices of such school whether or not the activity takes place on the premises,” but permitting waivers to this policy). 21 Id. at § 809(5)(b). 22 Annual Rpt. from Richard P. Mills, Commr. of Educ., N.Y. St. Educ. Dept., to Gov. & Legis., Instruction in the Humane Treatment of Animals Annual (Jan. 1, 2003–Dec. 1, 2003) (copy on file with Animal L.). 23 Humane Socy. N.Y., Legislative Alert, (URL removed for reprint) 24 See e.g. Fla. St. Sci. & Engr. Fair, 2007 SSEF Mortality Report, (URL removed for reprint). (accessed Apr. 14, 2007) (requiring entrants to report all use of vertebrate animals, including resulting deaths). 25 Based on the Author’s experience through her employment at NAVS (author’s statement available on file with Animal L.). 26 See generally e.g. Cal. Educ. Code Ann. §§ 32255.1, 32255.3–32255.6 (allowing students from grades K-12 to be excused from classroom dissection). 27 Id. 28 N.J. Stat. Ann. § 18A:35-4.25 (West 2006) (codified from New Jersey bills A2233 and S1739.0). 29 Mich. H. 4254, 2005-2006 Sess. (Feb. 10, 2005) (URL removed for reprint)..

30 Mass. Legis., House, No. 1252, (URL removed for reprint). (reporting that Mass. House Bill No. 1252 was referred to the Committee on House Ways and Means on March 8, 2006). 31 Natl. Anti-Vivisection Socy., Animals in Education, (URL removed for reprint). 32 Jonathan Balcombe & Allison George, Beyond Frogs and Formaldehyde, 15 Good Medicine (Spring 2006) (URL removed for reprint). 33 Cal. Educ. Code Ann. §§ 32255.1–32255.6. 34 Fla. Stat. § 1003.47. 35 105 Ill. Comp. Stat. Ann. 112/15 (West 2006). 36 N.J. Stat. Ann. § 18A:35-4.25. 37 N.Y. Educ. Law § 809(4). 38 Or. Rev. Stat. § 337.300 (2005). 39 24 Pa. Consol. Stat. Ann. § 15-1523 (West 2006). 40 R.I. Gen. Laws § 16-22-20 (2001). 41 Va. Code Ann. § 22.1-200.01 (West 2004). 42 See generally 105 Ill. Comp. Stat. Ann. § 5/27-14 (basic accommodation); N.J. Stat. Ann. § 18A:35–4.25 (parental notification); Fla. Stat. Ann. § 1003.47 (class exemption). 43 See generally Or. Rev. Stat. § 337.300 (applies to students through grade twelve); 24 Pa. Consol. Stat. Ann. § 15-1523 (applies to students through grade twelve). 44 Cal. Educ. Code Ann. §§ 32255.1–32255.6; Fla. Stat. Ann. § 1003.47; N.J. Stat. Ann. § 18A:35–4.25; N.Y. Educ. Law § 809; Or. Rev. Stat. Ann. § 337.300; Va. Code Ann. § 22.1-200.01 (California, Florida, New Jersey, New York, Oregon, and Virginia stat- utes only apply to students in public schools.). 45 HSUS, Dissection Laws, (URL removed for reprint). 46 Id. 47 Clark Co. Sch. Dist. Reg. (Nev.) 6144 (Apr. 11, 2002); HSUS, Students Slice through School Dissection Requirements, (URL removed for reprint) (accessed Apr. 14, 2007). 48 A terminal animal lab is one that results in the death of the animal, either as a

result of the experiment itself or through euthanasia after completion of the experiment or lab. Animals may be euthanized because of the harmful nature of the procedures performed or because the school chooses this option in dealing with a specimen who would otherwise need extensive veterinary care in order to affect. 49 PCRM, Ethics in Medical Education: Medical School Curricula with No Live Animal Laboratories, (URL removed for reprint) (accessed Apr. 14, 2007). 50 NAVS, Animals in Education: NAVS Dissection Hotline, (URL removed for reprint) [hereinafter Dissection Hotline]. 51 U.S. Const. amend. I. 52 Id. (emphasis added). 53 Pierce v. Socy. of Sisters, 268 U.S. 510, 532 (1925). 54 U.S. Const. amend. V. 55 Id. at amend. XIV, § 1. 56 268 U.S. at 530. 57 Id. at 532. 58 Id. at 534–35. 59 Id. at 533–34. 60 374 U.S. 398, 409 (1963). 61 Id. at 399. 62 Id. at 403. 63 Id. 64 Id. at 403–07 (providing that South Carolina could not apply eligibility provisions for unemployment where such statute denied benefits to claimant who refused employment due to her religious beliefs). 65 268, U.S. at 518; 406 U.S. 205, 234 (1972). 66 406 U.S. at 209. 67 Id. at 233. 68 93 F. Supp. 2d 649, 650 (E.D.N.C. 1999). 69 Id. at 662 (footnotes omitted). 70 494 U.S. 872, 874 (1990). 71 Id. at 886 n. 3. 72 Id. at 907 (Blackmun, Brennan & Marshall, JJ., dissenting).

73 Religious Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb (2000). 74 Id. at § 2000bb-1(a). 75 Id. at § 2000bb-1(b). 76 546 U.S. 418, 419 (2006). 77 Id. at 426. 78 521 U.S. 507, 536 (1997). 79 Id. 80 Id. 81 Ala. Const. amend. 622, § 3.01. 82 Ariz. Rev. Stat. Ann. § 41-1493 (West 2005). 83 Conn. Gen. Stat. Ann. § 52-571b (West 2005). 84 Fla. Stat. Ann. §§ 761.01–761.05. 85 Idaho Code Ann. §§ 73-401 to 73-404 (Lexis 2006). 86 775 Ill. Comp. Stat. Ann. 35/1–35/99 (West 2001). 87 Mo. Rev. Stat. Ann. § 1.302 (West Supp. 2007). 88 N.M. Stat. §§ 28-22-1 to 28-22-5 (2000). 89 Okla. Stat. Ann. tit. 51, §§ 251–253 (West Supp. 2007). 90 71 Pa. Consol. Stat. Ann. §§ 2401–2407 (West Supp. 2006). 91 R.I. Gen. Laws §§ 42-80.1-1 to 42-80.1-4 (2006). 92 S.C. Code Ann. §§ 1-32-10 to 1-32-60 (2006). 93 Tex. Civ. Prac. & Rem. Code Ann. § 110 (2005). 94 Wash. v. Glucksberg, 521 U.S. 702, 719–20 (1997) (internal citations omitted). 95 Cornell L. Sch. Leg. Info. Inst., Education Law: An Overview, URL removed for repring (accessed Apr. 14, 2007). 96 U.S. Const. amend. XIV. 97 450 U.S. 707, 713–15 (1981). 98 Id. at 714. 99 Id. at 716, 726. 100 786 F. Supp. 1308, 1310 (S.D. Ohio 1992). 101 Id. at 1309. 102 Id. 103 Id. 104 Id. at 1309–10.

105 Id. at 1310. 106 786 F. Supp. at 1310. 107 Id. 108 Id. 109 Id. at 1314; Kissinger v. Bd. Trustees Ohio St. U. College Veterinary Med., 5 F.3d 177, 181 (6th Cir. 1993). 110 786 F. Supp. at 1310–12. 111 Id. at 1311. 112 Id. at 1313–14. 113 Nadeau v. Helgemoe, 581 F.2d 275, 281 (1st Cir. 1978) (overruled) (although overruled on other grounds, this point remains intact); Johnston v. Jago, 691 F.2d 283, 286 (6th Cir. 1982) (citing Nadeau, 581 F.2d at 281). 114 786 F. Supp. at 1312. 115 Id. (quoting Empl. Div., 494 U.S. at 879 (quoting U.S. v. Lee, 455 U.S. 252, 263 n. 3 (1982) (Stephens, J. concurring in judgment))). 116 925 F.2d 927, 932 (6th Cir. 1991). 117 Id. 118 786 F. Supp. at 1313 (quoting Vandiver, 925 F.2d at 932) (internal citation omitted). 119 Id. at 1313–14. 120 Id. at 1314. 121 5 F.3d at 177, 181. 122 Id. at 180–81. 123 Balcombe & George, supra n. 32. 124 Pl.’s 1st Amend. Compl., Graham v. Bd. Trustees Victor Valley Union High Sch. Dist., CV-87 03764 (C.D. Cal., filed Dec. 15, 1987) (copy on file with Animal L.). 125 Id. at ¶ 8. 126 Id. at ¶ 5. 127 Id. at ¶ 4. 128 Id. at ¶ 11–13. 129 Id. at ¶ 13–14.

130 Don Hendershot, The Jenifer Graham Case #87-03764 § I (Mar. 1991) (unpublished internal chronology, fact sheet, and review) (copy on file with Animal L.). 131 Id. 132 Id.; see also Animalearn, Jenifer Graham: The First Student to Legally Take On Dissection & Students’ Rights, (URL removed for reprint) (explaining the general course and results of Graham’s case). 133 Hendershot, supra n. 130, at § I. 134 Id. 135 Cal. Educ. Code Ann. § 32255.1; Animalearn, supra n. 132. 136 Dissection Hotline, supra n. 50 (The Dissection Hotline became more a source of counseling and personal advice than a legal resource, and in 1993 NAVS took over the Hotline and added the Dissection Alternatives Loan Program to provide a solution for students who did not want to dissect.). 137 Animalearn, supra n. 132; Hendershot, supra n. 130, at § III. 138 Dissection Hotline, supra n. 50. 139 Mercury News Wire Servs., N.J. ‘Frog Girl’ Wins Battle over Classroom Dissec- tion, San Jose Mercury News 2A (July 26, 1989). 140 Elizabeth Anderson, A Lesson Refused and a Lesson Learned, 1 N.Y. Times 12NJ (Aug. 27, 1989). 141 Id. 142 Id. 143 Sarah Lyall, Suit Dropped on Frog Dissection, 13 N.Y. Times 12LI (Oct. 7, 1990). 144 Id. 145 Id. 146 PCRM, Dissection Alternatives (URL removed for reprint) (accessed Apr. 14, 2007). 147 PCRM, supra n. 49. 148 Aisha Sultan, Dissection of Animals Becomes Issue at Schools, St. Louis Post-Dis- patch B1 (Apr. 20, 2001). 149 105 Ill. Comp. Stat. Ann. 112 (West 2006).

150 Memo. from Linda M. Petty, Director, NAVS Dissection Hotline & Dissection Al- ternatives Loan Program to Tom Holloway, Admin. Asst., Granite City Sch. Dist. (Nov. 17, 2000) (copy on file with Animal L.). 151 Sultan, supra n. 148. 152 HSUS, Baltimore County Student Allowed to Skip Dissection, (URL removed for reprint) org/animals_in_research/animals_in_research_news/baltimore_county_stude nt_allowed _to_skip_dissection.html (Sept. 26, 2002). 153 Id. 154 Matthew Daneman, Debate Over Dissection, Rochester Democrat & Chron. (Mar. 10, 2001) (available at removed for reprint 155 Id. 156 Id. 157 Id. 158 Id. 159 494 U.S. at 886.

Chapter 4 Breed specific legislation bans

Introduction breed specific legislation bans Delaware Maine South Dakota Barking up the Wrong Tree Introduction breed specific legislation bans. Society has long idolized, as well as vilified, certain breeds of dogs. The most recent breed to come under attack are the pit bulls. One time, these dogs were considered excellent family pets. Think of Spanky and our gang. The kids in the show took their pit bull with them everywhere. Now, these dogs that the reputation of being used in dogfighting operations. Also, there is a perception that was criminals who own these stocks, not loving families. Municipalities and counties are often quick to ban pit bulls. The thought behind these bans is that this would make the community safer. Banning pitfalls doesn't make a community safer. Programs like getting dogs off of chains, and teaching young children how to interact with dogs, are what's

makes a community safer. Now there is a legislative battle between laws that ban pit bills, and laws that make banning pit bulls illegal. Ann Schiavone graciously gave us permission to reprint her law review article "Barking up the wrong tree: regulating fear not risk. "Schiavone starts by giving us the history of Pit bulls in America. However, some of her most important work revolves around showing there is no such thing as a dangerous breed. Delaware TITLE 22 Municipalities CHAPTER 1. GENERAL PROVISIONS § 116 Dogs. The municipal governments shall enact no law, ordinance, or regulation relating to dogs, or restrictions on dogs, based on a dog's breed or perceived breed. 81 Del. Laws, c. 31, § 3.; Maine Title 7: AGRICULTURE AND ANIMALS Part 9: ANIMAL WELFARE Chapter 725: MUNICIPAL DUTIES §3950. Local regulations Each municipality is empowered to adopt or retain more stringent ordinances, laws or regulations dealing with the subject matter of this chapter, including the establishment of fees necessary and appropriate to finance the cost of animal control services, except that municipalities may not adopt breedspecific ordinances, laws or regulations. Any less restrictive municipal ordinances, laws or regulations are invalid and of no force and effect. [2013, c. 595, Pt. U, §1 (AMD).] South Dakota 40-34-16. Ordinance specific as to breed of dog prohibited. No local government, as defined in § 6-1-12, may enact, maintain, or enforce any

ordinance, policy, resolution, or other enactment that is specific as to the breed or perceived breed of a dog. This section does not impair the right of any local government unit to enact, maintain, or enforce any form of regulation that applies to all dogs. Source: SL 2014, ch 196, § 1. BARKING UP THE WRONG TREE: REGULATING FEAR, NOT RISK Ann L. Schiavone Copyright (c) 2016 Ann L. 22 Animal L. 9 Animal Law 2015 Article Schiavone BARKING UP THE WRONG TREE: REGULATING FEAR, NOT RISK Beginning in the 1980s, the curious phenomenon of breed-specific legislation (BSL) began to spread across the U.S. and abroad. The phenomenon can be traced to sensationalistic media portrayals of the pit bull at that time. This kind of sensationalism was nothing new; throughout American history, various breeds have served as scapegoats, each taking a turn as the most ‘dangerous.’ While it was not new to seek to contain fears by isolating a particular ‘problem’ breed, the legislation itself was unprecedented. Today, in light of mounting evidence that factors other than breed are more determinative of aggression in domestic dogs and that BSL does not decrease incidents of dog bites, many jurisdictions are seeking to undo these laws. For example, many states have passed legislation preempting local ordinances that discriminate based on breed. This Article calls for all jurisdictions to follow suit, in recognition of the fact that there are more rational methods available for addressing the public health hazard posed by individual aggressive dogs. I. INTRODUCTION II. HISTORY OF BREED BIAS AND BSL 15 A. Vicious Cycle: Breed Prejudices 1850-1980 B. The Pit Bull Problem: Breed Bias 1980-Today C. Types of Breed-Specific Laws 1. Local Ordinances

2. State Laws 3. Federal Regulation 4. Court Challenges D. Current Picture of BSL in the U.S. and Abroad III. THE SCIENCE BEHIND CANINE AGGRESSION A. Research Does Not Support the Concept of a ‘Dangerous' Breed 1. Australian Study 2. Spanish Study 3. German Studies 4. Dutch Study B. Epidemiological Studies of Dog Bites Illuminate Complexity of Problem C. Canine Brain Chemistry, and Genetics D. Studies that Support BSL IV. THE UNRELIABILITY OF VISUAL IDENTIFICATION OF DOG BREEDS V. BSL ARISES FROM FEAR, NOT RISK MANAGEMENT A. Dual Process Thinking and Decision-Making 1. Availability Heuristic 2. The Affect Heuristic B. The Results of Heuristics 1. Probability Neglect 2. Role of the Media 3. Biases, Predispositions, and Cascading 4. Moral Panics C. Results of Misplaced Fear VI. RECOMMENDATIONS A. Legislatures and Policy Makers B. Courts C. Animal Advocates VII. CONCLUSION I. INTRODUCTION Imagine it: July 1987, U.S.-Soviet relations balance on a razor's edge, 1 and the Iran-Contra hearings are in full swing. 2 But America has more important things on its mind-- vicious dogs. Communities across the U.S. are being told they are under attack, not from foreign governments or terrorists, but from

dogs in their community, specifically dogs known as ‘pit bulls.’ 3 During that month, no less than four *11 major national magazines ran stories sensationalizing the danger of these dogs that supposedly prowled the streets of their neighborhoods, ready to attack at a moment's notice, unexpected and unprovoked. 4 The cover of Sports Illustrated on July 27, 1987 pictured an angry pit bulltype dog, teeth bared, and ready to attack. 5 The headline read “Beware of This Dog.” 6 The article inside the magazine added detail to the cover picture with its descriptions. 7 One humane society worker who was interviewed compared a pit bull attack to a shark attack, and a San Diego judge called pit bulls “the closest thing to a wild animal there is in a domesticated dog.” 8 That same week, Time gave us a vivid description of what we should fear: Ferocious pit bulls can be seen any day with their drug-dealer owners on the corner of Ninth and Butler streets in North Philadelphia. The dogs, with names like Murder, Hitler and Scarface, wear metal-studded collars concealing crack and cocaine and the day's proceeds. They are equally visible on Chicago's West and South sides, where teenage boys have taken to brandishing their fierce pit bulls just as they would a switchblade or a gun. 9 The media frenzy against the pit bull had begun, and the labels ‘dangerous' and ‘vicious' were attached to dogs based on their breed, rather than their behavior. 10 It became instinctive to fear the pit bull by breed name alone, even for people who had never met one (perhaps even more so for people who had never met one). The moment ushered in an era of breed-specific legislation (BSL), passed in communities across the country (and abroad) that banned or severely restricted *12 ownership of certain dog breeds and dog breed types. 11 While pit bulls were the initial primary targets, other breeds were soon subsumed under the BSL umbrella. 12 The month of July 1987 sealed the fate of the pit bull in popular imagination and fueled thirty years of BSL. When such laws were first passed, there was debate over their efficacy, as well as their constitutionality. 13 While, in general, the constitutionality of BSL has been upheld, the debate over efficacy rages on in legislatures, councils, and the court of public opinion. 14 Significant scientific data now support the argument that breed plays little, if any, role in determining aggression in dogs, and other factors are far more predictive. 15 Further bolstering this finding are

the studies that have *13 shown no reduction in dog bites or injuries as a result of BSL. 16 But, despite such data and the voices of veterinarians, scientists, animal behaviorists, and others, BSL continues to be the default response when a community perceives a dog-bite problem. 17 In recent years the public's perception of pit bulls has somewhat improved. 18 Fast forward twenty-plus years from 1987 to December of 2008, and Sports Illustrated again dedicated its cover story to pit bulls, 19 but this time the cover showed a polite-looking, fawn-colored pit bull with a pink nose, peering curiously and compliantly at the *14 camera. 20 The story inside matched the sympathetic cover photo, detailing the fate of the pit bulls owned by NFL quarterback Michael Vick, who had plead guilty to dogfighting-related charges in federal court. 21 Of the fifty-one dogs seized from Vick, animal rescue groups saved forty-seven. 22 While some, scarred by their experiences with Vick, would remain permanently in an animal sanctuary with professional handlers, the majority of the forty-seven dogs would go on to loving homes. 23 Sports Illustrated detailed the new lives of several dogs, and gone were the descriptions of shark-like bite strength and ‘unprovoked’ aggression. 24 The new ‘poster dogs' for the pit bull were Sweet Jasmine, as sweet as her name suggested, but still too scared to meet new people; happy Zippy, who ran around the house and played endlessly with her foster mom's two daughters; and Jonny Justice, who loved kids so much that he was enrolled in the Paws for Tales program, in which kids who get nervous reading aloud could practice in front of a canine rather than a human. 25 Leo, too, was mentioned; he is a certified therapy dog, spending “two to three hours a week visiting cancer patients and troubled teens.” 26 Despite rehabilitated images of pit bulls in the media, the emerging scientific data that show breed is a bad predictor of aggression in dogs, 27 and the current data that show BSL is ineffective and a poor use of government resources, 28 communities across the country continue to recycle the sound bites and questionable statistics from 1987 29 and pass BSL to solve their perceived dog-bite problems. It seems, despite all the contrary evidence, we cannot un-ring the BSL bell. 30 And 15 that problem is as much a problem with human behavior as it is with canine behavior. 31

This Article will explore the behavioral psychology and emerging neuroscience of both canines and humans to explain why the public and its government representatives continue to pass BSL, despite scientific evidence that breed is largely irrelevant to the dog bite problem, and more rational alternatives are available. The purpose of this Article is to inform lawmakers about the scientific evidence available concerning BSL, as well as to encourage them toward introspective consideration of their own decision-making processes, to determine whether such processes as applied to BSL are rational, or whether they are based on irrational fear and public pressure. In Part II, this Article explores the general background and history of breedbased canine biases, including media reporting and legal history, culminating in the current state of BSL today. Part III surveys the current scientific literature on canine behavior and dog-bite epidemiology to determine the efficacy of BSL. Part IV then explores how the recent mapping of the canine genome and DNA testing have shown significant errors in human perception of breed identification, further undermining any remaining foundation for BSL as it currently exists. After this review of the science of dogs, Part V will consider the human cognitive psychological basis for our society's apparent obsessive fear of certain types of dogs, despite the fact that dogs are typically a relatively minor risk to most people. Additionally, Part V will illustrate how fear responses ignited and continue to fuel BSL, despite mounting evidence against its efficacy. Finally, in Part VI, this Article will consider how governments should approach the complex problem of severe, non- fatal, and fatal dog bites, based on the above observations. It will also consider specific policy alternatives to BSL that are both rational and targeted to allay societal fear and curb dog-bite problems in select communities. II. HISTORY OF BREED BIAS AND BSL A. Vicious Cycle: Breed Prejudices 1850-1980 Imagine yourself a contestant on Jeopardy. You choose the category of ‘Dangerous Dogs' for a thousand. The host, Alex Trebek, reads the following clue: “Described in varied accounts as ‘frenzied,’ 32 ‘desperate,’ *16 33 ‘wildeyed,’ 34 and ‘thoroughly and irredeemably corrupt,’ 35 an editorial in the New York Times called for the extermination of this canine breed.” 36 What is your

likely response? “What is pit bull?” “What is Rottweiler?” Perhaps, “What is Doberman pinscher?” No matter which of these responses you choose, you would find yourself a thousand dollars in the negative. The clue actually described the spitz: a small, mixed-breed dog related to the Pomeranian and the Samoyed. 37 In the later part of the nineteenth century, the media blamed the spitz for the rabies infection in New York City and surrounding locations, claiming it was the primary source of the infection. 38 The New York Times editorial suggested that the spitz was responsible “directly or indirectly” for three-quarters of the rabies deaths in and around the city. 39 The spitz was thought to be more susceptible to rabies infection because, as an “Arctic animal,” 40 it was ill-suited to reside in a temperate climate. 41 Another New York Times op-ed went so far as to claim that “it is safe to say that if there had been no Spitz dogs in New-York during the last three years, there would have been . . . not more than two cases of [rabies].” 42 The hysteria over the dangerousness of these dogs led to newspaper articles sensationalizing events involving spitz dogs. One such article described a stray spitz running through a crowd in Madison Square causing a state of panic. 43 Even though the dog neither bit nor chased a single person, he was eventually shot and killed by a policeman on the scene for the crime of being a spitz. 44 One can only guess at the original sources of these widespread beliefs. Perhaps a well-publicized instance of rabies came from a bite *17 from a spitz dog? Certainly the articles hinted at an increased population of the spitz, logically leading to more bites and other incidents related to the breed type. 45 Some pseudoscience was likely offered to link the “Arctic” dog with greater susceptibility to rabies. 46 There was a general belief among the public that heat caused rabies, and “foaming at the mouth” was considered an obvious sign of rabies. 47 However, thirst can also be a source of foaming at the mouth, and thirst is more common in summer and in dogs with thicker coats. 48 The Pasteur Institute, the leading non-profit organization educating the public on the spread of disease since the late nineteenth century, attempted to educate people about the reality of rabies, but the belief of the dangerousness of the spitz continued on in the minds of the populous for decades. 49 The spitz was by no means the only type of dog vilified in the late nineteenth century as ‘dangerous.’ Bloodhounds were equally scorned. 50 Bloodhounds

were accused of viciousness rather than susceptibility to rabies, but the result was the same--prejudice against the breeds and sensationalized news reports. 51 The source of the bloodhound's vicious reputation is a bit clearer. It is a story of art imitating life, and life, in turn, imitating art. While modern readers picture a long-eared, droopy-eyed dog at the mention of ‘bloodhound,’ in the nineteenth century the term bloodhound was used to refer to a number of types of scent-hounds trained to track humans. 52 Types of bloodhounds were utilized prior to the Civil War to hunt escaped slaves. 53 They also became popular ‘protection’ or ‘guard *18 dog’ breeds in the same time period. 54 Literature such as Uncle Tom's Cabin, 55 and The Hound of the Baskervilles, 56 as well as their popular culture derivatives, 57 further painted a picture of bloodthirsty bloodhounds as man-trackers who hunt their prey relentlessly. Bloodhounds during this time period included not only English or St. Hubert's bloodhounds (our modern version of a bloodhound); 58 they also included socalled Cuban or Siberian bloodhounds, whose origins are less clear and who were perhaps no more than mixed breeds used for the purpose of tracking people. 59 Cuban bloodhounds are most commonly *19 believed to be mixes of mastiffs and pointers, 60 while Siberian bloodhounds have been connected to and are possibly synonymous with Great Danes. 61 The terms ‘Cuban’ and ‘Siberian’ bloodhound have fallen out of favor, but their descendants are likely our pets. Between 1855 and 1910, a review of newspapers from a ten-state area revealed at least thirty-eight severe and fatal attacks by bloodhounds. 62 However, it is impossible to determine what types of ‘bloodhounds' were involved in these incidents, or if they were even actually bloodhounds at all. While newspaper articles occasionally specified that the offending animal was a Cuban or Siberian bloodhound, 63 such identification did not occur in all instances. 64 How did the bloodhound reputation first arise? What made Harriet Beecher Stowe use the imagery of the bloodhound in her novel? Most likely, it came from the stories of escaped slaves and the dogs used to track runaways in the South. 65 Anecdotal evidence establishes that slaveholders did train certain large-breed dogs to track runaways, and no matter their actual breed, they were

called bloodhounds. 66 Former slave and prominent abolitionist orator, Frederick Douglass, recounted one example of the training methods used on these dogs: Slaves frequently escape from bondage, and live in the woods. Sometimes they are absent eight or nine months without being discovered. They are hunted with dogs, kept for the purpose, and regularly trained. Enmity is instilled into the blood-hounds by these means: A master causes a slave to tie up the dog and beat it unmercifully. He then sends the slave away and *20 bids him climb a tree; after which he unties the dog, puts him upon the track of the man and encourages him to pursue it until he discovers the slave. Sometimes, in hunting negroes, if the owners are not present to call off the dogs, the slaves are torn in pieces 67 With such training methods, vicious attacks by these dogs seem completely logical. 68 Slaveholders likely bred for aggressiveness in their bloodhounds (no matter the breed or mixture of breeds) and encouraged aggressiveness towards humans, especially slaves. 69 Art then imitated the true-life stories of these slave-hunting dogs, and the imagery of Stowe's Uncle Tom's Cabin, followed by the various stage productions, produced a general belief in the viciousness of bloodhounds among the populous. 70 After the Civil War, these bloodhounds were sought by people looking for guard and protection dogs because of their reputation for viciousness. 71 The breeding and training cycle continued, solidifying the public belief that this ‘breed’ of dog was vicious. 72 The reputation not only followed Cuban and Siberian bloodhounds, but also our modern English bloodhounds. 73 Such was the prejudice against bloodhounds that aficionados of the St. Hubert's (English) bloodhound breed wrote editorials and articles defending the gentleness and good nature of the English bloodhound. 74 Throughout the nineteenth and twentieth centuries, a parade of dog breeds have vied for the title of most ‘vicious' or ‘dangerous.’ During the mid- to late 1800s, the bloodhound, Newfoundland, and mastiff had the worst reputations. 75 In the early twentieth century, the collie and the Saint Bernard 76 were vilified. 77 By the 1920s the German shepherd dog had begun to get a bad reputation until its use as a police dog overcame the initial prejudice, but by World War II, the Doberman pinscher, often pictured with Nazi henchman,

solidified its place as public enemy number one. 78 It was not until the 1980s that the pit *21 bull, and to a somewhat lesser extent, the Rottweiler, became the new ‘most dangerous' breeds. 79 Today, we are tempted to laugh at the nineteenth century urban legends that longhaired spitz dogs were more susceptible to rabies because of their coats, or that the long-eared, sad-eyed bloodhounds were particularly vicious. We give no heed to the thought that the Saint Bernard or Doberman is a crazed killer. But these stories are instructive of the cycle of breed bias, the same cycle that contributed to the most popular current breed bias against so called ‘pit bulls' and ‘pit bull-type’ dogs, along with Rottweilers, and to a lesser extent, a handful of other breeds. The cycle usually begins with an increase in the number of representatives of the breed in society, and is followed by several incidents of injury to humans attributed to the breed. 80 Fear takes hold of the community, often including the spread, via media or word-of-mouth, of rumors, urban legends, or even unfounded pseudoscience (such as the susceptibility of “Arctic animal[s]” to rabies). 81 The media's hype ironically advertises the breed, making it both more popular (especially with those persons seeking an aggressive or ‘tough’ dog) and more widely known to the general public. 82 This popularity makes the breed more susceptible to owners who will seek to increase aggression in the breed, 83 and it makes the breed more prone to misidentification by the general public. 84 It is only recently, since the mid-1980s, that this cycle has led communities to pass breed-specific laws, banning or severely curtailing the ownership of certain dog breeds. 85 B.The Pit Bull Problem: Breed Bias 1980-Today It is believed that the very first breed-specific ordinance in the U.S. was passed restricting ownership of pit bulls by the Cincinnati City Council in 1983, following the death of an 11-year-old boy, who *22 was killed by his parents' two dogs. 86 Tijeras, New Mexico followed with a pit bull ban in 1984, as a result of a severe non-fatal attack on a 9-year-old by four dogs who were owned by a relative of the girl. 87 In 1985, approximately thirty communities were considering some sort of ordinance restricting pit bulls. 88 July of 1987 was a rather bad month for pit bulls and dogs that looked like pit bulls. Ohio enacted legislation to statutorily categorize pit bulls as per se

“vicious dogs” and to restrict ownership of them. 89 Throughout the month, numerous local and national media sources ran stories about these dogs, and the headlines alone were the stuff of nightmares: Boy and His Dog in Hell (Rolling Stone), 90 An Instinct for the Kill (People), 91 Beware of This Dog (Sports Illustrated), 92 Time Bombs on Legs (Time). 93 These news and magazine stories included some sensationalism and even some patently false pseudoscience that increased fear and remain the stuff of urban legend today. 94 By 1989 the large metropolitan areas of Miami-Dade County, Florida and Denver, Colorado had passed BSL. 95 The panic in the U.S. soon spread to Canada, where BSL was passed in Winnipeg, Manitoba in 1990, 96 and then overseas to the *23 United Kingdom, which enacted BSL in its Dangerous Dogs Act of 1991. 97 Many other nations around the world followed suit. 98 As noted earlier, BSL did not just include a single pit bull breed. The term ‘pit bull’ or ‘pit bull-type’ usually includes several breeds, including the American pit bull terrier, the American Staffordshire terrier, the Staffordshire bull terrier, and the bull terrier. 99 In practice, it also often includes dogs with any mix of one of these breeds, or that substantially look like one of these breeds. 100 In addition, while BSL started with pit bull bans, it has expanded steadily to include a wide range of dog breeds, including: Rottweilers, Akitas, bullmastiffs, mastiffs, Presa Canarios, Cane Corsos, and many other breeds, depending on the location and whims of the local legislature. 101 Generally, the one constant is the ‘pit bull,’ but almost any dog can be included in a BSL ordinance. 102 The cycle of breed bias detailed above occurred with pit bulls perhaps more than with any other dog. The intense media scrutiny in the 1980s led to increases in certain types of owners seeking out the dog for its ‘vicious' reputation. 103 This time period saw an increased use of *24 the dogs as status symbols rather than pets and an overall growth of the population of these dogs in the hands of irresponsible owners, 104 combined with poor controls on breeding. 105 These factors likely led to more bites by pit bulls, but they also led to more awareness and identification of any biting dog as being a pit bull. 106 C. Types of Breed-Specific Laws 1. Local Ordinances

The most common form of BSL in the U.S. is the local ordinance. 107 As mentioned above, Cincinnati, Ohio appears to be the modern birthplace of BSL, passing its ordinance in 1983. 108 The state of Ohio followed in 1987, 109 and by 1989 major cities across the country were passing various versions of BSL. 110 The legislatures and city councils utilized highly publicized attacks from their own communities, or other communities, to ‘prove’ the danger posed by certain dog breeds, particularly pit bulls. 111 The types of ordinances passed are as numerous and varied as the communities that passed them. Some laws require registration and restrict breeding of certain breeds in the jurisdiction. 112 Others outright ban ownership or keeping of certain breeds, 113 while others place restrictions on ownership in creative ways, such as requiring all dogs of certain breeds to be muzzled and leashed when outside, requiring certain fence heights or materials, or even requiring the tattooing of restricted *25 breeds kept in the jurisdiction. 114 Many localities require special insurance or permits. 115 Often, municipal laws will combine *26 two or more of these requirements. 116 The state of BSL at the local level is constantly in flux as new communities pass ordinances and old ordinances are repealed due to a variety of factors, including: ineffectiveness of the laws, costs of enforcement, or strong pressure by canine advocates. It is, however, safe to say that at any one time hundreds of jurisdictions across the country employ BSL. 117 Even when breeds are not banned outright, BSL can be a de facto breed ban because owners find it prohibitively difficult or expensive to obtain homeowners' insurance, find a rental property that will accept the dog, or take on the added personal liability that may arise from ownership. 118 2. State Laws For the most part, states have left BSL to the purview of local government-Ohio being the exception. Ohio's BSL statute, passed in 1987, defined a pit bull as a “vicious dog,” regardless of any other factors. 119 If a person owned a pit bull, it was assumed to be dangerous, and the person would be, in effect, strictly liable for any damage caused by the dog. 120 In addition to the statewide law, municipalities throughout Ohio passed breed bans on pit bulls and other types of dogs. 121 In 2012, the Ohio legislature repealed the BSL provision and *27 returned to a breed-neutral version of the definition of “vicious dog.” 122 Ohio

municipalities still have their own BSL on the books, and that is unaffected by the statutory changes. 123 The 2012 measure merely places Ohio back in the camp of a majority of other states--no statewide BSL, but local governmental measures remain in effect. While a majority of U.S. states allow municipalities to pass BSL, a growing number of states have preempted local ordinances on this issue, passing laws that prohibit local governments from regulating the keeping or ownership of dogs based on breed. 124 In effect, these laws prohibit any local BSL in these states. California was the first state to preempt BSL in 1989, although it does currently allow breed-specific spay/neuter requirements. 125 Twenty-five years later, the number of states banning BSL has swollen to eighteen, although a few of those states have grandfathered local BSL enacted before passage of the statewide statute. 126 Each of these state laws is different. While some laws focus only on breed-based ‘dangerous dog’ legislation, others focus on all breed-based laws, or even prohibit insurance regulation based on breed. For example, in March of 2014, South Dakota became one of the most recent states to preempt BSL. 127 The statute prohibits local governments from enacting “any ordinance, policy, resolution, or other enactment that is specific as to the breed or perceived breed of a dog.” 128 Pennsylvania, on the other hand, has not only preempted local *28 governments from passing BSL, but has also preempted any ordinance regulating dangerous dogs, and prohibited insurance discrimination based on breed. 129 3. Federal Regulations While there is no national BSL, in 2009, the U.S. Army and U.S. Marine Corps instituted BSL on all bases, including all privatized housing, banning pit bulltype dogs, Rottweilers, Doberman pinschers, chow chows, wolf hybrids, and other dogs prone to aggression or dominance, as well as exotic pets of all kinds. 130 In 2012, the U.S. Air Force followed suit with a similar ban. 131 The reasons behind these regulations were noted as public health, safety, and welfare of the members of the military and their families, 132 but they have caused significant heartaches for many. 133 29 In 2013, President Obama came out against BSL in principal, stating in part:

We don't support breed-specific legislation--research shows that bans on certain types of dogs are largely ineffective and often a waste of public resources. In 2000, the Centers for Disease Control and Prevention looked at twenty years of data about dog bites and human fatalities in the United States. They found that fatal attacks represent a very small proportion of dog-bite injuries to people and that it's virtually impossible to calculate bite rates for specific breeds. 134 Despite this strong statement against BSL, the military bans remain in effect and there are no indications they will be repealed anytime soon. 135 4. Court Challenges While there have been numerous court challenges to BSL over the last thirty years--some successful--all opponents of BSL have had an uphill battle as a result of the U.S. Supreme Court's decision in Sentell v. New Orleans & Carrollton R.R., which described an owner's property interest in a dog as “qualified” and the government's police power to govern dogs as both broad and plenary. 136 Essentially, this 1897 ruling, which acknowledges both the value of dogs as human companions and the potential risks to public health associated with dogs in society, 137 has given carte blanche to state and local legislatures to pass laws and ordinances restricting property rights in dogs. 138 Examples of such laws include license requirements, leash laws, spay-andneuter *30 requirements, and dangerous dog laws. 139 Sentell has been used frequently to uphold the constitutionality of BSL. 140 Constitutional challenges to BSL, based on both state and federal law, have come in the form of procedural and substantive due process claims, vagueness claims, and equal protection claims. 141 Most often, courts employ a ‘rational basis test’ to the due process and equal protection challenges after determining no suspect classes, quasi-suspect classes, or fundamental rights are at issue. The rational basis test gives broad discretion to the legislature and requires only that a law be ‘rationally related’ to a legitimate government interest in order for it to be upheld, even if it infringes upon certain property rights. 142 Constitutional challenges to BSL have generally been unsuccessful. 143 There has been some limited success with vagueness challenges. 144 *31 One of the most interesting constitutional challenges to BSL came from the Ohio courts, and because it includes differing opinions by the court of

appeals and supreme court on the constitutionality of BSL, it both illustrates how the substantive due process claims could be won by BSL opponents and also how most courts have treated this issue under a rational basis test. In Toledo v. Tellings, an owner of three “pit bull-type” dogs was cited for two violations of the municipal ordinance that set a limit of one pit bull per household and two violations for failing to provide liability insurance under Ohio Revised Code § 955.22, which is required when harboring a vicious dog under § 955.11(4)(iii) (which defined pit bulls as per se “vicious”). 145 , 146 The dogs were observed in the home of the owner during a lead-based paint inspection and were reported to the dog warden. 147 Subsequently, the owner gave one dog away, was permitted to keep one, and the third was confiscated by the warden and destroyed. 148 The owner filed a motion challenging the constitutionality of the statute and municipal ordinance on the basis of substantive and procedural due process, among other bases. 149 The trial court heard five days of testimony from at least sixteen expert witnesses (twelve for the owner, four for the state). 150 After hearing the testimony, the court upheld the constitutionality of the laws, finding that, although “pit bulls are not, as a breed, more dangerous than other breeds[,] . . . the state statutes and municipal ordinance were constitutional since the pit bull still presented a problem in the urban setting.” 151 The court based this finding on the fact “that the pit bull has been used extensively for dog fighting and by ‘criminal elements of the population, such as drug dealers, dog fighters, and urban *32 gang members,”’ and was prevalent in urban areas with crowded living conditions and large numbers of children. 152 On appeal, the Ohio Court of Appeals reversed the trial court's decision, finding no rational basis for distinguishing pit bulls from other dogs. 153 Specifically, the court of appeals recognized that older cases upholding BSL were based on unsubstantiated myths and sensationalized hype about pit bulls that have since been corrected by scientific findings. 154 The appeals court determined that the Ohio statute finding pit bulls as per se vicious was unconstitutional because the trial court admitted there was no basis to find the breed more dangerous than any other; therefore, singling out one breed “has no real and substantial relationship to a legitimate state interest.” 155

However in its reversal of the court below, the Ohio Supreme Court stressed the power of the legislature to make laws related to public health, safety, and welfare. 156 It applied a weaker version of the rational basis test than did the court of appeals, and found there was *33 sufficient evidence for the trial court to determine BSL has a real and substantial relationship to the legitimate state interest of public safety. 157 While Toledo v. Tellings is an excellent example of the kinds of constitutional arguments used in support of and against BSL, it is by far not the only case weighing in on these issues. 158 While most courts have upheld BSL on rational basis, it is interesting to note how often the same evidence that is relied upon by the courts in these cases has been either called into serious question or even refuted outright by science. As we will discover in Part III, much of this evidence is the same as that which was sensationalized in the media during the mid1980s. For example, the Colorado Supreme Court in Colorado Dog Fanciers, Inc. v. Denver, noted that “pit bull attacks, unlike attacks by other dogs, occur more often, are more severe, and are more likely to result in fatalities.” 159 Furthermore, the court noted “that pit bulls tend to be stronger than other dogs, often give no warning signals before attacking, and are less willing than other dogs to retreat from an attack, even when they are in considerable pain.” 160 Similarly, in Garcia v. Village of Tijeras the New Mexico Court of Appeals pointed to evidence that pit bulls have “inherent characteristics of aggression, strength, viciousness and unpredictability not found in any other breeds of dog,” that they are subject to “berserk frenzies *34 [that] do not occur in other breeds of dog,” that their bite is as much as twice as strong as other dogs, and that they are “especially dangerous due to their unpredictability” because they display no warning behavior. 161 Again, most of these claims appeared in the media in and around 1987, 162 and have proven false or highly suspect. 163 Yet this case and others that trusted such spurious evidence continue to be cited, discussed, and relied upon by other courts deciding BSL cases. 164 As recently as 2013, the Supreme Court of West Virginia pointed to the same evidence in upholding a breed ban. 165 Colorado Dog Fanciers, Garcia, and other cases have held that enough evidence exists to meet the rational basis test and that neither due process nor

equal protection were violated by the ordinances or statutes. Some scholarship has suggested that courts should approach BSL with a stronger rational basis test, often called “rational basis plus” or “rational basis with bite.” 166 The Ohio Court of Appeals, in its opinion in Toledo v. Tellings, did just that. 167 The arguments *35 presented in this Article would support that approach, but it is not the intent of this Article to advocate specifically for such a strengthened test, because even a standard rational basis test should not allow a statute to stand when it is not rationally related to accomplishing a legitimate government interest. While the state arguably has a legitimate interest in preventing dog bites, BSL is not rationally related to this goal because breed does not predict propensity to bite. The one constitutional area where BSL opponents have gained traction is on the vagueness issue. While many courts have agreed with the Colorado and Ohio supreme courts, which found that vets and dog owners are typically capable of determining the breed of a dog, including pit bulls and pit bull-type dogs, 168 not all agree. The Colorado Supreme Court specifically held that BSL “provides adequate notice to dog owners and is not unconstitutionally vague.” 169 Conversely, some courts have acknowledged that determining breed, especially breed of a ‘type’ of dog, or of a mixed breed, is difficult and can be deemed vague. 170 However, legislatures always have the opportunity to redraft statutes to bring them into constitutional compliance. The real question here, which will be discussed in greater depth in Part IV, is whether the underlying assumption that owners know what breed of dog they have is correct. Evidence suggests not, but courts have been unwilling to explore the accuracy of the underlying assumption, 171 specifically because if answered in the negative, it brings down the whole BSL house of cards. D. Current Picture of BSL in the U.S. and Abroad As of 2014, ‘pit bulls' are the most common targets of BSL in the U.S. and abroad, but they are by no means alone. 172 Other targeted breeds include: Rottweilers, Cane Corsos, Presa Canario, various types of mastiffs, chow chows, and Akitas, among others. 173 Currently, none *36 of the fifty states have enforceable statewide BSL. 174 As mentioned above, Ohio did have statewide BSL until 2012 when the legislature amended its dog law to eliminate its

designation of dogs belonging to “a breed that is commonly known as a pit bull dog” as per se “vicious.” 175 For the most part, BSL in the U.S. is a local concern, and thirty-one of the fifty states continue to allow their local communities to enact BSL with no restriction. 176 U.S. military bases also continue to impose BSL against pit bulls, wolf hybrids, Rottweilers and other breeds. 177 Internationally, the United Kingdom and Spain have enacted forms of BSL on the national level. 178 Other international BSL includes restrictions in the Australian province of Victoria and in Winnipeg, Manitoba. 179 The Netherlands recently repealed BSL, determining it had no effect on rates of dog attacks. 180 Most notably, Italy had, at one time, placed restrictions or out-right bans on ninety-two different breeds of dog. 181 That number was reduced to seventeen breeds, before the government finally repealed its BSL in favor of a new breed-neutral law directed at reducing dog bites. 182 37 Overall, despite strong opposition and significant evidence against its efficacy, BSL is alive and well in the U.S., as well as other parts of the world. III. THE SCIENCE BEHIND CANINE AGGRESSION A. Research Does Not Support the Concept of a ‘Dangerous' Breed As noted by the Ohio Court of Appeals in Toledo v. Tellings, to date, the scientific evidence concerning canine aggression does not point toward the identification of aggressive breeds as a whole. 183 Instead it suggests that the problem of canine aggression is a complex one involving many variables, and points to risk factors other than breed as more predictive of aggression. 184 Over the past ten years, several studies have been conducted to determine the efficacy of breed-specific laws enacted outside the U.S. 185 Universally, these studies fail to support BSL and, in fact, some have led many nations to repeal their BSL in favor of other breed-neutral measures. 186 A series of studies of Australian, Spanish, German, and Dutch BSL, published from 2006 to 2009, all asked the central question of whether BSL is justified based on statistical evidence. 187 Each study utilized different data and methodology, but all concluded that BSL was not an effective means of curbing canine aggression. 188 1.Australian Study

In a 2006 Australian study, published in the Journal of Veterinary Behavior, Dr. Stephen Collier analyzed the existing data regarding dog bites in several regions of Australia, comparing pre-BSL and post-BSL statistics to determine if BSL had any quantifiable effect. 189 Essentially, he analyzed the bite reports per breed and “population attributable *38 fraction percentage” (PAF%) of each breed present in the population, then compared these statistics over time, both before and after passage of BSL. 190 One important statistical flaw noted by Collier is that owners of American pit bull terriers, in particular, are quite logically reticent to register their dogs under the proper breed designation, and likely do not do so in the same numbers as other non-restricted breeds. 191 The results of this flaw are obvious. Where the PAF% of a breed is underestimated, each attack recorded by that breed is diffused over a smaller estimated population, and it makes the breed seem more aggressive. 192 Collier also points out that the identification of dog breeds involved in the attacks comes primarily from eyewitnesses to the attacks or the news media, and that neither are reliable sources of data, 193 a point that will be made in greater detail in later studies. Even based on a review of these flawed numbers, Collier determined that aggressive dogs make up only a very small percentage of any breed (at the highest only 1% of any one breed), that BSL has shown no change in the number of bites in Australia, and that BSL directed at a breed or group of breeds with the worst bite records is unlikely to affect statistics for any length of time because there are many breeds that could be made dangerous through irresponsible ownership. 194 2.Spanish Study Similarly, a 2007 Spanish study, also published in the Journal of Veterinary Behavior, considered the effects of Spain's “Dangerous Animals Act” (DAA), which included both breed-specific and breed-neutral laws. 195 Reviewing dog-bite data from the five-year period immediately *39 prior to the enactment of the new law, and the five-year period after the enactment of the new law, the researchers determined that BSL had no effect on the rate of dog bites. 196 The results of the study showed no great changes in the number of bite incidents or the breeds of dog involved in biting. 197 German shepherds and crossbreed dogs accounted for the majority of bites both before enactment of

the DAA and after. 198 These are two of the most popular types of dogs in Spain, so it is logical that most bites would come from these breeds. 199 While researchers noted a slight increase in the reporting of bites attributed to dogs from the dangerous-breed list in the post-enactment period, they generally attributed this to the greater awareness of, and possibly bias against, breeds on the list due to media attention surrounding the enactment of the DAA. 200 Such bias would manifest through over-identification. 201 What the study did show was that the BSL and accompanying dangerousbreed list was not based on actual likelihood of danger. 202 The dangerous breeds were involved in only 2.4% of biting incidents prior to enactment of the legislation, and the breeds themselves represented only about 4.2% of the canine population. 203 Researchers also noted the DAA in general (both breedspecific and breed-neutral provisions) showed no real impact on bite frequency, but that bites continued to be more frequent in the rural, less densely populated areas than in urban areas. 204 While at first this may seem counterintuitive, it is likely that the urban owner exerts more control over their dog in public settings, preventing many potential bite episodes. 205 The Spanish researchers note that BSL measures were both overinclusive and underinclusive of the aggressive dog population, because *40 the vast majority of dogs whose breeds are included on the list are not aggressive, and some dogs of other breeds are aggressive. 206 Again, this is an important point that will be addressed in later studies. Perhaps even more importantly, the researchers noted that BSL can give the public, both dog owners and nonowners, a false sense of security that if a breed is not on the list, it is per se ‘safe.’ 207 3. German Studies In 2008, a group of German researchers conducted their own studies to determine whether BSL is justified, through behavior and temperament testing. 208 In July of 2000, the Lower Saxony region of Germany enacted BSL that restricted the keeping of pit bull-type dogs 209 and eleven other breeds. 210 The keeping of breeds commonly known as pit bulls was prohibited unless the individual dog or dogs could pass a particular behavior evaluation established by the Ministry of Nutrition, Agriculture, and Forestry. 211 Even if they passed the test, pit bulls were still required to be muzzled and leashed at all times while

off private property. 212 The other eleven breeds were subject to the muzzling and leash law, and after they passed the behavior test, such dogs could be exempted from the breed-specific restrictions. 213 Under no circumstances could pit bull-type dogs be exempted from muzzle and leash requirements. 214 For their research, the German group put 415 dog-and-owner teams through the official behavior evaluation. 215 An examiner observed each dog-andowner team as it moved though twenty-one scenarios, *41 and the dog was assigned a score of 1 to 7 based on how aggressive its response was to each interaction. 216 A score of 1 indicated no aggression whatsoever, while 2 to 7 indicated aggression in six escalated steps. 217 The researchers noted no significant difference between breeds with regard to inappropriate aggression on this test. 218 All told, 95% of the dogs in the study reacted appropriately to each given situation. 219 Based on these conclusions, the researchers concluded breed-based classifications were not justified. 220 In a follow-up article, published later in 2008, the German team conducted the same test on seventy golden retrievers. 221 Over 98% of these dogs reacted appropriately to each situation (compared to 95% in the former study), and 1.43% of the dogs displayed aggressive behavior in inappropriate situations (compared to 5% in the former study). 222 Comparing the two studies, the scientists again found no statistically significant difference between the golden retriever control group and the other breeds affected by BSL. 223 As a result of the publication of these two studies, the government of Lower Saxony repealed its BSL. 224 4. Dutch Study In what is believed to be the first scientific evaluation of BSL commissioned by a government, researchers from the Netherlands conducted three surveys to determine if BSL was justified in their country. 225 The first survey contacted over 40,000 Dutch households, identifying 1,420 people who had been bitten by a dog in the preceding *42 twenty-four months. 226 The second survey was directed toward those individuals identified in the first survey, and asked respondents to give information about the dog-victim interaction as well as the breed of dog responsible for the bite. 227 The last survey, reaching out to over 10,000 dog owners, collected information on breed and registration status. 228

Based on these surveys, the researchers found that about 33% of victims were bitten by their own dogs, while 62% of all bites, and 75% of bites to children, occurred in non-public places. 229 About 31% of the bites were characterized as “unintentional,” meaning they happened during play or by accident. 230 Most bite incidents resulted in no injury or only minor injury (total of 80%). 231 Almost all persons surveyed about their injuries made a breed identification. 232 In total, eighty-six different breeds were identified. 233 The study calculated bite risk indices based on the representation ratio, a likelihood that a dog of the breed would bite based on representation of the breed within the reference population. 234 The average dog has a bite risk index of 1. 235 Certain breeds had a bite risk index above 1, such as Belgian shepherds, Jack Russell terriers, German shepherds, and Dobermans, among others. 236 Breeds such as golden retrievers, Yorkshire terriers, and the polymorphic mixed-breed group had ratios below 1. 237 While these numbers may provide some general support for BSL against certain breeds, the researchers noted that eighty-six different breeds did bite. 238 Eliminating one or two breeds or even twenty breeds does not eliminate the risk. 239 The breadth of the entire study illustrates the complexity of the dog-bite problem. 240 Simply eliminating breeds that bite the most implies removing *43 the most common breeds, a result that the researchers deemed “neither practicable nor desirable.” 241 Instead, the researchers urge multiple prevention strategies based on characteristics of the injuries. 242 For instance, the study supported the finding that most children are bitten in their own homes by dogs they know. 243 Educating children on how to safely interact with dogs, 244 combined with warning parents of the dangers of leaving children and dogs together unsupervised, 245 should prevent many of the most common dog bites to children. 246 Similarly, preventing dogs from biting their owners would require different strategies than preventing dogs from biting strangers in public locations. 247 Recently, after the completion of the Dutch government's inquiry into the efficacy of BSL, the Netherlands repealed its BSL in favor of prevention efforts that more closely matched the bite risks in the community. 248 B. Epidemiological Studies of Dog Bites Illuminate Complexity of Problem

The findings of the Dutch study echo many of the epidemiological studies on dog bite prevention, showing that the factors contributing to dog bites are numerous and complex. 249 Breed plays only a small part, *44 if any. 250 A 2013 comprehensive study of 256 dog bite-related fatalities (“DBRF”) 251 in the U.S. found a number of key preventable factors play a significant role in such deaths. 252 The authors noted that undue and widespread emphasis on breed has detrimentally affected efforts to prevent serious and fatal canine attacks because it “has contributed to a lack of appreciation of the ownership and husbandry factors that more directly impact dogs and the complex genetic factors that work in combination with husbandry to influence a dog's behavior responses to a given set of stimuli.” 253 In other words, when we focus on breed, we miss the real dangers. This particular study was unique in that the information regarding the incidents was not taken solely from media reports, but rather from interviews of primary sources including law enforcement, animal control officers, veterinarians, prosecutors, dog owners, and witnesses and therefore more detailed information was gathered. 254 Of the victim-related factors, it is important to note that 85% of the victims had either no relationship with the dog (74.2%) 255 or only an incidental relationship (10.9%). 256 Over half the victims were either under the age of five (45.3%) or their ability to properly interact with a dog was compromised (10.6%) due to drug and alcohol intake, dementia, Alzheimer's disease, or uncontrolled seizure disorders. 257 In 87.1% of the incidents, there was no ablebodied adult present at the scene to intervene. 258 In relation to the characteristics of the dogs themselves, the sexual status of the dog stood out as particularly important. In 212 incidents (82.2%), only sexually intact dogs were involved, while another 4 incidents included both intact and altered dogs. 259 For twenty-two incidents, *45 investigators were unable to determine the sex status of the dogs involved. 260 Only 7% were documented to involve neutered male dogs alone, 261 and spayed female dogs were only noted to be involved in 2 of the 256 incidents (less than 1%). 262 While the investigators also gathered breed information on the dogs involved, they found that “disagreement occurred with sufficient frequency to cast

doubt” on identifying breed without support from DNA evidence or pedigree papers. 263 In the category of husbandry, researchers noted several factors contributing to DBRFs. In 37.5% of the incidents there was evidence of owner mismanagement 264 and in 21.1% there was evidence of prior abuse 265 or severe neglect 266 of the dog. 267 The most striking statistic was that 76.2% of DBRF-involved “resident” dogs, not family dogs. 268 Resident dogs are generally isolated from positive interactions with humans. 269 These dogs may be tethered or penned outside for most of their lives, or sequestered in a basement, garage or other location in the house, but the key factor is that resident dogs are isolated. 270 Family dogs, on the other hand, are kept in the house and have positive interactions with the family. 271 This is a particular distinction that has gone unnoticed, or largely been ignored by the media, but it is a factor well worth exploring. In addition, 74.2% of deaths occurred on the dog owner's property, 272 and in 87.1% of the incidents, the owner was not present. 273 Documentation of the co-occurrence of these factors is, perhaps, the biggest take-away from this study. In over 80% of the DBRFs studied, at least four different factors were present at the time of the fatality, and in over 60% at least five factors were present. 274 Thus, it is not usually one mistake by an owner that leads to a DBRF, it is a pattern of neglect, mismanagement, isolation, and abuse, coupled with a vulnerable *46 victim, which leads to a DBRF. DBRFs are certainly rare, but they are also, in many cases, preventable-- not through BSL, but through responsible dog ownership. Similarly, recent studies surveying dog owners in the U.S. and United Kingdom about their experiences with canine aggression support the argument that canine aggression is a complex problem. 275 These studies show “substantial within-breed variations” in aggression, 276 suggesting that environmental and developmental factors play a major role in canine aggression. 277 Specifically, researchers found increased instances of aggression in dogs subjected to physical punishment, 278 unneutered male dogs, 279 older dogs, 280 dogs with younger owners, 281 and dogs with female owners. 282 On the other hand, researchers found decreased aggression in younger dogs, 283 spayed female dogs, 284 dogs with older owners, 285 and

puppies that had attended training classes. 286 Again, the literature supports the fact that canine aggression does not occur in the vacuum of breed and requires a comprehensive, multi-faceted, and breed- neutral response. C. Canine Brain Chemistry, and Genetics One emerging area of scientific inquiry into canine aggression centers on the brain chemistry of aggressive dogs. While admittedly narrow, two studies published in 2010 and 2013 noted certain brain chemistry similarities in some aggressive dogs. 287 In one study, the 47 researchers looked at genes related to neurotransmitter 288 systems in canine brains, and identified haploid genotypes 289 (“haplotypes”) that seemed to indicate either risk of aggression or protection against aggression in dogs. 290 Particularly, the researchers noted a correlation among low serotonin levels, higher than normal dopamine levels, and aggressive behavior. 291 These findings are similar to the findings of other studies in humans and animals that link serotonin hypoactivity and dopamine hyperactivity to impulse aggression. 292 Risk of aggression is likely a complex phenomenon resulting from combined effects of several haplotypes and environmental factors. 293 The presence of one gene or haplotype will not cause aggressive behavior, but the presence of several specific haplotypes working together and combined with environmental factors, such as physical punishment 294 or neglect/isolation, 295 could cause a tendency toward aggression. 296 These brain *48 chemistry characteristics may be inherited by some dogs through certain breed lines, but they do not appear to be a breedwide phenomenon. This means not every dog, or even most dogs of any particular breed, shows the brain chemistry of aggression. 297 Just as the brain chemistry of violent humans is different than the majority of humans, so too the brain chemistry of aggressive dogs may be, simply, different than most other dogs regardless of breed. 298 While this neuroscience-based inquiry is in its infancy it does give hope for the possibility of early diagnoses of aggressive tendencies that may respond to behavior modification therapy or even drug intervention before aggression actually occurs. D.Studies that Support BSL While the great majority of recent scientific studies reject BSL as a solution to the problem of dog bites, a few studies have been used to support such legislation. One of the most controversial of the supporting literature is a 2011

article published in the Annals of Surgery that purports to review all dog-bite traumas admitted to a level 1 trauma unit at the University of Texas Health Science Center in San Antonio over a fifteen-year period. 299 The researchers attempted to determine the breed of the dogs involved in attacks on people subsequently admitted to the hospital. 300 They established two categories: pit bulls (including dogs determined to be pit-mixes) and non-pit bulls. 301 However, there is no explanation of how the researchers established breed, nor is there a clear understanding of what characteristics were required to be included in the ‘pit bull’ category, since it included mixed breeds. 302 As will be discussed in greater depth in Part IV, determination of breed, especially when mixed breeds are involved, is much more complex and uncertain than it may at first appear. 303 At the very least, the researchers should have provided information on *49 their methods of breed determination, whether by media report, victim or witness interview, AKC registration, etcetera. The study has also been criticized for its citation to highly questionable statistics from unpublished sources. 304 This article concluded that from their evaluation of records, injuries sustained in attacks by pit bulls were generally more severe than those by non- pit bulls. 305 However, even the authors admitted that their small sample size and the limitations of their retrospective data might have compromised their results. 306 These shortcomings, coupled with questionable statistics and undefined method of breed determination, undermine this study's usefulness. Similarly questionable is a recent study published in 2012 of the rate of dogbite hospitalizations in areas of Manitoba, Canada, that have passed BSL at the community level. 307 Researchers in the province of Manitoba attempted to compare the dog-bite related hospitalization rates in Manitoba's non-BSL communities with hospitalization rates in communities that have enacted BSL in order to determine the efficacy of BSL. 308 When comparing the pre-

BSL

hospitalization rates to post-BSL hospitalization rates within individual jurisdictions, the researchers found “no significant reduction in the period after BSL implementation.” 309 It was only after researchers introduced “temporal and geographic variations” that they found any difference in comparing BSL and non-BSL jurisdictions. 310 Specifically, they compared urban jurisdictions to rural by comparing the single major metropolitan area of Winnipeg to the

smaller city of Brandon, and they found that the “hospitalization rate in Winnipeg (city with BSL) relative to Brandon (city without BSL) was lower after implementation.” 311 These results are not surprising, nor should they be tied to BSL. 312 Comparing Winnipeg, a city of nearly 700,000 people, to Brandon, a city of fewer than 50,000 people (less than 10% of Winnipeg's population), is comparing apples to oranges. 313 European researchers established that more densely populated areas generally have fewer dog-bite related injuries per capita. 314 *50 In addition to these geographical differences, the Canadian researchers did not compare the same time periods in the BSL and non-BSL jurisdictions. Researchers compared data from the BSL jurisdictions while the legislation was in effect 315 to data from the non-BSL jurisdictions over the entire study time period from 1984 to 2006. 316 This presupposes that only BSL would change the rate of bite injury hospitalizations and that bite injuries have not gone down in many non-BSL jurisdictions during the time frame. On the contrary, dog-bite injuries have been decreasing across the country since 1994, and not necessarily in BSL jurisdictions. 317 In addition to these two studies whose authors have come out in favor of BSL, proponents also point to the following study out of Catalonia, Spain, despite no specific endorsement of BSL from its authors. 318 In this 2010 study, researchers noted a decline in dog-bite related hospitalizations from 1997 to 2008. 319 Stricter regulations on dog ownership were passed in the area in 1999, some of which were breed-specific. 320 While the decline was noted, researchers acknowledged that it was not possible to tell which regulations were effective, whether the change was due to education related to the regulations, or whether other factors were involved in the decline. 321 Particularly, the authors noted that there was general decline in dog-bite related injuries documented during that time period in other locations, including the U.S., that could not be tied to specific interventions. 322 The vast majority of current scientific literature disfavors and undermines the efficacy of BSL. Generally, BSL is characterized through these studies as simplistic and reactionary, based on little actual evidence, and sometimes based on nothing more than media hype. Governments should be looking more

closely at the varied risk factors that contribute to dog aggression and dog bites instead of ending their inquiry at the breed of dog. 51 IV. THE UNRELIABILITY OF VISUAL IDENTIFICATION OF DOG BREEDS The scientific research discussed in Part III above employs a number of different empirical strategies to study the issue of canine aggression, but none of them considers the impact of DNA analysis on BSL. Up until recently, visual identification of breed has been accepted as correct; however, new evidence suggests visual identification of breed is not reliable, and in so doing, it rocks the already shaky foundations of BSL. 323 Strongly paralleling the DNA exoneration of humans wrongfully convicted of crimes based on eyewitness identification, we are now seeing that canine DNA tests can call into question many breed identifications. 324 For over one hundred years, scientists and criminal law scholars have debated the reliability of eyewitness identification in criminal trials. 325 The current general consensus finds that eyewitness identification is extremely unreliable, and some scholars even advocate for ways to decrease its prevalence in criminal trials or its evidentiary admissibility. 326 As noted in a recent opinion by the Pennsylvania Supreme Court, forty-five of the fifty states and most federal jurisdictions now allow, at the discretion of the trial court, expert testimony to be introduced at criminal trials to explain the limits of human perception and the unreliability of eyewitness identification. 327 Of the states that *52 have considered the issue, only Kansas and Louisiana preclude expert testimony on eyewitness identification per se. 328 DNA evidence, and its use in freeing persons convicted of crimes on the basis of inaccurate eyewitness identification, 329 has essentially forced the hands of the courts to reform the way they deal with inherently unreliable eyewitness testimony. 330 It should come as no surprise then that human eyewitness identification of canines and canine breeds is not more accurate or reliable than identification of persons perpetrating criminal acts. And once again, it is DNA that provides irrefutable evidence of that fact. 331 To date, the most groundbreaking scientific study on the topic of visual identification of canine breeds came in a 2013 study in the American Journal of Sociological Research, which found that the accuracy of visual breed identification is extremely low even by persons who work in canine-related

fields. 332 This study undermines the foundational basis of breed-specific laws and calls into question whether they could ever be implemented rationally or justly enforced. Until the completion of the mapping of the canine genome, 333 and tests to identify dog breeds through DNA became available, 334 determination of breed was almost solely based on visual identification. 335 *53 Whether a dog of mixed or unregistered heritage would be considered a particular breed was decided by the visual perception of the enforcer in most cases. In some cases, ‘expert’ witness testimony (opinion of shelter workers or even the breed identification made by the owner themselves) would satisfy the proof requirement. 336 Based on Voith's findings, those visual identifications are inherently unreliable. The study utilized 923 participants, all of which were persons engaged in dog-related professions and/or activities and were assumed to be knowledgeable about dogs and dog breeds in general. 337 Each participant viewed one minute, color video clips of twenty mix-breed dogs used in the study. Each participant was then asked to visually identify the dogs' predominant breed or breeds. 338 The results are staggering. For fourteen of the twenty dogs, fewer than 50% of the respondents could visually identify any of the breeds that matched the DNA identification. 339 That means over half of the participants could not identify even one of the two or three (or in some cases four or more) breeds identified by the Wisdom Panel as making up the heritage of fourteen of the twenty dogs. 340 Not only were the participants generally wrong about their identifications, they also failed to agree on identification. Participants agreed on predominant breeds for only seven of the twenty dogs. 341 Of those seven, participants were wrong about three of them. 342 For those three dogs, the commonly agreed upon breed was not a breed identified by DNA testing at all. 343 Significantly, of the twenty dogs in the study, only four had a predominant breed correctly and consistently identified by more than 50% of the participants through visual identification. 344 This study undermines BSL in two ways. Most obviously, it calls into question the ability of any state or local government to enforce the laws justly. Unless every dog in a community receives a DNA test to determine breed

heritage, enforcement will necessarily be both over- *54 inclusive and underinclusive. For example, in a community where pit bulls are banned, an attempt to enforce the ban without DNA testing will, based on Voith's findings, lead to a significant numbers of dogs with no ‘pit bull-type’ heritage being identified as a ‘pit bull’ or ‘pit bull mix.’ This is evidence of over-inclusion. Similarly, a number of dogs that do in fact have a ‘pit bull-type’ breed in their genetic make up, but that do not look in any way like a ‘pit bull,’ will be passed over for enforcement. Thus under-inclusion is also inevitable. The obvious question arises: Is the community concerned about a particular breed, or a particular ‘look’ of a dog? 345 If it is the former, just enforcement is impossible without mandatory DNA testing of all dogs. If it is the latter, then clearly breed- specific legislation does not accomplish that goal. 346 *55 Perhaps even more importantly, the Voith study undermines the basis for breed discrimination at its roots. Can we even trust that the dog attacks upon which breed-specific legislation has historically been based actually involved the breed blamed for the attack? In some cases, where a dog is either registered as a particular breed or has known registered parents, we can be sure of its breed identification. Similarly, we may have DNA confirmation of breed. However, how many people identifying dogs at the scene of an attack to the police or media source stop to ask for breed registration or DNA results? The answer is none--and we would not expect them to do so. The basis of nearly every eyewitness breed identification related to an attack is based on the identifier's subjective opinion of the look of the dog. Such evidence is inherently unreliable. 347 As mentioned above, the cycle of breed discrimination begins with an increase in popularity of the breed, followed by a few attacks by the breed or by dogs that ‘look’ like the breed and are identified as the breed. As we will discuss in more detail in the next Section, images that invoke strong feelings of fear often cause humans to overemphasize and over- identify that danger. 348 Even before the Voith study, there are countless examples of misidentification of dogs involved in attacks. 349 Dogs ‘known’ in the public conscience to be dangerous are over-identified as the culprits, and are often subject to violence without any provocation other than visual identification of their breed. 350

56 Now, the Voith study gives us scientifically measureable data to back up the anecdotal evidence that certain breeds will be over-identified by visual identification. Shelter workers, vets, and even dog owners over (and under) identify based on their own knowledge and understanding of breed standards. The tendency of over identification is likely to be enhanced for perceived vicious or dangerous breeds by eyewitnesses to dog attacks. Any list of ‘dangerous dogs' based solely on anecdotal evidence or visual identification will necessarily be inaccurate and practically unenforceable. V. BSL ARISES FROM FEAR, NOT RISK MANAGEMENT By now, it should be fairly clear that the policy behind BSL is neither well grounded in science nor especially effective at curbing the problem it purportedly intends to curb--dog bites-- especially severe and/or fatal bites. So, why do our communities continue to employ it? Why, despite scientific evidence to the contrary, do we continue to vilify a few select breeds of dog and perpetuate the vicious cycle of breed bias? The answers to these and similar questions can be found, not in the science of the dog, but rather in disciplines that focus on humans, particularly behavioral psychology. Current research in behavioral psychology helps explain why a simplistic knee-jerk response, in this case BSL, has become the go-to solution to a very complex problem. As we will see in this Section, the human brain is prone to certain errors of judgment, especially when dealing with emotionally charged dangers such as vicious dogs, and our responses to those dangers are often not formulated by rational thinking. 351 Therefore, a very real biological reason exists for why we continue to implement BSL, even though the data tells us it is ineffective and unresponsive to the true problem. Although BSL may reduce fear, it has little or no effect on the risk of danger it purports to address. Over the last forty years, research in areas such as cognitive and behavioral psychology has yielded significant data on human decision-making at the individual level. 352 Essentially, the driving theory developed *57 over the past few decades is that a large portion of decisions made by humans everyday are not based on perfectly rational cogitation, but rather arise from a more intuitive place assisted by ‘heuristics.’ 353 A heuristic is defined as a “simple procedure [or shortcut] that helps find adequate, though often imperfect, answers to difficult questions.” 354

Building upon this psychological research, neuroscientists explored the biological systems that produce these psychological decision-making responses. 355 Since then, experts and scholars in economics, law, and public policy have applied this cognitive science research to both explain and critique how societies make decisions and policy on the macro level. 356 One of the most important critiques of policy making to recently emerge from this work centers on the fact that human decisions and thus societal decisions-particularly in areas of law and policy--all too often arise from an emotional fear response based on inaccurate assessment of risk rather than from rational calculation. 357 BSL is a perfect example of the type of laws and policy that arise from fear rather than reason. A. Dual Process Thinking and Decision-Making The behavioral research touched on above yielded a model to explain how humans answer questions and make decisions in our environment called the dual system model. 358 The first type of decision-making, called ‘system 1,’ occurs quickly. These are the split-second, intuitive, almost unconscious decisions. The second type of thinking, called ‘system 2,’ is more deliberative, rational, reasoned, and overall slower. 359 Despite decades of study, there is much that is unknown about the dualprocess theory of thinking and much that will likely be discovered in the coming years. However, it is enough for purposes of the discussion here to understand the basic theory of dual process thinking, and to acknowledge that sometimes the systems do not work exactly when and how they should. 360 While both levels of thinking are vital to human survival and development, at times, the quick, reactionary thinking of system 1 can and does overwhelm the higher-order, rational, and slower thinking of system 2. 361 Of course, while this is beneficial when fight or flight is necessary, sometimes system 1 takes over when it should not do so, when higher-order thinking, deliberation, and reason are necessary, leading to the systematic judgment errors that were observed by Tversky and Kahneman. 362 In a nutshell, the research shows that system 1 bases its decisions much of the time on heuristics. 363 These shortcuts allow the brain to make a decision without a long, complicated, and rational multi-stepped process. 364 There are a number of different heuristics that assist intuitive decision-making including

two that will be discussed in more depth below: the availability heuristic 365 and the affect heuristic. 366 Because these heuristics take a shortcut around reason and logic, the results, at times, can end up being quite wrong because some questions cannot be properly answered without system 2 thinking. 367 *59 When faced with a complex, difficult question, our brains, through the assistance of heuristics, will change the question to a much simpler one that can be answered. 368 However, we do not always recognize that the question has changed, and therefore the answer does not match the original, complex question. 369 The following are short discussions of the two heuristics most obviously at work in the policy decisions that have led to BSL: the availability heuristic and the affect heuristic. 1. Availability Heuristic One of the most easily observable and common heuristics is the availability heuristic. 370 When humans are asked to determine the likelihood of a result or the risk of a particular danger, we immediately call to mind examples to determine how likely that result is or how prevalent the risk. 371 What we can recall most readily will be considered more probable, more common, of greater risk, or more likely to occur. 372 Generally, we are more likely to recall events that are recent, vividly illustrated, or more emotionally engaging. 373 Thus, it is those events, seared into our memories, which we believe more likely or more probable to occur again. 374 With regard to dangerous dogs, media coverage of dog attacks, especially when the dog is identified as a pit bull, is ubiquitous and often both vivid and emotionally provocative. 375 The story of Diane Whipple, killed in San Francisco in 2001, is a perfect example. 376 Her death was covered extensively in the media, particularly because it was such a rare event. 377 First, any dog attack fatality is necessarily a rare event. 378 The fact that she was a healthy adult, and that the attack was particularly savage, made the story even more provocative. 379 Whipple was killed in her apartment building by two dogs (not pit bulls) being cared for by a neighbor. 380 The story received international attention, and is possibly still the most commonly cited dog attack fatality case. 381 Whipple is certainly not the only case covered by the media. Any dog attack is major local news, and is sometimes covered extensively in other parts of the country. 382 Identification of the *61 dog involved as a pit bull (though in

Whipple's case the dogs were not pit bulls) seems to spur more media coverage. 383 Although dog attack fatalities are extremely rare, the extensive media coverage of these cases act on the availability heuristic and allow people to bring to mind these incidents readily, making them seem much more likely. 384 In his book Laws of Fear, Cass Sunstein points out that the availability heuristic never works in a vacuum. 385 What is ‘available’ to some people and cultures is less ‘available’ to others. 386 Hence, with regard to BSL, some communities with more recent incidents or media coverage may be more likely to pass BSL, while other communities that do not have recent or vivid incidents of dog attacks or fatalities may be less likely to pass such laws. 387 There are risks to every decision, but the availability heuristic has a tendency to emphasize certain risks to certain people, and deemphasize or even hide other risks. 388 For example, banning pit bulls from a community has risks, though they may not be as ‘available’ in people's minds as the risk of an attack by a pit bull. 389 For example, banning a breed may cause emotional distress in individuals and families forced to give up beloved pets. 390 *62 Bans and restrictions also make it harder for people to obtain housing with certain breeds of dog and may exacerbate the problem of homelessness. 391 It is also well known that pets provide stress relief for owners, reducing heart disease and other physical and mental illnesses, 392 and breeds that are often the subject of BSL have also been useful therapy dogs. 393 Thus BSL can affect the health and well-being of individuals in the community deprived of their companion. Just because these risks are less ‘available’ to individuals and communities does not make them less frequent, less severe, or less important. 2. The Affect Heuristic The affect heuristic, in particular, seems to work closely in conjunction with other heuristics. It describes how images and the positive and negative feelings (or affects) connected to those images influence decision-making processes. 394 In his article The Affect Heuristic, Slovic points to research that shows how subliminal messages and pictures can influence decisions. 395 For example, in one study subjects were shown smiling faces or frowning faces prior to having them evaluate Chinese ideographs. 396 Those ideographs presented following a smiling face received significantly higher scores of “likability” than those that followed a frowning face. 397 The priming was long lasting, so that even when

subjects were shown the ideograph in a second session “primed” with the other face, the original impression caused by the priming in the first session remained in effect. 398 One of the ways that the affect heuristic influences decisions seems to be the inverse relationship between benefit and risk. 399 Where an individual believes an action has particularly strong benefits, that individual downplays the risks. 400 Similarly, the opposite is true. When risk seems apparently high, the perception of the activity's benefits is depressed. 401 Slovic used the example of nuclear power to *63 illustrate the inverse relationship of risk and benefit. 402 The study showed that no matter what position a subject started with (high risk, low risk, high benefit, or low benefit) the inverse relationship held true. 403 Where people were provided information to show the benefits of nuclear power were high, their corresponding inference of the associated risks were low. 404 Information showing low risk, produced perception of high benefit. 405 High risk produced perception of low benefit, and as expected, low benefit led to a belief of high risk inherent to the activity. 406 This risk-benefit relationship is often manipulated in advertising as illustrated by the tobacco industry. 407 Slovic points out that for many years, tobacco companies have particularly used affect-driven advertising to counteract the Surgeon General warning of risks associated with cigarette smoking and tobacco use. 408 It is easy to call to mind the pictures of the ruggedly handsome “Marlboro Man” on horseback, with blue skies and wideopen fields ahead of him. 409 This picture has nothing to do with smoking a cigarette, but the advertisement evokes a feeling of well-being and benefit in the consumer. 410 If that feeling of benefit is strong enough, Slovic's study shows that it can in fact depress the consumer's perception of the risk of the activity. 411 The affect heuristic clearly comes into play in our decision-making relative to dogs. Think about those persons whose first, and perhaps only, impression of a pit bull was the cover of Time magazine in 1987, or another who sees the local drug dealer with a pit bull in a spiked collar hanging out on the corner. 412 These images evoke a negative response and promote a perception of high risk related to these dogs. 413 Compare that with the person who grew up with a pit bull-type dog and recalls the hours of playtime and naps on the couch with

nostalgic fondness. The images are intensely positive, the benefits obvious, and the risks perceived as extremely low. 414 How easy is it then, to move either of these people from their established perceptions of pit bulls? It would be naïve to believe that the scientists studying it, this author, or you the reader are not subject to the results of the affect heuristic. 415 It is likely impossible to eliminate it in any context, especially one with a particularly emotional bent, but perhaps self-awareness *64 may at least somewhat temper its ability to manipulate. 416 In describing the heuristic, Slovic observes that, “[the affect] heuristic appears at once both wondrous and frightening: wondrous in its speed, and subtlety, and sophistication, and its ability to ‘lubricate reason’; frightening in its dependency upon context and experience, allowing us to be led astray or manipulated-- inadvertently or intentionally-silently and invisibly.” 417 B. The Results of Heuristics Accepting that the heuristics described above (and others) do indeed influence decisions, how then do they guide macro- level decisions such as economic behavior, legislative action, regulation, and public policy decisions? 1. Probability Neglect One of the main factors behind the systematic errors that arise from decision-making via heuristics is that humans cannot accurately calculate probability intuitively. 418 Sunstein names this phenomenon ‘probability neglect.’ 419 Generally, it occurs because a heuristic (through system 1 thinking) leads to a particular and perhaps irrational decision, and because sometimes we cannot appreciate probability accurately, we struggle to override irrational decisions presented by the heuristic. 420 Probability neglect follows from the actions of heuristics. Where we can call to mind ‘available’ examples of a danger, or our emotions are intensely engaged by fear of a result, we will overestimate the likelihood of that risk and neglect the true probability of that result. 421 On the other hand, where a risk does not give rise to any particular examples in our mind, or where it is so commonplace it does not raise a strong emotional response, we are likely to underestimate the probability of the risk. 422 Probability neglect is not just experienced by self-interested individuals. Administrative regulators, judges, legislators, and other public actors can

experience probability neglect. 423 In Probability Neglect: *65 Emotions, Worst Cases, and Law, Cass Sunstein points out the resulting damage: [T]he demand for legal intervention can be greatly affected by probability neglect, so that government may end up engaging in extensive regulation precisely because intense emotional reactions are making people relatively insensitive to the (low) probability that the relevant dangers will ever come to fruition. 424 This is exactly what happens with BSL. Because of the availability and affect heuristics that kick in after a severe dog attack in a community, or even one across the country heavily covered by the media, the public and public officials neglect the low probability of another incident and have an intense need to control the risk with regulation and law. 425 As Sunstein and Kahneman both note, public fear itself is a kind of harm and should not be trivialized. 426 Legislatures and regulators should do what they can to reduce fear, and where laws or regulations are rational responses to a danger they should be promoted. 427 However, while the knee-jerk reaction of BSL may reduce fear, it likely has little or no effect on the risk of danger. 428 Also, where small risks are overemphasized and large risks are underemphasized, resources are misallocated away from where they are needed most. 429 While studies of the economic impact of BSL are limited, at least one county task force concluded BSL enforcement was an inefficient use of resources, noting that the seizure, impoundment, and maintenance of pit bulls cost the jurisdiction over half-amillion dollars annually, and could cost up to $68,000 per animal between initial seizure and euthanasia. 430 2. Role of the Media Sunstein and Gardner, among others, have noted the enormous role media plays in fueling fear by presenting examples where ‘worst-case scenarios' actually occur. 431 News stories sensationalize these examples, activating heuristics and promoting probability neglect. 432 Media sources choose emotionally evocative stories because they make better news, but they also provide the fodder for the ‘availability,’ ‘affect,’ and ‘representativeness' 433 heuristics for the same reason. 434 It is likely not a coincidence that the beginning of the upswing in ‘panics' over various remote risks began in the 1980s when the news business became

ever more global, more competitive, and more profit-centered. 435 Over the past forty years, news has increasingly become a source of profit that supports other entertainment and media companies that must convince the public to watch their news shows and read their papers and magazines. 436 Unfortunately, the stories that sell are ones that pique emotion, including stories that pique the fear response. 437 Problems can arise from such intense media focus on relatively low risks. 438 As Sunstein points out: Media coverage of highly unusual crimes makes people fearful of risks that they are most unlikely to face. When newspapers and magazines emphasize deaths from anthrax or mad cow disease, we should expect a significant increase in public concern, not only because of the operation of the availability heuristic, but also because people will not naturally make sufficient adjustments from the standpoint of probability. 439 Over time, continued coverage of remote risks can cause long-lasting changes in a society's perception of certain risks. 440 Risks associated with certain breeds of dog, especially pit bulls, have been stressed to such a degree by media and other popular culture mediums that the term ‘pit bull’ now not only means a type of dog, but is also defined as “an aggressive or tenacious” person. 441 The perception of pit bulls, Rottweilers, and other breeds as vicious or dangerous is so engrained into the American public's consciousness that it will be very hard to ever reverse. 442 3. Biases, Predispositions, and Cascading It is important to note that individuals view events, even those covered by mass media, through individual lenses. Our previous biases, beliefs, opinions and experiences predispose us to treat certain events differently than others. 443 For example, gun control advocates are more likely to pay attention to, remember, and recall stories about how guns were used in the commission of crimes, while Second Amendment advocates tend to focus on stories of the shop owner who had a gun and was able to prevent a crime. 444 Thus, biases are reinforced through heuristics--our biases make certain examples and stories *68 more “available” than others, reinforcing our original opinions and feelings. 445

These biases and predispositions do not exist solely in individuals. Humans are social creatures, and rarely do we keep our own opinions, thoughts, biases, and predispositions to ourselves-- instead, we like to share them. 446 Most particularly, we like to share our fears. 447 Social sharing in this context often leads to a phenomenon called “cascading.” 448 Any person who has spent even a small amount of time on a social media site, or even reading e-mail, over the past twenty years should be quite familiar with the phenomenon of cascading as it relates to fear. 449 Social cascades occur when people pay attention to and adopt the fears of others around them. 450 When a person sees that others around them share the same concern, it is amplified and forwarded on to others. 451 Media of all kinds-- traditional, new, and social-- play roles in cascading, but it is our social networks that often play the biggest roles. 452 As discussed above, all actions have risks associated with them, so cascading events are not baseless, but they can and do result in an amplification of the fear that is out of proportion to the actual risks of the activity. 453 For example, consider the actual likelihood of a stranger abducting a child from a bus stop or a person falling victim to a terrorist attack or mass shooting. Children are far more at risk of being kidnapped by a parent or other family member than by a stranger at a bus stop. 454 And the likelihood of becoming a victim of gun violence at home far outstrips our risk of victimization in a school shooting or terrorist attack. 455 Despite the actual risk, we fear the stranger and the foreign terrorist far more than our ex-spouse or a family member. The Ebola scare of 2014 is a recent example of a cascading event. Fears were passed within social groups and communities and rational *69 argument and discourse concerning the true risks of Ebola infection were drowned out by the voices of friends and family. 456 On the opposite side, the risks of death from flu or antibiotic resistant MRSA infections are very real for many Americans, but discussion of these topics amounts to little more than background noise. 457 Certain types of fears are probably more susceptible to cascading; for instance, the new and unknown danger (Ebola) is much more fearsome than the one we live with every day (flu). 458 Similarly, those fears that touch a particular emotional chord or that pique moral outrage are more likely to be expressed to others, discussed, and amplified. 459

4. Moral Panics One particular type of cascading event is called a “moral panic.” 460 Moral panics occur when a group or segment

of society becomes fearful of a

“perceived moral threat” that somehow attacks or undermines the group or societal values. 461 Because these panics tap into deeply held morals and beliefs, and threaten them on some level, they can be even more powerful than other cascades in a society. 462 Cass Sunstein points to “extreme leaps” in concern in the U.S. during the 1970s and 1980s over problems like teen suicide, gang violence, AIDS, children born out of wedlock, or even herpes. 463 This time period coincided with a “near exponential growth” of nationwide media frenzies over issues that seemed to attack our very moral core. 464 These “panics” were instigated and sustained by vivid coverage in the media, causing the concern to far outstrip the actual danger. 465 Moral panics continue today as fear of the impacts that immigrants, alternative sexual orientations, and different religions have on a society's moral fabric. 466 Certainly news media, as well as social media, contribute to these moral panics. 467 There are elements of the moral panic phenomenon in BSL, especially in regards to pit bulls. Historically, pit bulls have been closely *70 linked to criminal elements in society, particularly dogfighters, drug dealers, and gang members. 468 Because the perception of these dogs is one of ‘counterculture’ and the ‘other’ in society, people have been more willing to allow ‘that breed’ of dog to be banned, because that breed, as symbolized by its most common owners, is morally corrupt. 469 After reading the 1987 Time magazine piece, Time Bombs on Legs, it is no wonder the moral panic against pit bulls ensued. 470 The author, perhaps appealing to the scaremongering running rampant throughout the decade, painted a picture that inextricably linked the pit bull with moral corruption. 471 These were the dogs of drug dealers and gang members. 472 Pit bulls prowled inner city streets and were used to conceal drugs placed in their collars. 473 The dogs, the author claimed, were weapons of choice, like guns and knives--to be used against the unsuspecting. 474 People magazine also peddled the morally corrupt picture of pit bulls and their owners, insisting the regular dog owning public did not favor the dog, but only

‘back-alley types,’ ‘drug dealers and lowlifes' and ‘inner city teenagers' sought out the breed. 475 In Toledo v. Tellings, the Ohio Supreme Court showed further evidence of moral panic when it referenced the testimony of the local dog warden who warned, “Toledo police officers fire their weapons in the line of duty at pit bulls more often than they fire weapons at people and all other breeds of dogs combined[,] and pit bulls are frequently shot during drug raids because pit bulls are encountered more frequently in drug raids than any other dog breed.” 476 Whether these statistics are accurate or not is irrelevant. The mere fact that these dogs are present at drug raids (through no fault of their own) and often shot *71 by officers 477 was sufficient to support their reputation as a vicious breed. C. Results of Misplaced Fear The risk of being killed by a dog (any dog, not just one targeted by BSL) in the U.S. is about the same or even less than being killed in a lightning strike. 478 The odds of dying from falling down the stairs, choking, or hypothermia are far greater than the odds of dying from a dog attack. 479 For some reason we treat the danger from dogs differently, and I posit that the reason for this different treatment is the effect of the availability and affect heuristics. The graphic stories of children being mauled coupled with magazine covers picturing vicious dogs with teeth bared activate the availability and affect heuristics, leading us to neglect the true probability of the risk and overestimate the danger. 480 Considering that the media obsession with focusing on pit bulls and breed identification and the cascading and moral panic effects that follow, it is easy to see why our fear of dogs, particularly pit bulls, far exceeds the actuality of the danger. 481 Arguably, this excessive fear has led to overresponsiveness in the form of BSL enacted by local governments, but what are legislatures and governments supposed to do in the face of excessive fear and moral panics among constituents? 482 Part VI of this article will tackle the solution to the BSL quandary and point legislatures in a better direction to responsibly and effectively tackle the problem of serious dog attacks. VI. RECOMMENDATIONS This Article has reviewed the history of dangerous dog panics, the foundations of BSL, and the current state of such laws in the U.S. and abroad.

We see that available scientific evidence does not support the notion that certain breeds are inherently dangerous. We also see that comparative studies show that BSL is largely ineffective. Furthermore, we now know that the errors of human judgment of both risk perception and visual breed identification have compounded the problem and further promoted otherwise poor public policy regarding ‘dangerous' dogs. Legislatures, policy makers, courts, and animal advocates all have a role in ending BSL and putting forward more positive and effective policy to curb serious dog bites. A. Legislatures and Policy Makers First and foremost, lawmakers must recognize the true nature and complexity of the question they are attempting to answer. In discussing the effects of heuristics on decision-making, Daniel Kahneman points out that heuristics often take the complex question asked and reformulate it into a simpler, more easily answered question. 483 For instance, the question, “How do we prevent serious dog-bite related injuries?” has effectively been changed to, “How do we prevent the ‘type’ of dog that I think causes serious injuries from biting people?” Unless we as a society would choose to ban all dogs, the answer to the first question is necessarily complex. The epidemiological studies discussed above point to multiple interrelated factors that lead to serious dog attacks, and an effective legislative solution requires a multi-faceted approach. 484 But, the simple act of changing the question slightly makes it much easier to answer. Now, you need only determine what type of dog causes serious injuries, and simply make it unlawful to own that type of dog. That second question is even further simplified by turning the question of ‘type’ into a question of ‘breed.’ This, of course, does not answer the original question, but few lawmakers in jurisdictions with BSL have noticed. Once legislatures reframe the question and acknowledge the difficulty and complexity of the question, they are better able to craft meaningful policy initiatives. First and foremost, policy makers must stop obsessing over breed, recognizing that only a small portion of any one breed is dangerous and that visual breed identification is wholly unreliable. Instead, focus should be on the known factors that contribute to serious dog attacks. The Patronek study and similar research is a great place to start. 485 Patronek's study determined that the co-occurrence of a number of factors tended to precipitate dog-bite related

fatalities. 486 This pattern included poor treatment of the dog in the form of neglect, abuse, or at the very least, isolation of the dog from positive human interaction. 487 It often included owner mismanagement such as letting a dog run loose often or failing to supervise a dog when it is in the presence of a vulnerable victim such as a child or an elderly adult. 488 Usually, the worst attacks--the fatal ones--involve unaltered dogs, particularly unneutered male dogs. 489 This list of common characteristics gives legislators a good starting point for policy action. Patronek's observation that most attacks include a co-occurrence of at least four of these factors is heartening *73 because, if a policy can eliminate even one or two of these factors in a given situation, then the probability of a serious attack drops precipitously. How, then, can resources be allocated more effectively to reduce dog attacks? First, legislatures must increase penalties for animal abuse and neglect, and put more resources toward investigation and prosecution. In addition to current definitions of neglect and abuse, however, legislatures should include language that defines isolation of dogs from humans as a form of abuse. There is plenty of literature to support the understanding that dogs have evolved in a way that they crave, even require, human interaction for well-being. 490 Some jurisdictions have enacted legislation prohibiting tethering a dog on a chain or other wire for long periods of time. 491 This is a beginning, but it does not get to the heart of the problem since isolation can occur within the home or in a fenced-in yard with no tie-out. Second, legislatures and policy makers should find new ways of encouraging spaying and neutering. This not only helps with the dog-bite problem, but also with reducing the number of homeless pets in shelters. Some jurisdictions have attempted mandatory spay-neuter laws, though they are extremely controversial, difficult to enforce, and easily ignored by citizens. 492 A better way to encourage spaying and neutering may be what Sunstein calls “nudging.” 493 Nudging is the use of laws or policies to make a citizen act (or not act) in a desired way without mandating it. 494 In this case, it would be a policy that either makes it more attractive to spay or neuter your dog or more unattractive to leave your dog intact. 495 Legislatures would do well to expend resources to provide free spay-neuter services, especially in low-income neighborhoods. 496

In fact, when Los Angeles had a low-cost spay/neuter *74 program, the city discovered that for every dollar the community put into the program it saved ten dollars in animal control costs because of the reduction in the number of pets taken in at shelters. 497 With such savings, and adding the reduction in serious dog bites to the equation, communities might even do well to consider paying a nominal fee to citizens to encourage them to spay and neuter. Certainly educational efforts would also be a positive step, though the reach and effectiveness of such measures has always been questionable. It is a fairly easy step for policy makers to insist that all children receive education concerning proper ways of interacting with dogs. This can be accomplished in schools through the help of humane societies and other animal advocate groups, and it will make a difference. Educating dog owners on management issues is a tougher question. Perhaps again, communities can provide a ‘nudge’ to encourage dog owners to attend educational sessions. Different types of communities may require different forms of nudges, and local legislatures could be in the best position to accomplish widespread spaying and neutering. These are just a few of the possible breed-neutral efforts that legislatures could pursue once they properly restate the real question and address the true complexities of the issue. B. Courts Despite their current disinterest in these issues, courts now have an even clearer role in addressing the legitimate constitutional problems with BSL. The Voith study, and others like it, has shown that breed-specific laws as they currently exist are impossible to enforce with any semblance of fairness. If the target of a ban is based on the ‘look’ of a dog alone, it is not a breed-specific law at all--breed has little to do with it. Basing such laws on visual identification is also, as the Massachusetts court noted in American Dog Owners Ass'n v. City of Lynn, too reliant upon the subjective opinion of the person enforcing the law. 498 Bans based on actual breed should require DNA evidence. The problem with this of course is two-fold: 1) it would

be wildly expensive, and 2) the dogs

banned would likely not accurately reflect the intentions of the legislature. Either way, courts should recognize there is truly a question as to whether this sort of law can ever be rationally related to a government interest. In light of the

vast expansion of scientific evidence now available, courts must stop simply parroting the Sentell court and engage in a meaningful analysis under the rational basis test. Second, as an added incentive to engage in the rational basis analysis, courts must recognize that BSL infringes upon personal liberties in an unequal way. BSL infringes upon the liberties of certain disenfranchised *75 members of the community far more than on others. No, there is likely no particular ‘suspect class' involved, but there is an argument that BSL has a disproportional effect on the poor, and that fact is worthy of consideration. In his discussion of the problem of fear pertaining to national security issues, Sunstein points out a primary problem with heuristics when they promote ineffective safety measures. “Simply because of fear, the public and its leaders will favor precautionary measures that do little to protect security, but that compromise important liberties.” 499 Sunstein is particularly concerned when the cost of certain liberties is borne by a particular identified group and with no detriment to most people. 500 With regard to BSL, it is the poor who bear the brunt of pit bull bans most severely. Persons with monetary means can escape the effect of BSL if so inclined. They can afford the cost of defending a dog in court, they can move out of municipal borders to avoid BSL, and they can afford to pay for special insurance premiums or build particular enclosures as required in some ordinances. These expenses, however, are beyond the means of many. The only options for many poor are euthanasia or rehoming of their dogs. In addition to the direct effects of BSL, the indirect effects of BSL include discrimination by landlords or insurance companies. Again, it is the poor who are most affected by these costs. It is likely no coincidence that the conversation about pit bulls has changed as more white, middle and upper class people identify themselves as pit bull owners. Suddenly, it is not just the rights of the dogfighters, ‘drug dealers,’ ‘lowlifes,’ and ‘inner-city youth’ that are being restricted, it is also the rights of the teacher, the doctor, the athlete, 501 and the actress. 502 Though the founding fathers did not have the benefit of modern cognitive science, they did have an understanding of human behavior. In The Federalist Paper 78, Alexander Hamilton charges the judiciary: to guard the Constitution

and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community. 503 The judiciary has thus far been generally unhelpful at curbing the results of BSL panic. Has the judiciary failed in its special role of protecting individual liberties against the whims of the majority? It is not to be suggested that the right to share your home with the dog of your choice is a fundamental right, or should not be regulated under any circumstances, but certainly there is a point where the overwhelming evidence shows a law is not rationally related to its purpose. Where BSL is not repealed by legislatures, courts have a duty to look to the rights of individuals and protect them against laws that infringe upon liberties for no legitimate reason. Certainly courts can look to the science surrounding this issue and be willing to employ a true rational basis test. If for no other reason, courts must reconsider the constitutionality of BSL because problems with visual identification prevent consistent or just application of these laws. C. Animal Advocates Animal advocates have been doing the heavy lifting in opposing BSL, but as Sunstein notes it is very hard to un-ring a bell of panic and fear once it has been rung. 504 His primary solution is to change the subject of the popular conversation. 505 Like reformulating the question, changing the subject takes the emphasis off of the fear-inducing factor and places

it on the correct

topic, presumably allowing the panic to run its course. Certainly, efforts to change the subject have already *77 begun. Breeds other than pit bulls that are targeted by BSL have advocates in the form of breed clubs and organizations that watch out for the image of the breed portrayed in society and the media. For pit bulls, ironically, it was the investigation, arrest, and subsequent prosecution of Michael Vick on dogfighting-related charges, as well as the efforts of the advocates who worked to save Vick's dogs from euthanasia, that most effectively changed the conversation on pit bulls, moving it away from the ‘viciousness' of the dogs to their victimhood at the hands of dogfighters.

While some progress has been made in regard to rehabilitating the image of pit bulls, the prior demonization was so long-lasting and so wide in scope that a full-scale makeover of the pit bull may be too much to ask, at least in the short term. The phrase ‘pit bull’ has been given new meanings in the popular lexicon, and that will be difficult to root out. It may, in fact, be best to stop using the term ‘pit bull’ to refer to any dog. Like the ‘Siberian’ and ‘Cuban bloodhounds' of the last century, a simple name was sufficient to wipe out the baggage of breed bias. Since there is no actual ‘pit bull’ breed, this may be possible, even if difficult. There is a current movement among shelters and advocates to avoid the term pit bull altogether. Some go so far as to suggest avoiding breed designations for any dog in a shelter or rescue and simply calling them American Shelter Dogs. 506 That solution seems warranted, not only in order to change the conversation on pit bulls, but also because the science shows humans, even animal shelter workers, lack the ability to accurately identify breeds of dog by sight. VII. CONCLUSION The risk of severe or fatal dog bites is very small. While experts estimate there have been about 4.7 million dog bites per year in America in past years, 507 this statistic remains questionable because there is no reporting requirement. Even assuming accuracy of the statistic, a large number of those bites are very minor, not even requiring medical attention. 508 It is estimated that there are upward of 77 million dogs in households across the U.S. 509 With the number of dogs in our society, it is actually quite amazing that serious injury from dog attacks is so rare. It is a testament to the relationship that has been built between humans and canines over the millennia. Dogs have been *78 man's (and woman's) best friend for tens of thousands of years; it is now time that humans return the favor by enacting laws that regulate the real but minor risk of severe injury from dog bites while also reducing the irrational fear response that precipitates unjust laws. Footnotes a1 © Ann L. Schiavone 2016. Ann L. Schiavone is an Assistant Professor at Duquesne University School of Law. I would like to thank my colleagues, Profs. Jan Levine, Jane Moriarty, and Wesley Oliver for their mentorship; Profs. Valerie Blake, Rona Kitchen, and Kirsha Trychta, for their support; and especially my

research assistant, Emily Seelman, for her countless hours of work to help me put together this Article. 1 See Associated Press, Moscow Stalling on Shultz, Shevardnadze Talks: U.S., L.A. TIMES (July 10, 1987) (URL removed for reprint) (noting that negotiations between the U.S. and the Soviet Union had stalled); Associated Press, Gorbachev OKs Joint Steps to Put End to Iran-Iraq War, L.A. TIMES (July 21, 1987) (available at (URL removed for reprint) (noting that Gorbachev criticized the growing U.S. naval buildup in the Persian Gulf). 2 Understanding the Iran-Contra Affairs: The Hearings, BROWN U., (URL removed for reprint) Understanding_the_Iran_Contra_Affair/thehearings.php (URL removed for reprint) (noting that hearings began May 5, 1987 and continued for three months). 3 KAREN DELISE, THE PIT BULL PLACEBO: THE MEDIA, MYTHS AND POLITICS OF CANINE AGGRESSION 96-97 (2007) (URL removed for reprint). ‘Pit bulls' are not a breed of dog, but rather a type of dog. While different people, organizations and lawmaking bodies define the term differently, in general, breeds that qualify as pit bulls are the American Staffordshire terrier, the American pit bull terrier, Staffordshire bull terrier, bull terrier, American bulldog, English bulldog and any mixes or look-alikes. Id. at xvi. 4 David Brand, Time Bombs on Legs: Violence-Prone Owners are Turning Pit Bulls into Killers, TIME (July 27, 1987) (URL removed for reprint); Michelle Green, An Instinct for the Kill, PEOPLE MAG. (July 6, 1987) (URL removed for reprint) (URL removed for reprint)); Mike Sager, A Boy and His Dog in Hell, ROLLING STONE (July 2, 1987) reprinted in MIKE SAGER, WOUNDED WARRIORS: THOSE FOR WHOM THE WAR NEVER ENDS 106-07, 110-11 (2008); E.M. Swift, Beware of This Dog, SPORTS ILLUSTRATED (July 27, 1987) (URL removed for reprint). 5 Swift, supra note 4. 6 Id. 7 Id. 8 Id. 9 Brand, supra note 4. 10 See DELISE, supra note 3, at 80, 95-99.

11 E.g., id. at 103 (noting that Denver passed breed-specific legislation in 1989). See Breed-Specific Legislation: Dealing with Reckless Owners and Dangerous Dogs in Your Community, THE AM. SOC'Y FOR THE PREVENTION OF CRUELTY TO ANIMALS, (URL removed for reprint) (defining breed-specific legislation). 12 The National Canine Research Council found that various communities in the U.S. have included one or (usually) more of the following breeds and mixes of these breeds in BSL ordinances: “Akita, ‘Alapaha Blue Blood Bulldogs,’ Alaskan Malamute, ‘American Bandogge,’ American Bulldog, American Staffordshire Terrier, American Pit Bull Terrier, Belgian Malinois, Bullmastiff, Bull Terrier, Cane Corso, Chihuahua, Chow Chow, Dalmatian, Doberman Pinscher, Dogo Argentino, ‘Fila Brasileiro,’ German Shepherd Dog, Miniature Bull Terrier, Neapolitan Mastiff, ‘Pit bull,’ ... Perro de Presa Canario, Rottweiler, Shar Pei, Siberian Husky, Staffordshire Bull Terrier, ‘Tosa Inu,’ and wolfhybrids.” Breed-Specific Legislation (BSL) FAQ, NATIONAL CANINE RESEARCH COUNCIL, (URL removed for reprint)Italy, which in 2009 repealed its BSL in favor of breed-neutral policies, once had ninety- two different breeds on its list of banned and restricted dogs. Italy Repeals Ban on Specific Breeds, KC DOG BLOG [hereinafter Italy Repeals Ban], (URL removed for reprint)Corey Van't Haaff, What Would You Do if Your City Banned Your Dog Breed?, MODERN DOG MAG. (URL removed for reprint) 13See, e.g., Lynn Marmer, Comment, The New Breed of Municipal Dog Control Laws: Are They Constitutional?, 53 U. CIN. L. REV. 1067 (1984) (arguing BSL is an invalid exercise of police power because it unconstitutionally infringes upon the due process and equal protection rights of dog owners). 14 Compare Stop BSL, STOPBSL, stopbsl.org (accessed Nov. 25, 2015) (advocating against BSL and championing government actions to move away from this type of legislation) with 2015 First Quarter Report: Municipalities and Grassroots Beat Back State Preemption Bills Barring Local Pit Bull Ordinances, DOGSBITE.ORG, (URL removed for reprint) 15 Gary J. Patronek et al., Co-occurrence of Potentially Preventable Factors in 256 Dog Bite-Related Fatalities in the United States (2000-2009), 243 J. AM. VETERINARY MED. ASS'N 1726, 1728 (2013) (criticizing “undue emphasis on

breed” and finding factors such as isolation and abuse by owners to be among the most determinative). See also Safia Gray Hussain, Note, Attacking the DogBite Epidemic: Why Breed-Specific Legislation Won't Solve the Dangerous-Dog Dilemma, 74 FORDHAM L. REV. 2847, 2850 (2006) (“There are three recurring commonalities in dog attacks. First, most dog bites occur in the home or another familiar place, with the vast majority of biting dogs belonging to the victim's family or friend. Second, most attacks are perpetrated by unaltered males. Finally, dogs contained or otherwise restrained on the owner's property are responsible for more serious and fatal attacks than those roaming at large.”). 16 E.g., Stephen Collier, Breed-Specific Legislation and the Pit Bull Terrier: Are the Laws Justified?, 1 J . VETERINARY BEHAV. 17, 21 (2006) (finding BSL showed no influence on the rate of dog bites in the jurisdiction); Malathi Raghavan et al., Effectiveness of Breed-Specific Legislation in Decreasing the Incidence of Dog-Bite Injury Hospitalisations in People in the Canadian Province of Manitoba, INJ. PREVENTION 177, 179 (Aug.1, 2012) (available at (URL removed for reprint) Spanish Dangerous Animals Act: Effect on the Epidemiology of Dog Bites, 2 J . VETERINARY BEHAV. 166, 169, 170 (2007) (concluding BSL had no effect on rate of dog bites following enactment). 17 See First Quarter Report: Municipalities and Grassroots Prevail Against State Preemption Bills Barring Local Breed-Specific Ordinances, DOGSBITE.ORG, (URL removed for reprint) (noting that, as of April 2015, 860 jurisdictions retain forms of BSL despite trends in preemption at the state level); Medlin, infra note 86 (discussing a Cincinnati ordinance originally enacted in response to an incident of a dog biting a child); Debate Widens on Plans to Restrict Pit Bull Dogs, infra note 87 (discussing a Tijeras, New Mexico ordinance originally enacted in response to a local incident of a dog biting a child); Bill Tieleman, Time to Ban Pit Bulls in B.C., 24 HOURS VANCOUVER, (URL removed for reprint) (editorial calling for pit bull ban in British Columbia, citing three dog attacks). Many communities enacted BSL in the past three decades in response to perceived risks to public safety, amplified by particular incidents of injuries caused by dogs. Many of these laws remain in effect, while proponents continue to call for legislation in jurisdictions not yet affected, typically after publicized incidents of attack.

18 See Emily Swanson, There's Still a Lot of Work to be Done for Pit Bulls, Poll Finds, HUFFINGTON POST, (URL removed for reprint) (“While two-thirds of Americans over age 45 said they would advise a family with kids against adopting a pit bull, only one-third of those under 45 said the same. And while more than half of people over age 45 said that pit bulls are too dangerous to live in residential neighborhoods, those younger than age 45 were much more likely to say that pit bulls are safe.”). 19Jim Gorant, What Happened to Michael Vick's Dogs, SPORTS ILLUSTRATED (Dec. 23, 2008) (URL removed for reprint) (accessed Nov. 25, 2015)) (acknowledging the magazine's role in fueling the pit bull frenzy in 1987). 20 Id. 21 Id. 22 Id. Rebecca Huss, Professor of Law at Valparaiso University School of Law, was appointed guardian and special master of the dogs seized from Vick, and was instrumental in securing such placements. Id. 23 Id. 24 See id. (describing the pit bulls profiled as vulnerable and affectionate). 25 Gorant, supra note 19. 26 Id. 27Collier, supra note 16, at 21. See also Jessica M.R. Cornelissen & Hans Hopster, Dog Bites in the Netherlands: A Study of Victims, Injuries, Circumstances and Aggressors to Support Evaluation of Breed-Specific Legislation, 186 VETERINARY J. 292, 297 (2010) (“[T]he view that aggressive potential is linked to dog breed is a point of serious concern as a dog's tendency to bite or show aggressive behaviour depends on more than just genetics, and other factors such as heredity, experience, socialisation and training, health, and victim behaviour all play a role.” (citation omitted)). 28 See Cornelissen & Hopster, supra note 27, at 293, 297 (discussing a study commissioned by the government in which the researchers advised against BSL and instead advocated for efforts to educate humans on dog behavior). 29 To put the age of 1987 sound bites into perspective, Guns N' Roses' Appetite for Destruction was released in August of that year, and pro hockey player Sidney Crosby was not born until August 7, 1987. GUNS N' ROSES,

Appetite for Destruction (Geffen Records 1987); Sidney Crosby Stats, NHL, (URL removed for reprint). 30 See, e.g., Charlotte Alter, The Problem with Pit Bulls, TIME (June 20, 2014) (URL removed for reprint) (discussing that, as recently as June 2014, Time magazine again repeated many of the clichés it relied on three decades before). 31 See infra Part V. 32 Spitz Dog Bites Two Boys, N.Y. TIMES (June 13, 1896) (URL removed for reprint) 33 Miss Seigenthaler's Spitz Dog, N.Y. TIMES (Sept. 3, 1882) (URL removed for reprint). 34 A Fright in Madison-Square: A Spitz Dog's Mad Career Stopped by a Policeman's Bullet, N.Y. TIMES (May 4, 1885) [hereinafter A Fright in Madison-Square] ((URL removed for reprint). 35 Op-Ed., A Whited Canine Sepulchre, N.Y. TIMES (May 24, 1876) [[hereinafter A Whited Canine] (URL removed for reprint). 36 Id. 37 Spitz Definition, ENCYCLOPÆDIA BRITANNICA, (URL removed for reprint). 38 A Whited Canine, supra note 35. 39 Id. 40 Id. 41 See id. (describing the spitz as “wear[ing] throughout our hottest months the heavy fur of an Arctic animal”). 42 Editorial, A Venomous Beast, N. . TIMES (Nov. 17, 1876) (URL removed for reprint).43A Fright in MadisonSquare, supra note 34. 44 Id. 45 A Whited Canine, supra note 35. 46 Id. 47 Pasteur Physician on Foolish Notions, N.Y. TIMES (July 13, 1908) [[hereinafter Pasteur Physician] (URL removed for reprint).The idiom ‘dog days of summer’ originated from Greek, Roman, and Egyptian tradition. It is the period of time during the year, usually late July to late August, when Sirius, the ‘Dog Star,’ rises with the sun in the northern hemisphere and was believed to

add to the heat of the sun. The phrase is also connected with the belief that dogs were more prone to ‘go mad’ in the hot summer months. Dog days Definition, ENCYCLOPÆDIA BRITANNICA, (URL removed for reprint). 48 Pasteur Physician, supra note 47. 49 See id. (describing a physician's remarks in 1908, which addressed the same misconceptions reflected in articles from the previous few decades). Dr. George G. Rambaud of the Pasteur Institute in New York City attempted to correct misinformation spread about rabies and rabid dogs. Addressing the myths that dogs are more prone to rabies in the summer and in the city he commented: “Dogs and cats never go mad for any reason than that they have been bitten by some other animal that has rabies.” Id. 50 See DELISE, supra note 3, at 9, 21-22. 51 Id. 52 Id. 53 Id. at 24 (quoting Frederick Douglass, The Horrors of Slavery and England's Duty to Free the Bondsman: An Address Delivered in Taunton, England, on Sept. 1, 1846, SOMERSET COUNTY GAZETTE (Sept. 5, 1846) [hereinafter Horrors of Slavery] (URL removed for reprint). 54 Id. at 3. 55 HARRIET BEECHER STOWE, UNCLE TOM'S CABIN (Christopher G. Diller ed., Broadview Press 2009) (1852). One of the most famous scenes of Harriet Beecher Stowe's novel, Uncle Tom's Cabin, revolved around the heroine, Eliza, scrambling across an icy Ohio river with her baby in tow, escaping the slave trader. Id. at 96. In the following chapter the slave trader hires a slave hunter to track Eliza. Id. at 114-15. In discussing his dogs, the slave hunter describes their ferocity. “Our dogs tore a feller half to pieces, once, down in Mobile, ‘fore we could get ‘em off.” Id. at 116. 56 SIR ARTHUR CONAN DOYLE, THE HOUND OF THE BASKERVILLES (Signet Classics 1967) (1902). The most vivid description of a vicious hound likely came from the pen of Sir Arthur Conan Doyle: “A hound it was, an enormous coal-black hound, but not such a hound as mortal eyes have ever seen. Fire burst from its open mouth, its eyes glowed with a smouldering glare, its muzzle and hackles and dewlap were outlined in flickering flame. Never in the delirious dream of a disordered brain could

anything more savage, more appalling, more hellish, be conceived than that dark form and savage face which broke upon us out of the wall of fog.” Id. at 161. 57 J. Frank Davis, Tom Shows, SCRIBNER'S MAG. (Apr., 1925) (URL removed for reprint). Performances of Uncle Tom's Cabin during the later half of the nineteenth century often promised ‘real’ bloodhounds but they were not generally English Bloodhounds. In describing the necessity of real dogs in stage productions of Uncle Tom's Cabin, journalist J. Frank Davis, in his article Tom Shows, illustrates both use of the dogs for dramatic effect, and the rather fluid definition of ‘bloodhound’ in the American psyche: “It was a poor show that carried no dogs. It ought to have a donkey for Marks to ride, but that animal's absence could be overlooked. Failure to provide at least two dogs, however, was the unforgivable sin. It is a tradition in the profession that once upon a time a Tom impresario, desirous of doing something truly great, sent down into the South somewhere and bought some real bloodhounds. He had them in the street parade and the performance exactly one day. Northerners were unfamiliar with the low-lying, sad-faced, lop-eared dogs of the true breed-- and nobody except Northerners ever saw ‘Uncle Tom's Cabin.’ The public jeered his canine exhibit off the street and off the stage. Having brains, he wasted no time trying to convince them he was right and they were wrong, but promptly got rid of the harmless-looking animals that were the real thing and went back to the kind of bloodhounds his audiences expected--big, ugly-looking mastiffs. Not all Tom dogs were mastiffs. If they were ‘Siberian’ bloodhounds they were Great Danes. A full-grown Great Dane is an impressive figure, and he has a deep, soul-satisfying voice. Two or three Great Danes, well trained to chase Eliza, were the salvation of many a Tom Show.” Id. 58 DELISE, supra note 3, at 25. 59 Id. at 21. 60 See DELISE, supra note 3, at 22 (quoting Bloodhound Definition, WEBSTER'S REVISED UNABRIDGED DICTIONARY (1913) (discussing an article from 1891 stating that the Cuban Bloodhound is a mastiff-pointer mix, while a 1913 dictionary defines ‘bloodhound’ as “[a] breed of large and powerful dogs, with long, smooth, and pendulous ears, and remarkable for acuteness of smell. It is employed to recover game or prey which has escaped wounded from a

hunter, and for tracking criminals. Formerly it was used for pursuing runaway slaves. Other varieties of dog are often used for the same purpose and go by the same name. The Cuban bloodhound is said to be a variety of the mastiff.”). 61 STOWE, supra note 55, at 33. 62 DELISE, supra note 3, at 21. 63 Id. No media article specifically named an English, St. Hubert's, or true bloodhound, although there is mention of a $500 bloodhound, which at least suggests it was purchased as a purebred. See DELISE, supra note 3, at 28-31. 64 DELISE, supra note 3, at 56. 65 E.g., SOLOMON NORTHUP, TWELVE YEARS A SLAVE (Sue Eakin & Joseph Logsdon eds., La. State Univ. Press 1968) (1853). Narratives of former slaves often included mention of the dogs sent to chase them in any attempted escape, including the following from Solomon Northup: “I stood upon the fence until the dogs had reached the cotton press. In an instant more, their long, savage yells announced they were on my track. Leaping down from my position, I ran towards the swamp. Fear gave me strength, and I exerted it to the utmost. Every few moments I could hear the yelpings of the dogs. They were gaining upon me. Every howl was nearer and nearer. Each moment I expected they would spring upon my back--expected to feel their long teeth sinking into my flesh. There were so many of them, I knew they would tear me to pieces, that they would worry me, at once, to death.” Id. at 101-02. 66 Id. at 101 (“The dogs used ... for hunting slaves are a kind of blood-hound, but a far more savage breed than is found in the Northern States.”). 67 DELISE, supra note 3, at 24 (quoting Douglass, supra note 53). 68 DELISE, supra note 3, at 24. 69 Id. at 22, 24. 70 Id. at 28-29. 71 See id. at 28, 31 (noting that in the late nineteenth century, some owners sought bloodhounds precisely for their negative reputation). 72 See id. at 31 (“Poor and abusive owners” sought bloodhounds, and therefore these bloodhounds were poorly socialized dogs who may have lived up to their reputation for viciousness.). 73 Id. at 22-26.

74 E.g., Editorial, A Bloodhound as He Is--A Shattering of False Ideas About Him, N.Y. TIMES (URL removed for reprint). 75 See DELISE, supra note 3, at 72. 76 Dog Cripples Boy for Life, N.Y. TIMES (May 21, 1904) (URL removed for reprint). 77 DELISE, supra note 3, at 48-49. 78 Id. at 81. 79 Dangerous Dogs, DOGSBITE.ORG, (URL removed for reprint). The proBSL website, dogsbite.org, names pit bulls, Rottweilers, and wolf hybrids as the most dangerous dogs and campaigns strongly for BSL measures against them. 80 See generally DELISE, supra note 3, at 36, 51 (explaining this phenomenon for the Newfoundland and St. Bernard breeds). 81 See A Whited Canine, supra note 35 (“It is not charged that the Spitz wantonly or malignantly becomes mad, and it is quite possible that his proneness to rabies is the result of his attempt to live in a climate unsuited to him.”). 82 See Beth Shuster, New Rep as Killer Drives Up Demand for Presa Canario, L.A. TIMES (Mar. 17, 2002) (URL removed for reprint).) (“As the mauling trial of two San Francisco lawyers nears its conclusion, breeders of the type of vicious dogs that killed lacrosse coach Diane Whipple are caught in a paradox. Business has never been better--but for all the wrong reasons.”). 83 DELISE, supra note 3, at 31, 35. See id. at 86 (“An increase in a breed's negative image or reputation for aggression unfailingly leads to an increase in the number of substandard owners.”). 84 See infra Part IV for discussion of misidentification of breeds. 85 See infra notes 86-88 and accompanying text. 86 See Jamey Medlin, Pit Bull Bans and the Human Factors Affecting Canine Behavior, 56 DEPAUL L. REV. 1285, 1285 (2007) (pit bulls banned in 1983); Ozzie Foreman, Banned in Cincinnati: My Dog Was Banned in Cincinnati, DOG OWNER'S GUIDE, (URL removed for reprint). (describing the incident that led to the ban). 87 Associated Press, Debate Widens on Plans to Restrict Pit Bull Dogs, N. . TIMES (Dec. 30, 1985) [hereinafter Debate Widens] (available at (URL removed for reprint).

88 Id. 89 Celeste Gets Bills to Control Vicious Dogs, Regulate Thrifts, THE BLADE (July 1, 1987) at 5 (URL removed for reprint). 90 Sager, supra note 4. 91 Green, supra note 4. 92 Swift, supra note 4. 93 Brand, supra note 4. 94 DELISE, supra note 3, at 108. Some of the most outrageous myths about pit bulls are that they have a locking jaw and are impervious to pain. Id. at 108, 116. While pit bulls do have strong bites like other large dogs, and are tenacious, they are not super-predators. Id. at 108. 95 Elinor J. Brecher, In Miami-Dade, Pit Bulls Remain Illegal, MIAMI HERALD (Aug. 13, 2012) (URL removed for reprint); DELISE, supra note 3, at 102; DENVER, COLO., CODE OF ORDINANCES, PIT BULLS PROHIBITED, § 8-55 (originally enacted as Ord. No. 404-89, § 1 (July 31, 1989)); MIAMI-DADE CTY. CODE OF ORDINANCES, 5-17 et. seq. (originally enacted as Ord. No. 8922 (Apr. 4, 1989)). 96 Winnipeg Responsible Pet Ownership By-Law 92/2013 (July 17, 2013) [[hereinafter Winnipeg Responsible Pet Ownership By- Law] (URL removed for reprint). The Winnipeg Law was first passed in 1990 and continues to be in effect today. Id. 97 Dangerous Dogs Act, 1991, 1991 c. 65, § 1, (UK) [hereinafter U.K. Dangerous Dogs Act] (URL removed for reprint). 98 The examples of BSL worldwide are numerous. The following are just a few examples: In 1994, Victoria, Australia passed the Domestic Animals Act 1994, prohibiting five restricted breeds including pit bulls. Domestic Animals Act 1994 (Vic), s 3 (Austl.) [hereinafter Victoria Domestic Animals Act]. In 1999, Spain passed country-wide BSL in the form of the Spanish Dangerous Animals Act of 1999, targeting a list of eight breeds or breed types. Rosado et al., supra note 16, at 167. In 2000, in response to a dog-bite fatality, the government of Lower Saxony, Germany passed Niedersaechsische Gefahrtierverordnung (GefTVO), legislation prohibiting the keeping of pit bulls and placing severe restrictions on the keeping of such large breed dogs as Rottweilers, Doberman pinschers, mastiffs and eight other named breeds. Esther Schalke, Stefanie A.

Ott, Amelie M. von Gaertner, Hansjoachim Hackbarth & Angela Mittmann, Is Breed-Specific Legislation Justified? Study of the Results of the Temperament Test of Lower Saxony, 3 J. VETERINARY BEHAV. 97 (2008) [[hereinafter Schalke et al.]. 99 See Collier, supra note 16, at 18 (“The term ‘pit bull’ ... includes all the bull and terrier breeds...”). 100See Breed-Specific Legislation, ASPCA .ORG, (URL removed for reprint). (noting that regulated dogs include mixed-breeds and dogs that resemble a regulated breed). 101NATIONAL CANINE RESEARCH COUNCIL, supra note 12. 102See Van't Haaff, supra note 12 (noting that, at one point, Italy had restricted the ownership of ninety-two different dog breeds). Italy has since repealed BSL in favor of breed-neutral measures. KC DOG BLOG, supra note 12. 103DELISE, supra note 3, at 96 (“Unbeknownst to the media the exposure of this cruel and seedy subculture and their descriptions of the pit bull's fierce but loyal nature would strike a chord with a segment of the human population... Dogs portrayed in negative functions (fighting, guarding drug stashes, etc.) will only serve to increase their popularity with unsuitable owners...”). After the death of Diane Whipple at the jaws of two Presa Canarios in 2001, the breed had a sudden burst in interest and popularity. “‘They want those killer dogs,’ said Dan Wilson, a Presa Canario breeder in Canada. ‘As soon as the dog killed that woman, they wanted them.”’ Shuster, supra note 82. 104D ELISE, supra note 3, at 95-97. 105Because pit bulls are not a single ‘breed’ but a type of dog, breed organizations have less control over breeding and sale of these dogs than other breeds of dog. 106DELISE, supra note 3, at 95-96. 107See DELISE, supra note 3, at 103 (“[B] the end of the twentieth century, there would be another 200+ cities, communities and counties which enacted breed bans or restrictions against [pit bulls] or any dog that may be viewed as having ‘pit bull characteristics.”’). 108Medlin, supra note 86, at 1285. 109THE BLADE, supra note 89.

110See, e.g., DENVER, COLO., CODE OF ORDINANCES, PIT BULLS PROHIBITED, § 8-55 (originally enacted as Ord. No. 404-89, § 1 (July 31, 1989)); MIAMI-DADE CTY. CODE OF ORDINANCES,, 5-17 et. seq. (originally enacted as Ord. No. 89-22 (Apr. 4, 1989)). Both Miami and Denver passed pit bull bans in 1989. 111Medlin, supra note 86; Debate Widens, supra note 87. See also DELISE, supra note 3, at 102 (describing how, in Denver, lawmakers relied on unproven claims while ignoring expert testimony to the contrary). 112For example, in Arkadelphia, Arkansas, pit bulls must be registered and cannot be transferred within the city or bred. ARKADELPHIA, ARK., ORDINANCE RESTRICTING THE KEEPING OF PIT BULL BREED DOGS WITHIN THE CITY OF ARKADELPHIA, ARKANSAS O-07-04. 113E.g., PRINCE GEORGE'S CTY, MD., CTY. CODE § 3-185.01 (Prince George's County, Maryland prohibits the keeping of any pit bull.). 114AKRON, OH., CODE OF ORDINANCES 92-25(E). By way of illustration, the city of Akron, Ohio has extensive and severe restrictions on the ownership of certain breeds of dog, codified as follows: Any person owning, keeping, possessing, harboring, maintaining, or having the care, custody, or control of a Pit Bull, Canary Dog or American Bulldog or vicious dog shall: 1. Identify the dog by having the dog wear, at all times, a fluorescent green collar available upon payment of a fee, from Customer Service; 2. Post on the premises, in a conspicuous place where the dog is kept, at least one city-issued warning sign available, upon payment of a fee, from Customer Service. The sign shall be visible and capable of being read from the public highway or street; 3. Identify the dog by having the dog tattooed with a code number provided by the Customer Service Division; 4. Notify the Customer Service Division within twenty-four hours if the Pit Bull, Canary Dog or American Bulldog or vicious dog has died or has been sold or donated, and provide the Customer Service Division with the name, address, and telephone number of the new owner; 5. Keep the dog secured at all times by one of the following means: a. Keep the dog inside the owner's home;

b. Keep the dog in a locked enclosure which has a top, and has a concrete base with the fencing securely attached or anchored to the concrete perimeter to a depth of six inches; c. Keep the dog muzzled and on a chain-link leash that is not more than six feet in length which is held in the hand of a person who is of suitable age and discretion and is outside with the dog. 6. Pay a fee and annually, between January 2 and January 20, and whenever a dog is newly obtained, register the dog with the Customer Service Division; at the time of registration provide proof of liability insurance with an insurer authorized to write liability insurance in this state providing coverage in each occurrence, subject to a limit, exclusive of interest and costs, of not less than fifty thousand dollars because of damage or bodily injury to or death of a person caused by the dog and shall provide a certificate of insurance to Customer Service at the time the collar required by § 92.25(E)(1) is obtained; 7. nsure that the dog does not go unconfined on the premises of another or be at large within the city; 8. Annually license the dog, if the dog is more than three months of age, with the County Auditor. Failure of any dog at any time to wear a valid license tag shall be prima facie evidence of lack of licensing; 9. Vaccinate the dog against rabies by a licensed veterinarian at least once every three years; a tag indicating that said dog has been vaccinated against rabies must be worn by the dog at all times. Failure of any dog at any time to wear the rabies vaccination tag issued by the licensed veterinarian who administered the vaccine shall be prima facie evidence of the dog's lack of vaccination against rabies; 10. Provide two color photos of the dog to Customer Service at the time the collar required by § 92.25(E)(1) is obtained. Provide one color photo of dog showing the tattoo number after the dog has been tattooed. 115E.g., id. (requiring insurance, registration, and licensing); ARKADELPHIA, ARK., ORDINANCE RESTRICTING THE KEEPING OF PIT BULL BREED DOGS WITHIN THE CITY OF ARKADELPHIA, ARKANSAS O-07-04 (requiring insurance); MIAMI-DADE CTY. CODE OF ORDINANCES,, 5-17.1, .2 (originally enacted as Ord. No. 89-22 (Apr. 4, 1989)) (requiring registration).

116E.g., AKRON, OH., CODE OF ORDINANCES 92-25(E) (establishing several restrictions on ownership); PRINCE GEORGE'S CTY, MD., CTY. CODE § 3185.01 (combining pit bull ban with an exception under which restrictions apply). 117See Breed-Specific Laws State-by-State, DOGSBITE.ORG, (URL removed for reprint). (pointing out that over 700 jurisdictions employ BSL). There are a number of pro-BSL and anti-BSL groups that keep up to date on the status of such laws, including dogsbite.org (pro-BSL) and stopbsl.org (anti-BSL), but even these groups cannot be relied upon for an accurate list at any one time. 118Position Statement on Breed-Specific Legislation, THE AM. SOC'Y FOR THE PREVENTION OF CRUELTY TO ANIMALS(URL removed for reprint). 119OHIO REV. CODE ANN. § 955.11(4) (West, repealed 2012); THE BLADE, supra note 89 (statute passed in 1987). “‘Vicious dog’ means a dog that, without provocation and subject to division (A)(4)(b) of this section, meets any of the following: (i) Has killed or caused serious injury to any person; (ii) Has caused injury, other than killing or serious injury, to any person, or has killed another dog; (iii) Belongs to a breed that is commonly known as a pit bull dog. The ownership, keeping, or harboring of such a breed of dog shall be prima-facie evidence of the ownership, keeping, or harboring of a vicious dog.” OHIO REV. CODE ANN. § 955.11(4) (West, repealed 2012). 120Id.; OHIO REV. CODE ANN. § 955.22 (West 2015); OHIO REV. CODE ANN. § 955.28 (West 2015). 121Donna J. Miller, Pit Bulls No Longer Deemed Vicious by Ohio Law That Takes Effect Tuesday, (URL removed for reprint). 122Id. 123Id. For example, Lakewood, Ohio bans all pit bulls and canary dogs. LAKEWOOD, OH., ORDINANCES § 506.03 (2008). Parma, Ohio also prohibits pit bulls and wolf hybrids within its prohibited animals ordinance. Pit bulls are one of only two domesticated animals in a list of over thirty prohibited animals, including lions, tigers, bears, sharks, hyenas, wolves, coyotes, and even elephants. PARMA, OH., CODE OF ORDINANCES § 618.09 (2006). 124State Summary Report: Breed-Specific Prohibited or Restricted Ordinances, AM. VETERINARY MED. ASS'N, (URL removed for reprint).

125CAL. FOOD & AGRIC. CODE § 31683 (West 2006); CAL. HEALTH & SAFETY CODE § 12331 (West 2006). 126CAL. FOOD & AGRIC. § 31683 (allowing breed-specific spay/neuter laws); COLO. REV. STAT. § 18-9-204.5(5) (2004) (allowing local governments under home rule to still have BSL, e.g., Denver); 2013 Conn. Pub. Acts No. 13-103; FLA. STAT. § 767.14 (1990) (prior BSL was grandfathered); 510 ILL. COMP. STAT. 5/24 (2003) (home rule cities may enact BSL); ME. STAT. tit. 7, § 3950 (2005); MASS. GEN. LAWS ch. 140, § 157 (2012); MINN. STAT. § 347.51 (1989); NEV. REV. STAT. § 202.500 (2013); N.J. STAT. ANN. § 4:19-36 (West 1989); N. . AGRIC. & MKTS. LAW § 107 (Consol. 1997); OKLA. STAT. A NN. tit. 4, § 46 (West 2006); 3 PA. CONS. STAT. § 459-507-A (2008); 4 R.I. GEN. LAWS § 4-13-43 (2013); S.D. CODIFIED LAWS § 40-34-16 (2014); TEX. HEALTH & SAFETY CODE ANN. § 822.047 (West 1991) (allowing some breed-specific requirements unrelated to ‘dangerousness' of a dog); UTAH CODE ANN. § 182-101 (LexisNexis 2014); VA. CODE ANN. § 3.2-6540.1 (2013). 127Aamer Madhani, U.S. Communities Increasingly Ditching Pit Bull Bans, USA TODAY, (URL removed for reprint). 128S.D. CODIFIED LAWS § 40-34-16 (2014). 1293 PA. CONS. STAT. § 459-507-A (2008) (“(c) Local ordinances-- Those provisions of local ordinances relating to dangerous dogs are hereby abrogated. A local ordinance otherwise dealing with dogs may not prohibit or otherwise limit a specific breed of dog. (d) Insurance coverage discrimination--No liability policy or surety bond issued pursuant to this act or any other act may prohibit coverage from any specific breed of dog.”). 130Memorandum from Paul P. Bollinger, Jr., Deputy Assistant Sec'y of the Army, to the Assistant Chief of Staff for Installation Mgmt. (Jan. 5, 2009) [hereinafter Army Memorandum] (URL removed for reprint).; Marine Corps Order P11000.22 /CH 1-6 from the Commandant of the Marine Corps to the Distribution List (Feb. 14, 1991) [hereinafter Marine Corps Order] (URL removed for reprint). (banning pit bulls, Rottweilers, and other dogs prone to aggression or dominance).

131U.S. AIR FORCE, AIR FORCE STANDARDIZED PET POLICY [hereinafter AIR FORCE STANDARDIZED PET POLICY] (available at (URL removed for reprint). (construing U.S. AIR FORCE, AIR FORCE INSTRUCTION 32-6001 (Aug. 21, 2006) (URL removed for reprint) and U.S. AIR FORCE, AIR FORCE INSTRUCTION 32-6007 (Sept. 19, 2012) (URL removed for reprint). 132Army Memorandum, supra note 130. 133E.g., SaraN, BSL in the Military: One Family's Sacrifice, THE BLOG OF A ROTTA LOVE PLUS, (URL removed for reprint). In a blog post, a current member of the military recounted the pain endured by herself, her husband, and her two children, when they had to re-home Willa, the family dog: “My husband, my children, and I have made many sacrifices for the military, and have done so with pleasure; these sacrifices have been made for the love of our country. In the timespan of mere months, my children have moved across [[the] country, changed schools, and said goodbye to friends. But the loss of our friendly, playful, humorous, snuggling, PB&J snatching, constant companion is an unexpected, undeserved injustice-- and is one sacrifice I will never forgive.” Id. See also Is Breed-Specific Legislation for On-Base Pet Owners Way Off-Base?, PETS FOR PATRIOTS, (URL removed for reprint). (“Military families with banned dogs are feeling the impact two-fold: unable to live on-base due to military pet regulations, and unable to live off-base because of municipal breed bans. The issue is further complicated when service members deploy and seek to foster their pets, since BSL limits where these pets can be cared for while awaiting their owners' return.”). 134Jacob Davidson, Obama Blasts Legislation Targeting Specific Dog Breeds, TIME (Aug. 21, 2013) (URL removed for reprint). 135See Military Breed-Specific Policies, DOGSBITE.ORG, (URL removed for reprint).) (Army, Marine Corp, and Air Force bans remain in effect). 136Sentell v. New Orleans & C.R. Co., 166 U.S. 698, 704, 706 (1897). “Although dogs are ordinarily harmless, they preserve some of their hereditary wolfish instincts, which occasionally break forth in the destruction of sheep and other helpless animals. Others, too small to attack these animals, are simply vicious, noisy and pestilent. As their depredations are often committed at night, it is usually impossible to identify the dog or to fix the liability upon the owner,

who, moreover, is likely to be pecuniarily irresponsible. In short, the damages are usually such as are beyond the reach of judicial process, and legislation of a drastic nature is necessary to protect persons and property from destruction and annoyance.” Id. at 705-06. 137Id. at 701. 138See City of Dickinson v. Thress, 290 N. . 653, 655 (N.D. 1940) (citing Sentell, 166 U.S. 698) (“It is well settled that the Legislature, under the police power, may regulate the keeping of dogs...”). 139See Thiele v. City of Denver, 312 P.2d 786, 788-90 (Colo. 1957) (quoting Sentell in upholding prohibition against dogs running at large under the police power); City of Dickinson, 290 N. at 655 (upholding license and registration requirements for dogs under the police power); Concerned Dog Owners of Cal. v. City of L.A., 123 Cal. Rptr. 3d 774, 779, 781, 789 (2011) (upholding mandatory spay/neuter ordinance under the police power). 140See, e.g., Vanater v. Vill. of S. Point, 717 F. Supp. 1236, 1242 (S.D. Ohio 1989) (upholding prohibition against pit bulls as valid exercise of police power under rationale of Sentell). 141See, e.g., Colo. Dog Fanciers, Inc. v. City of Denver (Dog Fanciers), 820 P.2d 644, 648, 650, 652 (Colo. 1991) (denying substantive due process and equal protection claims under rational basis test); Garcia v. Vill. of Tijeras, 767 P.2d 355, 358, 360, 361 (N.M. Ct. App. 1988) (denying both substantive and procedural due process challenges, as well as challenges to vagueness), cert. denied, 765 P.2d 768 (N.M. 1988). Due process and equal protection claims are often brought under both the 14th Amendment of the U.S. Constitution and the equivalent state constitutional basis. Generally, the 14th Amendment has provided little, if any, traction, with the exception of some success in the area of vagueness under due process. However, those states that have determined BSL to be void for vagueness tend to have strong state (as opposed to federal) case law upon which to base the decision. See, e.g., Am. Dog Owners Ass'n, Inc. v. City of Lynn, 533 N.E.2d 642 (Mass. 1989) (applying Massachusetts case law to strike down sections of local BSL). 142E.g., Kristen Swann, Irrationality Unleashed: The Pitfalls of Breed-Specific Legislation, 78 UMKC L. REV. 839, 847-51 (2010) (describing rational basis test

applied to restrictions on dog ownership, which relies on the concept of dogs as property). 143Id. at 867. In Irrationality Unleashed: The Pitfalls of Breed-Specific Legislation, student author Kristen Swann rightfully advocates for courts to employ “rational basis plus” or “rational basis with a bite” analysis concerning BSL. As science continues to advance and show the absence of a relationship between breed identification and aggression, the rational basis for these laws evaporates. Courts should no longer hide behind the Sentell opinion and where laws are based in irrational fear, rather than rational problem solving. Id. at 840, 867-68. 144In City of Lynn, the Supreme Judicial Court of Massachusetts, opining on the constitutional question of vagueness of a several BSL ordinances, succinctly set forth the issue with all BSL that includes “types” of dogs or mixed-breeds: “[T]he Lynn Pit Bull ban ordinance depends for enforcement on the subjective understanding of dog officers of the appearance of an ill-defined ‘breed,’ leaves dog owners to guess at what conduct or dog ‘look’ is prohibited, and requires ‘proof’ of a dog's ‘type’ which, unless the dog is registered, may be impossible to furnish. Such a law gives unleashed discretion to the dog officers charged with its enforcement, and clearly relies on their subjective speculation whether a dog's physical characteristics make it what is ‘commonly understood’ to be a ‘Pit Bull.”’ 533 N.E.2d at 647 (Mass. 1989). See also Des Moines, 469 N. .2d at 418 (holding portion of BSL ordinance that restricts mixed and nonspecific breeds unconstitutionally vague because of “an unacceptable risk of ‘arbitrary and discriminatory application.”’) But see Am. Dog Owners Ass'n v. City of Yakima, 777 P.2d 1046, 1047-48 (Wash. 1989) (finding the BSL ordinance was not vague because it listed four specific breeds of dog prohibited and provided adequate standards of identification so that the ordinance would not be arbitrarily enforced). 145Toledo v. Tellings (Tellings I), No. L-04-1224, 2006 WL 513946, at PP 2, 3 (Ohio Ct. App. 2006), rev'd, 871 N.E.2d 1152 (Ohio 2007). 146“‘Vicious dog’ means a dog that, without provocation and subject to division (A)(4)(b) of this section, meets any of the following: (i) Has killed or caused serious injury to any person; (ii) Has caused injury, other than killing or serious injury, to any person, or has killed another dog; (iii) Belongs to a breed

that is commonly known as a pit bull dog. The ownership, keeping, or harboring of such a breed of dog shall be prima-facie evidence of the ownership, keeping, or harboring of a vicious dog.” OHIO REV. CODE ANN. § 955.11(A)(1) (West, repealed 2012). 147Tellings I, 2006 WL 513946, at P 2. 148Id. 149Id. at PP 43, 51. 150Id. at PP 2-20. 151Id. at P 33. 152Id. at P 32. 153Tellings I, 2006 WL 513946, at P 66. The Ohio Court of Appeals, in a detailed opinion, made note of how the expert testimony in this case refuted the pseudoscience and urban legends surrounding pit bull-type dogs that had grown in the media and in legal sources including cases and law review articles. For example, the court specifically noted: “[P]it bulls do not have locking jaws. Based on actual dog dissections and measurement of their skulls, the evidence demonstrated that pit bull jaw muscles and bone structure are the same as other similarly sized dogs. No evidence was presented to demonstrate that a pit bull's bite is any stronger than other dogs of its size and build... [C]ontrary to information relied upon and perpetuated by earlier case law and law review articles, assertions that a pit bull can bite with a ‘force of 2,000 pounds per square inch’ have absolutely no basis in fact or scientific proof. The testing of dog-bite strength has never been done, and would be difficult if not impossible to perform.” Id. at P 25 (citations omitted). Furthermore, the court noted: “Although [one expert] testified he believed that pit bulls have some sort of ‘trigger mechanism’ which makes their behavior unpredictable and they give off no warning ‘signals,’ he acknowledged that he had done no studies, and had no scientific data, proof, or other evidence in support of his theory. The other experts dismissed this theory and agreed that all dogs give off signals which may be ignored or unrecognized by people. They also stated that, although pit bulls may have some genetic predisposition for certain behaviors, these behaviors can be easily modified or controlled with training and environmental socialization.” Id. at P 31.

154Id. at PP 61-63. “As scientific information advances and becomes available, courts have a duty to reconsider issues and make decisions which are supported by the actual evidence presented, instead of relying on ‘common knowledge’ and opinion generated by newspaper sensationalism and hearsay, rather than accurate, scientific evidence.” Id. at P 62. 155Id. at P 66. The court also determined that statute was void on the basis of vagueness because of the lack of a real definition for the term “pit bull-type” dog, and the apparent subjectivity of prosecution. Id. at PP 73-76. Specifically, Toledo's dog Warden admitted that the determination of whether a dog was a “pit bull-type” was based purely on observation of the official. Id. at P 30. The court questioned, with so many similar looking breeds, whether anyone would really know if they were potentially subject to prosecution or not, especially if their dog was of a mixed breed. Id. at P 73. This finding by the court is substantiated by scientific studies discussed in Part IV. 156Toledo v. Tellings (Tellings II), 871 N.E.2d 1152, 1157 (Ohio 2007), rev'g 2006 WL 513946 (Ohio Ct. App. 2006). 157Id. at 1158. Specifically, in making its rational basis determination, the Ohio Supreme Court relied on evidence presented by the chief dog warden of Lucas County who testified that, “(1) when pit bulls attack, they are more likely to inflict severe damage to their victim than other breeds of dogs, (2) pit bulls have killed more Ohioans than any other breed of dog, (3) Toledo police officers fire their weapons in the line of duty at pit bulls more often than they fire weapons at people and all other breeds of dogs combined and (4) pit bulls are frequently shot during drug raids because pit bulls are encountered more frequently in drug raids than any other dog breed.” Id. at 1157. The accuracy of these claims made by the dog warden is unknown, but the Ohio Supreme Court found them sufficient to establish a rational basis. With regard to the vagueness challenge, the Supreme Court, quoting an earlier decision of State v. Anderson, held, “[T]he physical and behavioral traits of pit bulls together with the commonly available knowledge of dog breeds typically acquired by potential dog owners or otherwise possessed by veterinarians or breeders are sufficient to inform a dog owner as to whether he owns a dog commonly known as a pit bull dog.” Id. at 1158 (quoting State v. Anderson, 566 N.E.2d 1224, 1228 (Ohio 1991)).

158See Starkey v. Chester Twp., 628 F. Supp. 196, 197 (E.D. Pa. 1986) (denying preliminary injunction upon determination that BSL would likely survive an equal protection challenge by meeting a traditional rational basis test); Hearn v. City of Overland Park, 772 P.2d 758, 764, 765, 766-68 (Kan. 1989) (opining that an ordinance banning pit bulls was related to a legitimate government purpose, was neither too vague nor unlawfully overbroad, and satisfied a rational basis test for purposes of an equal protection challenge), cert. denied, 493 U.S. 976 (1989); State v. Peters, 534 So. 2d 760, 764 (Fla. Dist. Ct. App. 1988) (holding ordinance did not violate equal protection when it was “underinclusive” and did not include mixed-breed pit bulls), review denied, 542 So. 2d 1334 (Fla. 1989); Garcia, 767 P.2d at 360-61 (denying both substantive and procedural due process challenges, as well as challenges to vagueness). 159Dog Fanciers, 820 P.2d at 652. 160Id. 161Garcia, 767 P.2d at 359. 162See supra notes 5-8 and accompanying text. 163See Tellings I, 2006 WL 513946, at P 63 (“[P]revious cases involving ‘vicious dog’ laws, especially from the late 1980s and early 1990s, relied on what is now outdated information which perpetuated a stereotypical image of pit bulls.” (citations omitted)). 164E.g., Am. Canine Fed'n v. City of Aurora, Colo., No. 06-CV-01510-WYDBNB, 2008 WL 2229943, at *5, *8 (relying on Dog Fanciers and Garcia). The initial cases challenging BSL all included, at best, questionable testimony about pit bulls, and, at worst, patently false claims about the dogs. Unfortunately, because of the precedential value of these early cases, this same unsubstantiated ‘evidence’ has been passed down to the next set of cases and the next, leading courts to uphold BSL on the basis of pseudoscience long since debunked. For example: In Starkey, the district court noted importance of testimony from the township's Health Officer who said “the Pit Bull bites to kill without signal.” 628 F. Supp. at 197. Similarly in Hearn, the Kansas Supreme Court noted the following evidence to support the finding that pit bulls were a “unique hazard” to public safety: “Defendant city introduced expert testimony that pit bull dogs are both more aggressive and destructive than other dogs. Pit bull dogs possess a strongly developed ‘kill instinct’ not shared by other breeds

of dogs. This testimony indicated that pit bull dogs are unique in their ‘savageness and unpredictability.”’ 772 P.2d at 765. Even more egregiously, the ordinance challenged and upheld in Peters includes an outright false statement regarding pit bull jaw strength: “[T]he Pit Bull's massive canine jaws can crush a victim with up to two thousand (2,000) pounds of pressure per square inch-three times that of a German Shepherd or Doberman Pinscher, making the Pit Bull's jaws the strongest of any animal, per pound...” 534 So. 2d at 764. Each of these pieces of ‘evidence’ has since been debunked. Fear vs. Fact, NATIONAL CANINE RESEARCH COUNCIL, (URL removed for reprint).165Hardwick v. Town of Ceredo, No. 11-1048, 2013 WL 149628, at *5 ( . Va. Jan. 14, 2013). “[E]ach Defendant's dogs are of the breed that is typically referred to generically as pit bull dogs which are aggressive by nature, have been known as attack animals with strong massive heads and jaws, and have been found to represent a public health hazard. The majority of jurisdictions have accepted the proposition that dogs of this type have a propensity to be aggressive and attack without provocation and it is well established that such dogs have gotten a lot of notoriety of being dangerous to public health and safety.” Id. 166Swann, supra note 142, at 840, 868. 167Tellings I, 2006 WL 513946, at PP 51-53. 168Dog Fanciers, 820 P.2d at 652; Tellings II, 871 N.E.2d at 1158. 169Dog Fanciers, 820 P.2d at 652. 170See, e.g., City of Lynn, 533 N.E.2d at 647 (finding pit bull ban “leaves dog owners to guess at what conduct or dog ‘look’ is prohibited, and requires ‘proof’ of a dog's ‘type’ which ... may be impossible to furnish”); Des Moines, 469 N. .2d 416, 418 (finding that language including “dogs of mixed breed” in pit bull ban “allows subjective determinations based on a choice of nomenclature by unknown persons and based on unknown standards”). 171See, e.g., Tellings II, 871 N.E.2d at 1158 (quoting Anderson, 566 N.E.2d at 1228) (“[T]he physical and behavioral traits of pit bulls together with the commonly available knowledge of dog breeds typically acquired by potential dog owners ... are sufficient to inform a dog owner as to whether he owns a dog commonly known as a pit bull dog.”); Des Moines, 469 N.

.2d at 418 (validating sections of ordinance pertaining to specific breeds because “the determination of a dog's breed can be done according to objective standards” and these sections “permit a reader of ordinary intelligence to determine which dogs are included”); Dog Fanciers, 820 P.2d at 652 (“[T]he standards for determining whether a dog is a pit bull are readily accessible to dog owners, and ... most dog owners are capable of determining the breed or phenotype of their dog.”). 172Breed-Specific Legislation (BSL) FAQ, supra note 11. 173Id. 174Arin Greenwood, Critics Slam Mississippi Bill that Equates Pit Bulls and ‘Dangerous Dogs,’ THE HUFFINGTON POST, (URL removed for reprint). While no state has BSL currently, a Mississippi legislator has introduced a bill equating “pit bull” with dangerous dog. At the moment, it looks to have little support. Id. 175OHIO REV. CODE ANN. § 955.11(A)(1)(a) (West, repealed 2012). Ohio Governor John Kasich signed HB 14 into law on February 21, 2012. The bill removed the term “pit bull” from the definition of vicious dog, and effectively repealed the only example of statewide BSL. Kristin Poppalardo, Bill of the Week: Ohio HB 14, AM. VETERINARY MED. ASS'N, (URL removed for reprint). 176 See CAL. FOOD & AGRIC. CODE § 31683 (West 2006); COLO. REV. STAT. § 18-9-204.5(5) (2004); 2013 Conn. Pub. Acts No. 13-103; FLA. STAT. § 767.14 (1990); 510 ILL. COMP. STAT. 5/24 (2003); ME. STAT. tit. 7, § 3950 (2005); MASS. GEN. LAWS ch. 140, § 157 (2012); MINN. STAT. § 347.51 (1989); NEV. REV. STAT. § 202.500 (2013); N.J. STAT. ANN. § 4:19-36 (West 1989); N. . AGRIC. & MKTS. LAW § 107 (Consol. 1997); OKLA. STAT. tit. 4, § 46 (2006); 3 PA. CONS. STAT. § 459-507-A (2008); 4 R.I. GEN. LAWS § 4-13-43 (2013); S.C. CODE ANN. § 47-3-710 (1992); S.D. CODIFIED LAWS § 40-34-16 (2014); TEX. HEALTH & SAFETY CODE ANN. § 822.047 (West 1991); UTAH CODE ANN. § 182-101 (LexisNexis 2014); VA. CODE ANN. § 3.2-6540.1 (2013) (Nineteen states preempt local BSL).

177Army Memorandum, supra note 130; Marine Corps Order, supra note 130; AIR FORCE STANDARDIZED PET POLICY, supra note 131. 178U.K. Dangerous Dogs Act, supra note 97; Rosado et al., supra note 16, at 167. 179Victoria Domestic Animals Act, supra note 98; Winnipeg Responsible Pet Ownership By-Law, supra note 96. 180Dutch Agriculture Minister Scraps Pit Bull Ban, EXPATICA DUTCH NEWS, (URL removed for reprint). 181Italy Repeals Ban, supra note 12. 182Id. 183 See Tellings I, 2006 WL 513946, at P 64 (finding that expert testimony presented at trial “showed many of the beliefs and ‘myths' about pit bulls to be simply untrue and unsupported by now accepted scientific, genetic, medical, or canine behavior principles”). 184Patronek, supra note 15, at 1726. 185See, e.g., Schalke et al., supra note 98 (discussing the efficacy of BSL in Germany). 186See Cornelissen & Hopster, supra note 27 (discussing a study evaluating BSL in the Netherlands finding BSL ineffective); Ott et al., Is There a Difference? Comparison of Golden Retrievers and Dogs Affected by Breed-Specific Legislation Regarding Aggressive Behavior, 3 J. VETERINARY BEHAV. 134 passim (2008) (discussing a study evaluating BSL in Lower Saxony, Germany finding BSL ineffective, and therefore BSL was repealed). 187E.g., Collier, supra note 14 (Australian study, 2006); Rosado et al., supra note 16, at 167 (Spanish study, 2007); Ott et al., supra note 186, at 135 (German study, 2008); Cornelissen & Hopster, supra note 27, at 293 (Dutch study, 190). 188Collier, supra note 16, at 21; Rosado et al., supra note 16, at 169; Ott et al., supra note 186, at 139-40; Schalke et al., supra note 98, at 101-02; Cornelissen & Hopster, supra note 27, at 297. 189 Collier, supra note 16, at 17-22. The history of Australian BSL began in 1991. Based almost entirely on media reports of the dangerousness of the breed in the U.S. and the U.K., Australia prohibited the importation and breeding of

American pit bull terriers (APBT), imposed restrictions and requirements on owners, and in some cases banned the dogs in certain areas. Id. at 17-18. 190Id. at 18-20. Collier is quick to point out many of the methodological problems with determining the “dangerousness” of any particular breed based on bite reports and percentage of registered dogs. Id. First and foremost, the reliability of the data is immediately questionable because the calculation of population attributable fraction percentage (PAF%) is inherently flawed. Id. at 19. The PAF% measures the percentage of a breed within the overall population. Id. at 18. For a simple example, if there are one hundred dogs in the population and ten of them are identified as APBT, the PAF% would be 10%. When the Australian governments calculate PAF% it is based primarily on the number of dogs within the population that are registered to the breed, those numbers are then extrapolated to encompass the estimated non-registered dogs. Id. Collier points out that this method presupposes that all breeds have about the same percentage of registered and unregistered dogs. Id. at 19. In general, this is unlikely, especially in a community where certain breeds are restricted, and thus owners would be reluctant to register such dogs. Id. at 19. 191Id. at 19. 192Id. 193Id. at 20. 194Id. at 21. 195Rosado et al ., supra note 16, at 167. At the time of the study, the Spanish Dangerous Breed list included the pit bull terrier, Staffordshire bull terrier, American Staffordshire terrier, Rottweiler, Argentine Dogo, Brazilian Fila, Tosa Inu, and Akita Inu breeds. Id. 196Id. at 169. The study, the first conducted over such a long period of time, looked specifically at statistics from the Aragon region of Spain, which comprises three provinces of the northeastern area of the country. Id. at 167. Researchers also compared bite rates in densely populated areas of the region, compared to sparsely populated and rural areas over the same time period. Id. These researchers used the 2001 official Aragon census to determine human population in the region, and utilized data collected on rabies vaccinations in the region to estimate the canine population based on breed. Id. Because rabies vaccination is mandatory in Aragon, researchers believed the vaccination

numbers would mirror the great majority of the canine population. See id. (“Canine population data were obtained from the 2004 municipal census... In this regard dogs were registered by a tax code linked to the rabies vaccination that remains mandatory once a year in this region.”). 197Id. at 169, 171. 198Id. at 170. 199Id. 200Id. at 167, 171. 201Rosado et al., supra note 16, at 171. 202Id. at 172. 203Id. 204Id. at 169. 205Id. at 170. 206Id. at 172. 207See Rosado et al., supra note 16, at 172 (discussing that owning a breed of dog not designated as a dangerous breed, such as a German shepherd, “might lead to a false sense of security regarding the risk of causing an incident”). 208Schalke et al., supra note 98, at 98. 209Id. at 97-98 (including American Staffordshire terriers, bull terriers, and other dogs “of the pit bull type”). 210Id. at 98. Doberman pinscher, Rottweiler, Staffordshire bull terrier, bull mastiff, Dogo Argenino, Fila Brasiliero, Caucasian Owtscharka, mastiff, Mastino Español, Mastino Napoletano, and Tosa Inu breeds are restricted in this group. Id. 211Id. 212Id. 213Id. at 98. 214Schalke et al., supra note 98, at 98. 215Id. All dogs were members of, or crossbreeds of one of five different breeds: American Staffordshire terriers, bull terriers, Rottweilers, Doberman pinschers, Staffordshire bull terriers, or “dogs of the pit bull type.” Id. All dogs were privately owned and previously unknown to researchers. Id. The significant portion of the behavior evaluation was the temperament test, where the dog-and-owner teams were observed in twenty-one different situations

involving commonplace dog-human contact. Id. at 99. These situations tested the relationship between the dog and owner and how the dog reacted to strangers, including friendly strangers, threatening strangers, people making abrupt or unusual movements, and people with uncommon appearances. Id. Additionally, dogs were exposed to situations which might typically arise in the presence of children, as well as common everyday occurrences such as moving bicycles, opening umbrellas, or passing joggers. Id. at 103 app.2. Dogs were also evaluated for dog-on-dog interactions, but the researchers did not include the results in this study as the focus of the study was on aggression toward people. Id. at 99. 216Id. at 98-99. 217Id. at 99. Of 415 dogs tested, 158 showed no aggressive behavior under any of the circumstances (score of 1) and an additional 201 only gave visual or auditory signals while staying still or backing away from the stimulus (score of 2). Id. A total of eighteen dogs exhibited bite movements, but either remained still, backed away, or stopped some distance from the stimulus (scores of 3 and 4). Id. Thirty-seven dogs exhibited threatening behavior, followed by an actual completed bite or attack (score of 5), while only one dog reacted with a bite or attack without first showing threatening behavior (score of 6). Id. No dogs reached a score of 7. See id. (415 dogs accounted for in numbers scoring 1 through 6). Of the dogs that showed some aggression, it was generally observed most frequently when the dog was physically threatened, followed by instances where a stranger made abrupt movements. Id. at 100. Of the thirty-seven dogs that reached the level of 5, only nineteen showed aggression at inappropriate times. Id. 218Id. at 99. 219Id. 220Schalke et al., supra note 98, at 102. 221Ott et al., supra note 186, at 135. 222Id. at 134. 223Id. at 140. 224See id. at 134-35, 140 (reviewing results of previous study, reporting results of present study, and indicating that BSL was repealed).

225See Cornelissen & Hopster, supra note 27, at 293 (study of effectiveness of BSL commissioned by the Dutch government, completed in 2009). 226Id. 227Id. at 293. In order to help with identification of breed, researchers included pictures of the fifty most popular breeds in the Netherlands, as well as pictures of breeds most commonly the subject of BSL. Id. In the study they acknowledge that the term ‘breed’ includes look-alikes and crossbreeds. Id. 228Id. at 293. 229Id. at 294. 230Id. at tbl.1. 231See Cornelissen & Hopster, supra note 27, at 294 tbl.1 (32% resulted in no injuries, and 48% resulted in minor injuries). 232Id. (92%). 233Id. 234Id. at 297. 235See id. at 293 (noting that the bite risk index is established by dividing the fraction of breed within the biting population by the fraction of breed within the canine population and that a breed with an average bite risk will necessarily have an index of 1). 236Id. at 296 tbl.2. 237Cornelissen & Hopster, supra note 27, at 296 tbl.2. 238Id. at 294. 239See id. at 297 (“Our findings ... do not support the use of an attack record in developing mitigation strategies. We found that all dogs can bite.” (emphases in original)). 240Id. at 293-97. 241Id. at 297. 242Id. at 296-97. 243Cornelissen & Hopster, supra note 27, at 296. 244Id. In Harry Potter and the Prisoner of Azkaban, author J.K. Rowling illustrates the problem of children who fail to respect the personal space of an animal. In one iconic scene (later portrayed in the movie of the same name) protagonist Harry Potter demonstrates a proper and respectful interaction with a potentially dangerous hippogriff named Buckbeak. The interaction goes very

well, and the hippogriff allows Harry to ride on his back. Later, the antagonist, Draco Malfoy, always jealous of Harry's successes, attempts to ride the hippogriff, but approaches the creature aggressively, paying no attention to the warning body language of the animal. In response, the hippogriff injures Malfoy and is sentenced to death for hurting the boy. This type of incident happens all the time in interactions between people (both children and adults) and dogs, and just like Buckbeak, it is the dog that pays the ultimate price with his life. In Rowling's book, Harry Potter and his friends are able to save the day and protect Buckbeak, but such a happy ending is rare in real life. J. K. R OWLING, HARRY POTTER AND THE P RISONER OF A ZKABAN 114-19, 218, 415 (Arthur A. Levine Books ed. 1999); HARRY POTTER AND THE PRISONER OF AZKABAN at 33:30 (Warner Bros. 2004). 245Cornelissen & Hopster, supra note 27, at 296. 246See id. (“Several successful educational interventions for the prevention of dog bites in children have been reported in the literature.”). 247Id. at 296-97. 248See id. at 293 (study itself contributed to the abolition of BSL in the Netherlands); see also EXPATICA DUTCH NEWS, supra note 180 (stating that the Agriculture Minister, Gerda Verburg, announced the repeal, citing the fact that the ban did not reduce biting incidents). 249See, e.g., AVMA Task Force on Canine Aggression and Human-Canine Interactions, A Community Approach to Dog Bite Prevention, 218 J. AM. VETERINARY MED. ASS'N 1732, 1733 (2001) (arguing that dog bite statistics “are not really statistics, and they do not give an accurate picture of dogs that bite”); J.R. Matthews & K.A. Lattal, A Behavioral Analysis of Dog Bites to Children, 15 J. DEV. BEHAV. PEDIATRICS 44, 45 (1994); Karen L. Overall & Molly Love, Dog Bites to Humans--Demography, Epidemiology, Injury, and Risk , 218 J. AM. VETERINARY MED. ASS'N 1923, 1932 (2001); CM Shuler et al., Canine and Human Factors Related to Dog Bite Injuries, 232 J. AM. VETERINARY MED. ASS'N 542, 542 (2008). 250Karen L Overall, Breed-Specific Legislation: How Data Can Spare Breeds and Reduce Dog Bites, 186 VETERINARY J. 277, 278 (2010). 251Patronek, supra note 15, at 1726. DBRFs are extremely rare. Id. at 1726, 1729. The 256 DBRFs studied occurred over a ten- year period, with a mean of

25.6 incidents per year. Id. at 1729. The human population in the U.S. during this time period was approximately 295.5 million, while the canine population was estimated at 68.8 million. Id. This corresponds with a rate of 0.087 fatal bite incidents per 1 million people per year, and 0.38 fatal bite incidents per 1 million dogs per year. Id. 252Id. at 1726. 253Id. 254Id. at 1729. 255Id. at 1730. Victims with no relationship with the dog were visitors, intruders, or passersby. Id. at 1727. 256 Id. at 1730. A victim with an incidental relationship is a person “other than the owner or primary caretaker ... who is regularly present at the home, ... and who does not regularly interact with the dog in positive and humane ways.” Id. at 1727. 257Patronek, supra note 15, at 1729. 258Id. at 1730. 259Id. The authors theorize that it is possible or perhaps even likely that the sexually-intact dog incited the other dogs involved in these types of attacks. Id. 260Id. 261Id. at 1730 tbl.2. Other neutered male dogs may have been involved in attacks by multiple dogs when an intact male was present. Id. 262Id. at 1730. 263Patronek, supra note 15, at 1734. Unreliability of eyewitness breed identification will be explored in depth in Section V of this paper. 264Id. at 1732. Mismanagement was defined as allowing the dog to be a danger, via either knowledge of prior dangerous acts, or allowing the dog to run loose. Id. at 1728. 265Id. at 1732. Abuse included beating a dog, using it for dogfighting, sexual abuse of the dog, or evidence of other physical punishment. Id. at 1728. In general, abuse was considered more severe than neglect. Id. 266Id. at 1732. Neglect was defined as either failure to provide adequate food, water, shelter or shade, or failure to obtain treatment for medical conditions. Id. at 1730.

267Id. at 1732. The authors noted that the actual level of abuse or neglect may not have been thoroughly investigated, and therefore may be underreported. Id. at 1734. 268Id. at 1732. 269Patronek, supra note 15, at 1732. 270Id. 271Id. at 1728. 272Id. at 1732. 273Id. at 1731 tbl.3. 274Id. at 1732 fig.1. 275See, e.g., Rachel Casey et al., Human Directed Aggression in Domestic Dogs (Canis Familiaris): Occurrence in Different Contexts and Risk Factors, 152 J. APPLIED ANIMAL BEHAV. SCI. 52, 52-63 (2014) (discussing the “relatively small amount of variance” when applying the same factors to aggressive and non-aggressive dogs, which suggests “a much greater importance of factors specific to the experience of individual dogs” instead of generally to their breed); Deborah Duffy et al., Breed Differences in Canine Aggression, 114 J. APPLIED ANIMAL BEHAV. SCI. 441, 451-52 (2008) (“Differences between lines of distinct breeding stock indicate that the propensity toward aggressive behavior is at least partially rooted in genetics, although substantial withinbreed variation suggests that other factors (developmental, environmental) play a major part in determining whether aggressive behavior is expressed in the phenotype.”); Yuying Hsu & Liching Sun, Factors Associated with Aggressive Responses in Pet Dogs, 123 J. APPLIED ANIMAL BEHAV. SCI. 108, 109 (2010) (finding variables in environmental factors, such as “dog and owner characteristics, living environments and owner-dog interactions”, had “significant relationships” with aggression scores). 276Duffy et al., supra note 275, at 451-52. 277Id. at 457. 278Casey et al., supra note 275, at 61; Hsu & Sun, supra note 275, at 109. 279Casey et al., supra note 275, at 60; Hsu & Sun, supra note 275, at 109. 280Casey et al., supra note 275, at 60. 281Id. 282Id. at 59.

283Id. at 60. 284Id.; Hsu & Sun, supra note 275, at 120. 285Casey et al., supra note 275, at 60. 286Id. at 61. 287Marta Amat et al., Differences in Serotonin Concentration Between Aggressive English Cocker Spaniels and Aggressive Dogs of Other Breeds, 8 J. VETERINARY BEHAV. 19, 19 (2013); J. V3Cage et al., Association of Dopamineand Serotonin-Related Genes with Canine Aggression, 9 GENES BRAIN & BEHAV. 372, 373 (2010). 288Neurotransmitters are chemicals that help communicate signals across the neurons of the brain. Serotonin and dopamine are present in both humans and animals and are linked to behavior, including aggressive behavior. Dongju Seo et al., Role of Serotonin and Dopamine System Interactions in the Neurobiology of Impulsive Aggression and Its Comorbidity with Other Clinical Disorders, 13 AGGRESSION & V IOLENT BEHAV. 383, 384 (2008). 289Haploid genotypes, also called haplotypes, are collections of specific alleles (DNA sequences) that are closely linked on portions of chromosomes and are often inherited together. Nat'l Hum. Genome Res. Inst. , iDeveloping a Haplotype Map of the Human Genome?for Finding Genes Related to Health and Disease, GENOME.GOV, (URL removed for reprint). 290V3Cage et al., supra note 287, at 373. 291Id. at 376. 292Seo et al., supra note 288, at 383. 293V3Cage et al., supra note 287, at 376; Amat et al., supra note 287, at 21-22. 294Patronek et al., supra note 15, at 1728, 1731. “Differences between lines of distinct breeding stock indicate that the propensity toward aggressive behavior is at least partially rooted in genetics, although substantial within-breed variation suggests that other factors (developmental, environmental) play a major part in determining whether aggressive behavior is expressed in the phenotype.” Duffy et al., supra note 275, at 457. 295Patronek et al., supra note 15, at 1732. 296James Fallon, a neuroscientist from University of California at Irvine, recently made waves in popular media for his research on human psychopathy. Barbara Bradley Hagerty, A Neuroscientist Discovers a Dark Secret, NPR, (URL

removed for reprint). Studying human brain scans and gene haplotypes, he long noted similarities among clinically diagnosed psychopaths in both areas. Id. What was particularly fascinating however, was his research into his own family. Id. Coming from a line of violent criminals that includes the infamous Lizzy Borden, he decided to conduct brain and genetic tests of his own seemingly well-adjusted and non-violent relatives. Id. What he discovered was that all of his relatives had normal brain scans and showed no risk for violence based on genetic markers. Id. Only one person's brain and genes showed all the signs of psychopathy--his own. Id. But Dr. Fallon noted that he was not, himself, a violent criminal despite his brain scans and genes being consistent with those of psychopaths. Id. What Fallon hypothesized was that a third factor is necessary to activate the violent behavior, and in humans that is usually some form of childhood abuse whether physical, sexual, or emotional. Id. This type of perfect storm of brain chemistry, genetics, and environment could very well be similar in instances of canine aggression and is further evidence of the complexity of this issue. In fact, the environmental factors contributing to canine aggression are well documented, and a combination of ‘nature’ and ‘nurture’ factors seems not only logical but likely. Patronek et al., supra note 15, passim. 297For example, over 95% of dog breeds involved in the German study behaved properly under all circumstances. Schalke et al., supra note 98, at 102. 298Just as we should not single out a race or ethnicity of humans as overly violent because a few of its members are violent, we should also not single out a canine breed in this manner. 299John K. Bini et al., Mortality, Mauling and Maiming by Vicious Dogs, 253 ANNALS SURGERY 791, 791-96 (2011). Records of persons admitted from January 1, 1994 through April 30, 2009 were reviewed for the article. Id. 300Id. at 792. Two hundred twenty-eight victims of dog attacks were admitted to the hospital, but breed assignment (by whatever means used by the researchers) was only available for eighty-two of those victims (only 36% of the incidents). 301Id. 302Id. 303See discussion infra Part IV.

304See, e.g., Karen Delise, Imprudent Use of Unreliable Dog Bite Tabulations and Unpublished Sources, 225 ANNALS OF SURGERY e11, e11 (2012) (calling into question the methods and limitations used by the research team). 305Bini et al., supra note 299, at 796. 306Id. 307Raghavan et al., supra note 16, at 177. 308Id. 309Id. at 181. 310Id. 311Id. at 182. 312Winnipeg, Manitoba Far Behind Calgary in Community Safety, NAT'L CANINE RESEARCH COUNCIL, (URL removed for reprint).313Id. 314Rosado et al., supra note 16, at 169. 315 Winnipeg passed BSL in 1990, and other small communities passed BSL between 1991 and 2006, so the amount of time considered in the study for each BSL community varied based on when the legislation was passed. Raghavan et al., supra note 16, at 177. The data from non-BSL communities was calculated for the full time period from 1984 to 2006. Id. 316Id. at 177-78. 317J. Gilchrist et al., Dog Bites: Still a Problem?, 14 INJ. PREVENTION 296, 296 (2008). 318Joan R. Villalbí et al., Decline in Hospitalizations Due to Dog Bite Injuries in Catalonia, 1997-2008. An Effect of Government Regulation?, 16 INJ. PREVENTION 408, 408-10 (2010). 319Id. at 408. 320Id. at 409. 321Id. 322Id.; Gilchrist et al., supra note 317, at 296. 323Patronek, supra note 15, at 1726-27. 324See Victoria L. Voith et al., Comparison of Visual and DNA Breed Identification of Dogs and Inter-Observer Reliability, 3 AM. J. SOC. RES. 17, passim (2013) (discussing the results of a study where “[o]ver 900 participants” were asked to identify breeds by sight); Incorrect Breed Identification Costs Dogs Their Lives, MADDIE'S FUND, (URL removed for

reprint).325See Perry v. New Hampshire, 132 S. Ct. 716, 730-31 (2012) (Sotomayor, J., dissenting) (“This Court has long recognized that eyewitness identifications' unique confluence of features-- their unreliability, susceptibility to suggestion, powerful impact on the jury, and resistance to the ordinary tests of the adversarial process--can undermine the fairness of a trial.”); United States v. Wade, 388 U.S. 218, 228 (1967) ( “The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification.”). 326“[A] vast body of scientific research about human memory has emerged. That body of work casts doubt on some commonly held views relating to memory... Study after study revealed a troubling lack of reliability in eyewitness identifications. From social science research to the review of actual police lineups, from laboratory experiments to DNA exonerations, the record proves that the possibility of mistaken identification is real. Indeed, it is now widely known that eyewitness misidentification is the leading cause of wrongful conviction across the country.” State v. Henderson, 208 N.J. 208, 217-18 (2011). “The studies all lead inexorably to the conclusion that human perception is inexact and that human memory is both limited and fallible.” John P. Rutledge, They All Look Alike: The Inaccuracy of Cross-Racial Identifications, 28 AM. J. CRIM. L. 207, 210 (2001) (quoting State v. Long, 721 P.2d 483, 488 (Utah 1986)). 327Commonwealth v. Walker, 92 A.3d 766, 782-83 (Pa. 2014). 328Id. at 783. 329The Innocence Project estimates that eyewitness misidentification plays a role in approximately 70% of wrongful convictions overturned through DNA evidence. Eyewitness Misidentification, THE INNOCENCE PROJECT, (URL removed for reprint). 330The recent advent of DNA testing has raised the profile of erroneous eyewitness identifications, and the resulting overturned convictions based upon such testing increases the concern over the accuracy of eyewitness identification. Further, DNA testing has brought to the fore the other damaging impacts of erroneous eyewitness identification. Walker, 92 A.3d at 779. 331See generally Katie Bray Barnett, Breed Discriminatory Legislation: How DNA Will Remedy the Unfairness, 4 J. ANIMAL

L. & ETHICS 161 (2011) (concluding that, due to the unreliability of eyewitness identification, “canine DNA should also be regularly admitted for breed identification.”). 332Voith et al., supra note 324, at 22-24. All 923 human participants in the study worked in canine-related fields, as veterinarians, shelter workers, and AKC show judges and would be expected to have a better ability to identify dog breeds than the average person. Id. at 21. 333Kerstin Lindblad-Toh et al., Genome Sequence, Comparative Analysis and Haplotype Structure of the Domestic Dog, 438 NATURE 803 passim (Dec. 8, 2005). 334The Wisdom Panel, by Mars Veterinary, is the dominant canine DNA test and boasts that it can identify over 200 breeds. Mars Veterinary, FAQs, THE WISDOM PANEL, (URL removed for reprint). 335In some relatively rare cases, breed identification could be based upon registration by the AKC, UKC, or other similar canine organizations. See generally Dog Breeds, AM. KENNEL CLUB, (URL removed for reprint). (stating that there are many factors the Board must consider in breed identification, including accuracy of records and proof of true breeding for generations of the particular breed in question); Breed Standards, UNITED KENNEL CLUB, (URL removed for reprint). (advising that the standards be used by responsible breeders who are familiar with breeds and by UKC judges, but not by the typical dog owner due to the likelihood of misidentification). 336See State v. Lee, 257 P.3d 799, 807 (Kan. Ct. App. 2011). In this case, DNA testing was done on a dog that was involved in the death of an adult woman in order to determine if the municipality banned that particular dog breed. Id. at 804. The testing results were admissible, but neither the defendant nor the prosecutor were able to obtain testimony from any representative of the lab conducting the testing. Id. at 809. Other expert testimony included primarily visual identification of dog breed by veterinarians. Id. at 807. 337Voith et al., supra note 324, at 20-21. 338Id. at 19. 339Id. at 22-23. 340Id. at 23-24. 341Id. at 22.

342Id. 343Voith et al., supra note 324, at 22. 344Id. 345In his testimony before the trial court in Toledo v. Tellings, Toledo Dog Warden, Tom Skeldon, testified that he was more interested in the “look” of a dog, rather than its actual breed identification. Specifically, he testified that “even if a dog was 50 per cent pit bull, if it did not ‘look like a pit bull,’ the owner would not be charged. On the other hand, if a dog did ‘look like a pit bull,’ it would be classified as a pit bull and the owner would be subject to the ‘vicious dog’ laws.” Tellings I, 2006 WL 513946, at *5. 346See Voith et al., supra note 324, at 24. The lack of agreement among participants in the Voith study is telling here. Had participants been wrong about breed identification, but generally agreed on that inaccurate identification, we could at least see that laws based on visual identification alone or the “look” of the dog (while not technically “breed bans”), may be enforced consistently, if not accurately, such that all dogs that “looked” a certain way would be identified as included or excluded from a particular group. But, we see here, based on general lack of agreement among the 923 participants that even such inaccurate consistency seems implausible. The problem with visual identification has been acknowledged both by BSL proponents and opponents for some time. In 2004, while advocating for Bill 132 which would ban pit bulls in Ontario, Ontario Attorney General Michael Bryant responded to the argument of misidentification by stating, “Those who disagree with the ban will say that there will be identification problems. I don't doubt there will be some issues on the margins, but, by and large, I think most people know what a pit bull is... I've said before and I will say again, if it walks like a pit bull,

if it barks and bites like a pit bull, wags its tail like a pit bull, it's a pit bull.

That is going to apply, I'm sure, to the vast majority of identification cases. That's number one. Number two, everybody knows what kind of dog they own. Who doesn't know what kind of dog they own? If you own a pit bull, you know you own a pit bull. If you know you don't own a pit bull, then surely will you have the papers to say, ‘This isn't a pit bull,’ it's a whatever, it's something else. Everybody knows what their dog is. So if they think they've got a pit bull, then they probably have a pit bull. If they know they have a pit bull, they definitely

have a pit bull. If they have papers saying it's not a pit bull but an English bull terrier, then they don't have a pit bull.” Public Safety Related to Dogs Statute Law Amendment Act: Debate on Bill 132, Legislative Assembly of Ontario (Nov. 4, 2004) (statement of Hon. Att'y Gen. Michael Bryant) (URL removed for reprint).This quote perfectly illustrates two major problems with BSL. First and foremost, Bryant presupposes what the Voith study has shown to be false, that people, even those who work in canine-oriented professions, do not necessarily know “what a pit bull is” by sight. Secondly, the argument also presupposes that most people have papered identification of their dogs. This too is false and has created a culture where the owners of dogs that are visually identified as pit bulls must prove otherwise or the dogs are subject to exclusion from the community and may be subject to euthanasia. Prior to DNA testing, it was nearly impossible to prove a dog was not a pit bull unless it was a purebred, papered dog. Id. 347Many of the same problems that cause unreliability of human identification by eyewitnesses likely cause problems in canine identification. In discussing the limits of facial recognition, professors Deborah Davis and Elizabeth F. Loftus note that “[humans'] fragile abilities are easily disrupted and contaminated through a variety of internal and external forces: such as one's expectations and beliefs; the simple desire to help apprehend a perpetrator; the mere passage of time; or suggestion from police, co-witnesses, media, and other sources. Once contaminated, memories cannot be purified and restored to their original state through purportedly curative, non-suggestive procedures.” Deborah Davis & Elizabeth F. Loftus, The Dangers of Eyewitnesses for the Innocent: Learning from the Past and Projecting into the Age of Social Media, 46 NEW ENG. L. REV. 769, 773 (2012). With regard to canine identification, all of these forces may contribute to breed misidentification, but certainly the media hype, discussed in detail in other sections of this paper, necessarily contaminates identifications of dog breeds. 348See Paul Slovic, What's Fear Got to Do with It--It's Affect We Need to Worry About, 69 MO. L. REV. 971, 986-89 (2004). Slovic notes that the picture of the mushroom cloud has, for over half a century, negatively impacted human perception of nuclear power and its risks. Id. at 986. Similarly, the visual of the charging pit bull with teeth bared is imprinted in the subconscious of many

Americans, and negatively impacts the perception of these dogs and the associated risks. 349DELISE, supra note 3, at 129, 143. 350Id. See also Jeremy Jojola, Hundreds of Pit Bulls Euthanized in El Paso County, 9NEWS, (URL removed for reprint). (discussing the euthanizing of dogs “because they have a square head, short hair and a straight tail”); Jared Maher, 3,497 Dead Dogs and Other Numbers from Denver's Pit Bull Ban, DENVER WESTWORD BLOGS, (URL removed for reprint). (examining Denver's prohibition on any dog that appears to be more than 50% pit bull). 351DANIEL KAHNEMAN, THINKING FAST AND SLOW 25 (2011). 352 The psychology of human decision-making was pioneered by such notable psychologists as Amos Tversky, Daniel Kahneman, Paul Slovic, Sarah Lichtenstein, and Baruch Fischhoff. See, e.g., Paul Slovic et al., Behavioral Decision Theory, 28 AM. REV. PSYCHOL. 1, 4 (1977) (stating “the impetus for this change can be attributed to Tversky & Kahneman's demonstrations”); Daniel Kahneman & Amos Tversky, Prospect Theory: An Analysis of Decision Under Risk, 47 ECONOMETRICA 263 passim (1979) [hereinafter Prospect Theory]. Beginning in the 1960s, these scientists and others considered the concept of risk and how people make decisions when faced with risk, also called “prospect theory.” Out of this foundation grew additional research in how human perception affects judgment, and how decisions are made intuitively through ‘heuristics.’ See, e.g., Amos Tversky & Daniel Kahneman, Judgment Under Uncertainty: Heuristics and Biases, 185 SCIENCE 1124, 1124 (Sept. 1974) [hereinafter Judgment Under Uncertainty]. Prior to their work, it was generally believed that humans were almost always rational when making decisions, and it was emotions like anger and fear that occasionally got in the way and disrupted

our normally rational decisions. See KAHNEMAN, supra

note 351, at 8. This research turned the commonly held belief of rationality on its head. Instead, the results showed that human decision-making actually manifests systematic errors of reason quite regularly. Judgment Under Uncertainty at 1124. 353Judgment Under Uncertainty, supra note 352, at 1124. 354KAHNEMAN, supra note 351, at 98.

355Joseph LeDoux, in his groundbreaking work, The Emotional Brain, sheds light on the parts of the human brain involved in decision-making functions. JOSEPH LEDOUX, THE EMOTIONAL BRAIN: THE MYSTERIOUS UNDERPINNINGS OF EMOTIONAL LIFE passim (1996). The amygdala, in particular, is connected to emotional response. Id. at 157. This portion of the brain is also connected to memory making. Id. at 203. It is especially involved in memory of highly emotional events or stimuli in the environment. Id. at 164. This provides a very important function in survival because it tells individuals, based on memory of other past similar events, how to act when action must be quick. It deeply seats memories that evoke strong emotion to be called upon later in future quick decision-making. Id. On the other hand, when humans face harder questions and have the luxury of time to calculate risk and costs against benefits, another part of the brain, the neo-cortex, helps decision-making and functions to allow for high-order thinking and what is generally considered rational thinking. 356CASS R. SUNSTEIN, LAWS OF FEAR: BEYOND THE PRECAUTIONARY PRINCIPLE passim (2005). 357Id. at 126-27. 358KAHNEMAN, supra note 351, at 20-21. 359Id. Kahneman and others use the names ‘system 1’ and ‘system 2,’ which remove the value judgment inherent in other terms used for the different kinds of thinking. Id. Readers might be more familiar with the terms ‘lizard brain’ or ‘reptilian brain’ and ‘neo-cortex’ which are much more viscerally descriptive but likely lead readers to value judgments about both types of thinking. The difference in these types of thinking can be demonstrated easily. First complete the following task: raise your right hand. Did you have to think about that act? Probably not, you just did it almost unconsciously and certainly intuitively. Now, answer this math question: what is 1157 divided by 13? We can all figure out the answer, but it is not a simple unconscious or intuitive process. We need to work at it and follow certain steps in our heads or on paper to arrive at the correct answer. Id. at 89. We engage in both forms of thinking regularly, and we need both. If we had to deliberate about which is our right hand and the process necessary to raise it, we would never have survived the evolutionary process (fight or flight only works because it is instantaneous), nor would we

have the time or attention to devote our higher-order thinking to, for example, figure out the math problem. In many ways, it is the dual process that makes humans what we are. Id. 360Id. at 10. 361Id. at 25. 362See Prospect Theory, supra note 352, passim (describing “several classes of choice problems in which preferences systematically violate the axioms of expected utility theory”); Judgment Under Uncertainty, supra note 352, passim. 363 KAHNEMAN, supra note 351, at 98. 364Id. at 98-99. 365SUNSTEIN, supra note 356, at 36-39; KAHNEMAN, supra note 351, at 129-36. 366Paul Slovic et al., The Affect Heuristic, 177 EURO. J. OPERATIONAL RES. 1333 passim (Oct. 16, 2006) [hereinafter The Affect Heuristic]. 367Id. 368KAHNEMAN supra note 351, at 98-99. 369Id. at 99. 370Judgment Under Uncertainty, supra note 352, at 1127. 371Id. 372Id. 373SUNSTEIN, supra note 356, at 37. 374DANIEL GARDNER, THE SCIENCE OF FEAR 3 (2008). Plane crashes are an example of a relatively rare event that is generally covered extensively and vividly by the media and thus believed to be a greater potential danger than car accidents. After 9-11, Americans abandoned air travel in droves, while car travel increased substantially. A studyby psychologist Gerd Gigerenzer from Berlin's Max Planck Institute tracked this shift and found that it took about a year for air travel and car travel to return to normal levels. During that year, an additional 1,595 people died on U.S. roads as a result of the increase in automobile travel. Levels of flying and driving returned to normal in late 2002, and so did the number of deaths on U.S. highways. Id. Another more recent example is the Ebola scare in the U.S. While several persons infected with Ebola entered the country from West Africa and sought treatment, only two people--nurses who had treated one of the victims in Texas--were infected on

U.S. soil. The CDC and other experts have continually attempted to allay the fears of citizens noting that Ebola can only be transmitted through bodily fluids and an infected person is not contagious until symptoms, such as fever, appear. Despite the fact that 99.99% of Americans are at no risk of contracting Ebola, a nationwide panic took hold. Alan Yuhas, Panic: The Dangerous Epidemic Sweeping the Ebola Fearing U.S., THE GUARDIAN, (URL removed for reprint).A school district in Ohio even closed for a few days because one of its administrators may have been on the same plane (not even the same flight) as one of the Texas nurses who later exhibited symptoms of Ebola. Lindsay Beaver, Chain Reaction: Concern About Ebola Nurse's Flight Prompts School Closings in Two States, WASH. POST, (URL removed for reprint). Similarly, several states passed mandatory quarantines for persons traveling back from West Africa, and many businesses suspended the rights of employees to travel to that region of the world. Brady Dennis et al., NY, NJ, Illinois, to Impose New Ebola Quarantine Rules, WASH. POST, (URL removed for reprint). While the nation became gripped with fear over Ebola, most citizens failed to recognize that in 2013 over 56,000 people died of influenza and/or pneumonia, but since the flu and pneumonia are known, common, and expected, they no longer cause the same fear. Deaths and Mortality, CTR. FOR DISEASE CONTROL, (URL removed for reprint). 375See DELISE, supra note 3, at 100 (stating that the “unbridled media coverage” of a CDC report on dog-bite related fatalities can “only be described as orgasmic”). 376See Hussain, supra note 15, at 2847 (using the story of Diane Whipple as an example of the “extensive media coverage of serious pit bull attacks” which have “resulted in public fear of these dogs in particular”). 377Id. 378Danger of Death!, ECONOMIST, (URL removed for reprint). The Economist calculated that an American's chance of dying as a result of contact with a dog is less than 1 in 11 million per year. That is less than the chances of being killed by lightning (1 in 10 million), and significantly less than the chances of being killed by firearm discharge (1 in approximately 500,000), falling down stairs (1 in approximately 157,000), or choking (1 in approximately 100,000). Id.

379Evelyn Nieves, A Bizarre Dog Attack Shakes San Francisco, N. Y. TIMES (Feb. 1, 2001) (URL removed for reprint). 380Id. 381At least four law review articles about BSL tell the story of the attack on Diane Whipple in some detail. Amy Cattafi, Note, Breed-Specific Legislation: The Gap in Emergency Preparedness Provisions for Household Pets, 32 SETON HALL LEGIS. J. 351, 351 (2008); Karyn Grey, Note and Comment, Breed-Specific Legislation Revisited: Canine Racism or the Answer to Florida's Dog Control Problems?, 27 NOVA L. REV. 415, 441 (2003); Hussain, supra note 15, at 2847; Heather K. Pratt, Comment, Canine Profiling: Does Breed-Specific Legislation Take a Bite Out of Canine Crime?, 108 PENN ST. L. REV. 855, 855 (2004). See US Killer Dogs' Owner Cleared, BBC, (URL removed for reprint). (showing continued international interest in the story). 382See, e.g., Nieves, supra note 379 (discussing the attack which occurred in San Francisco). 383DELISE, supra note 3, at 100. 384KAHNEMAN, supra note 351, at 135. 385SUNSTEIN, supra note 356, at 89. 386Id. 387See, e.g., Andy Cerota, Pit Bull Attacks Spur Proposal to Ban Dangerous Dogs in League City, KPCR TV, (URL removed for reprint). (accessed Nov. 25, 2015) (explaining that “[s]everal recent vicious pit bull attacks have council members in League City contemplating whether they should impose tougher rules on owners of dangerous dogs”). 388An example of this is the fact that European countries are very concerned with the use of hormones in beef, while the U.S. has not shown the same concern. Contrarily, the U.S. has been much more precautionary when dealing with risks of mad cow disease. SUNSTEIN, supra note 356, at 20. 389For example, one “risk” of breed bans is that such bans can harm persons with service animals counted as members of the banned breeds. Recently, after Moreauville, Louisiana passed a ban on pit bulls and Rottweilers, a family took to social media to seek support to save their family pit bull who provided both companionship for the family and assistance in predicting seizures in one of

the children. Emanuella Gringberg & Natalie Sneddon, Family Fights to Save Pit Bull from Being ‘Impounded’, CNN, (URL removed for reprint). 390See, e.g., Josh Saul, Soap Actor Commits Suicide After Pup's ‘Forced’ Euthanasia, N. . POST, (URL removed for reprint). (discussing how “[a] down-on-his-luck soap-opera actor took his own life ... after he was forced to put his beloved dog to sleep”); Laura Rodriguez, Couple Forced to Move Pit Bull Service Dog from Miami- Dade to Broward County, NBC 6 S. FLA., (URL removed for reprint).Doug Brown, Veteran with Pit Bull Service Dog Sues Lakewood, Animal Warden, SCENE, (URL removed for reprint). 391Jaime Lutz, Family Chooses Homelessness over Abandoning Pit Bull, ABC NEWS, (URL removed for reprint). 392Andrea Beetz et al., Psychosocial and Psychophysiological Effects of Human-Animal Interactions: The Possible Role of Oxytocin, 3 FRONTIERS IN PSYCHOL. 234 passim (2012). 393John Platt, Iowa Town's Pit Bull Ban Forces Veteran Cop to Give up His Service Dog, MOTHER NATURE NETWORK, (URL removed for reprint). 394The Affect Heuristic, supra note 366, at 1335. 395Id. at 1336. 396Id. 397Id. 398Id. This persistence has far-reaching consequences as it provides further evidence to show that emotion-based opinions are long lasting and difficult to counteract or change. 399Id. at 1343-44. 400The Affect Heuristic, supra note 366, at 1343-44. 401Id. 402Id. 403Id. 404Id. at 1344. 405Id. at 1343. 406The Affect Heuristic, supra note 366, at 1343. 407Id. at 1347. 408Id. at 1347-48.

409Id. at 1347. 410Id. 411Id. at 1348. 412Brand, supra note 4. 413SUNSTEIN, supra note 356, at 87. 414Id. at 86. 415The Affect Heuristic, supra note 366, at 1349. 416Id. 417Id. 418SUNSTEIN, supra note 356, at 39. 419KAHNEMAN, supra note 351, at 144. 420SUNSTEIN, supra note 356, at 39, 87. 421Id. at 39-40. “[W]ith respect to risks of injury or harm, vivid images and concrete pictures of disaster can ‘crowd out’ other kinds of thoughts, including the crucial thought that the probability of disaster is very small. ‘If someone is predisposed to be worried, degrees of unlikeliness seem to provide no comfort, unless one can prove that harm is absolutely impossible, which itself is not possible.”’ Id . at 82-83 (quoting JOHN WEINGART, WASTE IS A TERRIBLE THING TO MIND 362 (2001)). 422SUNSTEIN, supra note 356, at 37. 423Cass R. Sunstein, Probability Neglect: Emotions, Worst Cases, and Law, 112 ALE L.J. 61, 63 (2002) [hereinafter Probability Neglect]. 424Id. at 68. 425See id. at 92, 99-100 (pointing out the tendency for people to call for laws and regulations in response to these heuristics). 426SUNSTEIN, supra note 356, at 63; KAHNEMAN, supra note 351, at 144. 427SUNSTEIN, supra note 356, at 63; KAHNEMAN, supra note 351, at 144. 428See, e.g., NAT'L CANINE RESEARCH COUNCIL, supra note 312; Ott et al., supra note 186, at 135; Cornelissen & Hopster, supra note 27, at 293. Laws and policies that reduce public fear, thereby taking pressure off of legislators, but do not actually affect the risk of danger, can promote a false sense of security amongst community members and lead to increased risks when individuals lower their guard against a danger believed to be removed. In communities

where pit bulls are banned, dog bites, and even dog attack fatalities remain a risk. 429Sunstein points to shark attacks as an example of such misallocation of resources: “In the summer of 2001, vivid images of shark attacks created a public outcry about new risks for ocean swimmers. Consider the fact that a NEXIS search found 940 references to shark attacks between August 4, 2001, and September 4, 2001, with 130 references to ‘the summer of the shark.’ This was so notwithstanding the exceedingly low probability of a shark attack and the absence of any reliable evidence of an increase in shark attacks in the summer of 2001. Predictably, there was considerable discussion of new regulations to control the problem and eventually regulations were adopted. Public fear seemed relatively impervious to the fact that the underlying risk was miniscule.” Probability Neglect, supra note 423, at 99-100 (internal citations omitted). 430Report of the Vicious Animal Legislation Task Force, Prince George's County, Maryland, 7, 15 (July 2003) (URL removed for reprint). (concluding the law and administrative regulations concerning vicious dogs are costly and inefficient in terms of the fiscal and human resources required to enforce the breed specific portion of the ordinance.”). See also Erica Jamieson, 3 Reasons BSL Doesn't Work and How to Fix It, EXAMINER.COM, (URL removed for reprint). (“[T]he cost to the county to confiscate and euthanize a single dog with the label ‘pit bull’ was about $68,000 with no measurable result in increased safety.”). 431 Probability Neglect, supra note 423, at 85-86; SUNSTEIN, supra note 356, at 65. For example, Sunstein points to the anthrax attacks of October 2001 and the ‘summer of the shark,’ while Daniel Gardner in SCIENCE OF FEAR points out a variety of media panics over the past few decades, including internet pedophiles in the early 2000s, satanic cults in the 1990s, and child abductions in the 1980s. Probability Neglect, supra note 423 at 99-102; GARDNER, supra note 374, at 34. 432SUNSTEIN, supra note 356, at 38, 103, 206. 433The representativeness heuristic guides people in their prediction of probability. The probability that A is a member of B's class, is evaluated or determined based on how much A resembles, or is representative of, B. An

example used by Tversky and Kahneman considers the question of how probable it is that a particular neighbor named ‘Steve’ is a librarian. When Steve is described in terms such as withdrawn, shy, and bookish yet helpful, people estimate the probability of him being a librarian to be high, mainly based upon the fact that he resembled the stereotype of a librarian, even though the actual probability of him being a librarian is quite low. See Judgment Under Uncertainty, supra note 352, at 1124. 434SUNSTEIN, supra note 356, at 103. 435Id.; see also, David A. Logan, All Monica, All of the Time: The 24-Hour News Cycle and the Proof of Culpability in Libel Actions, 23 U. ARK. LITTLE ROCK L. REV. 201, 201-04 (Fall 2000) (tracing the history of the 24-hour news cycle and its impacts on contemporary journalism, media coverage, and the law-- often resulting in misstatements of facts). 436Logan, supra note 435, at 201-04. 437One of the recurring themes on the HBO drama, Newsroom, is the conflict between the idealistic, old-time ‘newsman’ who wants to educate the public about the news they should know about, and the modern network that employs him and must give the public the news they want because it will pay the bills. See The Newsroom In Brief, HBO, (URL removed for reprint). (discussing the development of one of the main characters in the series, Will McAvoy, and his issues with the modern news system). 438SUNSTEIN, supra note 356, at 85. 439Id. at 87. 440Id. 441Pit Bull Definition, MERRIAM-WEBSTER, (URL removed for reprint).). 442While it is relatively easy to evoke fear and probability neglect concerning low risk dangers, it is not at all easy to turn back that fear. Presentation of statistics, probabilities, and other facts to reverse the effect of the heuristics meet with very limited success. Sunstein advises that sometimes the best means of reducing fear is actually just to ‘change the subject’ of the conversation. SUNSTEIN, supra note 356, at 125. 443The discussion of the affect heuristic above shows us that if we are “primed” to think positively about something, that positivity is likely to persist

and influence us in subsequent evaluations. The Affect Heuristic, supra note 366, at 1336. 444SUNSTEIN, supra note 356, at 39. 445Id. at 93. Sunstein notes that our “predispositions” play a role in determining which examples we find most salient. Id. 446Id. at 94. 447Id. at 96. 448Id. at 95. 449Snopes.com is an entire website devoted to investigating the truth of questionable news reports, urban legends, rumors, chain emails, Facebook stories, and the like. SNOPES.COM, (URL removed for reprint). 450SUNSTEIN, supra note 356, at 6, 95-96. 451Id. at 101. 452Id. at 102. 453Id. at 101. 454GARDNER, supra note 374, at 185-186. The average number of family abductions of children per year is 200,000, while the number of stranger abductions of children under the age of 18 is 115. Id. 455 See Dewey G. Cornell, Gun Violence and Mass Shootings-Myths, Facts, and Solutions, WASH. POST, (URL removed for reprint). (noting that school shootings are rare and most homicides occur in homes rather than public places). 456 Kalev Leetaru, Don't Blame CNN for the Ebola Panic, FOREIGN POL'Y MAG. (Oct. 24, 2014) (URL removed for reprint). 457 See Deaths and Mortality, CDC, (URL removed for reprint). (showing 56,979 deaths from influenza and pneumonia in 2013); Methicillin-Resistant Staphylococcus Aureus Infections, CDC, (URL removed for reprint). (showing an estimate of 75,309 MRSA infections in 2012). 458SUNSTEIN, supra note 356, at 43. 459Id. at 96, 98. 460Id. at 98. 461Id. 462Id. 463Id. at 38.

464GARDNER, supra note 374, at 58. 465SUNSTEIN, supra note 356, at 38. 466Id. at 98. 467Id. at 102-03. 468See Brand, supra note 4; Sager, supra note 4; Swift, supra note 4 (noting prevalent public perception that pit bulls are associated with drug dealers and violent criminals, as well as the frequency with which pit bulls are subjected to dogfighting). 469See, e.g., Barnes et. al., Ownership of High-Risk (“Vicious”) Dogs as a Marker for Deviant Behaviors, 21 J. INTERPERSONAL VIOLENCE, 1616 passim (2006) (linking socially deviant behavior with owning what the authors of the study defined as a high-risk dog: pit bulls or breeds typically covered under BSL). 470Brand, supra note 4. 471 Id. 472Id. 473Id. 474Id. 475Green, supra note 4. “Pit bulls are, in fact, less popular among ordinary dog lovers than among back-alley types who prize them for the very qualities that make them dangerous. Although organized dog fighting is illegal in the U.S., thousands of fans still savor the so-called sport. To satisfy the demand for combatants, unscrupulous breeders peddle hundreds of pit bulls crossbred for great strength and explosive temperament. Drug dealers and other lowlifes favor pit bulls as fearsome guard dogs, and inner-city teenagers have begun to adopt them as symbols of manhood.” Id. 476Tellings II, 871 N.E.2d at 1157. 477Id. This statistical argument seems circular. Pit bulls are more often shot by officers, but is that because they are actually more dangerous or because officers are simply more afraid of them due to shared societal fears? 478See Danger of Death!, supra note 378 (depicting the likelihood of death from dog attacks as significantly less likely than many other potential causes of death). 479Id.

480See Brand, supra note 4; Sager, supra, note 4; Swift, supra note 4 (describing the pervasive nature of the public's association of pit bulls with crime and danger). 481SUNSTEIN, supra note 356, at 102. 482Id. 483KAHNEMAN, supra note 351, at 97-99. 484See, e.g., Patronek, supra note 15 passim (discussing the multiple factors leading to serious dog attacks and the potential legislative solution). 485Id. 486Id. at 1732 fig.1. 487Id. at 1726. 488Id. at 1729-30, 1732. 489Patronek, supra note 15, at 1730. 490Crista L. Coppola, Human Interaction and Cortisol: Can Human Contact Reduce Stress for Shelter Dogs?, 87 PHYSIOLOGY & BEHAV. 537, 540 (2006). Human contact showed a decrease in cortisol levels for shelter dogs, indicating a reduction in stress response. Id. 491See, e.g., .B. 2783, 77th Gen. Assemb., Reg. Sess. (Or. 2013) (limiting the amount of time an animal may be tethered to ten hours within a twenty-four hour period). 492See, e.g., C.D. Watson, The Trouble with Mandatory Spay/Neuter Laws, PETSADVISOR (URL removed for reprint). (pointing to the various mandatory spay-neuter laws and describing the issues and difficulties with implementation of such laws). 493RICHARD. THALER & CASS R. SUNSTEIN, NUDGE: IMPROVING DECISIONS ABOUT HEALTH, WEALTH, AND HAPPINESS 6 (2008). 494Id. 495For example, Allegheny County, PA, where Duquesne University School of Law is located, charges less for a dog license if the dog is spayed or neutered rather than left intact. Allegheny County, Pa., Dog License Application (URL removed for reprint). 496NATHAN WINOGRAD, REDEMPTION: THE MYTH OF PET OVERPOPULATION AND THE NO KILL REVOLUTION IN AMERICA 29 (2007). 497Id.

498533 N.E.2d at 647 (Mass. 1989). 499SUNSTEIN, supra note 356, at 204. 500Id. 501MLB pitcher Mark Buehrle, owner of a pit bull named Slater, has had to deal with pit bull bans in Miami and Toronto. While with the Miami Marlins, the pitcher and his family bought a house in nearby Broward County to avoid the Miami- Dade county ban. Once traded to the Toronto Blue Jays however, Buehrle and his family had to make a tough decision. In the end, they decided to have the family and Slater remain at their home in St. Louis, while the pitcher went to Toronto to play during the eight-month season. Buehrle has the financial means to make decisions like this, though it certainly could not be easy for him or his family. Others are not so lucky. Jerry Crasnick, Lonely Days Ahead for Mark Buehrle, ESPN, (URL removed for reprint). 502Actresses such as Jessica Biel, Kayle Cuoco, and Kristin Bauer are wellknown pit bull owners and advocates. See Actress Kaley Cuoco Responds To Kelly Ripa's Pit Bull Comment, CBS L.A., (URL removed for reprint). (providing links to the Twitter-feed discussion between the celebrities regarding pit bulls); Famous Pit Bull Lovers, Celebrity Pit Bulls, ANIMAL PLANET, (URL removed for reprint). (showcasing the celebrity's fondness for her pit bull named Tina). 503THE FEDERALIST NO. 78 (Alexander Hamilton). 504Probability Neglect, supra note 423, at 95. “There is ... a striking asymmetry between increasing fear and decreasing it. If people are now alarmed about a low-probability hazard, is there anything that government can do to provide assurance and to dampen concern? This is an unanswered question. The only clear point is that government is unlikely to be successful if it simply emphasizes the low probability that the risk will occur. There appears to be no evidence that any particular strategy will succeed. But the best approach may well be simple: Change the subject. We have seen that discussions of low-probability risks tend to heighten public concern, even if those discussions consist largely of reassurance. Perhaps the most effective way of reducing fear of a low-probability risk is simply to discuss something else and to let time do the rest. Of course, media attention can undermine this approach.” Id. 505Id.

506Introducing the American Shelter Dog, the Dog You've Always Known, LEWIS & CLARK HUMANE SOC'Y, (URL removed for reprint). 507Gilchrist et al., supra note 317, at 296. 508Id. at 300. 509Pet Industry Market Size & Ownership Statistics, AM. PET PRODS. ASS'N, (URL removed for reprint).

Chapter 5 CAFO Bans

Introduction CAFO bans Todd Township Pennsylvania Michigan Rhode Island Washington Phoenix Improving the welfare of egg-laying hens through acknowledgement of freedoms Won’t you be my neighbor? Introduction CAFO bans Animal cruelty leveled against companion animals is nothing compared to the animal cruelty inherent in modern animal agriculture. Billions of farm animals suffer in the United States. Egg laying hens are jammed into cages with less space to live their lives than 2/3 of a sheet of notebook paper. Veal calves are crated with not enough space even to turn around or lie down. Beef cattle spend the majority of their lives walking in feedlots filled with urine-soaked mud. Also, there are environmental impacts of these factory farms. Watersheds polluted. CAFO's release greenhouse gasses into the air we all breath. And these factory farms give off a stench that effects the overall quality of life in a community.

In the past activist attacked these problems from the margins. Laws were created to give farm animals more space. Environmental regulations were used to help reduce water pollution. However, this is a new era in citizens standing up to factory farms. Todd Township in Pennsylvania has addressed these issues head-on. This township has declared that it is the citizens unalienable right to be free of the harms caused by factory farms. Any citizen of the township has the standing to bring an action challenging any new Confined Animal Feeding Operation. Other laws ban CAFO's as they exist now by giving animals more space to live. To read more about the horrors of CAFO's we have the Iowa Law Review Article "won't you be my neighbor?" The author Emily Kolbea has allowed us to reprint this description of CAFO's in the US. “Improving the welfare of egg laying hens through acknowledgement of freedoms” describes the approach of changing the ways factory farms operate. Todd Township Pennsylvania A Community Bill of Rights Preamble We hold these truths to be self-evident, that all People are created equal, that they naturally are endowed with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness; that to secure these rights, People institute Governments, which derive their just powers solely from the consent of the governed; that whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness; and Whereas, this right of self-government is natural, fundamental, and unalienable, and also is secured to the People of Todd Township by the United States Constitution and the Constitution of the Commonwealth of Pennsylvania; and Whereas, pursuant to that right of self-government, if our current system of local government infringes our rights, then We the People of Todd Township have the right to work with our local elected officials to alter that system by

instituting a new form that secures and protects our rights, as long as that new system does not infringe other rights secured for people and nature; and Whereas, pursuant to the Environmental Rights Amendment in the Pennsylvania Constitution, Article I, Section 27, Todd Township has the duty to conserve and protect the natural resources of Todd Township, which are held in the public trust; and Whereas, pursuant to the Environmental Rights Amendment in the Pennsylvania Constitution, Article I, Section 27, We the People of Todd Township have the right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment; and Whereas, present and future generation residents of Todd Township are beneficiaries of the public trust doctrine, as secured by the United States and Pennsylvania Constitutions, who have the right to essential natural resources, such as the air, water, and soils, and to a life-sustaining climate system; and Whereas, it is our legislative determination that industrial farms have a direct adverse effect on public health, safety, and welfare, because of their harmful impact on our clean air, pure water, and the preservation of the natural, scenic, historic and esthetic values of the environment in Todd Township; and Whereas, restrained by state and federal law, which courts interpret to dictate that We must accept that harmful activity, We the People of Todd Township are currently unable to secure our rights; Therefore, We deem it necessary to alter our system of local government to enable us to secure our rights and to be free from activity that infringes those rights, and We do so by adopting this Community Bill of Rights Ordinance. Section 1 – Definitions (a) As used in this Ordinance, “industrial farm activity” means activity by a livestock or poultry operation, when that operation possesses one or more of the following characteristics: (1) the livestock or poultry, dead or alive, are not wholly owned by either the owner of the real property where they are farmed in Todd Township or by a natural person or business entity whose domicile or primary place of business is within Todd Township; (2) a majority of feed each calendar year is imported from outside Todd Township; (3) the operation has an industrial warehouse esthetic that is incongruous with the surrounding landscape, contrary to the scenic agricultural barns and fields that provide

Todd Township’s rural character; or (4) a majority of the operation’s sales revenues each calendar year do not go to natural persons or business entities whose domicile or primary place of business is within Todd Township. (b) As used in this Ordinance, “Residents” means natural persons who physically reside in Todd Township, who are registered to vote in Todd Township, or who pay property taxes on real property owned in Todd Township. Section 2 – Statements of Law (a) Right of Self-Government. All residents of Todd Township live in a democracy and therefore possess a right of self-government, which includes, but is not limited to, the following rights: first, the right to a system of local government founded on the consent of the governed locally; second, the right to a system of local government that secures their rights; and third, the right to alter any system of local government that lacks the consent of, or fails to secure and protect the rights of, the governed locally. (b) Right to a Healthy Climate. All residents of Todd Township possess a right to a healthy, livable climate, which includes the right to be free from industrial farm activity as an infringement of this right. (c) Right to Sustainable Agriculture. All residents of Todd Township possess a right to sustainable agriculture, which includes the right to be free from industrial farm activity as an infringement of this right. (d) Right to Clean Air, Water, and Soil. All residents of Todd Township possess the right to clean air, water, and soil, which includes the right to be free from industrial farm activity as an infringement of this right. (e) Right to the Preservation of the Natural, Scenic, Historic, and Esthetic Values of the Environment. All residents of Todd Township possess the right to the preservation of the natural, scenic, historic, and esthetic values of the environment, which includes the right to be free from industrial farm activity as an infringement of this right. (f) Rights of Ecosystems and Natural Communities. Ecosystems and natural communities within Todd Township, including but not limited to rivers, streams, lakes, and aquifers, possess the right to exist, flourish, and evolve, naturally, which includes the right to be free from industrial farm activity as an infringement of this right.

(g) Right to Fair Governmental Representation. All residents of Todd Township possess the right to fair local governmental representation and transparency in government, which includes the right to require recusal of local elected officials from making decisions on issues upon which they may be perceived to have a conflict of interest or other bias. (h) Right to Protection from Governmental and Corporate Interference. All residents of Todd Township possess the right to enforce this Ordinance, and also to have the municipality of Todd Township enforce it, free from interference by business entities and governments. This right includes the right to enforce the provisions of this Ordinance regardless of conflicting state, federal, or international law; provided, however, that provisions of this Ordinance shall not infringe rights secured by, or lessen legal protections provided for natural persons, ecosystems, or natural communities by, state, federal, or international law. Section 3 – Enforcement (a) Any livestock or poultry operation, business entity, or government that violates any provision of this Ordinance shall be subject to civil penalties of $600 per violation in accordance with 53 P.S. § 66601(c.1)(1) and/or criminal penalties of $1,000 per violation in accordance with 53 P.S. § 66601(c.1)(2). Each day during which any violation of this Ordinance continues shall constitute a separate offense. Enforcement of penalties in this Section shall take place in accordance with 53 P.S. § 66601(c.1). (b) Any livestock or poultry operation, business entity, or government that violates any provision of this law shall be liable for any injury to an ecosystem or natural community caused by the violation. Damages shall be measured by the cost of restoring the ecosystem or natural community to its state before the injury, and shall be paid to Todd Township, and held in public trust for the people of Todd Township, to be used exclusively for the full and complete restoration of the ecosystem or natural community. (c) Todd Township and/or any resident of Todd Township may enforce or defend this Ordinance in an action brought in their name. Ecosystems and natural communities within Todd Township, including but not limited to

rivers, streams, lakes, wetlands, and aquifers, may enforce or defend this Ordinance through an action brought by Todd Township or a resident in the name of the ecosystem or natural community as the real party in interest. Any resident, and any ecosystem or natural community, also has the right to intervene in any action concerning this Ordinance in order to enforce or defend it, if in such an action, Todd Township does not adequately represent their particularized interests. (d) This Ordinance does not apply to livestock or poultry operations that are engaged in industrial farm activity on the day of enactment of this Ordinance, provided, however, that any such operation that ceases to engage in industrial farm activity after enactment of this Ordinance shall automatically and forever after become subject to this Ordinance. Michigan ANIMAL INDUSTRY ACT (EXCERPT) Act 466 of 1988 287.746 Definitions; tether or confinement of farm animal; prohibitions; exceptions; violation of section; injunction; construction of section; effective date of certain provisions. Sec. 46. (1) As used in this section: (a) "Calf raised for veal" means any calf of the bovine species kept for the purpose of producing the food product described as veal. (b) "Covered animal" means any gestating sow, calf raised for veal, or egglaying hen that is kept on a farm. (c) "Egg-laying hen" means any female domesticated chicken, turkey, duck, goose, or guinea fowl kept for the purpose of egg production. (d) "Enclosure" means any cage, crate, or other structure used to confine a covered animal. Enclosure includes what is commonly described as a "gestation crate or stall" for gestating sows, a "veal crate" for calves raised for veal, or a "battery cage" for egg-laying hens. (e) "Farm" means the land, building, support facilities, and other equipment that are wholly or partially used for the commercial production of animals or

animal products used for food or fiber. Farm does not include live animal markets. (f) "Farm owner or operator" means any person who owns or controls the operation of a farm. (g) "Fully extending its limbs" means fully extending all limbs without touching the side of an enclosure. In the case of egg-laying hens, fully extending its limbs means fully spreading both wings without touching the side of an enclosure or other egg-laying hens and having access to at least 1.0 square feet of usable floor space per hen. (h) "Gestating sow" means any confirmed pregnant sow of the porcine species kept for the primary purpose of breeding. (i) "Person" means any individual, firm, partnership, joint venture, association, limited liability company, corporation, estate, trust, receiver, or syndicate. (j) "Turning around freely" means turning in a complete circle without any impediment, including a tether, and without touching the side of an enclosure or another animal. (2) Notwithstanding any other provision of law, a farm owner or operator shall not tether or confine any covered animal on a farm for all or the majority of any day, in a manner that prevents such animal from doing any of the following: (a) Lying down, standing up, or fully extending its limbs. (b) Turning around freely. (3) The prohibitions of subsection (2) shall not apply to a covered animal during any of the following: (a) Scientific or agricultural research. (b) Examination, testing, individual treatment, or operation for veterinary purposes, by a person licensed to practice veterinary medicine under part 188 of the public health code, 1978 PA 368, MCL 333.18801 to 333.18838. (c) Transportation, unless otherwise in violation of section 51 of the Michigan penal code, 1931 PA 328, MCL 750.51, relating to confining animals on railroad cars. (d) Rodeo exhibitions, state or county fair exhibitions, 4-H programs, and similar exhibitions.

(e) The slaughter of a covered animal in accordance with 1962 PA 163, MCL 287.551 to 287.556, and other applicable law and rules. (f) In the case of a gestating sow, the period beginning 7 days before the gestating sow's expected date of giving birth. (4) The department or the attorney general may bring a civil action to restrain, by temporary or permanent injunction, any act or practice in violation of this section. The action may be brought in the circuit court for the county where the defendant resides or conducts business. The court may issue a temporary or permanent injunction and issue other equitable orders or judgments. A defense described and made available relating to customary animal husbandry or farming practices involving livestock, under sections 50(11)(f) and 50b(8) of the Michigan penal code, 1931 PA 328, MCL 750.50 and 750.50b, or similar provisions, are not considered a defense to an action brought for the violation of this section involving a covered animal. In addition, the criminal penalties provided in section 44 are not applicable to violations of this section. (5) The provisions of this section are in addition to, and not in lieu of, any other laws protecting animal welfare. This section shall not be construed to limit any other state law or rules protecting the welfare of animals. (6) The provisions of this section do not apply to calves raised for veal until October 1, 2012. (7) The provisions of this section do not apply to egg-laying hens and gestating sows until 10 years after the enactment date of the amendatory act that added this section. History: Add. 2009, Act 117, Eff. Mar. 31, 2010 Compiler's Notes: Former MCL 287.746, which pertained to repeal of Act 181 of 1919, MCL 287.1 to 287.26a, was repealed by Act 323 of 2000, Imd. Eff. Oct. 31, 2000. Rhode Island It is enacted by the General Assembly as follows: SECTION 1. Sections 4-1.1-1, 4-1.1-2, 4-1.1-3, 4-1.1-4 and 4-1.1-5 of the General Laws 1 in Chapter 4-1.1 entitled "Unlawful Confinement of a Covered Animal" are hereby amended to read as follows:

4-1.1-1. Definitions. For the purposes of this chapter: (1) "Calf raised for veal" means a calf of the bovine species kept for the purpose of producing the food product referred to as veal. (2) "Crate" means a "gestation crate" for sows or a "veal crate" for calves. "Covered animal" means any sow during gestation, calf raised for veal, or egg-laying hen that is kept on a farm. (3) "Egg-laying hen" means any female domesticated chicken, turkey, duck, goose, or guinea fowl kept for the purpose of egg production. (4) "Enclosure" means any cage, crate, or other structure used to confine a covered animal or animals. Enclosure includes what is commonly described as a "gestation crate" or "stall" for sows during gestation, a "veal crate" for calves raised for veal, and a "battery cage, enriched cage, or colony cage" for egglaying hens (5) "Farm" means the land, building, support facilities, and other equipment that are wholly or partially used for the commercial production of animals or animal products used for food or fiber; and does not include live animal markets. 1 (6) "Farm owner or operator" means any person who owns or controls the operation of 2 a farm, and does not include any non-management employee, contractor, or consultant. 3 (7) "Fully extending the animal's limbs" means fully extending all limbs without 4 touching the side of an enclosure. In the case of egg-laying hens, "fully extending the animal's 5 limbs" means fully spreading both wings without touching the side of an enclosure or other egg- 6 laying hens and having access to the amount of usable floor space per hen that complies with the 7 2016 Edition of the United Egg Producers Animal Husbandry Guidelines for U.S. Egg Laying 8 Flocks "Guidelines for Cage-Free Egg Production." (8) "Person" means any individual, firm, partnership, joint venture, association, 10 limited liability company, corporation, estate, trust, receiver, or syndicate. 11 (9) "Sow during gestation" means a pregnant pig of the porcine species kept for the 12 purpose of breeding.

(10) "Turning around freely" means turning in a complete circle without any impediment including a tether, and without touching the side of a crate. 4-1.1-2. Purpose. The purpose of this chapter, subject to exceptions set forth in § 4-1.1-4, is to prohibit the confinement of calves raised for veal and sows during gestation a covered animal in a manner that prevents the animal from turning around freely, lying down, standing up or fully extending the animal's limbs. 4-1.1-3. Unlawful confinement. Notwithstanding any other provision of law, a person is guilty of unlawful confinement of a sow or calf covered animal if the person is a farm owner or operator who knowingly tethers or confines any sow or calf covered animal in a manner that prevents such animal from turning around freely, lying down, standing up, or fully extending the animal's limbs. 4-1.1-4. Exceptions. This section shall not apply: (1) During medical research. (2) Temporary confinement prior to and during examination, testing, individual treatment or operation for veterinary purposes. (3) During transportation. (4) During rodeo exhibitions, state or county fair exhibitions, 4-H programs, and similar exhibitions or educational programs. (5) During temporary confinement for animal husbandry purposes for no more than six (6) hours in any twenty-four (24) hour period unless ordered by a licensed veterinarian. (6) During the humane slaughter of a sow or pig covered animal in accordance with the 2 provisions of chapter 4-17, and other applicable laws and regulations. 3 (7) To a sow during the fourteen (14) five (5) day period prior to the sows expected date of giving birth and extending for a duration of time until the piglets are weaned any day that the sow is nursing piglets. This period may be modified upon the order of a licensed veterinarian. (8) To calves being trained to exhibit. (9) To calves being trained to accept routine confinement in dairy and beef housing.

4-1.1-5. Penalty. (a) The provisions of this chapter are in addition to, and not in lieu of, any other laws protecting animal welfare. This chapter may not be construed to limit any other state laws or rules protecting the welfare of animals or to prevent a local governing body from adopting and enforcing its own animal welfare laws and regulations. (b) It is not an affirmative defense to alleged violations of this chapter that the calf or sow covered animal was kept as part of an agricultural operation and in accordance with customary animal husbandry or farming practices. (c) Any person who violates the provisions of this chapter or any rules or regulations promulgated hereunder shall be fined not less than fifty dollars ($50.00) nor exceeding five hundred dollars ($500), or both. (d) This chapter shall be construed to supersede § 4-1-3(a) only with respect to the 20 minimum space required for the housing of egg-laying hens. 21 SECTION 2. This act shall take effect on July 1, 2026. 22 Washington RCW 69.25.065 Egg handler's or dealer's license—Renewal applications—Egg and egg products provided in intrastate commerce produced by commercial egg layer operations—Proof. (1) All new and renewal applications submitted under RCW 69.25.050 before January 1, 2026, must include proof that all eggs and egg products provided in intrastate commerce by the applicant are produced by commercial egg layer operations: (a) With a current certification under the 2010 version of the united egg producers animal husbandry guidelines for United States egg laying flocks for conventional cage systems or cage-free systems or a subsequent version of the guidelines recognized by the department in rule; or (b) Operated in strict compliance with any standards, adopted by the department in rule, that are equivalent to or more stringent than the standards identified in (a) of this subsection. (2) All new and renewal applications submitted under RCW 69.25.050 before January 1, 2017, must, in addition to complying with subsection (1) of this

section, include proof that all eggs and egg products provided in intrastate commerce by the applicant are produced by commercial egg layer operations whose housing facilities, if built between January 1, 2012, and December 31, 2016, are either: (a) Approved under, or convertible to, the American humane association facility system plan for enriched colony housing in effect on January 1, 2011, or a subsequent version of the plan recognized by the department in rule and, in addition, are convertible to the standards identified in RCW 69.25.107; or (b) Operated in strict compliance with any standards, adopted by the department in rule, that are equivalent to or more stringent than the standards identified in (a) of this subsection. (3) All new and renewal applications submitted under RCW 69.25.050 between January 1, 2017, and December 31, 2025, must, in addition to complying with subsection (1) of this section, include proof that all eggs and egg products provided in intrastate commerce by the applicant are produced by commercial egg layer operations whose housing facilities, if built on or after January 1, 2012, are either: (a) Approved under the American humane association facility system plan and audit protocol for enriched colony housing in effect on January 1, 2011, or a subsequent version of the plan recognized by the department in rule and, in addition, are operated to the standards identified in RCW 69.25.107; or (b) Operated in strict compliance with any standards, adopted by the department in rule, that are equivalent to or more stringent than the standards identified in (a) of this subsection. (4) All new and renewal applications submitted under RCW 69.25.050 on or after January 1, 2026, must include proof that all eggs and egg products provided in intrastate commerce by the applicant are produced by commercial egg layer operations that are either: (a) Approved under the American humane association facility system plan and audit protocol for enriched colony housing in effect on January 1, 2011, or a subsequent version of the plan recognized by the department in rule and, in addition, are operated to the standards identified in RCW 69.25.107; or

(b) Operated in strict compliance with any standards, adopted by the department in rule, that are equivalent to or more stringent than the standards identified in (a) of this subsection. (5) The following are exempt from the requirements of subsections (2) and (3) of this section: (a) Applicants with fewer than three thousand laying chickens; and (b) Commercial egg layer operations when producing eggs or egg products from turkeys, ducks, geese, guineas, or other species of fowl other than domestic chickens. [ 2011 c 306 § 3.] NOTES: Effective date—2011 c 306: See note following RCW 69.25.020. Phoenix The Code of the City of Phoenix, Arizona. Chapter 8 - ANIMALS. Sec. 8-7. - Poultry and rodents. (a) Except as otherwise provided in this article, it is hereby declared to be a nuisance and it shall be unlawful for any person to keep rodents or poultry within the City. No poultry or rodents shall be kept in an enclosure within eighty feet of any residence within the City. Poultry may be kept within eighty feet of a residence if written permission consenting to the keeping of poultry less than eighty feet from a residence is first obtained from each lawful occupant and each lawful owner of such residence. Poultry shall not be kept in the front yard area of any lot or parcel within the City. Poultry and rodents shall be kept in an enclosure so constructed as to prevent such poultry and rodents from wandering upon property belonging to others. (b) No more than twenty head of poultry nor more than twenty-five head of rodents nor more than twenty-five head comprising a combination of rodents and poultry shall be kept upon the first one-half acre or less. An additional onehalf acre shall be required for each additional twenty head of poultry or for each additional twenty-five head of rodents or for each additional twenty-five head

comprising a combination of poultry and rodents. For areas larger than two and one-half acres the number of poultry or rodents shall not be limited. (c) No male poultry shall be kept within the City limits except such male poultry as are incapable of making vocal noises which disturb the peace, comfort or health of any person residing within the City. (d) All such enclosures shall be kept in such condition that no offensive, disagreeable or noxious smell or odor shall arise therefrom to the injury, annoyance or inconvenience of any inhabitant of the neighborhood thereof. (Code 1962, § 8-8 ; Ord. No. G-1207, § 1; Ord. No. G-1367, § 1) Improving the welfare of egg-laying hens through acknowledgement of freedoms Amanda Wright Used by permission – Thank you to the University of Michigan College of Law, the Journal of animal & natural resource law, David Favre, and of course the author, Amanda Wright. I. Introduction Over 90 percent of the 10 billion agricultural animals raised and slaughtered in the United States are chickens; yet, chickens are the least protected agricultural animal in terms of animal welfare laws in our country.1 Each year egg producers in the United States use over 337 million battery-hens or egglaying hens and each year those hens lay 80 billion eggs.2 Unfortunately, 97 percent of the nation’s 80 billion eggs come from birds, who suffer the confinements of small battery cages.3 While the United States has usually led the way for laws that protect animal welfare, our country has fallen drastically behind many European countries and the European Union.4 However, the United States has newly proposed legislation known as the Egg Products Inspection Act Amendments of 2010 or H.R. 3798. This bill is a product of the United Egg Producers and the Humane Society of the United States. If passed, H.R. 3798 would be the first and only Federal legislation that provides for the welfare of egg-laying hens and puts restrictions on the egg-producing industry.5 This paper analyzes the flaws in H.R. 3798

and explains that the proposed legislation cannot adequately protect hens’ welfare in a system that seeks to exploit these animals. The paper proposes that in order to remedy the egg-producing industry’s pervasive animal abuse and influence over egg-production legislation, our government should adopt an acknowledgement of enumerated animal rights or freedoms and implement it into H.R. 3798. First, this paper provides a brief history of factory farming as used in the eggproducing industry. This section of the paper discusses the consequences of factory farming on the lives of egg-laying hens and the evidence of suffering as a result of utilizing these practices. This first section demonstrates a need for regulations and reveals the egg- producing industry’s ability to control, influence, and prevent useful progressive regulations. Next, this paper examines and compares the current laws protecting egglaying hens abroad, specifically in the European Union and the United States. This section explains the European Union’s success in implementing regulations that protect the hens’ welfare and how Europe succeeded in passing these laws despite the egg-producing industry’s influence. This section of the paper also examines the proposed bill in the United States, H.R. 3798, and the egg-producing industry’s influence and control over this bill. Finally, this paper proposes a solution for creating legislation in the United States that adequately protects the welfare of egg-laying hens. The paper proposes adopting the “Five Freedoms,” promulgated by the United Kingdom and now “expressed in various animal-welfare recommendations, codes, and legislation in Europe.” Five Freedoms has helped eliminate or decrease the suffering of millions of egg-laying hens.6 This section explains the need for an acknowledgment of enumerated rights for hens in order to combat the eggproducing industry’s pervasive control and potential abuse of the legislative process. ii. factory farming in the united states Prior to World War II, small family farms raised our country’s chickens, and independent producers accounted for nearly all egg production.7 These farms were the romanticized images of farms we were exposed to as children. The chickens would roam free for most of the day, foraging and scratching for food

and the individual farmer or farmers fed, watered, and slaughtered the chickens for food, sale, and consumption.8 Just prior to World War II, farmers began specializing “in the production of chickens to meet the constant demand for more eggs and meat.”9 These farmers realized that by adding Vitamin D to the chickens’ diet, chickens could be raised indoors without the need for sunlight.10 Mass indoor production of eggs and meat lead to problems for the birds and farmers because disease spread quickly throughout the poorly ventilated indoor facilities and birds pecked at each other, fighting for space.11 If it were not for the intervention of science and technology, these problems might have halted the development of factory farming in its tracks. Unfortunately, pharmaceutical companies, feed companies, and engineers recognized an opportunity for profit and worked to remedy the obstacles facing farmers.12 Patents on the “automatic debeaking machine,” hormones for the genetic production of perfect hens, and richer feed allowed indoor farming to survive and profit.13 Egg-laying hens were unique to other animals raised on factory farms, in that farmers kept their birds indoors for extensive periods of time to increase and control egg production.14 For this reason, farmers needed a method A. The History and Development of Factory Farming to remove the chicken’s waste so as not to interrupt egg production.15 Farmers, or rather now more accurately called producers, “discovered that they could keep their hens in wire-mesh cages, suspended over a trench to collect the droppings.”16 This discovery birthed the battery cage. As factory farming techniques improved, farms needed fewer people to watch after and maintain the hens. One worker reported that “[w]e used to have one person for every 10,000 [chickens]. Now we have one for every 150,000.”17 Factory farming allowed producers to more easily control their flocks, and cut down on chores such as feeding and waste removal.18 With the aid of a technological revolution, the constant improvement of antibiotics helped farmers diagnose and treat diseases efficiently and quickly.19 These mechanisms allowed farmers to increase production, and decrease time spent caring for and interacting with the chickens, providing the essential pieces to the basic formula of farming factory that allowed producers to increase

profitability while keeping prices low. In fact, producers even managed to beat inflation; the average price of a dozen large eggs in the year 2000 was 67 cents and was less than the average price paid in 1984, of 84 cents.20 With cheap products for consumers flowing from factory farming and the growing number of businesses and industries profiting from the sale of antibiotics, cages, machines, genetically-engineered birds and more, the fate of the egg-laying hen was sealed for many years. In fact, it is this unique formula of factory farming that presents an unparalleled challenge for anyone seeking reform that would benefit the welfare of egg-laying hens, because reform seekers must negotiate with a multi-billion dollar industry built on vertical integration, that includes scientist, producers, engineers, entrepreneurs, and some of the best lawyers in the country. Even a cursory examination of the current egg consumption in the United States per year demonstrates that the egg-producing conglomerate is amongst the richest and the most powerful industries in our country; yet no federal laws exist to regulate the treatment of our nation’s 337 million birds, which are so vital to our country’s enormous egg consumption.21 According to a survey by the NPD Group, a market- research firm in Port Washington, New York, published in Real Simple Magazine, nine out of ten U.S. families reported that eggs are one of the top three groceries always kept in the house.22 According to the U.S. Poultry and Egg Association, in 2010, the per capita egg consumption was reported to be 246, which means that the average person in the United States used or consumed 246 eggs that year.23 In the same year, the value of egg production was up six percent and estimated to be $6.52 billion dollars.24 The growth of this industry, combined with our country’s massive egg consumption, has left those who desire increased regulation of the industry fighting an economic powerhouse with insurmountable influence over the legislative process. B. The Consequences of Factory Farming on the Life of Egg-Laying Hens In order to shape legislation that protects hens’ welfare and regulates the egg-producing industry, it is essential to understand factory farming’s inhumane processes that must be restricted, banned, or regulated. Some of the most prominent processes that will be discussed in this paper are the battery cage system, the debeaking process, forced molting, and other unnatural

processes used to increased egg production; the most logical consequences of which include the hens’ inability to engage in their natural behaviors, resulting in the inhumane suffering of these birds. Unregulated factory farming allows producers to impose several unnatural processes on egg-laying hens. These hens lead a season-free life without natural light or fresh air.25 Crowded and unnatural conditions mean that the hens cannot engage in normal behaviors.26 Hens cannot walk, fly, perch, preen, nest, peck, dust-bathe, or scratch for food.27 Hens may not even be able to stand up and their feet may grow into their cages’ wire flooring. In close confines, hens cannot establish a pecking order, and as a result, they peck and injure each other, or become cannibalistic. All of these unnatural behaviors result in suffering, evidence of which is unique to each nefarious process used on factory farms, and will be examined in the next section. The most infamous practice producers utilize is the confinement of hens in a battery cage. Producers house egg-laying hens in twelve inch by eighteen inch wire cages that may hold up to six birds, giving the birds between 32 to 50 square inches of space.28 Some sources, such as the New York Times, report that on some factory farms these cages can house up to 11 birds.29 The United Egg Producers, a national trade group, set minimum “guidelines” for battery cage space at 67 square inches per bird, which is not even enough room for the birds to fully spread their wings or turn around without bumping into another hen, or the walls of the metal cages.30 Producers stack these cages on top of each other “in dark layer houses that can house up to 80,000 birds.”31 2. Debeaking Next, and almost as notorious as battery cages, producers debeak their baby chicks. During the process, producers cut off three millimeters of the top beak and two and a half millimeters of the lower beak with a hot blade, to prevent the hens from pecking at each other in their close confines.32 Ironically, if hens lived in their natural habitat, their pecking at each other would hardly ever become a problem because hens would establish a pecking order and the birds lower in the hierarchy would be able to escape their oppressors. Thus, debeaking is an unnecessary result of the system of the factory farming system. 3. Forced Molting

Thirdly, producers use a process known as “forced molting” to increase egg production.33 Forced molting causes hens to produce more eggs because the producers induce the hens’ natural egg-producing process through food and water withdrawal. During forced molting periods, hens are not given food for two weeks at a time and not given water for three days at a time.34 As a result, hens lose up to 25 percent of their body weight.35 The weight loss and the lack of food and drink causes stress. In response to such stress, the hens molt, or shed their feathers. After which time, food and water are reinstated, and the hens produce “bigger eggs in greater numbers.”36 Egg-laying hens start to produce eggs when they are sixteen to 22 weeks old, and it is not uncommon for these hens to produce up to 300 eggs by 70 weeks, if the hen survives that long.37 Producers slaughter battery-cage hens after about one year because they stop producing eggs at an acceptable rate to producers.38 4. Slaughter of Male Chicks Lastly, an ill effect of egg-laying hen practices that is not often recognized is the fate of male chicks born to egg-laying hen breeders. Male chicks cannot become layers, and producers consider their meat inferior to that of broiler chickens, so they are rarely used as meat chickens, or boilers. As a result, the producers utilize many inhumane methods to kill the chicks such as suffocation either by piling them into garbage bags or by asphyxiating them with carbondioxide. The producers might also decapitate, bury alive, or grind the baby chicks up alive for animal feed. C. Evidence of Suffering as a Result of Practices Utilized on Factory Farms A major obstacle facing the creation of legislation to protect the welfare of egg-laying hens in the United States is that many people do not believe or are not aware that egg-laying hens suffer. In order to promulgate effective laws, “suffering must be recognizable in some objective way.”39 If we do not recognize how a specific animal suffers, the laws we create may fall short of increasing animal welfare and reducing suffering.40 Therefore, in order to promulgate legislation, it is essential to understand the unique and real ways in which hens suffer as a result of the processes producers force them to endure. 1. Evidence of Suffering as a Result of Battery Cages

Egg-laying hens inevitably suffer because of their close confinement in battery cages, and the lack of daylight and fresh air. In a 1996 report of the Scientific Veterinary Committee of the Animal Welfare Section (SVC) in Brussels, the committee acknowledged a hen’s unique behavioral needs and the harm to their welfare caused by current caging practices.41 The committee reported such negative effects as being prevented from “performing natural behaviors,” and thus, “degeneration from lack of exercise.”42 The committee also noted the physical complications hens face when their claws grow to great lengths from being denied the ability to forage and scratch.43 Often, the hens’ claws grow so long that the claw becomes permanently stuck to the wires of the cages, causing the claw to be torn off when the hens are removed from the cages and sent to slaughter.44 The committee concluded that “battery cage systems provide a barren environment for the birds . . . it is clear that because of its small size and its barrenness, the battery cage as used at present has inherent severe disadvantages for the welfare of hens.”45 2. Evidence of Suffering from Debeaking Our society is accustomed to mutilating animals natural appearances to fulfill our own needs. Dogs’ floppy ears are often cropped to meet breed standards, pigs’ long, curly tails are cut to stop biting in close confinement,46 cattle’s hides are scorched for branding, and baby chicks’ beaks are burned off. Often, we do not recognize that mutilation practices that we consider “useful” or “necessary” to meet food production and other demands produce real suffering. “Poultry ethologist Dr. Ian Duncan explains that the tip of the beak is richly innervated and contains pain receptors.”47 Thus, the young hens experience acute pain after trimming, cutting, or heating the beak.48 “[T]he behavior of debeaked birds is radically altered for many weeks, which, along with neurophysiological evidence, indicates the birds experience chronic pain” from this process.49 3. Evidence of Suffering from the Unnatural Increase of Egg Production Through practices such as forced molting, producers have engineered a bird that can lay an “unnatural number of eggs.”50 Precisely, most egg-laying hens will produce an average of 223 eggs in a year as opposed to the average wild hen which will lay about one to two dozen eggs a year.51 Producers and scientists genetically select hens for early egg production so as to “reduce the time and

money required to feed and house growing birds.”52 As a result, when hens start laying eggs, the hens’ bodies are usually too small and immature to lay the overly large eggs that are induced by forced molting.53 As one author described the result: The uteruses can prolapse, pushing through the vaginas of the small, cramped birds forced to strain day after day to expel huge eggs. The uterus protrudes, hangs, and ‘blows out,’ inviting infection and vent picking by cell mates, from whom the prolapse victim, in severe pain, cannot escape except by dying.54 III. the regulation of egg-laying hens in the Present legal system There is major disparity between European countries’ legislation and the United States’ legislation regulating the egg-production industry. In the last decade, European countries enacted progressive legislation to regulate the animal agricultural industries and, most notably, ensuring egg-laying hens’ welfare. On the other hand, the United States has yet to pass any Federal legislation protecting these birds, leaving the birds “at the mercy of the industry.”55 This section provides a general overview of Europe’s legislation, while comparing it to the current and proposed laws in the United States, because European legislation provides a sound template for how the United States might proceed in passing new legislation.56 A. History of the Progressive Change in Europe and the Egg-Laying Hen Directive Europe’s movement to protect the welfare of egg-laying hens was largely a movement of “ordinary citizens.”57 Lobbying organizations and new media groups evidenced Europe’s changing public opinions regarding meat and egg production.58 A public survey of British citizens in 1990 revealed that people “generally disapproved of intensive farming systems.”59 This general disapproval was associated with a growing public awareness for how food is produced and a “demand for food that is labeled as having been produced under certain standards.”60 Despite the fact that the ordinary citizens’ financial resources were miniscule in comparison to the industry that they were battling, the European Union succeeded in passing a directive that “changed the lives of millions of animals,” including the reduction of suffering in the lives of egglaying hens.61

While public opinion was the greatest driving force to improve animal welfare in Europe, “two major players in the development of animal welfare policy in the European Union included the European Union Scientific Committee on Animal Health and Welfare and the Council of Europe.”62 These groups helped promulgate the Five Freedoms, which was a part of a movement in England to “advise the British government on the need for welfare standards.”63 In 1979, the United Kingdom Agricultural Ministry’s advisory body, the Animal Welfare Council, defined the Five Freedoms, stating that animals have a right to freedom from hunger and thirst, freedom from pain and injury, freedom from discomfort, freedom from fear and distress, and freedom to express natural behaviors.64 The Committee concluded that “the confinement of animals in intensive farming situations should be evaluated and the stresses of confinement considered [to determine] the appropriate methods for rearing.”65 The promulgation of the Five Freedoms and the committee’s general disapproval of “the degree of confinement” on factory farms gave the European Union the ability and the momentum to pass its first progressive animal welfare law.66 Ultimately, these Five Freedoms provided the context for the European Union to create the European Union’s Minimum Standards for the Rearing of Egg Laying, hereinafter referred to as “The Directive.”67 B. The Egg-Laying Hen Directive As previously described, prior to the European Union adopting the Directive, the primary housing for egg-laying hens was the battery cage.68 The Directive identified three types of “rearing systems for laying hens either currently in use or to be implemented in the European Union: non-enriched cage systems where hens have at least 550 square centimeters of cage area per hen, enriched cage systems where laying hens have at least 750 square centimeters of cage per hen (which still does not provide the hens with adequate space to perform all of their natural behaviors), and non-cage systems” which utilize nests for confinement (at least one nest for every seven hens), and provides “adequate perches where the stocking density does not exceed nine laying hens per square meter of usable area.”69 The Directive can be characterized as “phase out” legislation, in which the goal was to eliminate the use of non-enriched systems, which are synonymous with the term battery cages, by the year 2012.70 And, for

those non-enriched systems that are retained, the Directive requires strict guidelines for minimum space, feed troughs, and drinking systems.71 Enriched cage systems are similar to battery cages, but are equipped with more amenities to provide for the health and welfare of egg-laying hens.72 The Directive requires a minimum cage area per hen, nests, litter, and perches, and sets forth a system for facility inspections.73 The Directive requires all regulated facilities register and be “given a distinguishing number to be used for identifying and tracing the eggs that originate from that system.”74 The requirements were to be implemented by the Member States on January 1, 2002.75 However, “some countries have done more to enforce the new law than others, creating a price discrepancy” for eggs across Europe, allowing “cheaper imports from countries that aren’t following the rules.”76 According to Food Safety News, the European Commission plans to take legal action against thirteen countries that are not enforcing the rules.77 These countries include: Hungary, Italy, Latvia, Spain, Greece, Belgium, Bulgaria, Cyprus, Poland, Portugal, Romania, Slovakia, and the Netherlands.78 The last category of rearing system, non-cage systems, refers to what is commonly known as the “free range” system.79 The Directive implements many of the same requirements in non-cage systems as it does for enriched cage systems.80 However, what is unique about the non-cage system is that it recognizes “the sociological well-being of the bird by allowing hens to engage in their natural behaviors,” such as scratching and foraging.81 The Directive and other European Union legislation also placed limits and restrictions on debeaking and forced molting, though both practices are still legal.82 The Directive allows debeaking “only when necessary to prevent feather pecking and cannibalism” and only when performed by qualified staff or “trained crews.”83 However, with the implementation of the new rearing systems, it is likely that debeaking will become obsolete as hens will not become cannibalistic if they are allowed enough space to engage in their natural behaviors and the victims of pecking will have enough space to escape their tormentors.84 Additionally, the Directive recognizes forced molting as an effective egg-producing strategy but restricts this practice after the birds “have lost up to thirty percent of their starting weight.”85

Lastly, many other regulations set minimum standards for the transportation and slaughter of domestic birds and egg-laying hens.86 The regulations prohibit an injured animal from being “transported without first receiving proper veterinary care.”87 C. Current Legislation in The United States Legislation in the United States extends little protection to agricultural animals, especially egg-laying hens. Federal legislation such as the Animal Welfare Act does not apply to agricultural animals; and most states exempt “accepted husbandry practices” from their animal cruelty statutes, leaving the protection of these animals in the hands of the industry that seeks to exploit them.88 Besides states such as Michigan and California, which implement their own regulations on egg-production, the egg industry has attempted to implement its own standards, such as labeling options, which give customers a false sense that their eggs were produced in a humane way. Labeling schemes such as the ‘Animal Care Certified’ logo were claimed by the Better Business Bureau to be “misleading,” and the Bureau brought a suit against the Federal Trade Commissions, requesting that the federal government examine and regulate the logo’s use.89 Lastly, the United Egg Producers have published recommendations, or voluntary guidelines for the use of battery cages and other husbandry practices, but none that adequately protect the hens’ welfare.90 Additionally, in response to some consumer demand, many major corporations implemented guidelines for egg-producers to follow if egg producers want to have their products purchased by major consumption industries, such as the fast food industries.91 With fast food chains, such as McDonald’s selling more than one billion eggs a year, these industries have an opportunity to make major improvements to the welfare of egg-laying hens.92 As an example of the voluntary adoption of care standards, McDonald’s introduced the “Laying Hen Welfare Guidelines” to its suppliers.93 The guidelines required a 50 percent increase in the hens’ housing space, elimination of forced molting, and the stated of goal of eliminating beak trimming.94 While suppliers are not legally required to adhere to these guidelines, McDonald’s expressed that it would “implement a purchasing

preference policy” to those suppliers who adhered to their desires and met the stated goals of their welfare guidelines.95 If McDonald’s and other fast food chains adhered to a purchasing preference, this industry could cause major changes to egg production. D. H.R. 3798: The Proposed Legislation in the United States If passed, the Egg Products Inspection Act Amendments of 2012, or H.R. 3798, would be the first and only federal legislation which provides for the welfare of egg-laying hens and puts restrictions on the egg-producing industry. However, the bill is still a long way from becoming law. It has currently been assigned to a congressional committee and will be considered before sending it to the senate. Despite the fact that the bill might never pass, it is worth knowing the impetus for this proposed legislation, and it is helpful to this paper to compare the bill to the legislation passed by the European Union. 1. The History and Impetus for the Proposed Legislation and the Role Played by the Egg Producing Industry Unlike legislation in the European Union, which came almost entirely from ordinary citizens fighting the egg-producing industry, the impetus for the Egg Products Inspection Act Amendments of 2012, hereinafter H.R. 3798, or “the proposed legislation,” came from a joint effort of two longtime adversaries: the Humane Society of the United States and the United Egg Producers.96 While the United States has seen a desire from consumers for better treatment of agricultural animals and a preference for products which provide for the welfare of agricultural animals, it is clear that the egg industry played a strong role in forming H.R. 3798.97 The egg-producing industry agreed to support and to help pass this legislation because producers faced economic risk and uncertainty as more states, such as California, Michigan, and Ohio, implemented varying standards for egg production through ballot initiatives and compromise. The unpredictability of costs and the economic consequences of various standards among the states led the industry to play a strong role in this legislation. It is important to understand the industry’s motive for working with the Humane Society of the United States to pass such regulations and the industry’s role in its formation, as the main goal of this paper is to provide a practical solution to remedy the egg-producing industry’s insurmountable influence over the proposed legislation.

2. Critics of the Legislation Critics of the proposed legislation cite several wins by the egg industry to support their position. One of the biggest is the long phase- in period for the elimination of battery cages or the increased housing space requirements.98 The act requires double the current standards for “enriched cages,” which would provide brown hens a minimum of 116 square inches of individual floor space and white hens a minimum of 101 inches of individual floor space, giving the egg producers between fifteen and eighteen years to meet “full compliance” with the minimum standards. 99 In comparison to the Directive passed by the European Union, in which the phase-out period was 12 years, critics worry that it will be difficult to monitor the changes, and hold facilities accountable for implementing the new requirements over such a long period of time.100 Under the current plan, the United Egg Producer’s certification program will monitor the changes and producer compliance, but critics are skeptical about the United Egg Producer’s misleading certifications in the past, as discussed earlier in the paper, as well as “Congress’s current propensity for cutting both FDA and USDA’s budget.”101 Another huge industry win is what originally coerced the industry to work with the Humane Society of the United States, uniformity in legislation.102 If federal law is implemented, the uniformity in restrictions and phase-out requirements could save the industry billions of dollars in coordinating plans and expenses, rather than having to adhere to varying state laws at various intervals.103 In addition to uniformity, the proposed law contains a provision that restricts States from passing laws which provide greater welfare to egg-laying hens than H.R. 3798, or, in other words, the proposed legislation creates a ceiling instead of a floor for battery-cage requirements.104 The proposed legislation states: Requirements within the scope of this chapter with respect to minimum floor space allotments or enrichments for egg-laying hens housed in commercial egg production which are in addition to or different than those made under this chapter may not be imposed by any state or local jurisdiction.105

This feature of the act is not only out of step with the United States legal system in which the Federal Government setting floors, not ceilings, has been a trend which has survived for many years, but it is also distinguishable from the European Union Directive, in which the Member States are free to implement space allotments, or protections for egg-laying hens that exceed the legislation’s minimums. This means that the hard-fought victories in implementing egg-producing regulation in states such as California and Michigan would be overturned in favor of H.R. 3798.106 Critics of the proposed legislation explain that “in exchange for a national standard [for the eggproducing industry], the Humane Society of the United States agreed to stop seeking stricter state-level egg standard laws.”107 In conclusion, many critics concerned with the welfare for egg- laying hens oppose the proposed legislation because of the egg industry’s hand in forming H.R. 3798. Critics view the impetus for the legislation as big industry “strong arming” states into giving up their right to form their own legislation, or implementing more protective legislation.108 In fact, the Humane Farming Association says, “the bill is only saving an industry which is crippled by the public demand for cage-free eggs.”109 These critics lament losing the opportunity to achieve potentially greater protection at the State level. 3. Progressive Aspects of H.R. 3798 Despite the potentially negative role the egg-producing industry played in forming the proposed legislation, supporters of H.R. 3798 claim that the proposed legislation provides a lot of protection for egg- laying hens and would improve the welfare of the 337 million egglaying hens in the United States. In order to analyze the effectiveness of H.R. 3798, if passed, it is essential to understand the positive progress the proposed legislation embodies as viewed by its supporters. First, the proposed legislation categorizes housing into three groups: existing caging devices, new caging devices, and caging devices in California.110 All caging devices are required to provide hens with adequate “environmental enrichments” at various phase-in periods.111 The proposed legislation requires implementation of “adequate environmental enrichments,” which it views as perch space, dust bathing, scratching areas, or nest space and is a huge victory for egg-laying hens who currently live out their lives in cages, providing for

none of these amenities.112 Supporters of the bill claim that these environmental improvements would likely allow hens the space to perform more of their necessary natural behaviors and relieve much suffering. Next, the proposed legislation increases floor space in a graded system, phasing in more floor space, until all existing caging devices must provide a minimum of 144 square inches of individual floor space per brown hen and 124 square inches of individual floor space per white hen.113 This requirement exceeds the European Union’s Directive. While the European Union’s Directive phases out most battery cages, the Directive only requires that the “cages which are retrained provide at least 85 square inches per hen.”114 The proposed legislation also requires a minimum of 144 square inches of individual floor space per brown hen and 124 square inches of individual floor space per white hen to be implemented in new caging devices after fifteen years, but with more phase-in periods.115 Other requirements include air quality control, which requires that egg facilities provide “acceptable air quality, which does not exceed more than 25 parts per million of ammonia during normal operations.”116 While the act does not define “normal operations” or “acceptable air quality,” it is significant that the legislation recognizes the hens’ interest in breathing fresh air. The proposed legislation also exceeds the European Union’s Directive in outlawing forced molting. After two years, the proposed legislation restricts egg handlers from engaging in “feed-withdrawal or water-withdrawal molting.”117 H.R. 3798 clearly defines both feed- withdrawal and water-withdrawal molting as “the practice of preventing food [or water] intake for the purpose of inducing egg-laying hens to molt.”118 Lastly, the proposed legislation authorizes only euthanasia that is “‘[a]cceptable’ by the American Veterinary Medical Association,” and requires egg handlers to provide this euthanasia when necessary.119 iV. considering the egg Producing industry’s interests England and the European Union recognized animal welfare rights in the form of freedoms over 30 years ago and promulgated legislation regulating egg production over a decade ago. However, proposed legislation such as H.R. 3798 in the United States was nonexistent a decade ago. Thus, it must be conceded that, despite some of the criticisms surrounding the H.R. 3798, the proposed

legislation is undoubtedly a step in the right direction. However, if the United States wants to pass meaningful and lasting laws that welfare of egg-laying hens, the United States must take an additional essential step by recognizing that egg-laying hens have an interest in certain freedoms and enumerate those freedoms so as to have a basis for measuring the hens’ interest against that of the industry, or to provide a context in which to form regulations. 120 While many of the restrictions in the proposed act seem to be similar to the Egg Laying Hen Directive such as, the eventual ban on forced molting, the requirement for enriched environments, the regulations of air quality, and the phase-out period for battery cages, I surmise that without an acknowledgment of freedoms or rights for egg-laying hens, the restrictions lack the ware withal to withstand new industrial developments, or to survive the phase-in period with meaningful improvements made for the welfare of hens. The key distinction between the European Union’s Egg-Laying Hen Directive and H. R. 3798 is the impetus for the legislations and the enumeration of rights, or lack thereof, for egg-laying hens. The Egg- Laying Hen Directive came largely from “public opinion,” consumer demand, and consumer willingness to pay more for their eggs with the promise that the welfare of egg-laying hens would be protected. 121Additionally, the directive followed the promulgation of a clear articulation of freedoms, which provided the catalyst to pass progressive animal welfare acts because it recognized that animals had an interest in certain freedoms that could be weighed against the human interest in using animals as a source of food and capitol. Conversely, H. R. 3798, while retaining some of the restrictions seen in the Egg-Laying Hen Directive, found its impetus in the egg producing industry’s fear of state-initiated regulation. Despite that the proposed legislation is a joint venture of two long-time adversaries, the Humane Society of the United States and United Egg Producers, it is not unreasonable to believe that the United Egg Producers got into bed with their adversaries as a preemptive action to control the formation of new regulations.122 And while it is not uncommon for the American legal system to create strange bedfellows, it is not practical to consider the industry’s interests when implementing laws to protect the welfare of egg-laying hens without a clear

A. The Need for Enumerated Rights for Egg-Laying Hens Most animal cruelty laws in the United States are based on whether suffering is “unnecessary” or on whether treatment is inhumane. In forming H.R. 3798, ideally the goal is to eliminate inhumane treatment and unnecessary suffering and provide standards for the respectful use of these birds. To decide when suffering becomes unnecessary or treatment inhumane we balance the interest of the animal with that of the human. However, in our society, humans have the advantage of having affirmative rights such as the right to own property and the right to use that property for their own gain. And there are no rights of animals to balance against the rights of humans, only an abstract interest in preventing what is unnecessary suffering framed from the human perspective.123 Thus, the rights of chickens (and all animals) are conspicuous by their absence because the United States has yet to acknowledge that these animals have any rights. The underlying problem of considering the industry’s interests in promulgating federal law is that the proposed legislation does not examine the fundamental assumption that is the basis for creating law in any legal system: that the welfare of the beings bound by the legal system’s laws can be protected within that system.124 More specifically, in the case of egg-laying hens the presumption that H.R. 3798 makes is that chickens can be adequately protected within this system of exploitation without the acknowledgement of rights.125 If we do not stop to consider whether or not chickens can be protected in this system without enumerated rights, the proposed legislation is merely an illusion of protection. Let’s use the formation of our own government as an example. No sooner do school children begin to learn American History, they learn about the importance of the Bill of Rights, which enumerates what has come to be known as the basic individual rights of United States citizens. As active participants in our government, and as those subject to its laws on a daily basis, we recognize the importance of the Bill of Rights on a very basic level, even if, as a whole, we do not understand the nuances of the first ten amendments to the United States Constitution. The average citizen when confronted with a statute that suppresses his/her ability to formulate words into coherent thoughts and express themselves in a meaningful manner will cry out, “but the United States

Constitution gives me the Freedom of Speech.” Some of our founding fathers also recognized the importance of the Bill of Rights, as they refused to support the Constitution without an explicit guarantee of individual rights or a clear articulation of what the federal government could not do. The existence of the Bill of Rights represents the fear that the welfare of the beings bound by the newly created legal system could not be protected within that system without the enumeration of rights. This fear that the government could not adequately protect its governed is rooted in, what was viewed by the framers, as the exploitation of the colonies by England. Therefore, to create a legal system which could adequately protect the welfare of its governed, enumerated rights were added to curb the power of the federal government. While, this paper does not propose an extension of the Bill of Rights to egglaying hens, this point is made to show a fundamental flaw in the assumption of H.R. 3798, which is that it can function to protect the welfare of egg-laying hens in a system which exploits them as a means to ends of industry interests. Because the industry sits at the negotiating table with the power to influence the laws to strongly favor its interests over that of animal welfare, egg-laying hens need enumerated rights to curb the industry’s power in completely controlling the legislation’s formation and implementation. In essence, H.R. 3798 has no context in which to the judge the standards that it has created to protect the welfare of egg-laying hens. This lack of context is dangerous because before we consider making standards for agricultural animals, we should have a clear indication of the protections we want these animals to receive.126 Furthermore, H.R. 3798 has not yet been promulgated and the eggproducing industry will continue to wield its influence over the bill throughout the rest of its life in the legislature. Thus, without acknowledgment of the rights of agricultural animals, it is impossible to fairly consider their welfare in conjunction with an industry that seeks to exploit them. To illustrate an application of this theory, most European animal welfare laws are based on the Five Freedoms, as identified earlier as the right to: freedom from hunger and thirst, freedom from pain and injury, freedom from discomfort, freedom from distress, and freedom to express natural behaviors.127 By recognizing animals as more than merely a means to an ends for human desires, many European nations and the European Union have

framed laws that have adequately protected animals, especially egg-laying hens for which the European Union boasts one of the most progressive and protective legislations. Additionally, as a result of a strong commitment to the rights of animals, producers’ attitudes towards animal welfare legislation in these countries have changed.128 For example, in England, “producers are consulted as new animal welfare regulations are developed, but . . . must accept the final policy decision.”129 In this system, the National Farmers Union respects the recommendations made to the UK Ministry of Agriculture, Fisheries and Food by the Farm Animal Welfare Council.130 This is in stark contrast to the attitudes of the egg-producing industry in the United States, which not long ago tried to give itself complete control of the regulation of egg production in Michigan and Ohio by launching a preemptive strike against the Humane Society of the United States, who was campaigning to pass ballot initiatives in various states. While the proposal of enumerated rights may come under scrutiny as a “rights theory” for animals, and thus, too drastic to implement into the proposed act, it is essential to note that the Five Freedoms do not enumerate legal rights that are co-extensive to humans, and this is not what this paper suggests. In fact, the campaign for animal rights, as we think of it in the United States, has been limited in many European countries.131 Clearly, humans possess broader rights than the specific rights to freedom from hunger, pain, injury, and discomfort and freedom to express their natural behaviors. Human rights, formulated broadly, are seemingly limitless; humans have the right to privacy, to freedom of speech, and the right to due process when life, liberty, or property is at stake. However, as extensive as human rights are, “human rights are not absolute.”132 For example, it is widely known that the right to freedom of speech is not absolute, and most people agree that it is worth curtailing that right to prevent people from yelling “Bomb!” on a plane, or “Fire!” in a movie theater. We also agree that even in the case of a public forum, the government can put meaningful time, place, and manner restrictions on our speech. Similarly, the Five Freedoms are also not absolute. Promulgating these Five Freedoms, or similar rights, does not mean that these rights will always trump human rights or that they will always be in direct conflict with human rights. Rather, recognizing these rights would provide a basis or context in which to

measure human interest and chicken interest against each other.133 Additionally, rights are useful when promulgating new laws because legal rights can provide specificity, and also provide context from which to judge the intent of the legislature.134 Recognizing these rights would also emphasize an inherent value in egglaying hens beyond being used for human sustenance or for the exploitation of the egg-producing industry. “That our trivial interest in the taste of meat [or eggs] now trumps the pain endured by 17 billion farmed animals may best measure of how far we are from considering their interests equally.”135 Thus, this paper proposes that our legislatures take the necessary steps to acknowledge that egg-laying hens, as beings subjected to the laws of our legal system, have an interest in certain freedoms or rights, which although not coextensive with human rights are worth formally recognizing because our actions have the ability to, and do affect these animals’ interests. B. Why Egg-Laying Hens? Egg-laying hens need an acknowledgment of rights because these animals, along with many other agricultural animals, are the least represented and the least protected in our society. Traditionally, when faced with protecting the interest of underrepresented persons or groups, our government extends rights to such persons. Within the context of the animal world, egg-laying hens are analogous to those underrepresented groups in our society. Our society already agrees that we should protect companion animals, and legislatures in various states have promulgated laws to prevent cruelty to animals. However, states exempt agricultural animals from these protections by stating that “traditionally animal husbandry practices” are not regulated by these laws. When the United States first wanted to recognize the rights of other people beyond the limited category of ‘white males,’ the Fourteenth Amendment was added to our Constitution to provide equal protection to all persons. Although courts initially interpreted the Fourteenth Amendment as limited in its scope to the protection of African Americans, the courts have broadened this interpretation. The courts have used the Fourteenth Amendment to extend most of the Bill of Rights to apply to State governments, and the courts have interpreted the word “persons” broadly. For example, the equal protection clause of the Fourteenth Amendment is not limited to the

protection of citizen’s rights. Conversely, the equal protection clause also protects the rights of immigrants and resident aliens, even if those although these groups might have certain fundamental rights, these groups cannot exercise the right to vote or participate in other forms of self-government. Egglaying hens are similar to underrepresented groups in our society, such as immigrants, because the protection that we extend to companion animals, who are analogous to ordinary citizens, has not been extended to egg-laying hens. However, similar to how resident aliens’ rights are not coextensive to that of citizens, this paper does not propose that chickens’ rights be coextensive with that of companion animals. For example, it is illegal to eat dogs and cats in our society, but this paper does not propose that it be illegal to eat chickens. This point is made to show that chickens are the underrepresented animals in our society, putting chickens at a greater risk for exploitation; thus, in greater need of enumerated rights. C. Drafting an Acknowledgment of Rights into H.R. 3798 As explained earlier in this paper, the proposed legislation is centered on providing better “housing” facilities for egg-laying hens in the form of “adequate environmental enrichments” which would allow hens to engage in their natural behaviors. The proposed act defines the term “adequate environmental enrichments” as “adequate perch space, dust bathing or scratching areas, and nest space,” but as defined by whom?136 Well, according to the proposed act, as defined by the “Secretary of Agriculture, based on the best available science, including the most recent studies available at the time that the secretary defines them.”137 So, the law as it is proposed now requires the Secretary to base his definition on “the best available science” and “most recent studies,” which overlooks the basic assumption that these studies can be the basis for adequately protecting the welfare of egg-laying chickens trapped in a system of exploitation. There is a strong argument that this cannot be true. In our legal system and in our society there is an inherent presumption that it is acceptable to kill animals or subject them to suffering, so long as they are treated as “humanely as possible.”138 Often times the “as humanely as possible” standard is measured against the human interest in the animal as property and “maximizing the value of this property.”139 Thus, it does not take very long for those concerned with the welfare of egg-laying chickens to ask the

questions: Who will conduct these scientific studies? How will these studies be funded? Will the most cost-effective way for the egg-producers to operate take precedence over the effects on chicken welfare? For example, suppose a scientific study concluded that it would be only “slightly” more beneficial for chickens to have four hours a day to perform their natural behaviors than six hours a day in space as defined by the study, when measuring the benefit to chickens against the increased cost of the industry to provide the two extra hours. It would seem that according to the proposed act, the Secretary would be allowed to and in fact is required to consider his/her definition of “adequate environmental enrichments” on the basis of a study that takes into greater consideration the interests of the industry. Thus, while studies such as this are useful and this paper does not reject that studies can serve a useful place in law formation, the proposed act clearly falls short of protecting the welfare of egg-laying hens without the inclusion of some rights, freedoms, or interests of the hens. For these reasons, this paper proposes amending the language of Section 2, Hen Housing, and Treatment Standards, of H.R. 3798 to read: “The term ‘adequate environmental enrichments’ means adequate as defined by the Secretary of Agriculture, based on the following acknowledged freedoms for agricultural animals: (1) freedom from hunger and thirst, (2) freedom from pain and injury, (3) freedom from discomfort, and (4) freedom to express natural behaviors. The Secretary shall issue regulations defining this term which are consistent with the aforementioned acknowledged freedoms of agricultural animals no later than January 1, 2017, and the final regulations should go into effect on December 31, 2018. In defining this term and forming regulations, the Secretary is charged with safeguarding egg-laying hens’ interests in these acknowledged freedoms.”140 If the United States were to add this freedom acknowledgment to the proposed act, we would have a more effective law that adequately protects the welfare of egg-laying chickens because the Secretary of Agriculture would be required to consider these interests when forming regulations, and the charge to safeguard these freedoms would be an adequate guard against the influence of the egg-producing industry. Furthermore, if the Secretary defined “adequate

environmental enrichments” in such a way as to deny egg-laying chickens this freedom, interest groups would have reason to call into question the Secretary’s actions through administrative proceedings. This new language gives the hens’ interests (and all those considered with the hens’ interests) a fighting chance against the industry’s influence. V. conclusion The Supreme Court of New Jersey in New Jersey Society for the Prevention of Cruelty to Animals v. New Jersey Department of Agriculture stated that the promulgation of laws regarding agricultural animals and their interpretation: requires a balancing of interests of people and organizations who would zealously safeguard the well- being of all animals, including those born and bred for eventual slaughter, with the equally significant interests of those who make their living in animal husbandry and who contribute, through their effort, to our food supply.141 But what if we did not balance the interest of two opposing human groups; what if we balanced the interest of egg-laying hens directly with that of the industry? Presumably, the interest of people and organizations that would zealously safeguard the well-being of the hens have the hens’ best interest in mind, but this is clearly not adequate protection for hens in our legal system because these people do not have any legal rights in the animals’ well-being, whereas the industry has legal rights in using the animals. The addition of the Five Freedoms to H.R. 3798 would give the hens’ interests acknowledgement and charge the Secretary with an obligation to guard that interest. More importantly, by recognizing the intrinsic value of chickens and other agricultural animals, the United States can stand on equal moral footing with governments such as the European Union and England, which have already done so. * She would like to thank Christopher J. Malia for his consistent and tireless support of her writing. 1 Sarah Cranston, Note, So Sue Me: How Consumer Fraud, Antitrust Litigation, and Other Kinds of Litigation Can Effect Change in the Treatment of Egg- Laying Hens Where Legislation Fails, 9 rutGers J.l. & PuB. Pol’y 72, 72-75 (2012); Veronica Hirsch, Brief Summary of the Legal Protections of the

Domestic Chicken in the United States and Europe, anIMal leGal & hIstorICal Center (2003), (URL removed for reprint) (last visited March 2, 2012). 2 Cranston, supra note 1, at 72-75; Hirsch, supra note 1; A. Bryan Endres & Nicholas R. Johnson, Integrating Stakeholder Roles In Food Production, Marketing, And Safety Systems: An Evolving Multi-Jurisdictional Approach, 26 J. enVtl. l. & lItIG. 29, 96 (2011) (stating that from 1999 to 2009, egg production in the United States increased from eighty-four to ninety-one billion eggs per year). 3 Bill Marsh, How Hens are Confined, n.y. tIMes, Aug. 14, 2010, (URL removed for reprint). 4 Jessica Braunschweig-Norris, The U.S. Egg Industry - Not All It’s Cracked Up to be for the Welfare of the Laying Hen: A Comparative Look at United States and European Union Welfare Laws, 10 Drake J. aGrIC. l. 511, 512-14 (2005). 5 Cranston, supra note 1, at 76. 6 Gaverick Matheny & Cheryl Leahy, Farm-Animal Welfare, Legislation, And Trade, 70 law & ConteMP. ProBs. 325, 341-42 (2007) (the Five Freedoms are now expressed in various animal-welfare recommendations, codes, and legislations in Europe, North America, and Australasia, as well as in the World Animal Health Organization’s office international des Epizooties (OIE) guiding principles). 7 Endres, supra note 2, at 31; JIM Mason & Mary FInellI, BraVe new FarM, reprinted in In DeFense oF anIMals 104, 106 (Peter Singer, ed., Blackwell Publishing 2006); harolD D. GuIther 86 anIMal rIGhts: hIstory anD sCoPe oF a raDICal soCIal MoVeMent (Southern Illinois University Press 1998); Veronica Hirsch, Overview of the Legal Protections of the Domestic Chicken in the United States and Europe, anIMal leGal & hIstorICal Center (2003), (URL removed for reprint) last visited Mar. 2, 2012); Aurora Paulsen, Catching Sight Of Credence Attributes: Compelling Production Method Disclosures On Eggs, 24 loy. ConsuMer l. reV. 280, 280-85 (2011). 8 karen DaVIs, PrIsoneD ChICkens anD PoIson eGGs: an InsIDe look at the MoDern Poultry InDustry 15-16 (1996). 9 Mason, supra note 7, at 105. 10 Id. 11 Id.

12 Id. 13 Id. at 106. 14 Id. at 105. 15 Id. at 106. 16 Id. 17 Id. at 107. 18 Id. at 111. 19 Hirsch, supra note 1. 20 Id. 21 karen DaVIs, PrIson ChICkens PoIsoneD eGGs: a look at the MoDern Poultry InDustry 85 (Book Publ’g Co. rev. ed. 2009). 22 Anahad O’Connor, What’s in Your Kitchen?, nytIMes.CoM (Dec. 13, 2011), (URL removed for reprint) 23 Industry Economic Data, us Poultry, (2010) (URL removed for reprint) (last visited Mar. 23, 2012). 24 Id. 25 Braunschweig-Norris, supra note 4, at 515. 26 GuIther, supra note 7, at 86. 27 Id. 28 Marsh, supra note 3; Hirsch, supra note 7; Paulsen, supra note 7, at 291-92 (reporting the average battery cage is between 48 and 54 square inches). 29 More Humane Egg Production, n.y. tIMes, Feb. 14, 2012; Hirsch, supra note 1. 30 Marsh, supra note 3; Cranston, supra note 1, at 72; (last visited Mar. 2, 2012); Animal Husbandry Guidelines for U.S. Egg Laying Flocks, unIteD eGG ProDuCers, 21 (2010 ed.), available at (URL removed for reprint); a. MenCh & J.C. swanson, DeVeloPInG sCIenCe-BaseD anIMal welFare GuIDelInes 3 (citing M.S. Dawkins & S. Hardie, Space Needs of Laying Hens, 30 Brit. Poultry Sci. 413 (1989)), available at (URL removed for reprint) Paulsen, supra note 7, at 291-92. 31 Hirsch, supra note 7. 32 Hirsch, supra note 1; GuIther, supra note 7, at 93. 33 Hirsch, supra note 7. 34 Id. 35 Id. 36 Id. 37 Id. 38 Id. 39 GuIther, supra note 7, at 91. 40 Id.

41 Clare DruCe & PhIlIP lyMBery, outlaweD In euroPe (Archimedean Press 2002) reprinted in In DeFense oF anIMals 123, 129-131 (Peter Singer, ed., Blackwell Publishing 2006). 42 Id. at 129. 43 Mason, supra note 7, at 113. 44 DruCe, supra note 41, at 129. 45 Id. at 130. 46 Nicolette Hahn Niman, The Unkindest Cut, n.y. tIMes, Mar. 7, 2005, (URL removed for reprint) _r=0 (“The pork industry’s rationale for tail docking is that pigs bite each other’s tails and that the tails can then become infected.”). 47 Mason, supra note 7, at 113. 48 Id. 49 Id. 50 DaVIs, supra note 8, at 49. 51 Id. 52 Id. 53 Id. 54 Id. 55 Braunschweig-Norris, supra note 4, at 512. 56 Id. (discussing how legislative movements usually start in Europe and then come to the United States). 57 DruCe, supra note 41, at 130; GuIther, supra note 7, at 31 (stating that “European consumers seem more concerned about humane treatment than in the United States.”); Matheny, supra note 6, at 341 (The legal protection of farm animals in Europe can be credited to Europe’s long history of animalprotection outreach and educational campaigns, public awareness of farming practices, and investment in animal-welfare research.). 58 Braunschweig-Norris, supra note 4, at 535; Hirsch, supra note 1. 59 GuIther, supra note 7, at 31. 60 Id. 62 Braunschweig-Norris, supra note 4, at 534; Hirsch, supra note 7; Five Freedoms, FarM anIMal welFare CounCIl, (URL removed for reprint) (last visited Mar. 2, 2012). 63 Id. at 534.

64 Id. at 534; David Favre, anIMal law, welFare, Interests, anD rIGhts 281- 82 (Wolters Kluwer Law & Business 2011) (stating “Before considering a batch of differing agricultural animal welfare standards, there should be established a context in which to judge the standards.”); GuIther, supra note 7, at 26-27. 65 Braunschweig-Norris, supra note 4, at 534. 66 Id. at 536; Matheny, supra note 6, at 339-41. 67 Braunschweig-Norris, supra note 4, at 537; FaVre, supra note 64, at 28182. 68 Braunschweig-Norris, supra note 4, at 536-38. 69 Id. at 518-19. 70 Id. 71 Id. 72 Id. 73 Id. 74 Id. 75 Id. at 519-20. 76 James Andrews, European Union Bans Battery Cages for Egg-Laying Hens, FooD saFety news, Jan. 19, 2012, (URL removed for reprint), (last visited Mar. 30, 2012). 77 Id. 78 Id. 79 Id. 80 Braunschweig-Norris, supra note 4, at 518-520. 81 Id. at 520. 82 Id. at 522-23. 83 Id. at 522. 84 Id. 85 Id. at 523. 86 Id. at 524. 87 Braunschweig-Norris, supra note 4, at 524. 88 7 U.S.C SEC. 2131-2159 (West 2012); Mason, supra note 7, at 120. 89 Cranston, supra note 1, at 97. Braunschweig-Norris, supra note 4, at 531; The Facts About Farm Animal Welfare Standards, FarM sanCtuary, (URL removed for reprint) (last visited Mar. 20, 2012). 90 Marsh, supra note 3; Braunschweig-Norris, supra note 4, at 528. 91 Braunschweig-Norris, supra note 4, at 528-29.

92 Cranston, supra note 1, at 97-100. Peter Singer, The Forgotten Animal Issue: The Big Mac, Ethics into Action, (Rowman & Littlefield Publishers, Inc. Feb. 25, 2000), (URL removed for reprint) (last visited Mar. 2, 2012); Mark Bittman, OMG: McDonald’s Does the Right Thing, n.y. tIMes, Feb. 12, 2012, (URL removed for reprint) 93 Id. 94 Singer, supra note 92. 95 Braunschweig-Norris, supra note 4, at 528-29, 536. 96 Mark Bittman, Debate Over the Egg Industry Agreement, n.y. tIMes, Jul. 14, 2011. (URL removed for reprint) (last visited Feb. 23, 2012). 97 Michele Simon, Who Really Benefits from the Egg Industry Deal?, FooD saFety news, Jul. 12, 2011 (URL removed for reprint) (last visited Feb. 23, 2012). 98 Id. 99 Id.; Egg Products Inspection Act Amendments of 2012, H.R. 3798, 112th Cong. (2012) (Except for California which would comply with the new requirements by 2015 because of a 2008 ballot measure passed there). 100 Id.; EU Council Directive 1999/74/EC of 19 July 1999 lays down minimum standards for the protection of laying hens; European Union Directive and Other International Developments on Layer Hen (URL removed for reprint) 101 Simon, supra note 97. 102 Id. 103 Id. 104 Id. 105 Egg Products Inspection Act Amendments of 2012, H.R. 3798, 112th Cong. §4 (2012). 106 New Federal Bill to Provide Protections for Egg-Laying Hens, Animal Law Coalition Jan. 24, 2012, (URL removed for reprint) (last visited Mar. 18, 2012). 107 Helena Bottemiller, Bill Introduced to Improve the Welfare Standard for Egg-Laying Hens, FooD saFety news, Feb. 23, 2011, (URL removed for reprint) 108 Id. 109 Id. 110 Egg Products Inspection Act Amendments of 2012, H.R. 3798, 112th Cong. § 7A(a)(1)-(3) (2012). 111 Bottemiller, supra note 107.

112 Egg Products Inspection Act Amendments of 2012, H.R. 3798, 112th Cong. § 2 (2012). 113 Id. at § 7A(b)(2). 114 Braunschweig-Norris, supra note 4, at 518 (citing Council Directive 1999/74, art. 5 1999 O.J. (L 203)). 115 Egg Products Inspection Act Amendments of 2012, H.R 3798, 112th Cong. § 7A (2012). 116 Id. 117 Id. 118 Id. at § 2. 119 Id. at § 7A. 120 Gary l Franclone, animals, property and the law 4 (Temple Univ. Press, 1995) (discussing the rights of animals weighing against those of humans); Favre, supra note 64, at 280 (stating “Before considering a batch of differing agricultural animal welfare standards, there should be established a context in which to judge the standards.”). 121 GuIther, supra note 7, at 31 (stating that “European consumers seem more concerned about humane treatment than in the United States”). 122 Bottemiller, supra note 107 (stating that the bill would actually save the Egg Producing Industry from consumer demand for animal welfare conscious egg production). 123 Franclone, supra note 120, at 4 (discussing fundamental assumptions in a system of exploitation). 124 Id. 125 Favre, supra note 64, at 280 (stating “[b]efore considering a batch of differing agricultural animal welfare standards, there should be established a context in which to judge the standards); Cranston, supra note 1, at 86 (Farm animal satisfaction can only be measured by the extent to which human consumers value animal welfare when making their economic decisions.). 126 Braunschweig-Norris, supra note 4, at 535. 127 GuIther, supra note 7, at 31 (stating that many producers now recognize that public opinion cannot be ignored if they are to maintain a market for their products). 128 Id. at 27. 129 Id.

130 Id. at 33 (stating that most animal activism in Europe has been animal welfare and reformist oriented...however, Europeans may see more animal rights activism in the future). 131 Fran CIone, supra note 120, at 10 (discussing the limitations of human rights). 132 Franclone, supra note 120, at 10. persons’ rights are not coextensive to citizens’ rights. For example, 134 Druce, supra note 41, at 129. 135 Egg Products Inspection Act Amendments of 2012, H.R. 3798, 112th Cong. §2A (2012). 136 Id. 137 Franclone, supra note 120, at 6. 138 Id. at 105. 140 The dates used in this language are borrowed from the dates proposed in H.R 3798 so as to not conflict with the remainder of the act’s phase-in period as currently written. These dates are not meant as a timeline proposal by this author. Won’t You Be My Neighbor 99 Iowa L. Rev. 415 Iowa Law Review November, 2013 Emily A. Kolbea Copyright (c) 2013 University of Iowa (Iowa Law Review); Emily A. Kolbe “WON'T YOU BE MY NEIGHBOR?” LIVING WITH CONCENTRATED ANIMAL FEEDING OPERATIONS ABSTRACT: Concentrated animal feeding operations (“CAFOs”) are prevalent throughout the nation and represent a serious and increasing problem for the United States. Proponents of CAFOs argue that such operations are necessary to meet this country's demand for low-cost, readily available meat. Opponents point to the ever-increasing risks that CAFOs pose to humans, animals, and the environment. CAFOs in Iowa have operated under the minimum level of federally required regulations for a number of years. The negative effects of this lack of regulation are starting to take a toll on Iowans. Emerging public health

concerns such as air quality and antibiotic resistance, individual health problems, animal welfare concerns, and the basic right to enjoy one's property are becoming controversial issues and demand increased attention from the state's government, courts, and citizens. This Note argues that Iowans should look to a variety of mechanisms to address these issues, including judicial action, increased legislation, and grassroots organizing efforts to ensure that Iowa remains not only an agricultural force in the United States, but also a safe and healthy environment for its present and future citizens I Introduction II. An Overview of CAFOs in the United States A. Agriculture as Industry and the Economic Rationale for CAFOs B. Federal Regulation of CAFOs C. State-Level Regulation and Inter-State Impacts D. Social Costs Arising from CAFOs 1. Living Inside CAFOs: The Problem of Animal Welfare 2. Public Health Concerns a. Increase in Antibiotic-Resistant Bacteria and CAFOs b. CAFO Workers' Health c. Health Effects on Nearby Residents 3. The Day-to-Day Effects of CAFOs on Neighbors III. CAFOs in Iowa A. By the Numbers B. The Iowa Department of Natural Resources and Oversight of CAFOs C. The Iowa Supreme Court and CAFOs 1. Lack of Local Control 2. Right to Farm: Bormann and Gacke IV. Moving Forward A. Looking to Other States' Regulations B. Approval Process and Citizen Involvement C. Community Organizing and Local Control V. Conclusion I. Introduction The presence of concentrated animal feeding operations (“CAFOs”)1 throughout the United States has raised a number of complex issues

encompassing environmental science, public health, agribusiness, and legislative agendas.2 Iowa, a state intricately tied to agriculture, has experienced a dramatic shift in recent years as CAFOs have transformed the business of farming. The traditional notion of a “family farm” brings to mind an image of a small patch of land with animals grazing and a variety of crops surrounding the farmer and his family's well-kept house where they all live. The reality is quite different.3 Agriculture today is represented by hundreds of acres of land growing corn and soybeans and rows of metal buildings containing thousands of animals.4 This type of farming is often referred to as factory farming, and it is the primary source of food in America.5 As the reality of America's family farmer changes, so does the way people think about how agricultural practices affect their communities, states, and the country as a whole. CAFOs are becoming a battleground in the war over food and the environment in the United States.6 Iowa, as a major agricultural center, is uniquely positioned as a state with inherent interests in ensuring that the agricultural industry remains strong; it also has, however, a rural population that is growing increasingly concerned about the effects of living near these massive operations. This Note argues that Iowa is confronting complex problems associated with CAFOs. The state's agricultural laws aim to protect CAFOs regardless of growing concerns regarding the health and safety of people living near such operations, while the Iowa Department of Natural Resources (“IDNR”)--the agency charged with enforcing environmental regulations--has been the subject of a recent investigation and reprimand by the Environmental Protection Agency (“EPA”) for failing to adequately enforce federal environmental laws. This Note proposes that Iowa work to change its approach to CAFOs through legislative, judicial, and grassroots action. Part II provides a brief overview of CAFOs nationally, including how the federal government regulates them and the major issues affecting people throughout the country that have arisen as CAFOs expand. Part III addresses the existence of CAFOs specifically in Iowa, including legislation and judicial decisions regarding CAFOs. Part IV discusses the means that Iowans should use to ensure CAFOs are properly regulated and that all Iowans enjoy a high quality of life, regardless of where they live. II. An Overview of CAFOs in the United States

Before delving into the current state of CAFOs in Iowa, it is necessary to examine CAFOs on a national scale. This Part discusses public health issues that have been identified as particularly problematic, in addition to the economic arguments for industrialized farming and the federal regulatory framework governing CAFOs. A. Agriculture as Industry and the Economic Rationale for CAFOs The development of CAFOs as a presence in the agricultural industry has engendered controversy for decades.7 Proponents of CAFOs, however, have consistently maintained that there are numerous benefits associated with this type of livestock production that outweigh any negative consequences that may result.8 Viewed most positively, “CAFOs can provide [consumers with] a lowcost source of meat, milk, and eggs, due to efficient feeding and housing of animals, increased facility size, and animal specialization.”9 CAFOs are also credited with helping to improve local economies by utilizing local agricultural materials and feed, as well as providing the financial benefits of increased tax revenue.10 The primary argument CAFO operators raise in support of their industry is one of economic efficiency--producing more goods at a faster rate and lower cost. CAFO operators boasting large numbers of animals can afford to implement new forms of technology, such as manure storage facilities, that are too expensive for small-scale farmers to afford.11 Additionally, massive amounts of government subsidies are provided to CAFOs because of their efficiency.12 These subsidies make it difficult for states, including Iowa, to effectively regulate agriculture for fear of losing out on government funds.13 At its core, the argument in favor of CAFOs is simple: “agricultural production should be organized to serve the greatest good for the greatest number, by producing key commodities in the most efficient way possible, all things considered.”14 In order for CAFOs to prevail over more sustainable agricultural practices in this economic equation, however, the “all things considered” caveat becomes crucial to the analysis, requiring a determination of whether the significant social costs imposed by CAFO operations outweigh their perceived benefits.15 This balancing act is performed by the government, which theoretically minimizes the social costs of CAFOs through regulations.16 B. Federal Regulation of CAFOs

CAFOs are subject to baseline regulations by the Environmental Protection Agency. The EPA regulates CAFOs through its authority under the Clean Water Act (“CWA”).17 Because “CAFOs generate a staggering amount of animal waste (estimated at upward of 500 million tons per year, at least three times more than all the human waste generated in America),” the EPA treats large CAFOs as “point sources” for water pollution.18 A point source is defined under the CWA as “any discernible, confined, and discrete conveyance, including but not limited to, any . . . concentrated animal feeding operation . . . from which pollutants are or may be discharged.”19 CAFO waste product is typically stored in lagoons where it remains untreated until it is spread on fields as manure fertilizer.20 This practice of manure spreading is known as “land application.”21 Land application can easily result in the pollution of nearby waterways.22 The EPA has determined that these large CAFO lagoons are point sources for water pollution because the lagoons are far from secure--floods and lagoon collapse are common sources of spillage into groundwater and surface waterways.23 Additionally, manure over-applied as field fertilizer can seep into streams and groundwater.24 A problematic aspect of the EPA's regulatory scheme is that unlike pollution standards for other industries, most CAFOs (small- or medium-sized facilities) are considered “nonpoint sources” for pollution and are therefore not required to obtain National Pollutant Discharge Elimination System (“NPDES”) permits.25 Large CAFOs that discharge waste into a water source, however, must obtain an NPDES permit.26 A recent Fifth Circuit decision further weakened the EPA's governance of CAFOs by determining that the EPA lacked the authority to require “CAFOs that propose to discharge [to] apply for an NPDES permit.”27 The court held “there must be an actual discharge into navigable waters to trigger the CWA's requirements and the EPA's authority. Accordingly, the EPA's authority is limited to the regulation of CAFOs that discharge.”28 This distinction further limits the EPA's authority and reduces the number of CAFOs that must obtain NDPES permits to those that have already discharged pollutants into water sources.29 This means that at the point when the EPA can act, pollution has already occurred and the damage has begun. The federal regulation of CAFOs,

therefore, is relatively minimal, leaving ample room for states to devise their own regulations. C. State-Level Regulation and Inter-State Impacts In addition to federal regulation, states enact their own independent legislation limiting (or not limiting) factory farming.30 These efforts vary from state to state, but very few states enact requirements that are significantly more stringent than the federal requirements.31 Iowa's regulatory framework, addressed in this Note, leaves CAFOs virtually unregulated, aside from the mandated EPA guidelines.32 In fact, in the summer of 2012, the EPA issued a preliminary report finding that Iowa's Department of Natural Resources had failed to adequately enforce federal CAFO regulations.33 This report, along with Iowa's response, is discussed in Part III. Although the EPA's baseline standards for CAFOs function as a starting point from which states can implement stricter regulations, the variety of state regulations and the agribusiness interests that often influence state legislative processes suggest the need for more stringent federal involvement.34 In addition to the conflicts that arise in creating effective state legislation, stronger federal involvement may be necessary due to the interconnectedness of emerging environmental problems. A recent article in the Des Moines Register addressed the role that Iowa's (and other Midwestern states') agricultural practices play in the pollution of the Gulf of Mexico.35 Excess nitrogen and phosphorous, “[t]he two primary pollutants from manure,” have pooled into the Gulf and created an oxygen-starved “dead zone” where marine life cannot exist.36 This development directly affects the industries that rely on the ecosystems in the Gulf--industries that have been severely harmed by the lack of environmental regulations hundreds of miles up the Mississippi River.37 As CAFOs continue to expand, environmental harm is not the only threat that must be addressed. The health and living conditions of animals and people are also primary concerns. D. Social Costs Arising from CAFOs The social costs of CAFOs increase as the number and size of CAFOs continue to grow. This Part does not attempt to provide a comprehensive explanation of every issue, but rather outlines several of the more prominent dangers associated with CAFOs, all of which have been the focus of extensive academic

and scientific research. These issues include: animal welfare; public health concerns such as antibiotic resistance, the health of CAFO workers, and the health effects residents suffer near CAFOs; the problems associated with trying to bring a nuisance action against a CAFO; and decreased property values for residences in close proximity to CAFOs. 1. Living Inside CAFOs: The Problem of Animal Welfare Animals raised in CAFOs have become the subject of great debate in this country.38 The federal Animal Welfare Act does not apply to farm animals, nor do most state animal welfare laws (including Iowa's).39 As a result of this lack of regulation, the conditions of factory farms, while shocking to most people,40 are not in any way illegal. For example, laying hens (raised for egg production) are normally confined to cages smaller in dimension than a standard sheet of notebook paper.41 Due to the crowded conditions, the tips of chickens' beaks are routinely sliced off with a hot blade to prevent them from pecking one another through their cages.42 Gestational crates confine pregnant sows to spaces that are only two-feet wide by seven-feet long--too small for the sow to even turn around--for nearly seventy percent of their lives.43 The conditions are similar for all animals raised in confinement facilities.44 The only regulatory structure in place for protecting CAFO-raised animals is the Humane Slaughter Act.45 However, this legislation only governs how animals die;46 it does not provide protection for animals during their lives.47 Even the processing phase of livestock production includes practices such as “thumping” and “piping” that, because they do not technically constitute “slaughter,” are not regulated under the Humane Slaughter Act.48 Furthermore, the Humane Slaughter Act includes an exception from its standards for poultry operations.49 Making matters worse, the Act is routinely ignored, a fact which “the late Senator Robert Byrd (D-WV) lamented,”50 stating that: “Federal law is being ignored. Animal cruelty abounds. It is sickening. It is infuriating. Barbaric treatment of helpless, defenseless creatures must not be tolerated even if these animals are being raised for food.”51 Numerous advocacy groups have focused their efforts on improving the lives of animals raised in CAFOs, including the Humane Society, People for the Ethical Treatment of Animals, and the World Society for the Protection of Animals.52 Recently enacted statutes criminalizing the documentation of conditions inside

CAFOs, however, aim to limit the ability of advocacy groups, and other concerned citizens, to spread awareness of this issue.53 For example, in Iowa, it is a misdemeanor to attempt to gain employment at a CAFO and subsequently expose the working (and, for animals, living) conditions.54 Nevertheless, continued efforts by various groups encourage the United States to recognize greater protection for farm animals. The leading standard for animal rights activists proposing farm animal welfare reform is the Five Freedoms, a definition of animal welfare first proposed in Britain that has come to encapsulate activists' efforts.55 The Five Freedoms include (1) “[f]reedom from hunger and thirst,” (2) “[f]reedom from discomfort,” (3) “[f]reedom from pain, injury or disease,” (4) “[f]reedom from fear and distress,” and (5) “[f]reedom to express normal behaviour.”56 The Five Freedoms, while prevalent in Europe, has yet to find a foothold in the regulation of American CAFOs. Conversely, the proposed 2012 Farm Bill (which failed in the Senate) included an amendment specifically designed to prohibit states from requiring animal living condition standards--a move “aimed at stopping a California law banning the sale of eggs harvested from hens living in tiny cages where they cannot spread their wings. It also stops another law from banning the sale of foie gras made using forced feeding.”57 The amendment's sponsor, Iowa Representative Steve King, cited the federal government's responsibility for regulating interstate commerce and asserted that the states cannot ban products from another state due to production methods.58 The conflict in this “egg amendment” controversy, however, was not limited to politicians. The National Pork Producers Council and the American Farm Bureau were both vehemently opposed to stricter egg production standards in California, while the Humane Society decried King's amendment as a blow to reasonable animal welfare standards.59 2. Public Health Concerns While animal welfare represents perhaps the most viscerally disturbing aspect of CAFOs, CAFOs cause numerous threats to human health. These threats range from those on a national level to more localized dangers confronting people living and working in close proximity to CAFOs. a. Increase in Antibiotic-Resistant Bacteria and CAFOs

The increase in antibiotic-resistant bacteria is a source of growing concern in the public health and medical communities.60 The widespread use of antibiotics in CAFO-raised animals has led researchers to conclude that these practices may contribute to the problem of antibiotic resistance in humans.61 The use of antibiotics in CAFOs far exceeds the traditional use of antibiotics as treatments for diseases,62 in part because CAFOs utilize them for subtherapeutic purposes,63 which involve adding antibiotics directly into animal food to encourage rapid growth and the prevention of possible disease outbreaks among animal populations.64 Subtherapeutic uses of antibiotics have been widely criticized for contributing to the emergence of antibiotic-resistant bacteria.65 There remains some dispute among researchers about the extent to which CAFOs contribute to that threat and whether the risk to human health is significant enough to warrant discontinuing the subtherapeutic administration of antibiotics in CAFOs.66 Existing evidence about the threat, however, was enough to prompt the Pew Charitable Trusts and Johns Hopkins University to recommend that the “subtherapeutic use of antibiotics in animal agriculture . . . be phased out in the US, as has recently occurred in the [[European Union].”67 As the threat of antibiotic-resistant bacteria increases, it seems likely that CAFOs will remain a source of concern for scientists, the public, and, possibly, regulators. b. CAFO Workers' Health Health threats from CAFOs exist on a smaller scale as well, impacting those who work in the actual facilities. Agricultural workers are engaged in one of the most hazardous occupations in the country.68 As of 2008, there were 21.3 fatalities per 100,000 workers in the agricultural industry, making agriculture the secondmost deadly industry, following only mining.69 CAFOs tend to employ people from populations that lack access to healthcare, exacerbating the negative effects of the working conditions.70 Additionally, CAFOs are continually growing in size and number while the number of workers in these facilities has decreased, leading to possibly dangerous ratios of workers to animals.71 The main hazards of working in agriculture come from injuries incurred through direct encounters with animals (a threat particularly high in CAFOs) and machinery-related injuries.72 Air pollution is the other major source of problems, with up to forty percent of CAFO workers experiencing serious

respiratory illnesses, including chronic bronchitis, organic dust toxin syndrome, and sinusitis.73 The toxins to which CAFO workers are exposed vary, but they include hydrogen sulfide, ammonia, and particulate matter.74 CAFO workers also have an increased risk of musculoskeletal disorders and loss of hearing from heightened noise levels.75 These health effects, however, are not limited solely to CAFO workers, but may spread to surrounding residents. c. Health Effects on Nearby Residents It is perhaps unsurprising that people living near CAFOs tend to experience unpleasant side effects from the facilities, including intense odors and flies.76 While those irritants are a serious issue for residents, an emerging and potentially grave concern is the threat posed by CAFOs to residents' health as a result of their proximity to these facilities.77 In an Iowa study of the effects of CAFOs, researchers noted that “[a]ir quality data for CAFOs are quite limited. There are relatively few monitoring programs for large-scale livestock production compared to other industries that are regulated.”78 Although scientists have yet to fully explore this area of public health, research suggests that people who live near CAFOs, particularly children and the elderly, suffer from increased respiratory problems similar to those experienced by CAFO workers.79 Although the data are still incomplete, a number of scientists hypothesize that CAFOs are a likely source of health problems for nearby residents.80 For instance, the American Public Health Association issued a recommendation urging “federal, state and local governments and public health agencies to impose a moratorium on new Concentrated Animal Feed Operations until additional scientific data on the attendant risks to public health have been collected and uncertainties resolved.”81 However, federal and state governments have not responded in any meaningful way.82 3. The Day-to-Day Effects of CAFOs on Neighbors For a rural property owner, there is probably nothing so disheartening as the news that a CAFO is moving in next door. In addition to the possible risk of the negative health effects discussed above, strong odors, flies, and the sound of thousands of animals living together in one building accompany the operation of a CAFO. Despite the infringement on residents' enjoyment of their property,

neighbors of CAFOs have traditionally had limited remedies against the construction and operation of these facilities due to right-to-farm laws.83 Every state has a version of a right-to-farm statute on its books, which protects CAFO owners from nuisance actions related to odors, flies, or other infringements due to the proximity of CAFOs to other property.84 Economically speaking, these types of prohibitions serve to protect the investment of CAFO operators by preventing others from filing of a nuisance suit and adversely affecting the operation.85 These statutes take different forms and vary in strength. In almost all states, anyone who “come[s] to the nuisance” cannot bring a legal action against a CAFO.86 Some states adopt a statute of limitations against nuisance suits, preventing residents from seeking legal action against a CAFO after a specific time period expires.87 A more flexible protection for CAFOs is to allow them to receive nuisance protection even as the operation expands or changes over time.88 A more controversial approach to right-to-farm legislation is for states to enact “expansive immunity.”89 Several state courts have determined that these expansive right-to-farm laws go too far in protecting agricultural interests and have found such laws unconstitutional.90 The Iowa Supreme Court ruled Iowa's right-to-farm law unconstitutional in two cases: Bormann v. Board of Supervisors and Gacke v. Pork Xtra, L.L.C.91 This Note addresses these cases and the outlook for future nuisance actions in Iowa in greater depth in Part III.C. In addition to limitations on nuisance suits, neighbors of CAFOs are often unable to escape the situation by moving. Areas populated with CAFOs face decreased property values.92 CAFOs act as an “impairment” on the property, leaving owners with the option to sell their properties--often at a significant loss--or to remain on their property and suffer the ill effects of living next to a CAFO.93 A report found that Iowa's residents suffered a decrease in property value of “forty [percent] within a half-mile; thirty [[percent] within one mile; twenty [percent] within one and a half miles; and ten [percent] within two miles.”94 These options can leave property owners feeling helpless and contribute further to the stress CAFOs impose on residents. Quality-of-life markers, such as being able to go outside (a natural part of life for most people who live in rural areas), also decline for people living near

CAFOs.95 CAFOs may additionally have an overall negative effect on the economic well-being of communities.96 These effects are serious consequences of CAFOs, and this Note examines how such factors influence residents of Iowa and considers potential solutions. III. CAFOs in Iowa Iowa is synonymous with agriculture, producing more corn and soybeans than any other state and ranking second in overall agricultural export value.97 This emphasis on agriculture creates an environment where CAFOs are encouraged as a means to sustain Iowa's position in the country as a national leader for the production of agricultural goods. A. By the Numbers Iowa is home to more than 7500 animal feeding operations.98 More than 2900 of these house more than 1000 animal units, qualifying them as large CAFOs under the EPA's guidelines.99 In comparison, the other three states comprising the EPA's Region 7--Kansas, Missouri, and Nebraska--have 446, 554, and 862 CAFOs respectively.100 Strikingly, Kansas has granted NPDES permits to 100% of the state's NPDES-eligible CAFOs, and 43% of Nebraska's CAFOs are permitted.101 Iowa has granted NPDES permits to only 4.3% of the CAFOs in the state, evidence of the prevailing lenience in the state toward CAFOs.102 Iowa's CAFOs are home to approximately 18 million hogs, 52 million laying hens, and 1 million beef cattle and broiler chickens.103 The chicken population in Iowa outnumbers humans by a ratio of 18 to 1 and there are 6 times as many hogs as people. These animals “produce as much untreated manure as the sewage from 471 million people--more than the entire U.S. population.”104 The environmental impact of having such a concentrated population of animals is enormous.105 Regulations and enforcement agencies must combat potential environmental disasters and adequately protect the people and animals that CAFOs affect. B. The Iowa Department of Natural Resources and Oversight of CAFOs Every state has its own regulatory framework governing CAFOs, separate from federal regulations. These regulations vary, but “generally regulate one or more of the following: (1) size or structure of the operation; (2) location of the facility; or (3) management practices for storage and disposal of animal waste.”106 States can implement significant legislation under the EPA's federal guidelines,

so long as the regulations do not fall below EPA standards.107 Iowa law, as amended in 2010, provides that state agencies may not regulate CAFOs more strictly than federal guidelines require.108 The Iowa Department of Natural Resources is responsible for regulating Iowa's CAFOs.109 The IDNR faced national scrutiny subsequent to an EPA investigation and published report, released in July 2012, which found that the IDNR has failed to satisfactorily enforce CAFO regulations.110 The findings published in the report include the following: IDNR has adequate procedures in place to identify large open feedlots and requires permits for large open feedlots that discharge. IDNR is not issuing NPDES permits to CAFOs when appropriate. IDNR has not conducted comprehensive inspections to determine whether unpermitted CAFOs need NPDES permits. In a number of cases reviewed (49%), IDNR failed to act, or did not follow its enforcement response policy when addressing CWA/NPDES permit violations. IDNR is not assessing adequate penalties against CAFOs. Land application setbacks are not equivalent to federal requirements and are not included in IDNR-approved nutrient management plans.111 The EPA recommended that the IDNR take several actions to address the report's findings, including revising the procedures for inspection and enforcement of CAFOs in Iowa, determining which CAFOs are required to obtain NPDES permits through inspections, and determining whether CAFOs have actually discharged into waterways.112 The EPA's report vindicated the beliefs of groups working to restrict CAFOs in Iowa, while supporters of CAFOs defended the IDNR.113 The IDNR released its response to the EPA's report in September 2012.114 The response outlined measures the IDNR would take to improve upon the problem areas the EPA identified, but it also challenged several of the EPA's findings. The IDNR attempted to justify its actions as legally sufficient and practical due to financial constraints.115 In response to the EPA's finding that the IDNR had failed to assess adequate penalties, the IDNR noted that it collected $1.3 million in penalties in a total of 267 cases between 2006 and 2011.116 The IDNR also pointed out that since 2007, it has experienced a decrease in staff that works with animal feeding

operations.117 The IDNR cites this staffing shortage as an explanation for what the EPA views as lax monitoring of CAFOs.118 According to the report, the IDNR plans to request funding for thirteen additional full-time staff members.119 Currently, the IDNR website lists seventeen employees in animal feeding operations.120 Only four of the employees appear to be involved in the NPDES permitting process.121 Considering the growing number of CAFOs in Iowa, it seems nearly impossible for these employees to effectively inspect all of the CAFOs in Iowa and determine whether or not they require NDPES permits.122 Due to fiscal planning and limited resources, the IDNR estimated that it would not be able to hire additional staff until July 2013 at the earliest.123 The IDNR's response to the EPA recognizes some of its shortcomings, but points out that addressing the issues and making changes will require adjusting its current priorities: “Changing priorities will also mean that some current [[I]DNR efforts will become lower priority or dropped. The [I]DNR will involve stakeholders in determining some of the changes in priorities. The overall economic impact of increasing inspections will be very high for Iowa.”124 This language suggested that the IDNR was perhaps not as concerned with regulating CAFOs as it was with other, unidentified issues. The IDNR went on to note that the Iowa Administrative Code requires it to offset the economic benefit obtained by the offender-CAFO when considering penalties, and that in many cases that amount was quite small.125 However, this explanation fails to address the fact that although the IDNR is required to consider the economic benefit obtained, it is also required to consider the “[g]ravity of the violation.”126 The factors included in that analysis are “actual or threatened harm to the environment or the public health and safety,” whether toxins were involved or the potential for future effects due to the violation, any relevant federal priorities, whether the offender is a repeat offender, “[w]hether the type of violation threatens the integrity of a regulatory program,” and “[e]xpenses or efforts by the government” as a result of the violation.127 These factors give the IDNR much more discretion to consider the non-economic impact of offender-CAFOs than it admitted to possessing in its response to the EPA.128

The EPA also reprimanded the IDNR for failing to inspect large CAFOs to identify whether the operations needed NPDES permits, an allegation that the IDNR readily conceded.129 The reason that the IDNR does not inspect these CAFOs, regardless of the EPA's directive, is due to the fact that Iowa operates under a “no discharge” assumption.130 This assumption appears to hold CAFOs to high operating standards on its face, but is problematic because inspections do not take place and there is no one to hold CAFOs accountable if, and often when, discharges occur.131 The Iowa Environmental Council has criticized the zero-discharge policy because the premise of the policy rests entirely on the design and construction of the facility and not whether discharges are, in fact, occurring.132 The Iowa Environmental Council stresses that inspections are necessary to determine whether discharge is occurring, as evidenced by the fact that in documented manure spills involving CAFOs, all of the facilities were designed to be and approved as zero-discharge facilities.133 In the wake of the EPA's report, the IDNR and the EPA signed a “work plan agreement” to improve and strengthen Iowa's oversight of CAFOs and implementation of NPDES permits.134 This plan will be implemented over a five-year period and includes a wide range of areas on which IDNR must focus its improvement efforts.135 The agreement states that IDNR will work to bring Iowa's regulation of CAFOs into compliance with federal standards, including adjusting land application setback requirements, training IDNR staff on the NPDES permitting process, and revising IDNR forms and applications to comply with “the minimal federal standards.”136 Furthermore, the IDNR agreed to increase its inspection of both medium and large CAFOs to ensure the facilities claiming to be “no-discharge” operations are not, in fact, discharging pollutants into waterways.137 The plan also strengthens the enforcement efforts of the IDNR, mandating that IDNR “carry out enforcement against CAFOs with illegal discharges to waters of the U.S. . . . in accordance with its Enforcement Management System.”138 The plan does not alter the IDNR's enforcement standards, but it requires that the IDNR actually take action against CAFOs in violation of the standards.139 Although the IDNR's efforts to inspect and evaluate CAFOs will, hopefully, be much improved following the implementation of the work plan agreement, there is still ample room for improving Iowa's CAFO regulations. The work plan

agreement focuses almost exclusively on the NPDES permitting process under the Clean Water Act; it is not a mechanism for changing the culture of CAFOs in Iowa.140 Regardless of the IDNR's environmental oversight in this area, residents will still feel the impact of CAFOs and the following two court cases suggest that Iowa's judiciary may be viewing the plight of CAFO neighbors with increasing sympathy. C. The Iowa Supreme Court and CAFOs The Iowa Supreme Court has been involved in several notable CAFO actions. The consequences of these cases are mixed, but the decisions reflect the court's growing awareness that CAFOs are not an issue that will simply fade over time.141 The court has addressed two main issues with respect to CAFOs: the primacy of state control and the constitutionality of right-to-farm statutes. 1. Lack of Local Control The Iowa Supreme Court upheld the state's authority to regulate CAFOs as greater than the power of local governments in Goodell v. Humboldt County, where the court ruled that local governments could not regulate CAFOs more stringently than state-implemented restrictions.142 This negation of local control is a hotly contested issue in the world of CAFOs.143 In Goodell, the court struck down four of Humboldt County's ordinances, all of which addressed different aspects of CAFO management: “(1) ordinance 22 imposes a permit requirement prior to construction or operation of a regulated facility; (2) ordinance 23 establishes financial security requirements; (3) ordinance 24 implements groundwater protection policies; and (4) ordinance 25 governs toxic air emissions from regulated facilities.”144 The county asserted its right to implement these ordinances under the Iowa Constitution's “[c]ounties home rule” amendment, which grants counties the power “to determine their local affairs and government.”145 The Iowa Code further provides that “[a] county shall not set standards and requirements which are lower or less stringent than those imposed by state law, but may set standards and requirements which are higher or more stringent than those imposed by state law, unless a state law provides otherwise.”146 Additionally, the Code states that a county's power is “subject only to limitations expressly imposed by a state law,”147 and “[a]n exercise of a county

power is not inconsistent with a state law unless it is irreconcilable with the state law.”148 These provisions seemed to indicate that counties had broad discretion to implement regulations over a variety of issues, including CAFOs. However, the court ruled against Humboldt County, finding the ordinances were irreconcilable with existing state law and therefore preempted by the state.149 Under preemption, state laws trump local government regulations when conflicts arise.150 The Goodell court explained that the existing state laws already limited liability for toxic air emissions, delegated exclusive jurisdiction over animal waste to the IDNR, and established permitting requirements that were incompatible with the county's permitting requirements.151 This decision leaves local communities with very little power to regulate CAFOs, transferring that authority almost exclusively to state legislators and the IDNR. 2. Right to Farm: Bormann and Gacke The court's decision in Goodell supported the rights of the state over local county governments. However, in two cases, Bormann v. Board of Supervisors and Gacke v. Pork Xtra, L.L.C., the court ruled that Iowa's right-to- farm statute152 was unconstitutional, opening up the possibility for future judicial actions against CAFOs.153 In the Bormann decision, the court found that by granting a CAFO's construction application, the county created an easement154 for the CAFO, thereby shielding it from liability from nuisance suits.155 The court held this action constituted a taking without the required compensation: [The county] has exceeded its authority by authorizing the use of property in such a way as to infringe on the rights of others by allowing the creation of a nuisance without the payment of just compensation. The authorization is in violation of the Fifth Amendment to the Federal Constitution and article I, section 18 of the Iowa Constitution.156 The court's admonishment to the legislature in Bormann was particularly harsh: “When all the varnish is removed, the challenged statutory scheme amounts to a commandeering of valuable property rights without compensating the owners, and sacrificing those rights for the economic advantage of a few.”157

In Gacke, the court upheld Bormann, reaffirming that nuisance immunity from an agricultural operation was unconstitutional so long as it violated the Takings Clause.158 The court also ruled, however, that the state could provide immunity from nuisance in instances when compensation had been provided for the loss in property value.159 The court went on to consider whether the statute violated the Gackes' inalienable rights under the Iowa Constitution.160 It determined that, although immunity from nuisance may be authorized in some instances, the statute as applied to the Gackes was “unduly oppressive and, therefore, not a reasonable exercise of the state's police power.”161 The Gacke and Bormann decisions seemed promising for neighbors of CAFOs. It does not appear, however, that people have relied on these rulings to bring actions in any significant number, and it therefore remains unclear whether Iowa courts will continue to uphold the principles outlined in Gacke and Bormann in future cases.162 IV. Moving Forward The proliferation of CAFOs in Iowa does not appear to be slowing down.163 Since January 1, 2011, more than 580 hog confinement construction proposals have been filed with the IDNR.164 Of those, 374 have been large enough that they require a permit to proceed before construction can begin.165 More and more people will soon find themselves living next to CAFOs, a fact that has individuals throughout the state looking for ways to change this pattern.166 A. Looking to Other States' Regulations As concerns grow about the negative effects of CAFOs on the environment, human health, and animal welfare, several state legislatures have moved to restrict the growth of CAFOs.167 In Indiana and Ohio, the legislatures proposed moratoriums on new CAFO construction. Indiana's bill, however, never made it out of committee and Ohio's is “currently stalled [in] the Senate Agriculture Committee.”168 Following a series of disastrous manure spills, North Carolina implemented a moratorium on CAFO construction in 1997, a ban that was renewed periodically until the legislature allowed it to expire in 2007.169 The ban was not entirely effective, however, as it contained several loopholes that resulted in some additional CAFOs being constructed.170 Based on the fact that these bills often seem to simply disappear in the legislature,171 placing

moratoria on CAFO construction does not appear to be a method of managing the effects of CAFOs that legislators are willing to embrace--at least not yet.172 Other states have taken more limited measures to effectively regulate CAFOs.173 For example, Missouri has enacted slightly more stringent permit thresholds for poultry operations in an effort to protect water quality.174 New York offers voluntary programs that purport to “help farm operations meet their business objectives while also protecting the purity and availability of the water supplies.”175 Michigan created a similar voluntary program where CAFO owners agreed to follow “Generally Accepted Agricultural Management Practices.”176 The benefits to CAFO owners participating in voluntary programs are more than improving their environmental stewardship and receiving corresponding goodwill--compliance with these types of programs may shield CAFOs from potential nuisance actions.177 South Carolina, until recently, had one of the strictest regulatory frameworks for CAFOs in the country.178 “All owners and operators of [animal feeding operations] must apply for and receive a permit from the South Carolina Department of Health and Environmental Control.”179 This permit application requirement was slightly unusual because the size of the operation was irrelevant--every CAFO had to obtain a permit.180 South Carolina also required “a minimum 100-foot vegetative buffer” around manure lagoons or ponds that were located near surface water and imposed distance requirements for such facilities of “500 feet from drinking water wells and one quarter of a mile from surface waters.”181 The state also required that anyone planning to “construct or expand an [animal feeding operation] in South Carolina must publish a notice of intent to do so in a local newspaper and notify adjoining landowners and relevant county and water supply district managers.”182 Following notice, the South Carolina Department of Health and Environmental Control would hold a public hearing when it received twenty or more requests.183 Additionally, and perhaps most importantly, South Carolina's CAFOs were inspected annually, and the owners were responsible for monitoring groundwater.184 This past year, however, the South Carolina legislature repealed the act governing CAFO regulations, replacing it with a statute that appears to give more control over regulations to the legislature than to the South Carolina Department of Health and Environmental Control.185 The

strong history of regulating CAFOs in South Carolina, however, imports valuable information for those in other states looking for possible solutions. The above state actions are all in addition to the EPA's required regulations.186 Iowans can look to these types of controls to examine how CAFOs could be more efficiently regulated in this state. However, the issue with these state approaches to CAFO regulation and enforcement is that it requires the cooperation of state legislators and the ability of the IDNR to enforce the measures, which is lacking at this time.187 B. Approval Process and Citizen Involvement Currently, the most effective tool that citizens of Iowa have to combat the expansion of CAFOs is their local Board of Supervisors' authority to approve or deny construction permits for new CAFOs.188 Construction permits and manure management plans are required for CAFOs that will house more than 1000 animals.189 In eighty-eight of Iowa's ninety-nine counties, CAFOs must submit a satisfactory “master matrix” before they can receive a construction permit.190 The master matrix must include numerous details regarding the proposed CAFO, and “[t]he proposed site must obtain a minimum overall score of 440 and a score of 53.38 in the ‘air’ subcategory, a score of 67.75 in the ‘water’ subcategory and a score of 101.13 in the ‘community impacts' subcategory.”191 Any CAFO that fails to meet the matrix's minimum requirements is--technically--supposed to be denied a construction permit. One potential problem with the master matrix strategy is that the CAFO owner is the party responsible for filling out the matrix and the regulatory board merely approves or rejects the plan.192 Presently, the IDNR is not equipped to inspect these plans carefully, nor has it indicated a willingness to do so.193 However, the master matrices for CAFOs that are required to obtain a construction permit represent an opportunity for community groups and private citizens to get involved in the process and ensure that their voices are heard.194 Because the correctness of the matrix is a crucial factor in whether a CAFO receives approval or not, examining the plans and ensuring that CAFOs are held accountable for the information provided is a concrete way to moderate the expansion of CAFOs, ensuring regulations are followed at the outset.195 C. Community Organizing and Local Control

As CAFOs grow in number and size, the negative effects associated with these operations are magnified, resulting in increased awareness among concerned citizens. Community organizing groups in Iowa, such as Iowa Citizens for Community Improvement, have seen this increase in awareness correlate to increased membership numbers.196 Local groups have formed in communities to combat additional CAFO construction.197 These groups, such as Poweshiek CARES (Community Action to Restore Environmental Stewardship) and Jefferson County Farmers & Neighbors, are trying to organize efforts within small communities to forestall the construction of CAFOs.198 As discussed above, utilizing the approval process for proposed master matrices is currently the best approach for those opposing CAFO construction. However, these local groups have another powerful tool at their disposal: publicity and public pressure.199 This is an area where citizens can be highly effective, particularly in small communities where residents know each other and their families.200 This type of grassroots action is often slow-moving, but it appears to be gaining momentum and it might be the push that Iowans need to ensure that existing CAFOs are, at a minimum, in compliance with federal guidelines and, on a broader scale, that citizens are not harmed further by having to live in close proximity to CAFOs. V. Conclusion CAFOs present a complex range of issues, and the problems that arise from ineffective oversight and regulation of these operations can have long-lasting and serious effects. Iowa is approaching a point where the proliferation of CAFOs could cause permanent damage to the state. This damage could not only result in negative environmental and health effects, but could also impact the state's economic future if CAFOs saturate the state to the point where the landscape becomes unappealing to Iowa's best and brightest. Iowa is at a crossroads. The increasing awareness of CAFOs among the Iowa electorate may result in legislative action at some point. However, until that happens, Iowa's citizens should look to the judicial branch for remedies where appropriate and rely on grassroots activism to try and effect change on local levels whenever possible. The sooner that Iowa is able to develop effective policies, regulations, and judicial enforcement for citizens struggling to cope with the presence of CAFOs,

the better off the state will be in the future--preserving Iowa's reputation as not only a strong agricultural state, but also a place that values the people and animals that comprise its farming communities. Footnotes a1 J.D. Candidate, The University of Iowa College of Law, 2014; B.A., Grinnell College, 2007. I would like to thank the editors of Volumes 98 and 99 of the Iowa Law Review for their work on this Note. I would also like to thank my family for their unwavering support and encouragement. 1 According to the Environmental Protection Agency, CAFOs are a subset of animal feeding operations. What Is a CAFO?, U.S. Envtl. Protection Agency, (URL removed for reprint) (last visited Sept. 28, 2013). “Animal Feeding Operations (AFOs) are agricultural operations where animals are kept and raised in confined situations. AFOs congregate animals, feed, manure and urine, dead animals, and production operations on a small land area.” Id. The EPA uses the term “CAFO” only in reference to AFOs that meet certain criteria and designates them according to small, medium, and large CAFOs. Id. Small CAFOs contain less than 300 cattle, less than 750 swine weighing over 55 pounds, less than 3000 swine under 55 pounds, and less than 9000 laying hens. U.S. Envtl. Prot. Agency, Regulatory Definitions of Large CAFOs, Medium CAFO, and Small CAFOs, available at (URL removed for reprint) (last visited Sept. 28, 2013) [hereinafter Regulatory Definitions]. Small CAFOs are only designated as CAFOs for regulatory purposes if they are a “significant contributor of pollutants.” Id. Medium CAFOs contain 300-999 cattle, 750-2499 swine weighing over 55 pounds, 3000-9999 swine weighing less than 55 pounds each, and 9000-29,999 laying hens. Id. Medium CAFOs, in addition to the size stipulations, must either have “a manmade ditch or pipe that carries manure or wastewater to surface water; or the animals come into contact with surface water that passes through the area where they're confined.” Id. (emphasis omitted). Large CAFOs are defined as having any greater number of animals than medium CAFOs and automatically require construction permits. Id. 2

See Warren A. Braunig, Note, Reflexive Law Solutions for Factory Farm Pollution, 80 N.Y.U. L. Rev. 1505, 1507-08 (2005) (noting that the increase in CAFOs has resulted in issues involving legislation, environmental harms, and the possibility for new regulations). 3 Susan Poll-Klaessy, Factory Farms Muck Up Rural America, 13 Pub. Int. L. Rep. 107, 107 (2008). 4 See Melanie J. Wender, Note, Goodbye Family Farms and Hello Agribusiness: The Story of How Agricultural Policy Is Destroying the Family Farm and the Environment, 22 Vill. Envtl. L.J. 141, 141-42 (2011) (noting that “[m]ost Americans today purchase their meat from agricultural operations that raise animals in intensive confinement, such as ‘several thousand pigs or tens of thousands of chickens per barn”’). 5 R. Jason Richards & Erica L. Richards, Cheap Meat: How Factory Farming Is Harming Our Health, the Environment, and the Economy, 4 Ky. J. Equine, Agric., & Nat. Resources L. 31, 31 (2011-2012). 6 See Braunig, supra note 2, at 1505 (noting that CAFOs are beginning to be brought “into the regulatory fold”). 7 See Carrie Hribar, Nat'l Ass'n of Local Bds. of Health, Understanding Concentrated Animal Feeding Operations and Their Impact on Communities 12 (2010), available at (URL removed for reprint) (providing a brief overview of CAFO regulation and court action since the 1970s). 8 See William J. Weida, Considering the Rationales for Factory Farming 1 (2004), available (URL removed for reprint) (noting that CAFO operators claim there are several benefits associated with CAFOs that do not exist under traditional farming methods). 9 Hribar, supra note 7, at 2. 10

Id. 11 John C. Becker & John H. Howard, A Historical View of the Solutions Offered to Regulate Concentrated Animal Feeding Operations Under the Clean Water Act: What Has Been Learned?, 3 Ky. J. Equine, Agric., & Nat. Resources L. 71, 75 (2010-2011). 12 Richards & Richards, supra note 5, at 35 (“It is estimated that between 1997 and 2005, government subsidies to chicken, pork, beef, and corn producers were roughly $26.5 billion.”). 13 Id. at 35-36. 14 Paul B. Thompson, Getting Pragmatic About Farm Animal Welfare, in Animal Pragmatism: Rethinking Human-Nonhuman Relationships 140, 151 (Erin McKenna & Andrew Light eds., 2004). 15 See id. (noting that “all things considered” includes factors such as pollution or unsafe production costs). 16 See Weida, supra note 8, at 4 (claiming that CAFOs rely on governmental subsidies to decrease operating costs and pressuring governments to relax environmental regulations that affect CAFOs). 17 40 C.F.R. § 122.23 (2012) (stating that CAFOs “are point sources, subject to NPDES permitting requirements as provided in this section”). The EPA distinguishes between large and medium CAFOs, as well as noting a separate category for “animal feeding operations.” Id. § 122.23(b). For example, large CAFOs confine more than “2,500 swine each weighing 55 pounds or more” or “30,000 laying hens or broilers, if the AFO uses a liquid manure handling system.” Id. § 122.23(b)(4)(iv), (ix). Medium CAFOs include “750 to 2,499 swine each weighing 55 pounds or more” or “9,000 to 29,999 laying hens or broilers, if the AFO uses a liquid manure handling system.” Id. § 122.23(b)(6)(i)(D), (I). 18

See Braunig, supra note 2, at 1509. 19 40 C.F.R. § 122.2. 20 Braunig, supra note 2, at 1509. 21 Poll-Klaessy, supra note 3, at 109. 22 Id. (“Improper or excessive land application is the most common way these pollutants run off into nearby waterways or leach into the soil and ground water.”). 23 Braunig, supra note 2, at 1509-10. 24 Id. at 1510. 25 Id. at 1514. 26 40 C.F.R. § 122.23 (2012) (defining CAFOs as “point sources, subject to NPDES permitting requirements”). 27 Nat'l Pork Producers Council v. EPA, 635 F.3d 738, 750 (5th Cir. 2011). 28 Id. at 751. 29 Id. 30 See Braunig, supra note 2, at 1515 (“[W]hile state legislators have been active, it is not clear that their regulations are improving conditions.”). 31 See id. (discussing several states' approaches and the mixed results of those efforts). 32

See id. (identifying Iowa as a state impacted by “powerful lobbying and protesting by agribusiness interests”). 33 Region 7, U.S. Envtl. Prot. Agency, Preliminary Results of an Informal Investigation of the National Pollutant Discharge Elimination System Program For Concentrated Animal Feeding Operations in the State of Iowa 4 (2012), available at (URL removed for reprint) (finding that Iowa's DNR failed to take the following actions: to issue “NDPES permits to CAFOs when appropriate,” to “conduct[] comprehensive inspections to determine whether unpermitted CAFOs need NPDES permits,” “to act, or ... follow its ... policy when addressing CWA/NDPES permit violations,” and to “assess[] adequate penalties against CAFOs,” and, additionally, finding that the department's land application setbacks and distance requirements were “not equivalent to federal requirements”). 34 See Douglas R. Williams, When Voluntary, Incentive-Based Controls Fail: Structuring a Regulatory Response to Agricultural Nonpoint Source Water Pollution, 9 Wash. U. J.L. & Pol'y 21, 25 (2002) (noting that “[m]any states have been reluctant to impose direct controls on agricultural nonpoint source pollution for a variety of reasons, including the relative political power of agricultural interests at the local and state level”). 35 Perry Beeman, Runoff from Iowa Farms Growing Concern in Gulf, Des Moines Reg. (Oct. 28, 2012), (URL removed for reprint). 36 Doug Gurian-Sherman, Union of Concerned Scientists, CAFOs Uncovered: The Untold Costs of Confined Animal Feeding Operations 4 (2008), available at (URL removed for reprint) Animal sources, including CAFOs, are directly responsible for approximately fifteen percent of the manure run-off causing the Gulf's dead zone. Id. The other contributing pollutants, however, come from farmland that is often heavily fertilized with manure from CAFOs. See Weida, supra note 8, at 1 (noting that CAFOs claim there are significant benefits to using “liquid animal manure as a crop nutrient,” although that presumes

manure is applied only in “rates that adequately nourish the crops without providing more fertilizer than crops can use”). 37 See Beeman, supra note 35 (noting that the shrimp, crab, and oyster industries are facing scarcity problems). Beeman also reports that Minnesota and Wisconsin have begun “limit[ing] how much nitrogen or phosphorous can enter waterways” while “political leaders, farm organizations and many individual farmers have opposed similar restrictions” in Iowa. Id. 38 Cheryl L. Leahy, Large-Scale Farmed Animal Abuse and Neglect: Law and Its Enforcement, 4 J. Animal L. & Ethics 63, 89-90 (2011). 39 9 C.F.R. § 1.1 (2013). Under the Animal Welfare Act, the term “animal” “excludes ... farm animals, such as, but not limited to, livestock or poultry used or intended for use as food or fiber, or livestock or poultry used or intended for use for improving animal nutrition, breeding, management, or production efficiency, or for improving the quality of food or fiber.” Id. 40 Leahy, supra note 38, at 89-90 (noting public outrage at the uncovering of extreme animal cruelty at a dairy CAFO). 41 Susan Adams, Legal Rights of Farm Animals, Md. B.J., Sept.-Oct. 2007, at 18, 20. 42 Id. 43 Id. 44 See id. at 20-21 (noting that farm animals lack any legal protection and then outlining the various types of abuse that occur in CAFOs). 45 See 7 U.S.C. § 1901 (2012); James I. Pearce, A Brave New Jungle: Factory Farming and Advocacy in the Twenty-First Century, 21 Duke Envtl. L. & Pol'y F. 433, 440 (2011). 46

See 7 U.S.C. § 1901 (employing language that explicitly refers to slaughter and failing to address the living conditions of animals). 47 Id. 48 Thumping is how CAFOs ensure uniform size in hogs. Piglets who do not grow fast enough are “[p]icked up by their hind legs ... and then bashed headfirst onto the concrete floor”--removing them from the operation. Pearce, supra note 45, at 443 (quoting Gail A. Eisnitz, Slaughterhouse: The Shocking Story of Greed, Neglect, and Inhumane Treatment Inside the U.S. Meat Industry 220 (1997)). Piping is what happens to hogs that are unable to move down the chute to slaughter. “To quickly dispose of a crippled hog, workers have been known to beat it to death with a lead pipe.” Id. 49 See id. at 459 n.135 (citing Eisnitz, supra note 48, at 310). 50 Id. at 440. 51 Id. (quoting 147 Cong. Rec. S7310 (daily ed. July 9, 2001) (statement of Sen. Byrd)) (internal quotation marks omitted). 52 Resources, CAFO, (URL removed for reprint) (last visited Sept. 28, 2013). 53 Dan Flynn, Five States Now Have ‘Ag-Gag’ Laws on the Books, Food Safety News (Mar. 26, 2012), (URL removed for reprint) 54 Id. 55 Animal Welfare, Brit. Soc'y Animal Sci., (URL removed for reprint) (last visited Sept. 28, 2013). 56 Id. 57

Erik Wasson, Midnight Egg Amendment in 2012 Farm Bill Escalates Animal Rights Fight, Hill (July 15, 2012, 7:00 AM (URL removed for reprint) 58 Id. 59 Id. Additionally, the amendment is cited as threatening a tentative agreement reached by the Humane Society and the United Egg Producers to slowly replace the standard cages for laying hens with a larger size. Id. 60 See Antibiotic Resistance and the Threat to Public Health: Hearing Before the Subcomm. on Health of the H. Comm. on Energy and Commerce, 111th Cong. (2010) (statement of Thomas Frieden, Director, Centers for Disease Control and Prevention), available at (URL removed for reprint) (“Without continuing to improve on our response to the public health problem of antibiotic resistance, we are potentially headed for a post-antibiotic world in which we will have few or no clinical interventions for some infections.”). 61 Sudeshna Ghosh & Timothy M. LaPara, The Effects of Subtherapeutic Antibiotic Use in Farm Animals on the Proliferation and Persistence of Antibiotic Resistance Among Soil Bacteria, 1 ISME J. 191, 191 (2007), available at (URL removed for reprint) (noting that over half of all antibiotics produced in the United States are for agricultural use). 62 Id. 63 Antibiotics are typically used to treat diseases in both humans and animals. Hribar, supra note 7, at 10-11. The practice of administering antibiotics in lower level doses to livestock is referred to as “subtherapeutic use.” Id. at 10. The administration of subtherapeutic antibiotics in CAFOs causes “animals [to] grow faster, produce more meat and avoid illnesses.” Id. 64 Ghosh & LaPara, supra note 61, at 191. 65 Id. at 191-92.

66 See id. (noting that although “it is agreed that subtherapeutic antibiotic use leads to an increase in antibiotic-resistant fecal bacteria in the animals, the role of subtherapeutic antibiotic use in the global spread of antibiotic resistance remains ambiguous” (citations omitted)). 67 Amy Pruden, Antibiotic Resistance Associated with CAFOs, in Hormones and Pharmaceuticals Generated by Concentrated Animal Feeding Operations 71, 71 (Laurence S. Shore & Amy Pruden eds., 2009). 68 F.M. Mitloehner & M.S. Calvo, Worker Health and Safety in Concentrated Animal Feeding Operations, 14 J. Agric. Safety & Health 163, 163 (2008). 69 Id. at 167. 70 See id. (noting that CAFO workers face similar problems as other worker populations comprised mainly of immigrants: lack of access to healthcare, low income, low education levels, and high injury rates). 71 Id. at 166 (“Between 2000 and 2005, there was a 12% decrease in the number of workers employed on U.S. livestock farms ... During the same period, national livestock animal inventories increased by 3% ... An increase in animal units per worker may lead to greater work and exposure risks.”). 72 Id. at 164. 73 Carol J. Hodne, Rural Environmental Health and Industrial Agriculture: A Case Example of Concentrated Animal Feeding Operations, in Critical Issues in Rural Health 61, 64 (Nina Glasgow et al. eds., 2004). 74 Mitloehner & Calvo, supra note 68, at 171-72. 75 Id. at 164, 169-70. 76

Hribar, supra note 7, at 7-8 (describing the effect that such nuisances can have on residents near CAFOs). 77 Dick Heederik et al., Health Effects of Airborne Exposures from Concentrated Animal Feeding Operations, 115 Envtl. Health Persp. 298, 298, 300 (2007) (noting that although “[t]he issue of which specific community health effects may result from CAFO emissions is open and controversial,” there needs to be further study, specifically of particulate matter exposure and other pulmonary irritants (emphasis added)). 78 Peter S. Thorne, Air Quality Issues, in Iowa Concentrated Animal Feeding Operations Air Quality Study 35, 35 (2002), available at: removed for reprint 79 James A. Merchant et al., Human Health Effects, in Iowa Concentrated Animal Feeding Operations Air Quality Study, supra note 78, at 121, 122. 80 See generally Michael Greger & Gowri Koneswaran, The Public Health Impacts of Concentrated Animal Feeding Operations on Local Communities, 33 Fam. & Community Health 373 (2010) (noting that, although the science is not yet settled, there are numerous studies indicating that CAFOs cause a variety of health issues for those living near such operations). 81 Am. Pub. Health Ass'n, Policy No. 20037, Precautionary Moratorium on New Concentrated Animal Feed Operations (2003), available at (URL removed for reprint) 82 North Carolina put a moratorium in place due to a series of manure lagoon breaks, but the ban eventually ended and the results of the ban were decidedly mixed. David Osterberg & Stewart W. Melvin, Relevant Laws, Regulations and Decisions, in Iowa Concentrated Animal Feeding Operations Air Quality Study, supra note 78, at 184, 193; see infra notes 169-70 and accompanying text. 83 Terence J. Centner, Governments and Unconstitutional Takings: When Do Right-to-Farm Laws Go Too Far?, 33 B.C. Envtl. Aff. L. Rev. 87, 88 (2006) (noting a growing concern that some right-to-farm laws “provide too much protection

for agricultural pursuits and other activities at the expense of neighboring property owners”). 84 See id. at 94-95 (noting that there are “five significant approaches to antinuisance protection” that states often utilize in protection of farmland); see also Hribar, supra note 7, at 11-12. 85 Centner, supra note 83, at 95-96. 86 Id. at 95. 87 Id. at 98. 88 See id. at 95 (“A third approach [to right-to-farm statutes] allows operations to expand and adopt production changes.”). 89 Id. at 114. 90 Hribar, supra note 7, at 11-12 (noting that courts in four states-- Iowa, Michigan, Minnesota, and Kansas--have held “right-to-farm” laws unconstitutional and that other states have rewritten these laws to ensure their constitutionality). 91 Gacke v. Pork Xtra, L.L.C., 684 N.W.2d 168 (Iowa 2004); Bormann v. Bd. of Supervisors, 584 N.W.2d 309 (Iowa 1998). 92 John A. Kilpatrick, Concentrated Animal Feeding Operations and Proximate Property Values, 69 Appraisal J. 301, 305-06 (2001). 93 Id. at 303-04. 94 Richards & Richards, supra note 5, at 38-39. 95

See Jan L. Flora et al., Social and Community Impacts, in Iowa Concentrated Animal Feeding Operations Air Quality Study, supra note 78, at 147, 149-50 (“Thirty percent of respondents from around the hog CAFO as compared to a maximum of three percent from the other two communities indicated that ... these problems had occurred 12 or more times during the past six months.”). 96 Id. at 148. 97 Iowa Econ. Dev. Auth., 2012 Trade Statistics, available at: (URL removed for reprint) (last visited Sept. 28, 2013). 98 Iowa Dep't Natural Res., Basic AFO Data (With Animal Units), available at (URL removed for reprint) (last visited Sept. 28, 2013). 99 Id.; Regulatory Definitions, supra note 1. There appears to be a discrepancy between the number of CAFOs in Iowa listed by the EPA compared to the number of large CAFOs (with 1000 animal units or more) listed in the IDNR's report. The EPA Region 7 website states that Iowa has 3055 CAFOs, while the IDNR lists around 2900. Compare Are There CAFOs in Region 7?, U.S. Envtl. Protection Agency, (URL removed for reprint) (last visited Sept. 28, 2013), with Iowa Dep't Natural Res., supra note 98. However, in the EPA's report to the IDNR, see infra text accompanying notes 111-24, the EPA uses the IDNR's stated CAFO numbers, Region 7, supra note 33, at 6. 100 See Are There CAFOs in Region 7?, supra note 99. 101 Id. As a reminder, NPDES permits are National Pollutant Discharge Elimination System permits, required by the EPA for certain CAFOs. 102 Id. 103 Iowa Facts, Factory Farm Map (URL removed for reprint) (last visited Aug. 15, 2013). Laying hens are used solely for producing eggs and are therefore kept in much closer quarters than broiler chickens, which are raised for human

consumption. Ken Midkiff, CAFOs, Neb. Envtl. Action Coalition, (URL removed for reprint) (last visited Sept. 28, 2013) (accessed by searching in Internet Archive) (claiming that “[t]he essence of human cruelty to sentient beings reaches its peak in buildings that house laying hens”). 104 Iowa Facts, supra note 103. 105 See id. (noting multiple instances of environmental damage as a result of CAFO practices, including instances where thousands of gallons of manure were applied to land near waterways and a manure release that killed more than 150,000 fish in a single incident). 106 Thomas R. Head, III, Local Regulation of Animal Feeding Operations: Concerns, Limits, and Options for Southeastern States, 6 Envtl. Law. 503, 529-30 (2000). 107 See 40 C.F.R. § 122.1 (2012) (stating that “[n]othing in this part ... precludes more stringent State regulation”). 108 Iowa Code § 459.311(2) (2013) (“Any rules adopted pursuant to this subsection shall be no more stringent than requirements under the federal Water Pollution Control Act, 33 U.S.C. ch. 26, as amended, and 40 C.F.R. pts. 122 and 412.”). 109 See Animal Feeding Operations, Iowa Dep't Nat. Resources, (URL removed for reprint) (last visited Sept. 28, 2013). 110 Region 7, supra note 33, at 4. 111 Id. 112 Id. 113 See David Pitt, EPA: Iowa Must Fix Regulation of Livestock Farms, Real Clear Pol. (July 13, 2012 (URL removed for reprint) The article cited a spokesperson from the Iowa Cattlemen's Association as saying that the IDNR “has done an

exceptional job of enforcing the Clean Water Act and other federal regulations,” and an attorney for the Environmental Integrity Project as noting that the “EPA's findings are a critical first step, but the real work of fixing Iowa's broken factory farm program and restoring water quality is just beginning.” Id. (internal quotation marks omitted in second quotation). 114 Iowa Dep't Natural Res., Response to U.S. EPA Region 7 (2012), available at (URL removed for reprint) 115 Id. 116 Id. at 2. 117 Id. 118 Id. at 2-3. 119 Id. at 3. 120 DNR Animal Feeding Operations Contacts, Iowa Dep't Nat. Resources, (URL removed for reprint) (last visited Sept. 28, 2013). 121 Id. 122 See Iowa Dep't Natural Res., supra note 114, at 2. 123 Id. at 3. 124 Id. at 4. 125 Id. at 5 (citing Iowa Admin. Code r. 567-10.2(1) (2013)). 126 Iowa Admin. Code r. 567-10.2(2). 127

Id. 128 See Iowa Dep't Natural Res., supra note 114, at 5. 129 Id. at 2 (noting that CAFOs in Iowa were not normally inspected for NPDES permits because Iowa law requires that all CAFOs operate as “no discharge” facilities). 130 Id. 131 The Iowa Environmental Council found that “between 2001 and 2011, 262 manure spills were documented to have reached a river, stream or lake. Of these 262 spills, 45% involved a confinement facility, and about 30% took place at the confinement site itself.” Iowa Environmental Council Urges Stronger Protection of Iowa's Waters from Livestock ManureSpills, Iowa Envtl. Council (Oct. 10, 2012), (URL removed for reprint) 132 Id. 133 Id. 134 Work Plan Agreement Between the Iowa Department of Natural Resources and the Environmental Protection Agency Region 7 (Sept. 11, 2013), available at (URL removed for reprint) 135 Id. 136 Id. at 2-3. 137 Id. at 5-6. In order to comply with the agreement, the IDNR has added seven full-time staff members, who will conduct inspections and evaluations of CAFOs. Id. at 5. 138 Id. at 6.

139 Id. (noting that “[i]n specific cases where [IDNR] does not seek or recover full economic benefit, [IDNR] will document the case-specific rationale and/or mitigating factors supporting [IDNR's] decision”). 140 More information on the specifics of the work plan agreement and supporting documentation can be found on the Environmental Protection Agency, Region 7 website. Iowa CAFO Water Program Improvements--Questions & Answers, U.S. Envtl. Protection Agency (URL removed for reprint) (last visited Sept. 28, 2013). 141 In a 2008 anticipatory nuisance case, Simpson v. Kollasch, the Iowa Supreme Court noted that “[i]n recent years, hog confinement operations have become more controversial as they grow in number and size.” Simpson v. Kollasch, 749 N.W.2d 671, 677 (Iowa 2008). 142 Goodell v. Humboldt Cnty., 575 N.W.2d 486, 501-02(Iowa 1998). 143 Head, supra note 106, at 538 (noting that “[s]tate preemption of local regulations is probably the most controversial and debated issue facing local governments as they attempt to control [C]AFOs”). 144 Goodell, 575 N.W.2d at 489. 145 Iowa Const. art. III, § 39A. 146 Iowa Code § 331.301(6)(a) (2013). 147 Id. § 331.301(3). 148 Id. § 331.301(4). 149 Goodell, 575 N.W.2d at 508. 150

Head, supra note 106, at 541. 151 Goodell, 575 N.W.2d at 508. The court expanded on its reasons for striking down the ordinances regarding permits, noting that under the county's regulations, CAFOs could follow all proper state laws but ultimately be prohibited from operation due to county ordinances--a result the court determined to be inconsistent with the legislature's intent. Id. at 502-04. 152 The right-to-farm statute at issue in Gacke stated: “A farm or farm operation located in an agricultural area shall not be found to be a nuisance regardless of the established date of operation or expansion of the agricultural activities of the farm or farm operation.” Gacke v. Pork Xtra, L.L.C., 684 N.W.2d 168, 172 (Iowa 2004) (quoting Iowa Code § 352.11(1)(a) (1993)). 153 Gacke, 684 N.W.2d at 173-74; Bormann v. Bd. of Supervisors, 584 N.W.2d 309, 321 (Iowa 1998). 154 An easement is defined as “an interest in land which entitles the owner of the easement to use or enjoy land in the possession of another.” Bormann, 584 N.W.2d at 316 (quoting Restatement (First) of Prop. § 451 cmt. a (1944)). 155 Id. at 321. 156 Id. 157 Id. at 322. 158 Gacke, 684 N.W.2d at 175. 159 Id. (noting that “[t]he Takings Clause does not prohibit limitations on other damages recoverable under a nuisance theory”). 160 Id. at 175-76. The Iowa Constitution provides: “All men and women are, by nature, free and equal, and have certain inalienable rights-- among which are

those of enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining safety and happiness.” Iowa Const. art. I, § 1. 161 Gacke, 684 N.W.2d at 179. The court noted that the Gackes had lived on the property since before the CAFO was constructed and were not obtaining any benefit from the operation. Id. at 178-79. 162 Jesse J. Richardson, Jr. & Theodore A. Feitshans, Nuisance Revisited After Buchanan and Bormann, 5 Drake J. Agric. L. 121, 136 (2000). 163 See Iowa Dep't Natural Res., Construction Review Numbers, available at (URL removed for reprint) (last visited Sept. 28, 2013). 164 Id. 165 Id. 166 Local groups have arisen throughout Iowa in counties facing CAFO expansion. See infra Part IV.C. 167 Legislation and Regulation Regarding Factory Farming, Nat'l Tr. for Historic Preservation (URL removed for reprint) (last visited Sept. 28, 2013). 168 Id. 169 Emily Abraham, Will a Moratorium on Confined Animal Feeding Operations Ever Get Through the Indiana General Assembly?, Nat'l L. Rev. (Mar. 13, 2012), (URL removed for reprint) (last visited Sept. 28, 2013). 170 See Osterberg & Melvin, supra note 82, at 193-94. 171 See supra note 168 and accompanying text. 172

Osterberg & Melvin, supra note 82, at 193 (explaining how most of the bills, except in North Carolina, have not actually resulted in moratoria being implemented in the states). 173 See Thomas P. Redick & Sam J. Alton, State Environmental Management Initiatives for CAFOs, Agric. Mgmt. Committee Newsl., Sept. 2005, at 28 (providing a brief overview of Missouri, New York, and Michigan actions). 174 Id. at 28-29. 175 Id. at 29. 176 Id. (internal quotation marks omitted). 177 See id. at 29-30 (noting that “the potential for [nuisance] challenges ... could be considerably reduced”). 178 Head, supra note 106, at 535. 179 Id. 180 See id. 181 Id. at 535-36. 182 Id. at 536. 183 Id. 184 Id. 185 See S.C. Code Ann. § 47-20-165 (2012) (repealing sections 47-20-10 through 4720-160, noting that the Department of Health and Environmental Control “shall promulgate regulations regarding confined swine feeding operations which are

separate and distinct from the regulations promulgated pursuant to this chapter”). It is unclear what the impact of this new legislation will be on South Carolina's relationship with CAFOs. 186 Head, supra note 106, at 529-30. 187 See Iowa Dep't Natural Res., supra note 114, at 2-3 (noting the inadequacy of staffing to effectively inspect and monitor CAFOs to the level desired by the EPA); see also supra notes 117-23 and accompanying text. 188 See Pre-Construction Requirements for Permitted Operations, Iowa Dep't Nat. Resources, (URL removed for reprint) (last visited Sept. 28, 2013). 189 Id. 190 See Master Matrix, Iowa Dep't Nat. Resources, (URL removed for reprint). (last visited Sept. 28, 2013). 191 Iowa Dep't Natural Res., Appendix C Master Matrix, available at (URL removed for reprint) (last visited Sept. 28, 2013). 192 See generally id. (instructing CAFO owners how to fill out the matrix and noting additional materials required prior to approval). 193 See Iowa Dep't Natural Res., supra note 114, at 2-3 (noting that Iowa has a “nodischarge” presumption for CAFOs, while simultaneously acknowledging that it needs to perform inspections to ascertain whether permits are required). This conflict is not sufficiently addressed in the report, as the IDNR moves on to address staffing shortfalls, which it must remedy before it has the capability to perform inspections. Id.; see supra notes 117-23 and accompanying text. 194 See Public Meeting: May 23, 2012, Poweshiek CARES (URL removed for reprint) (last visited Aug. 15, 2013) (informing citizens about the public meeting with the

IDNR where citizens brought forth their concerns regarding a CAFO owner's submitted matrix and the deficiencies therein). 195 See Board of Supervisors Meeting: October 15, 2012, Poweshiek CARES, (URL removed for reprint) (last visited Sept. 28, 2013) (providing information regarding the Board of Supervisor's resolution to deny construction for a proposed CAFO, although the ultimate authority for approval rests with the IDNR). 196 Iowa Citizens for Cmty. Improvement, 2011 Was a Year of Headlines 1-3 (2012), available at (URL removed for reprint) From 2010 to 2011, Iowa Citizens for Community Improvement's membership increased to 2195 people, a 23% increase from its 2010 membership. Id. at 1. The group regularly works with smaller, local organizations to assist in efforts to combat the expansion of factory farms. Id. at 1-3. 197 Groups such as Jefferson County Farmers & Neighbors, Inc. and Poweshiek CARES are working to engage citizens in grassroots efforts to prevent CAFO construction in those counties. For more information, see Jefferson County Farmers & Neighbors, Inc., (URL removed for reprint) (last visited Sept. 28, 2013). 198 See Jefferson County Farmers & Neighbors, Inc., supra note 197 (noting action steps that people can take to get involved); Poweshiek CARES, supra note 197 (informing citizens of Poweshiek County about upcoming meetings, editorials, and state and judicial actions regarding CAFOs in the surrounding area). 199 Ryan Teel, Note, Not in My Neighborhood: The Fight Against Large-Scale Animal Feeding Operations in Rural Iowa, Preemptive Tactics, and the Doctrine of Anticipatory Nuisance, 55 Drake L. Rev. 497, 521-23 (2007). 200 See Poweshiek CARES, supra note 197 (discussing the effect that CAFOs have on families in various pieces on the website). The primary strength of Poweshiek CARES appears to be its network and ability to communicate with residents of

the county, efforts which it promotes through word of mouth, editorials, and its website. 99 IALR 415

Chapter 6 Cat de-clawing bans

Introduction cat declawing Berkley California Denver Colorado West Hollywood California Supporting Legislation Banning Declawing of Cats Introduction cat declawing The term "cat declawing' is a misnomer. Veterinarians do not remove a cats claw. The procedure entails the amputation of the last knuckle on a catspaw. Partial paw amputation is considered cruel by animal advocates around the world. The cats rely on their clause, and the tips of their paws to communicate, to defend themselves, and even to eat. Jurisdictions like West Hollywood California have banned the practice. West Hollywood takes the unusual further step of assigning criminal liability to not only veterinarian to perform these amputations, but also all who assist the veterinarians, as well as the animals owner. The animal LAW committee of the New York Bar Association put out a policy statement on the practice of cat declawing. They point out that this practice is illegal in the United Kingdom, France, Germany, Lithuania, Austria, Brazil, Israel, New Zealand, Switzerland, as well as in cities across the United States.

Berkley CA 10.04.145 Onychectomy (declawing) prohibited. A. No person, licensed medical professional or otherwise, shall perform or cause to be performed an onychectomy (declawing) or flexor tendonectomy procedure by any means on any animal within the City, except when necessary for a therapeutic purpose. “Therapeutic purpose” means the necessity to address the medical condition of the animal, such as an existing or recurring illness, infection, disease, injury or abnormal condition in the claw that compromises the animal’s health. “Therapeutic purpose” does not include cosmetic or aesthetic reasons, or reasons of convenience in keeping or handling the animal. In the event that an onychectomy or flexor tendonectomy procedure is performed on any animal within the City in violation of this section, each of the following persons shall be guilty of a violation of this section: (1) the person or persons performing the procedure, (2) all persons assisting in the physical performance of the procedure, and (3) the animal guardian that ordered the procedure. B. Any person who violates this section shall be guilty of a misdemeanor and shall be fined in an amount not to exceed one thousand dollars ($1,000.00) or be imprisoned for a period of six months, or both. Violation of this section shall be a misdemeanor but may be charged in the discretion of the citing officer as an infraction. (Ord. 7119-NS § 1, 2009) Denver Colorado Sec. 8-141. - Declawing of cats prohibited. (a) Except as provided in subsection (b) of this section, it shall be unlawful for any person to declaw a cat. (b) Notwithstanding the restrictions set forth in subsection (a) of this section, a person may declaw a cat only if: (1) The person performing the procedure is a licensed veterinarian; (2) Anesthesia is administered to the cat during the procedure; and (3) The procedure is medically necessary. (c) As used in this section:

(1) Declaw means to surgically remove or alter the claw or claws of a cat by a surgical procedure such as onychectomy or tendonectomy, in order to prevent their normal functioning. (2) Medically necessary means that a procedure is necessary to treat or relieve physical illness, infection, disease, or injury, or to correct a congenital abnormality that is causing or will cause the cat physical harm or pain. Medical necessity does not include cosmetic or aesthetic reasons or reasons of convenience in keeping or handling the cat. (Ord. No. 709-2017, § 1, 11-13-2017) West Hollywood Colorado The City Council of the City of West Hollywood does hereby ordain as follows: Section 1. A new Chapter 9.49 is hereby added to Title 9, Article 4 of the West Hollywood Municipal Code to read as follows: Chapter 9.49 BAN ON ONYCHECTOMY (DECLAWING) Sections: 9.49.010 Findings 9.49.020 Onychectomy (Declawing) Prohibited 9.49.010 Findings a. There is a widespread misunderstanding in the community regarding a commonly performed surgical procedure known as onychectomy, or “declawing.” Contrary to most people’s understanding, declawing consists of amputating not just the claws but the whole phalanx (up to the joint), including bones, ligaments, and tendons. b. Declawing is not a simple cosmetic procedure akin to a manicure or a pedicure. On the contrary, to remove a claw, the bone, nerve, joint capsule, collateral ligaments, and the extensor and flexor tendons must all be amputated. Thus, declawing is not a “simple,” single surgery but ten separate, painful amputations of the third phalanx up to the last joint of each toe. In human terms, this is akin to cutting off the last joint of each finger. c. Declawing robs an animal of an integral means of movement and defense. Because they cannot defend themselves adequately against attacks by other animals, declawed animals that are allowed outdoors are at increased risk of injury or death. Likewise, animals subjected to flexor tendonectomy, a

procedure in which the animal’s toes are cut so that the claws cannot be extended, are also robbed of an integral means of defense. d. Research has demonstrated that the rate of complication with onychectomy is relatively high compared to other procedures considered “routine.” Complications can include excruciating pain, damage to the radial nerve, hemorrhage, bone chips that prevent healing, painful re-growth of deformed claw inside of the paw which is not visible to the eye, necrosis, lameness, and chronic back and joint pain as shoulder, leg and back muscles weaken. e. Although there is a widespread belief that declawing makes cats more “house-friendly” and, therefore, less likely to be abandoned and subsequently euthanized, a survey conducted by Forgotten Felines and Friends of Caddo Parish in Louisiana found that approximately 70% of cats surrendered to the city shelter were declawed. f. There are a number of alternatives to onychectomy (declawing) and flexor tendonectomy that involve no physical harm to the animal. Harmless alternatives include training the pet to use a scratchpost, use of deterrent pheromone sprays, covering furniture, restricting the pet’s access to certain areas of the home, use of plastic nail covers, and more. g. Considering the wide array of alternatives, the City Council finds that the mere convenience of the onychectomy (declawing) and/or flexor tendonectomy procedures to the pet’s guardian does not justify the unnecessary pain, anguish and permanent disability caused the animal. h. The City of West Hollywood enacts this ordinance pursuant to the authority vested in the City by article XI, section 7 of the California Constitution allowing a city to make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws. i. The State Legislature has not endeavored to regulate, or delegate to any specified agency the authority to regulate, the types of veterinary procedures that may be performed within the State of California. Until the Legislature chooses to regulate these procedures, local governments are free to limit the types of procedures that may be performed within their jurisdiction for the protection of the public health, safety and general welfare.

9.49.020 Onychectomy (Declawing) Prohibited No person, licensed medical professional or otherwise, shall perform or cause to be performed an onychectomy (declawing) or flexor tendonectomy procedure by any means on any animal within the City, except when necessary for a therapeutic purpose. "Therapeutic purpose" means the necessity to address the medical condition of the animal, such as an existing or recurring illness, infection, disease, injury or abnormal condition in the claw that compromises the animal's health. "Therapeutic purpose" does not include cosmetic or aesthetic reasons or reasons of convenience in keeping or handling the animal. In the event that an onychectomy or flexor tendonectomy procedure is performed on any animal within the City in violation of this Section, each of the following persons shall be guilty of a violation of this section: (1) the person or persons performing the procedure, (2) all persons assisting in the physical performance of the procedure, and (3) the animal guardian that ordered the procedure.” Supporting Legislation Banning Declawing of Cats Animal Law Committee New York City Bar Association, March 16, 2018 VIEW REPORT SUMMARY The Animal Law Committee issued a report in support of legislation in relation to the declawing of cats and other animals. The proposal would amend Article 26 of the New York Agriculture and Markets Law by adding a new section 380, which would prohibit any person from performing an onychectomy or partial or complete phalangectomy or tendonectomy on any cat within New York State, except when necessary to address the physical medical condition of the cat. Performing these procedures for cosmetic or aesthetic reasons, or reasons of convenience in keeping or handling the cat, would be prohibited, and punishable by a civil penalty. The bill follows the lead of jurisdictions in the United States and abroad that have banned or restricted declawing, including: the United Kingdom, France, Germany, Lithuania, Austria, Brazil, Israel, New Zealand, Switzerland, and certain states in Australia; and cities in California

(Los Angeles, San Francisco, West Hollywood and five other cities) and Colorado (Denver). BILL INFORMATION A.595-A (M. of A. L. Rosenthal) / S.3376-A (Sen. Griffo) - Relates to the prohibition of the declawing of cats REPORT A.595-A (M. of A. L. Rosenthal) S.3376-A (Sen. Griffo) AN ACT to amend the agriculture and markets law, in relation to the declawing of cats and other animals REPORT ON LEGISLATION BY THE ANIMAL LAW COMMITTEE THIS LEGISLATION IS APPROVED INTRODUCTION Since 2014, the Animal Law Committee of the New York City Bar Association (“City Bar”) has been studying the controversial veterinary procedures of onychectomy, phalangectomy, and tendonectomy that are performed on cats; these procedures are commonly referred to as “declawing.” We have made significant efforts to learn about and consider arguments in favor of and against a law prohibiting these procedures, including studying international, federal, and local laws that prohibit declawing, reviewing opinions of veterinary medical associations and animal welfare organizations, consulting with veterinarians and shelters, screening a documentary film for public discussion, reviewing briefs and opinions of governmental entities and other bar associations, and speaking to owners of declawed cats. On February 5, 2018, the Animal Law Committee held a public program in which we invited speakers on both sides of the issue to discuss the practice and the prospect of banning these procedures by law. All of the speakers agreed that alternatives exist that can spare cats from this serious medical procedure, though some in the field think that a cat owner should have the right to declaw if that owner would otherwise relinquish the cat.[1] Since 2014 when the Animal Law Committee began considering declawing, there have been significant developments that influenced our decision to support legislation to ban the procedure at this time.

First, the bill has been amended. In light of the City Bar’s position on mass incarceration,[2] the Animal Law Committee felt that the bill must be amended to change the penalty for violation from a misdemeanor to a civil fine. The bill has been amended to remove the criminal penalty and also limited the applicability of the civil fine to persons who actually perform the procedure. Second, convincing evidence from Los Angeles County suggests that a law banning the declawing procedure would not result in an increase in abandoned cats. Since 2009, when a law banning the declawing procedure in Los Angeles County went into effect, the number of cats surrendered to the Los Angeles Animal Services Department declined slightly in the five years following the ban.[3] There are numerous factors that influence relinquishment rates, but in a city of roughly four million people, it is significant that there is no evidence that a prohibition on declawing caused a spike in the number of cats being abandoned to shelters. Third, the first study about the effect of declawing on a comparatively large population of cats’ behavior and long-term health was published in 2017 in the Journal of Feline Medicine and Surgery.[4] The study stated that declawed cats had “much greater” odds of eliminating outside of the litter box than cats who had not “much greater” odds of eliminating outside of the litter box than cats who had not and ligaments.[14] (A phalangectomy similarly involves the amputation of a been declawed.[5] The authors hypothesized that this is because stepping on litter in a litterbox is painful for declawed cats.[6] In addition, years after the surgery, declawed cats had a “significant increase” in back pain, biting, aggression, and barbering (pulling out hair).[7] The authors hypothesized that increased biting and aggression resulted because declawed cats, who lack the defenses of their claws, felt forced to use more aggressive tactics to protect themselves.[8] The authors also noted that while cat scratches typically do not result in infection, cat bite infection rates can be as high as 30% to 50%.[9] Fourth, since 2014, more organizations have changed their positions or issued statements concerning declawing of cats. In 2017, in a rare statement about pending legislation, the North Shore Animal League issued its support of the bill. [10] In 2017, Denver, Colorado banned cat declawing.[11] Also in 2017, the Canadian Veterinary Medical Association publicly denounced the practice

of cat declawing.[12] And effective March 15, 2018, the Nova Scotia Veterinary Medical Association will ban the practice of declawing for non-therapeutic purposes.[13] On balance, the Animal Law Committee believes that the growing arguments in favor of a ban outweigh the concerns of those opposed to a ban and, for this reason, as well as the reasons described below, we approve the bill. SUMMARY OF THE PROPOSED LEGISLATION The proposed legislation would amend Article 26 of the New York Agriculture and Markets Law by adding a new section 380, prohibiting any person from performing an onychectomy or partial or complete phalangectomy or tendonectomy on any cat within New York State, except when necessary to address the physical medical condition of the cat, such as an existing or recurring illness, infection, disease, injury or abnormal condition in the claw that compromises the cat’s health; performing these procedures for cosmetic or aesthetic reasons, or reasons of convenience in keeping or handling the cat, would be prohibited. Any person who performs an onychectomy, partial or complete phalangectomy or tendonectomy procedure on any cat within New York State would be guilty of a violation punishable by a civil penalty not to exceed one thousand dollars. The proposed legislation would take effect immediately. BACKGROUND Onychectomy, the standard method of declawing, involves the amputation of all or most of the last bone of each of the ten toes of the front feet using a scalpel, guillotine clipper, or laser and the severance of the surrounding tendons, nerves and ligaments.[14] (A phalangectomy similarly involves the amputation of a Similarly, tendonectomy is associated with a high incidence of abnormal claw phalanx, a bone of the finger or toe.) The feline bone contains both a growth plate and the nail; thus, by amputating this portion of the bone, the procedure permanently removes the animal’s nails. If performed on a human being, the anatomical equivalent of this procedure would be the amputation of a person’s fingers at the last joint.[15] The wounds are closed with stitches or surgical glue and the feet are bandaged. Tendonectomy (or tenectomy) is a surgical

procedure in which the tendons of the toes are severed, leaving the claws intact but rendering the cat unable to move or extend its claws.[16] (Unless otherwise noted, as used in this report, “declawing” refers to onychectomy, phalangectomy, and/or tendonectomy.) JUSTIFICATION The proposed legislation would prohibit performing an onychectomy, phalangectomy or tendonectomy on a cat or other animal for non-therapeutic purposes,[17] but still permit these procedures when “necessary to address the physical medical condition of the cat.” The Committee supports the proposed legislation because performing such procedures on animals for non-medical purposes is unnecessary and inhumane. Declawing procedures for non-medical purposes are unnecessary. Declawing procedures are generally not medically necessary for the health of the animal[18] or the health of the pet owner.[19] The U.S. Centers for Disease Control and Prevention state, “Declawing is not recommended” for individuals with compromised immune systems.[20] Declawing procedures are commonly performed to prevent or eliminate certain behaviors such as unwanted scratching. A number of simple and humane alternatives to address scratching include (1) keeping the animal’s claws trimmed, (2) providing scratching posts and boards around the home, (3) applying soft plastic caps over the animal’s nails at home or in the veterinarian’s office, and (4) attaching a double-sided sticky tape to furniture, which will provide negative reinforcement to the scratching.[21] Declawing and tendonectomy procedures are painful and inhumane. Declawing and tendonectomy procedures—and the side effects of the procedures —may cause serious harm to animals. As recognized by the American Veterinary Medical Association, declawing is a “painful procedure” with inherent risks and complications, including anesthetization, excessive bleeding, and other post- operative complications.[22] Declawed cats may develop lameness, nerve damage, tissue damage, hemorrhage, regrowth, infection, pain, and other problems.[23] Similarly, tendonectomy is associated with a high incidence of abnormal claw

growth and muscle atrophy, and the animals still require the regular trimming of their nails.[24] Physical pain may last several days after the operation[25] and persist for years, according to a new study published in 2017. [26] After surgery, a declawed cat may have to spend several days in a veterinary hospital[27] but in many cases, declawed cats are not provided with pain medicine after the surgery. [28] In addition to causing physical problems, these procedures harm the animals in other ways. Scratching, for instance, is normal feline behavior used by cats as a means to fully stretch, mark their territory,[29] maintain balance, [30] remove dead husks from their claws,[31] relieve stress,[32] defend themselves, and assist in climbing.[33] Without claws, these animals lose the ability to engage in this essential behavior. These procedures may also cause psychological harm,[34] or behavioral problems such as biting,[35] jumping on counters,[36] and not using the litter box.[37] Cats with such behavioral problems are at an increased risk for abandonment at animal shelters.[38] Summary of support and opposition for regulation of non-medically necessary declawing by veterinary, animal welfare and other professional organizations. A number of animal welfare organizations have taken positions against declawing and tendonectomy for non-medically necessitated purposes. These include the Humane Society of the United States,[39] the North Shore Animal League,[40] the Mayor’s Alliance for NYC’s Animals,[41] People for the Ethical Treatment of Animals, [42] In Defense of Animals,[43] Neighborhood Cats,[44] and Alley Cat Allies.[45] Some veterinary organizations such as the World Small Animal Veterinary Association[46] and the Humane Society Veterinary Medical Association[47] support a ban on declawing for purely cosmetic purposes. Other veterinary, animal welfare, and feline professional organizations strongly oppose or are critical of the routine use of declawing procedures, but have not advocated for a general ban on the practice for non-medically necessitated purposes. These include the American Association of Feline Practitioners[48] American Animal Hospital Association,[49] the Cat Fancier’s Association, Inc.,[50] and the ASPCA.[51]

Yet other veterinary organizations do not recommend declawing for nonmedical purposes, though they oppose legislatively restricting the practice, maintaining that declawing should remain a legal option for cat owners. These include the American declawing should remain a legal option for cat owners. These include the American or exotic carnivores is “no longer considered to be appropriate veterinary care” and Veterinary Medical Association (AVMA), which does not “recommend” the practice of declawing[52] and “recommends that the procedure only be performed after exhausting other methods of controlling scratching behavior or if it has been determined that the cat’s claws present a human health risk,”[53] but maintains the position that “the decision to perform declawing rests with the owner, in consultation with their veterinarian.”[54] The California Veterinary Medical Association,[55] the New York State Veterinary Medical Society,[56] and the New York State Association of Veterinary Technicians[57] have taken similar positions in opposing restrictions on declawing. While some organizations have also stated that cats with destructive scratching behavior are more likely to be euthanized[58] (that therefore some individuals may euthanize or abandon cats if declawing is prohibited),[59] these organizations do not state whether euthanizations have actually risen in the jurisdictions that have prohibited declawing,[60] nor whether euthanization and abandonment rates for cats with destructive scratching behavior exceed similar rates for declawed cats. As noted above, declawing may itself lead to health complications and abandonment. [61] Declawing and tendonectomy have been banned or restricted in several jurisdictions in the United States and abroad. Numerous foreign jurisdictions have banned or restricted declawing, including the United Kingdom,[62] France,[63] Germany,[64] Lithuania,[65] Austria,[66] Brazil,[67] Israel,[68] New Zealand,[69] Switzerland,[70] and certain states in Australia.[71] The European Convention for the Protection of Pet Animals also proscribes the procedure.[72] Jurisdictions at the national, state, and local level have likewise banned or restricted declawing procedures for non-medical purposes. For instance, in

2003 the City of West Hollywood became the first city in the country to enact a law prohibiting declawing or tendonectomy operations “except when necessary for a therapeutic purpose.”[73] Los Angeles and San Francisco have passed similar laws, [74] as have five other California cities; and, unlike the proposed legislation, these laws potentially subject violators to criminal penalties.[75] Still other cities in California have issued resolutions against the practice.[76] And in 2017, Denver, Colorado prohibited declawing.[77] California also has a statewide ban generally prohibiting declawing of “exotic or native wild cat species.”[78] And, on the national level, the U.S. Department of Agriculture has issued a notice and policy statement declaring that declawing wild or exotic carnivores is “no longer considered to be appropriate veterinary care” and is prohibited under the Animal Welfare Act.[79] As of the date of this report, New Jersey has a pending bill that would ban declawing for nontherapeutic purposes. [80] CONCLUSION For the reasons above, the Committee approves the proposed legislation. Animal Law Committee Lori Barrett-Peterson, Chair March 2018 [1] A link to a recording of the program is available on the City Bar’s website. (URL removed for reprint) [2] For more on the City Bar’s work toward reducing over-criminalization and mass incarceration, please view the following: (URL removed for reprint) [3] Number of cats relinquished per year to the Los Angeles Animal Services Department (declaw ban effective in 2009): 21,649 (2005), 21,268 (2006), 19,151 (2007), 23,303 (2008), 22,243 (2009), 21,795 (2010), 22,503 (2011), 21,126 (2012), 20,223 (2013), 20,119 (2014), and 20,308 (2015). [4] Nicole K Martell-Moran et al., Pain and Adverse Behavior in Declawed Cats, J. OF FELINE MEDICINE AND SURGERY 1 (May 23, 2017). (Article on-file with the Animal Law Committee.) [5] Id. at 6. [6] Id. [7] Id. [8] Id. [9] Id. at 1-2.

[10] North Shore Animal League, Position Statements, (URL removed for reprint) [11] Denver, Co. Code of Ordinances § 8-141. [12] Press Release, Canadian Veterinary Medical Association Opposes Declawing of Cats (Mar. 29, 2017(URL removed for reprint) [13] Anjuli Patil, Nova Scotia Veterinary Medical Association to Ban Declawing, CBC (Dec. 12, 2017), (URL removed for reprint) [14] Literature Review on the Welfare Implications of Declawing of Domestic Cats, American Veterinary Medical Association, February 16, 2016, (URL removed for reprint) [15] Steve Dale, Veterinarian group promotes alternatives to declawing cats, THE CHICAGO TRIBUNE (Aug. 27, 2014), (URL removed for reprint) [16] See Wendy C. Brooks, Declawing and Its Alternatives, VeterinaryPartner.com (Jan. 24, 2002), (URL removed for reprint) It was reported that 55% of the cats having tendonectomy procedures were still able to scratch to some degree and that 10% of the cat’s owners had the cats declawed after the procedure. See The Paw Project, Frequently Asked Questions About Feline Declawing: Is declawing with a laser better? What about tendonectomy?, PawProject.org, (URL removed for reprint) [17] It is estimated that between 24-45% of all cats in homes are declawed. See Sylvie Cloutier et al., Behavioural Signs of Postoperative Pain in Cats Following Onychectomy or Tenectomy Surgery, 92 APPLIED ANIMAL BEHAVIOUR SCIENCE 325, 326 (citing G.J. Patronek, Assessment of Claims of Short- and Long-term Complications Associated with Onychectomy in Cats. 219 J. AM. VET. MED. ASSOC. 932–937 (2001)). [18] AVMA Position Statement on the Declawing of Domestic Cats, American Veterinary Medical Association (April 15, 2003), (URL removed for reprint)Swalec Tobias, Feline Onychectomy at a Teaching Institution: A Retrospective Study of is not a medically necessary procedure for the cat in most cases.”). Declawing procedures are often referred to as “convenience surgeries” because they unnecessarily place the animal at risk without imparting any physical benefit. Many veterinarians decline to perform convenience surgeries on

ethical grounds alone, since these procedures inhibit an animal’s behaviors and perpetuate avoidance of responsibilities inherent in living with the animal, at the expense of the animal. See also CFA Guidance Statement on Declawing, The Cat Fancier’s Association, Inc. (June 2003(URL removed for reprint) (“CFA perceives the declawing of cats (onychectomy ) and the severing of digital tendons (tendonectomy) to be elective surgical procedures that are without benefit to the cat”). [19] The health risk from cat scratches is less than those from bites, cat litter, or fleas carried by cats. See The Humane Society of the United States, Declawing Cats: Far Worse Than a Manicure (May 12, 2014), at (URL removed for reprint)Among the human diseases most commonly associated with cats are bartonellosis (also known as cat scratch fever) and toxoplasmosis. See Cornell Feline Health Center, Zoonotic Disease: What Can I Catch from my Cat? (2006), at. (URL removed for reprint) The only way a human may contract bartonellosis is through contact with a cat who is infected with the disease which generally occurs through a flea infestation or blood transmission (typically as a result of a cat fight). The Centers for Disease Control and Prevention (CDC) therefore does not recommend cat declawing to prevent contraction of this disease but rather advises flea prevention, keeping cats indoors and the avoidance of rough play. See CDC, Cat-Scratch Disease (April 30, 2014), (URL removed for reprint)The CDC further notes that people are more likely to acquire toxoplasmosis from eating raw meat or gardening and recommends that people simply wash their hands thoroughly after touching cat feces to prevent the potential transmission of the disease. CDC, Cats (May 13, 2016), (URL removed for reprint) [20] CDC, Cat-Scratch Disease FAQs (Jan. 11, 2016), (URL removed for reprint) [21] See Wendy C. Brooks, Declawing and Its Alternatives, supra. [22] AVMA, Literature Review on the Welfare Implications of Declawing of Domestic Cats, supra; AVMA, Declawing of Domestic Cats, at (URL removed for reprint) [23] See Karen Swalec Tobias, Feline Onychectomy at a Teaching Institution: A Retrospective Study of 163 Cases, supra. Another amputation method involves the use of laser beams that burn through the animal’s toe joint. See The Humane Society of the United States, Declawing Cats: Far Worse Than a Manicure, supra. Some veterinarians note that this procedure offers no benefit

over the conventional method of declawing and may actually cause worse complications in the first two days after surgery, including fourth degree burns of the bone. See The Paw Project, Frequently Asked Questions About Feline Declawing: Is declawing with a laser better? What about tendonectomy?, supra (citing J. Levy et al., “Evaluation of Laser Onychectomy in the Cat,” Proceedings. 19th Annual Meeting Society Laser Med. 73 (1999)). [24] See The Paw Project, Frequently Asked Questions About Feline Declawing: Is declawing with a laser better? What about tendonectomy?, supra. One veterinarian also notes: “Veterinarians who recommend tendonectomy for cats will tell their clients that they have to trim the cat’s claws at least every week. If the client is going to have to trim the nails every week, why not just trim the nails and avoid the tendonectomy procedure all together?” Id. [25] Lysa Pam Posner, Analgesia for Declaw Patients, NAVC Clinician’s Brief 63, 63 (May 2010) (stating that “[d]eclawed cats continued to have abnormal force plate analysis at 12 days post surgery” and recommending that “analgesic therapy should be instituted for at least 3 to 5 days”), available at (URL removed for reprint) [26] Nicole K Martell-Moran et al., Pain and Adverse Behavior in Declawed Cats, J. OF FELINE MEDICINE AND SURGERY (May 23, 2017). [27] American Society for the Prevention of Cruelty to Animals (ASPCA), Position Statement on Declawing Cats, at (URL removed for reprint) [28] Statement of Eileen Jefferson, DVM, The Pros and Cons of a Ban on Declawing Cats, NYC Bar (Feb. 28, 2018). [29] Benjamin L. Hart, Modify a Cat’s Behavior, Avoid Declawing, NY TIMES (Dec. 21, 2015), (URL removed for reprint) [30] Faye Rapoport DesPres, Cat Care: To Declaw or Not to Declaw? (Interview with Dr. Lisa Maciorakowski, DVM), Care.com, (URL removed for reprint) [31] The Humane Society of the United States, Declawing Cats: Far Worse Than a Manicure, supra. [32] ASPCA, Position Statement on Declawing Cats, supra. As one veterinarian writes, “cats do not scratch to annoy us; they scratch to communicate something and the cues are physical and olfactory.”

[33] Melanie Morgan & Katherine A. Houpt, Feline Behavior Problems: The Influence of Declawing, 3 ANTHROZOO S 50, 52 (1989). [34] Faye Rapoport DesPres, Cat Care: To Declaw or Not to Declaw?, supra. [35] Declawing deprives cats of their primary means of defense and leaves them no other way to protect themselves other than biting. See The Paw Project, Frequently Asked Questions: Do declawed cats have difficulty defending themselves?, supra. [36] Melanie Morgan & Katherine A. Houpt, Feline Behavior Problems: The Influence of Declawing, supra. [37] See Michael W. Fox, Declawing: Another Veterinarian’s Perspective, LittleBigCat.com (Nov. 17, 2010), at (URL removed for reprint) [38] National Council on Pet Population Study & Policy, Exploring the Surplus Cat and Dog Problem: Highlights of Five Research Publications Regarding Relinquishment of Pets (2000), (URL removed for reprint) (noting that house soiling as the number one reason for animal relinquishment and aggression (biting) as the second most common reasons for pet relinquishment to shelters in the United States). See also The Paw Project, Frequently Asked Questions: What is the experience of animal shelter workers with behavioral problems in declawed cats?, supra. [39] See Humane Society of the United States, Declawing Cats: Far Worse Than a Manicure, supra. [40] North Shore Animal League, Position Statements, (URL removed for reprint) [41] See Mayor’s Alliance for NYC’s Animals, “Legislation to Ban CatDeclawing Introduced by Assembly” (shared Facebook article, Jan. 14, 2015), [42] See People for the Ethical Treatment of Animals, Animal Rights Uncompromised: Declawing Cats, at [43] In Defense of Animals, Protect NY Cats from Cruel Mutilations, [44] Neighborhood Cats, TNR Handbook: The Guide to Trap-Neuter-Return for the Feral Cat Caretaker, 143 (2d ed. 2013), available at [45] Becky Robinson, President and Founder, Alley Cat Allies, Letter to the Editor, New York Should Pass Ban on Cat Declawing, TIMES UNION (Albany) (May 27, 2017),

[46] World Small Animal Veterinary Association, WSAVA Code of Conduct Manual 50 (Oct. 2010), (URL removed for reprint) (“Where possible legislation should be enacted to prohibit the performance of non-therapeutic surgical procedures for purely cosmetic purposes, in particular . . . Declawing . . . . Exceptions to these prohibitions should be permitted only if a veterinarian considers that the particular surgical procedure is necessary, either for veterinary medical reasons or where euthanasia is the only alternative to either devocalisation, declawing or defanging.”). [47]Press Release, Humane Society Veterinary Medical Association, New York State Veterinarians Support Ban on Cat Declawing (Mar. 1, 2016) (“When done for convenience, [declawing] is medically and ethically unjustifiable.”), (URL removed for reprint) [48] AAFP Position Statements: Declawing, The American Association of Feline Practitioners (2017) (“The American Association of Feline Practitioners (AAFP) strongly opposes declawing (onychectomy) as an elective procedure. It is the obligation of veterinarians to provide cat owners with alternatives to declawing.”), (URL removed for reprint)DeclawingStatement.pdf. [49] American Animal Hospital Association, Declawing (Aug. 2015), at (URL removed for reprint) (“The American Animal Hospital Association strongly opposes the declawing of domestic cats and supports veterinarians’ efforts to educate cat owners and provide them with effective alternatives.”). [50] CFA Guidance Statement on Declawing, The Cat Fancier’s Association, Inc. (June 2003), (URL removed for reprint) (“Because of the discomfort associated with any surgery and potential future behavioral or physical effects, CFA disapproves of routine declawing or tendonectomy surgery in lieu of alternative solutions to prevent household damage.”). [51] See ASPCA, Position Statement on Declawing Cats, (URL removed for reprint) [52] AVMA Policy on the Declawing of Domestic Cats, (URL removed for reprint) Notably though, the AVMA does “condemn” declawing of wild and exotic animals. AVMA Now Condemns Declawing Wild and Exotic Cats, American Veterinary Medical Association (Dec. 31, 2012), (URL removed for reprint)

[53] AVMA, Literature Review on the Welfare Implications of Declawing of Domestic Cats, supra. [54] AVMA, Declaw or Not? (URL removed for reprint) [55] CVMA Position Statement & Fact Sheet on Cat Declaw: (URL removed for reprint) (“The decision to declaw a cat should be made by the owner in consultation with their veterinarian. The declawing of cats may become necessary for medical or behavioral reasons and should be used instead of abandonment, or euthanasia.”). [56] New York State Veterinary Medical Society: (URL removed for reprint) [57] New York State Association of Veterinary Technicians, Declaw Bill, (URL removed for reprint) [58] See, e.g., New York State Veterinary Medical Society, Declawing (Onychectomy), (URL removed for reprint) [59] See, e.g., New York State Veterinary Medical Society, Declawing (Onychectomy) (“It’s better for the client to have surgery as a last alternative before resorting to euthanizing their cat or relinquishing to a shelter, where it’s likely to be euthanized.”). [60] As noted above, euthanasia and relinquishment are far from the only declawing alternatives that curb destructive scratching. See Section III.A, supra. [61] See Section III.B, supra. In addition, the fact that an animal welfare law may make pet-owning less attractive for some individuals should not justify continuing to allow a cruel practice. Indeed, the State imposes several restrictions on animal owners that may dissuade some individuals from owning pets—for instance, the requirement that certain medical procedures be performed by a licensed veterinarian—but which do reduce cruel practices. See, e.g., N.Y. AGRIC. & MKTS. L. § 365(1). [62] Animal Welfare Act 2006, c. 45, § 5 (U.K.) (prohibiting “procedure[s] which involve[] interference with the sensitive tissues or bone structure of the animal, otherwise than for the purpose of its medical treatment”), available at [63] Law No. 2004-416 of May 11, 2004, Journal Officiel de la Republique ́ Franc

aise [J.O.] [Official Gazette of France], May 18, 2004, p. 8786, art. 10(1)

(prohibiting declawing unless a veterinarian considers the procedure medically necessary or in the interest of the animal); see also Sophie Duthoit, Vier Pfoten EPO, Questionnaire on France’s Animal Protection Laws 4, [64] Tierschutzgesetz [TierSchG, Animal Protection Law], May 18, 2006 BGBl. I S.

1206, 1313, § 6(1) (F.R.G.), available (URL removed for reprint) (prohibiting declawing unless a veterinary deems it necessary); see also Michael Krieger, Vier Pfoten EPO, Questionnaire on Germany’s Animal Protection Laws 5, [65] Republic of Lithuania, Law on the Care, Keeping and Use of Animals (official translation), Oct. 3 2012, No XI-2271, art. 4(9) (prohibiting “mutilation or removal of . . . claws . . . except for . . veterinary procedures performed by a decision of a veterinarian due to health concerns of the animal”). [66] Bundesgesetz ul ber den Schutz der Tiere [TSchG] [Federal Law on Animal Protection] Bundesgesetzblatt [BGBl] No. 118/2004 § 7(1) (Austria) (prohibiting declawing that does not serve a therapeutic purpose), available at see also Regina Binder, Vier Pfoten EPO, Questionnaire on Austria’s Animal Protection Laws 5, [67] Res. 877/08, de 15 de fevereiro de 2008 (art. 7°, § 1) (Brazil) (prohibiting declawing), available at (URL removed for reprint) [68] Law Against Cruelty to Animals (Animal Protection) (Amendment 8), 5772-2011 (Isr.), available at (URL removed for reprint) [69] Animal Welfare Act 1999, 1999 No. 142, tit. 2, tit. 2(1) & tit. 17 (N.Z.), (URL removed for reprint). 408 (prohibiting “restricted surgical procedures,” including declawing, unless veterinarian has “first satisf[ied] himself or herself that the performance of that procedure is in the interests of the animal”). [70] Tierschutzgesetz [TSchG] [Animal Protection Law], March 9, 1978, SR 455, art. 22(2)(g) (Switz.) (prohibiting declawing), available at (URL removed for reprint) [71] See N.S.W. Prevention of Cruelty to Animals Act 1979, Sect. 12(1) (d), available at (URL removed for reprint) (prohibiting declawing unless veterinary practitioner is provided with declaration at “all [other] reasonable steps . . . have been taken without success” and that “the cat will be destroyed unless its claws are removed”); Queensl. Animal Care and Protection Act 2001, Reg. 26, (URL removed for reprint) (prohibiting declawing unless performed by a “veterinary surgeon” who “reasonably considers the removal is in the interests of the cat’s welfare”). [72] European Convention for the Protection of Pet Animals 1992, art. 10, Sept. 13, 1987, CETS No. 125 (“prohibiting [s]urgical operations for the purpose of modifying the appearance of a pet animal or for other non-curative

purposes,” including “declawing,” except “if a veterinarian considers noncurative procedure necessary either for veterinary medical reasons or for the benefit of any particular animal”), available at (URL removed for reprint) [73] West Hollywood, Cal., MUNICIPAL CODE §§ 9.49.010, 9.49.020 (2014) (prohibiting declawing “except when necessary . . . to address the medical condition of the animal”); Carla Hall, Cats Gain Right to Keep and Bare Claws in W. Hollywood, LOS ANGELES TIMES, May 5, 2003, (URL removed for reprint) [74] See Berkeley, Cal., MUNICIPAL CODE § 10.04.145 (2014) (prohibiting declawing “except when necessary . . . to address the medical condition of the animal . that compromises the animal’s health”); Beverly Hills, Cal., MUNICIPAL CODE §§ 5-2-601, 5-2-602 (2014) (same); Burbank, Cal., MUNICIPAL CODE § 5-1-1501 (2014) (same); Culver City, Cal., MUNICIPAL CODE § 9.01.600 (2014) (same); Los Angeles, Cal., MUNICIPAL CODE § 53.72 (2014) (same); San Francisco, Cal., HEALTH CODE § 45 (2014) (same); Santa Monica, Cal., MUNICIPAL CODE § 4.04.275 (2014) (same). [75] Berkeley, Cal., MUNICIPAL CODE § 10.04.145.B (providing that violation may be prosecuted as misdemeanor punishable by fine up to $1,000, imprisonment for 6 months, or both); Beverly Hills, Cal., MUNICIPAL CODE §§ 1-3-101.B, 1-3-106 (providing that violation may be prosecuted as misdemeanor punishable by fine up to $1,000, imprisonment up to 6 months, or both); Burbank, Cal., MUNICIPAL CODE § 5-1-1501.C (deeming violation misdemeanor punishable by fine up to $1,000, imprisonment in the county jail up to 6 months, or both); Culver City, Cal., MUNICIPAL CODE §§ 9.01.600.B, 1.01.040 (providing that violation may be prosecuted as misdemeanor punishable by fine up to $1,000, imprisonment up to 6 months, or both); Los Angeles, Cal., MUNICIPAL CODE § 11.00(m) (providing that violation may be prosecuted as misdemeanor punishable by fine up to $1,000, imprisonment in the county jail up to 6 months, or both); San Francisco, Cal., Health CODE § 45(c) (deeming violation misdemeanor punishable by fine up to $1,000.00, imprisonment in the county jail up to 6 months, or both); Santa Monica, Cal., MUNICIPAL CODE § 4.04.275(c) (deeming violation misdemeanor punishable by fine up to $500, imprisonment of 6 months, or both). [76] Malibu, Cal., City Council Resolution No. 03-34 (2003) (“oppos[ing] the use of onychectomy (‘declawing’) or flexor tendonectomy procedures by

animal owners and veterinarians in the City of Malibu”), available at (URL removed for reprint) (“stat[ing] our general opposition to the practice of onychectomy in our community and encourag[ing] our local doctors of veterinary medicine to discourage the practice with vigor”), available at (URL removed for reprint) [77] Denver, Co. Code of Ordinances § 8-141. [78] CAL. PENAL CODE § 597.6 (2015); see also Cal. Penal Code § 597.6(b) (deeming violation misdemeanor punishable by fine of $10,000, imprisonment in county jail up to 1 year, or both). [79] USDA, APHIS, Animal Care Policy Manual 3.4-3.5 (Oct. 1, 2017), available at (URL removed for reprint)see also Information Sheet on Declawing and Tooth Removal, U.S. Dep’t of Agric. (Aug. 2006), at (URL removed for reprint) See also 9 C.F.R. §§ 2.1(e), 2.11 (punishing violation by denial, suspension or revocation of dealer/exhibitor license); 7 U.S.C. §§ 2149(a),(b) (imposing civil penalty up to $10,000). [80] (URL removed for reprint) Author(s): Animal Law Committee Issue(s): Social Issues & Civil Rights Subject Area(s): Animal Law | Cat Declawing

Chapter 7 Commercial dog breeder regulations

Introduction to commercial dog breeder regulations Connecticut Indiana Nebraska Detailed Discussion of Commercial Breeders and Puppy Mills Introduction to commercial breeding operations Our inboxes are full of cute puppy videos. However, the hard truth is many of these puppies come from commercial breeding operations operating with little concern for the animals. Many of the laws regulating these operations do not adequately protect the animals. The animals are sometimes allowed to live in elevated wire cages that dig into the animal's feet. Many animals live in a jurisdiction that does not regulate the breading of these animals in any way. In other jurisdictions, some laws regulate the commercial breeders, but the regulations are inadequate. The State of Indiana has the ambiguous requirement that the dogs have enclosures large enough to allow reasonable movement. Indiana also requires the dogs be allowed to run at least once a day.

However, the regulations do not state for how long these exercise periods are to last. Robyn Catz gives us a glimpse into these regulations in a piece written for the Animal Legal & Historical Center. Catz points out how different the laws are between jurisdictions. Connecticut Sec. 22-344c. Licensure of breeding facilities by towns. Standard of care for breeders of cats or dogs. (a) If a town requires the licensure of persons keeping ten or more unneutered or unspayed dogs capable of breeding, such persons shall apply to the clerk of the town in which such dogs are located for a license. Such town clerk, if the zoning enforcement official has certified that the location where such dogs shall be kept conforms to the zoning regulations of the municipality, shall issue to such applicant a license, for a reasonable fee to be determined by the town, on a form prescribed by the town for a period, from the date of such application until the thirtieth day of the ensuing June which license shall specify the name and number of the dogs, the name of the owner and, if applicable, the name of a keeper. Each such license may be renewed from year to year by the town clerk upon application of such owner or keeper. (b) The Commissioner of Agriculture, the Chief Animal Control Officer or any animal control officer may at any time inspect or cause to be inspected any location, required by a town to be licensed, keeping ten or more unneutered or unspayed dogs capable of breeding, by a registered veterinarian appointed by the commissioner and if, in the judgment of the commissioner: (1) Such location is not being maintained in a sanitary and humane manner, (2) the owner or keeper of such location does not comply with the standard of care applicable to breeders, as described in subsection (e) of this section, or (3) if the commissioner finds that communicable or infectious disease or other unsatisfactory conditions exist, the commissioner may issue such orders as the commissioner deems necessary for the correction of such conditions and may quarantine the premises and animals. If the owner or keeper of such location fails to comply with such orders, the commissioner may recommend the revocation or suspension of such license to the town which issued such license.

(c) Any person aggrieved by any order issued under the provisions of this section may appeal to the Superior Court in accordance with the provisions of section 4-183. (d) Any person keeping ten or more unneutered or unspayed dogs capable of breeding, in a location required to be licensed, after such license has been revoked or suspended as herein provided shall be fined not less than fifty dollars or more than one hundred dollars. (e) Not later than December 31, 2014, the Commissioner of Agriculture shall prescribe the standard of care to be provided to dogs or cats, as applicable, by any person who: (1) Keeps ten or more unneutered or unspayed dogs capable of breeding, or (2) owns or operates a breeding cattery. Such standard of care shall be consistent with the standard of care to be provided by an animal importer, as prescribed pursuant to subdivision (6) of subsection (e) of section 22-344. (P.A. 91-379; P.A. 98-12, S. 14, 22; June 30 Sp. Sess. P.A. 03-6, S. 146(e); P.A. 04-189, S. 1; P.A. 07-217, S. 99; P.A. 14-77, S. 1.) Indiana Chapter 3. Registration Requirements 15-21-3-0.1 Repealed by P.L.63-2012, SEC.20, eff. July 1, 2012 15-21-3-1 Annual registration for commercial dog breeder Sec. 1. (a) A commercial dog breeder shall register annually with the board. (b) The board shall provide for notice of the upcoming expiration of registration to each registrant at least thirty (30) days before the expiration of the one (1) year period. (c) The fee to register or renew a registration as a commercial dog breeder is: (1) seventy-five dollars ($75) if the person has not more than fifty (50) unaltered female dogs at least twelve (12) months of age; (2) two hundred dollars ($200) if the person has more than fifty (50) but not more than one hundred (100) unaltered female dogs at least twelve (12) months of age; (3) three hundred dollars ($300) if the person has more than one hundred (100) but not more than one hundred fifty (150) unaltered female dogs at least twelve (12) months of age;

(4) four hundred dollars ($400) if the person has more than one hundred fifty (150) but not more than two hundred fifty (250) unaltered female dogs at least twelve (12) months of age; and (5) five hundred dollars ($500) if the person has more than two hundred fifty (250) unaltered female dogs at least twelve (12) months of age. The fee shall be deposited in the commercial dog breeder and broker fund established by section 3 of this chapter. (d) A person who registers or renews a registration as a commercial dog breeder must include the following: (1) The name and address of the person's commercial dog breeding operation. (2) The name and address of the registrant. (3) A statement that the person's commercial dog breeding operation complies with the requirements of IC 15-21-4. (4) Any other information related to taxation that is required by the board. (e) A person who knowingly or intentionally makes a material misstatement in a commercial dog breeder registration statement commits false registration as a commercial dog breeder, a Class A misdemeanor. CREDIT(S) As added by P.L.111-2009, SEC.4, eff. Jan. 1, 2010. 15-21-3-2 Annual registration for commercial dog broker Sec. 2. (a) A commercial dog broker shall register annually with the board. (b) The board shall provide for notice of the upcoming expiration of registration to each registrant at least thirty (30) days before the expiration of the one (1) year period. (c) The fee to register or renew a registration as a commercial dog broker is one thousand dollars ($1,000). The fee shall be deposited in the commercial dog breeder and broker fund established by section 3 of this chapter. (d) A person who registers or renews a registration as a commercial dog broker must include the following: (1) The name and address of the person acting as a commercial dog broker. (2) The name and location of the person's commercial dog broker business. (3) Any other information related to taxation that is required by the board.

(e) A person who knowingly or intentionally makes a material misstatement in a commercial dog broker registration statement commits false registration as a commercial dog broker, a Class A misdemeanor. CREDIT(S) As added by P.L.111-2009, SEC.4, eff. Jan. 1, 2010. 15-21-3-3 Commercial dog breeder and broker fund Sec. 3. (a) The commercial dog breeder and broker fund is established for the purpose of funding: (1) the inspection of commercial dog breeding operations by the board; and (2) the enforcement by the board of laws concerning commercial dog breeders and commercial dog brokers. The fund shall be administered by the board. (b) The fund consists of commercial dog breeder and commercial dog broker fees. (c) The expenses of administering the fund shall be paid from money in the fund. (d) The treasurer of state shall invest the money in the fund not currently needed to meet the obligations of the fund in the same manner as other public money may be invested. Interest that accrues from these investments shall be deposited in the fund. (e) Money in the fund at the end of a state fiscal year does not revert to the state general fund. (f) Money in the fund is continually appropriated to carry out the purposes of the fund. (g) The board may adopt rules under IC 4-22-2 to implement this chapter. CREDIT(S) As added by P.L.111-2009, SEC.4, eff. Jan. 1, 2010. Chapter 4. Duties of Commercial Dog Breeders 15-21-4-1 Standards of care Sec. 1. (a) A commercial dog breeder shall comply with the standards of care set forth in 9 CFR 3.1 through 9 CFR 3.12. (b) A commercial dog breeder: (1) may not house a dog in a cage containing a wire floor unless the cage contains an accommodation that allows the dog to be off the wire floor;

(2) who houses a dog in a wire cage shall house the dog in a cage that is large enough to allow for reasonable movement by the dog; and (3) shall, subject to subsection (c), provide every dog with a reasonable opportunity for exercise outside of a cage at least one (1) time per day. (c) A commercial dog breeder who permits a dog access to a run at least one (1) time per day has satisfied the exercise requirement described in subsection (b)(3). However, a commercial dog breeder is not required to provide a dog with the opportunity for exercise if exercise would endanger the dog's life or health. CREDIT(S) As added by P.L.111-2009, SEC.4, eff. Jan. 1, 2010. Nebraska § 54-640. Commercial breeder; duties. A commercial dog or cat breeder shall: (1) Maintain housing facilities and primary enclosures in a sanitary condition; (2) Enable all dogs and cats to remain dry and clean; (3) Provide shelter and protection from extreme temperatures and weather conditions that may be uncomfortable or hazardous to the dogs and cats; (4) Provide sufficient shade to shelter all the dogs and cats housed in the primary enclosure at one time; (5) Provide dogs and cats with easy and convenient access to adequate amounts of clean food and water; (6) Provide dogs with adequate socialization. For purposes of this subdivision, adequate socialization means physical contact with other dogs and with human beings, other than being fed; (7) Assure that a handler's hands are washed before and after handling each infectious or contagious cat; (8) Maintain a written veterinary care plan developed in conjunction with an attending veterinarian; and (9) Provide veterinary care without delay when necessary. Credits Laws 2003, LB 274, § 7; Laws 2009, LB 241, § 10, eff. Aug. 30, 2009; Laws 2012, LB 427, § 6, eff. Oct. 1, 2012.

54-641.01. Commercial dog breeder; dogs; opportunity for exercise (1) A commercial dog breeder shall provide dogs with the opportunity for exercise as follows: (a) A primary enclosure shall have an entry that allows each dog unfettered access to an exercise area that is at least three times the size of the requirements for a primary enclosure. The entry may be closed during cleaning, under direction of a licensed veterinarian, or in the case of inclement weather. The exercise area shall have solid surface flooring or a flooring material that if of mesh or slatted construction does not allow the dog's feet to pass through any openings in the floor. Any exercise area suspended floor constructed of metal strands shall be required to have strands that are greater than one-eighth of an inch in diameter (nine gauge) or coated with a material such as plastic or fiberglass. All suspended flooring shall be strong enough so as not to sag or bend between any structural supports and be of a surface that is easily cleaned and disinfected. The exercise area shall have protection available from wind, rain, and snow if access to the primary enclosure is unavailable; and (b) Any dog not housed in a primary enclosure that meets the exercise area requirements of subdivision (a) of this subsection shall be provided with the opportunity for exercise according to a plan approved by the attending veterinarian, in writing. The opportunity for exercise shall be accomplished by: (i) Providing access to a run or open area at a frequency and duration prescribed by the attending veterinarian; or (ii) Removal of the dogs from the primary enclosure at least twice daily to be walked, allowed to move about freely in an open area, or placed in an exercise area that meets the requirements of subdivision (a) of this subsection. (2) Subsection (1) of this section shall not apply to: (a) Any dog that is less than six months of age; (b) The primary enclosure of a nursing facility that houses any female dog that is due to give birth within the following two weeks or a nursing dog and her puppies; (c) Any dog that is injured or displays any clinical signs of disease. In such case, any injury or clinical signs of disease shall be noted in the dog's health records and the dog shall be returned to exercise upon recovery from such injury or disease; or

(d) Any dog that is excluded from the exercise requirements of subsection (1) of this section pursuant to a written directive of a licensed veterinarian. (3) Any primary enclosure newly constructed after October 1, 2012, shall comply with subdivision (1)(a) of this section. A primary enclosure in existence on October 1, 2012 shall not be required to comply with subdivision (1)(a) of this section for the life of such facility. Credits Laws 2012, LB 427, § 8, eff. Oct. 1, 2012. 54-641.02. Commercial dog breeder; veterinary care; review of health records; duties of breeder (1) A commercial dog breeder shall ensure that each dog under his or her care, supervision, or control receives adequate veterinary care. A commercial dog breeder's written veterinary care plan shall provide for, in addition to requirements prescribed by rule and regulation of the department: (a) The maintenance of individual health records for each dog bought, raised, or otherwise obtained, held, kept, maintained, sold, donated, or otherwise disposed of, including by death or euthanasia, except that litter health records may be kept on litters when litter mates are treated with the same medication or procedure; (b) Establishment of a program of disease control and prevention, pest and parasite control, before and after procedure care, nutrition, and euthanasia supervised by the attending veterinarian. Such program shall provide for regularly scheduled onsite visits to the facility by the veterinarian and shall be annually reviewed and updated by the veterinarian at the time of an onsite visit that includes the veterinarian's walk-through of the facility and observation by the veterinarian of dogs under the commercial dog breeder's care, supervision, or control; and (c) A wellness examination by a licensed veterinarian of each breeding dog at least once every three years, to include a basic physical and dental examination and corresponding notations entered into the dog's health records. Such examination shall not require laboratory analysis unless directed by the veterinarian. (2) During regularly scheduled inspections of a commercial dog breeder's facility conducted by the department, the health records of a random sample of

at least five percent of the breeding dogs shall be reviewed to verify that such records correspond to the dog's permanent identification and verify that the health records are properly maintained. (3) For each dog under the commercial dog breeder's care, supervision, or control, the breeder shall: (a) Ensure that all breeding dogs receive regular grooming. Coat matting shall not exceed ten percent, and nails shall be trimmed short enough to ensure the comfort of the dog; (b) Contact a licensed veterinarian without delay after an occurrence of a serious or life-threatening injury or medical condition of such dog. The dog shall be treated as prescribed by the veterinarian; (c) Ensure that all surgical births or other surgical procedures shall be performed by a licensed veterinarian using anesthesia. Commercial dog breeders may remove dew claws and perform tail docking under sterile conditions within the first seven days of the dog's life. Wounds shall be treated and monitored by the breeder; and (d) Ensure that, if euthanasia is necessary, it shall be performed by a licensed veterinarian in accordance with recommendations for the humane euthanization of dogs as published by the American Veterinary Medical Association. Credits Laws 2012, LB 427, § 9, eff. Oct. 1, 2012. Detailed Discussion of Commercial Breeders and Puppy Mills Author: Robyn F. Katz Place of Publication: Michigan State University College of Law Publish Year: 2008 Primary Citation: Animal Legal and Historical Center Country of Origin: United States I. Introduction Millions of dogs each year are produced in puppy mills, adding to the pet overpopulation that overwhelms the country’s animal shelters. According to the Humane Society of the United States (“HSUS”), 2-4 million dogs bred in puppy mills are sold each year to uninformed, eager consumers. See Humane

Society of the United States , (last visited Aug. 24, 2008). While legitimate breeders try to place desired dogs with competent homes, the prevalence of irresponsible breeders has risen in recent years with the growing demand for purebred and designer dogs. This trend is further complicated by the fact that only twenty-six states have laws implementing regulations on commercial kennels. Those that have licensing requirements for kennels lack in substance and enforcement. The laws of each state differ drastically from one another, giving motivated breeders room to travel between states to find the location that has the least restrictive way to make money from breeding. Normally, these state laws instruct breeders on how to legally maintain a breeding operation, including but not limited to registration fees, limits on the number of dogs (currently only in Virginia), whether or not they will be subject to inspections, and maintenance of facilities. The lack of overarching federal law and lack of state law enforcement leads to the problem of puppy mills. This paper will examine the increasing trend of such illegitimate commercial breeding facilities. It will address the single federal law that was enacted in 1966, and continue to examine the adequacy of existing state laws and enforcement mechanisms. The paper then examines how the inadequacy of current laws has permitted the existence of puppy mills, and the ability of the operations to thrive with so few laws. Finally, the paper will conclude with a determination that more states need to incorporate stricter licensing requirements that are easily enforceable and address both retail pet stores and Internet sales. Even with these enforcement mechanisms, however, this ultimately an issue of supply and demand, where the consumer’s roll in this tragedy is paramount to its change in direction. II. The Animal Welfare Act The only uniform animal welfare law is the federal Animal Welfare Act (“AWA” or “Act”), which includes regulations for living conditions of certain animals and penalties for violations. The law provides criminal penalties, civil penalties, and revocation of permits for violations of the AWA. See David Favre, Animal Legal & Historical Center, Overview of U.S. Animal Welfare Act (2002) . Congress passed the AWA as a means of regulating animals in science and research, not animal cruelty. See David Favre, Animal Legal & Historical Center, Overview of U.S. Animal Welfare Act (2002). However, on the surface, parts of

the law are applicable to certain companion animal breeders. For example, dogs and cats are listed as animals covered by the Act. See 7 U.S.C. §§ 2131 – 59 (2007) . Further, under the AWA, a dealer or exhibitor is required to have a license before operating, and also must undergo inspections that are run by the United States Department of Agriculture. This Act sounds like it would govern the inappropriate sale of dogs by commercial breeders; however, this law is much more limited than the general public realizes. In fact, a “dealer” is defined as “any person who, in commerce, for compensation or profit, delivers for transportation, or transports, except as a carrier, buys, or sell, or negotiates the purchase or sale of, (1) any dog or other animal whether alive or dead for research, teaching, exhibition, or use as a pet, or (2) any dog for hunting, security, or breeding purposes.” 7 U.S.C. § 2132 . While the definition appears to cover breeders who sell dogs, the definition continues to exempt most retail pet stores, and someone who does not gross more than $500 from the sale of a dog, cat, or any wild animal. See id. Thus, savvy breeders can maneuver around the license requirement if the breeders sell directly to the public or do not gross more than $500 per year. Despite the AWA’s limitations, commercial breeders often fall within the inspection requirements of the AWA. The AWA regulates inspections through the Department of Agriculture’s Animal Care Program. See Animal and Plant Health Inspection Service, (URL removed for reprint) (last visited Aug. 24, 2008). Under the federal inspection process, each facility is designated by its risk based on its previous inspection history, such as low, moderate, or high. High risk facilities are inspected more often than low, and moderate usually once per year. The AWA regulations cover housing, sanitation, food, water, and protections against extreme temperatures. 7 U.S.C. § 2143 . However, since the federal law exempts those facilities that sell dogs directly to the public (backyard breeders and those not registered as a commercial breeder), a significant amount of breeding facilities go uninspected. The extension of the Act to commercial breeders is extremely limited. In fact, t he Doris Day Animal League in the late 1990s sought to try and narrow the definition of “retail pet store” as to only exclude commercial pet stores. Doris Day Animal League v. Veneman , 315 F.3d 297 (D.C. Cir. 2003). This would have forced those who sell dogs retail from their homes to comply with the

AWA. In the final action on July 19, 1999, APHIS decided not to amend the Act for a number of reasons. First, Congress could have changed the regulatory definition but did not. Thus, the Congressional intent was clear to the Department, which did not believe it to include limiting the Act any further. In addition, home sellers are subject to self-regulation and pressures from the purchasing public and breed/registry organizations. Restricting the exclusionary provision within the Act further would also cause a shift in already limited funds, creating more money for inspections that may not be necessary. APHIS also reasoned that state laws currently govern animal cruelty laws. Finally, APHIS defended its denial of amending the Act as a result of the potential for people to consider regulation within private homes an invasion of privacy by the Federal Government. See David Favre, Animal Legal & Historical Center, Overview of U.S. Animal Welfare Act (2002). Since the purpose of the federal Act is not for the regulation of commercial breeders, loopholes within the Act allow unregulated breeders to exist. In addition, it would be impossible for the USDA to monitor all of the commercial breeding operations. The primary authority to regulate the welfare of animals is through the states, which need to maintain laws that are enforceable and hold people accountable for violating the current laws. III. State Laws Only twenty-six states currently have laws that govern commercial kennels. See HSUS State Puppy Mill Laws Chart (pdf file - 93.28 KB ). States laws vary, but most states that do have laws address sanitation, housing, food and water requirements, the governing agency, and inspections; few address veterinary care and the humane treatment of dogs, ventilation, and exercise. This section will examine, in detail, the state laws that do address commercial breeders by comparing their provisions. It will further address the lack of uniformity of the state laws and finally provide recommendations to make them more enforceable. A. Geography Does Not Matter Generally, states define commercial breeder, commercial kennel, breeding facility, retail pet store, and other terms differently. Comparing California’s laws with both Colorado’s and Arizona’s, one can see the large discrepancy of terminology within the same region of the United States. The California law

defines a breeder loosely as someone or a corporation who has “sold or harbored three or more litters or 20 or more dogs in the past twelve months” California Health and Safety Code §§ 122045-122110 (1999) . Although the Code references the term “breeder,” it does not have any licensing requirement in order to operate a facility. There is also no inspection requirement in order to be a breeder. Colorado, on the other hand, defines a “pet animal facility” similar to the “breeder” term in California’s statute, but looser to include the purpose of the facility as one that handles, sells, grooms, or breeds animals. This statute does include a licensing requirement, up to a $350 fee for such, and a required inspection by the State Agricultural Commission. Colorado st. §§ 3580-101 – 35-80-117 (2001) . Conversely, Arizona’s general dog laws statute does not mention any terminology in its Definitions section using the term “breeders.” See AZ st. § 11-1001 (2003 ) . The section defined the term “kennel” as an “enclosed, controlled area, inaccessible to other animals, in which a person keeps, harbors or maintains five or more dogs under controlled conditions.” AZ st. § 11-1001(8 ). Kennels are then overseen at the county level by the board of supervisors in the county where the kennel is located. Arizona then has a separate section for pet sales. See AZ st. § 44-1799 . This section defines both “pet dealer” and “pet store” – both of which apply to the for-profit commercial sales of dogs and cats. See id. While the Arizona statute details sanitary requirements of the facilities, inspection requirements, and civil penalties of up to $1,000, the statute does not provide the method for establishing a facility. See id. The variations in the state laws may encourage commercial breeders to migrate in geographic regions, often times to states that have less restrictions. States such as Arizona, California, and Colorado have vastly different laws pertaining to operating a commercial kennel, allowing breeders to easily have the choice of maintaining an operation in a state that has the least restrictive laws and penalties. For example, Arizona only defines “kennel” in its statutes, and leaves out pet stores and breeders. Further, there is no inspection requirement for Arizona, while Colorado does impose a requirement. Like Colorado, a license is required in order to operate a kennel; however, the fee of $75 is much smaller than the Colorado fees. AZ st . § 11-1001 , 1009 . The discrepancy in laws between adjacent states may encourage illegitimate

breeders in Colorado to skirt the laws and move to Arizona where the standards are far more lenient. Some states have no discussion of breeding regulations in their statutes. These states include: Alabama, Alaska, Arkansas, Florida, Hawaii, Idaho, Kentucky (repealed in 2004), Minnesota, Mississippi, Montana, New Mexico, North Dakota, Oklahoma, Oregon, South Carolina, South Dakota, Texas, Utah, Washington, Wisconsin, and Wyoming. See HSUS State Puppy Mill Laws Chart (pdf file - 93.28 KB ). While state agencies may have relevant administrative regulations, there is still a vacuum in these states. The political pressure within the state is a major factor when the state legislatures decide to add and amend bills. Since the positions are elected, the legislators rely on the public support to keep them in office. Thus, if the public does not support commercial breeding laws, or if other issues are more pressing for the state, state legislators will prioritize the relevant issues as determined by the public. While these states provide little or no overall regulation of commercial breeders, even those states that do have laws depend on how well the laws are enforced through inspections. B. The Importance of Inspections and Governing Agencies Inspections of commercial breeding facilities are of great importance to animal welfare because it is the regulatory agency that has the power to shut down facilities that do not follow the laws. Those states that do not mandate inspections are setting up laws that are rarely enforceable. Although law enforcement is already spread thin within the states, and there is a lack of funding and personnel to carefully inspect each commercial kennel, the answer is not to leave out an enforcement strategy. For states that do have some enforcement agency, those regulatory agencies that most often take charge of enforcing commercial breeding facility statutes are the various state departments of agriculture. See CO st. § 35-80-109 ; see also 7 DE st. § 1702 (1999 ). Some states grant power to the local government to inspect facilities as well as state veterinarians. One problem with some states is that there is a discretionary aspect of some laws. Administrative agencies in some states may operate with more discretionary authority than others, leaving room for commercial breeders to be technically violating the state laws, yet never be charged with doing so. See 7

DE st. § 1703(c ). In a state such as Virginia, the commercial kennel is required to obtain a business license, but law enforcement officials “may” enter the facility upon complaints or upon their own motion. VA st. § 3.1-796.77:3 (2008 ). The passive approach taken by Virginia allows more commercial breeders to be legally licensed, but violate conditions of the license (sanitary, food, veterinary care) without proper enforcement. Similarly, Delaware structures its law very specifically, mandating specific requirements for storage, space for puppies, temperature, feeding, cleaning, ventilation, lighting, and more. DE st. § 1704 (a ). The statute does not, however, address any mandatory inspection. The closest the statute comes to such provision is where it authorizes dog wardens to inspect facilities during normal business hours. DE st. § 1703 . In states where there is no licensing requirement whatsoever, it is virtually impossible for law enforcement and agencies to effectively enforce the laws governing commercial breeders. At least with the licensing requirement, the state has a record of the operation with relevant information. A more proactive state law is Nebraska’s, where the statute requires that all licensees “shall” be inspected at least once every twenty-four months. NE st. § 54-628 (2007 ). This statute is the affirmative enforcement of the conditions that the Nebraska statute already imposes upon commercial breeders. In Nebraska, when a person is an official licensee, he or she is aware that someone will inspect the facility at some point within a two-year period. The variation in inspection requirements between states underlies the primary issue that allows and encourages illegitimate commercial breeders to operate. An in depth comparison of state laws demonstrates that some laws are more effective than others. C. 2008: Virginia Taking the Lead Virginia has taken the lead on battling problems with illegitimate commercial breeders. See Jim Nolan, Animals To Get New Legal Protection: Kaine Signs Bills That Raise Penalty for Animal Fighting and Operating Puppy Mills , Richmond Times Dispatch , June 5, 2008, at B2. However, laws in other states trail behind Virginia’s progressive trend. For example, Georgia and Delaware both have loopholes that enable commercial breeders to circumvent state laws.

Examining the Georgia Animal Protection Act, the definition of pet dealer only applies to those who breed, sell, or adopt more than thirty animals per year. GA st . § 4-11-2(7) (2000 ). If an operation is classified as a pet dealer, it must apply for a license, which costs between twenty-five and two-hundred dollars per year. GA st. § 4-11-3(c) (1992) . In order to obtain a license, the applicant must simply list the name of the applicant, business address, phone number, location of kennel, type of ownership, and other partners within the business. GA st. § 4-11-3 (d ). Previous violations in other states are not considered, nor is whether the applicant has been convicted of animal cruelty. There is no preliminary inspection to make sure, proactively, that the facility is properly built to ensure the dogs’ safety. While the statute in § 4-11-9 states that an inspection may occur at any time so long as the facility is licensed within the State, there are no specific requirements listed. For example, the inspection consists of making sure the facility is in sanitary conditions. GA st. § 4-11-10 (2000 ). The statute does not list what sanitary conditions includes, though the state administrative regulations set these forth in greater detail. In contrast to Georgia, t he Delaware statute does an adequate job of laying the foundation for denying licenses to those who have violated animal cruelty laws in other states, or who have been found guilty in other jurisdictions. DE st. § 1702(i) . Further, the law does provide the specifics as necessary to make sure that the inspectors have objective requirements to check when they visit facilities. DE st. § 1704 . The Virginia laws demonstrate better protection than both the Georgia Animal Protection Act and the Delaware statute. In the text of the Virginia statute, definitions are far more comprehensive and demonstrate more specifically what the word “adequate” means, regarding care, exercise, feed, shelter, space, and water. VA st. § 3.1-796.66 (2008) . The adequate space definition provides guidelines for determining whether a kennel is large enough for the dogs. The section states that the animal must be able to stand, sit, lie, and turn around, in addition to specific tethering requirements. Further, effective on January 1, 2009, the Virginia law will be the only state that mandates that any commercial breeder must apply or and obtain a business license. VA st. § 3.1-796.77:1 . Virginia is the first of its kind to require that a commercial breeder conform to business standards. Designating a

breeding facility as a business forces breeders who could become irresponsible breeders through the sheer number of puppies they produce, to comply with the statutory requirements. While the law might not affect small breeding operations, it does ensure that breeders with a large number of dogs live up to enforceable standards. This is important in an animal welfare context because some commercial breeders take shortcuts and do not ensure that the facility is equipped with necessary elements to keep the dogs and puppies safe. In a large scale facility, diseases can spread quickly where puppies are kept too close to one another, temperature in the facility is not well-maintained, and fires can quickly spread due to irresponsible owners. See Donna Alvis-Banks, 176 Dogs Perish in Fire at Bland County Kennel , The Roanoke Times , March 22, 2007, (URL removed for reprint) Despite Virginia’s advancement in commercial breeding operations, a commercial breeder can still slip through the cracks and avoid meeting the imposed standards. Commercial breeder is defined as “any person who, during any twelve month period, maintains thirty or more adult female dogs for the primary purpose of the sale of their offspring as companion animals.” VA st. § 3.1-796.66 . While this law does cover commercial breeders, it does not encompass all, since thirty female dogs is such a large number and most likely only be applicable to massive breeding facilities. Moreover, it is apparent the law is directed more towards large-scale operations as the new commercial breeder section provides that commercial breeders shall maintain no more than 50 dogs over the age of one year for breeding purposes. VA st. § 3.1-796.77:2(1 ). There are exceptions, provided they are allowable by local ordinance. The female dogs within such a facility are only allowed to be bred after a veterinarian approves, and the dog must be over 18 months and younger than eight years. VA st. § 3.1-796.77:2(2). While the Virginia law illustrates major progress by limiting large-scale puppy mills, it still leaves loopholes for breeders who have less than thirty female dogs. If a breeder has twenty-nine dogs and each dog produces two litters a year, there is a potential for hundreds of puppies born without the facility being inspected since there was no license requirement. By allowing local ordinances to overrule the fifty dog limit, the uniformity within the state is altered and it gives more room for irresponsible commercial breeders to easily move from city to city. The section does mention that there will be additional

requirements, but does not list any such one specifically. Again, the law needs to be more narrow and specific in order to close off loopholes. Virginia still has no inspection program for kennel operations either, which dilutes the strength of the puppy mill laws in the state. However slightly broad and unpolished the Virginia law is, Virginia’s upcoming law is paramount, as other states will be able to use Virginia as a template for enacting new laws. Louisiana is strongly considering new legislation governing puppy mills. Introduced by Rep. Harold Ritchie (DBogalusa), H.B. 1193 (pdf file) passed both the House and the Senate, and is awaiting the signature of Governor Bobby Jindal. See The HSUS Urges Louisiana Gov. Jindal To Sign Anti-Puppy Mill Bill , U.S. Federal News , June 18, 2008. The Louisiana law would place more restrictions on breeders selling to pet stores and over the Internet. See LA H.B. 1193 (pdf file). There is little doubt that Virginia’s new legislation has an impact on the rest of the Nation. The issue now becomes whether the state laws are enforced, and when there are violations, what consequences the commercial breeders face. D. Uniformity in the United States When examining state laws, it becomes apparent that a major problem the United States has with its animal welfare laws is the consistency. The AWA does not govern animal cruelty, and it is up to the states to uphold cruelty laws on commercial breeding facilities. However, states continue to be disconnected from one another and conflict at times. The lack of consistency is a problem because puppies are products that are shipped through the stream of commerce. This is especially true with the advancement of technology and the Internet. States need to focus their laws on regulating breeders so consumers know they are buying a puppy from a reputable and legitimate breeder. Under current commercial breeder laws, many breeders can escape the laws by traveling to a state that has more lenient regulations. Without these laws, dog hoarders and illegal breeders can easily move from state to state and never be prosecuted. It is the leniency of the laws, the lack of enforcement of the current laws, and the inability of states to coordinate regulations that contributes to the problem of puppy mills. Moreover, the inadequate or absent standards of care in these laws allow dogs to languish in often inhumane conditions.

IV. What Is a Puppy Mill? The United States’ economy “set the state for the puppy mill.” Adam J. Fumarola, With Best Friends Like Us Who Needs Enemies? The Phenomenon of the Puppy Mill, the Failure of Legal Regimes to Manage It, and the Positive Prospects of Animal Rights , 6 Buff. Envtl. L.J. 253, 262 (1999). When agriculture was plummeting after World War II, farmers needed a new source of income. See id. The United States Department of Agriculture promoted the business of breeding, raising, and selling dogs for profit—just as it did for crops. See id . Soon, farmers were producing a growing supply of dogs, leading to a need for more retail pet stores. See id . Pet stores became the “leading distributor of puppy mill animals.” Id . Currently, no current state statute utilizes the phrase “puppy mill” in its text. The ASPCA defines responsible breeders as those who have focused their efforts on one or a select few breeds, and through breeding , historical research and ongoing study, mentoring relationships, club membership, showing, raising and training of these breeds have become experts in the breed’s health, heritable conditions, temperament, and behavior. See ASPCA, (URL removed for reprint). The Humane Society of the United States (“HSUS”) defined puppy mills as dog-breeding operations that put profit above the welfare of dogs. See Kathleen Summers, On the Front Lines: The Fight to Stop Puppy Mills , The Colorado Dog Magazine , Summer 2008, at 110 (pdf file - 337.85 KB). There are legitimate breeders operating in the world. The best breeders do not operate only to make money and they do not simply sell their puppies to the highest bidder. See Humane Society of the United States, (URL removed for reprint). The best breeders ensure that the puppies they sell go to the proper homes that will provide for the puppies’ well-being. In addition, responsible breeders will encourage consumers to visit the facility and meet the potential families before allowing the families to walk away with the puppies. There are more than 6,000 licensed commercial kennels in the United States, and an untold number of Although the general population might believe that a facility producing “papers” for the dog could not be classified as a puppy mill, this is far from the truth. Even facilities that claim the dogs are registered could be classified as puppy mills because the term relates to more than a questionable paper trail. In

fact, some facilities might claim the dogs are purebred and provide written documentation of veterinary records that turn out to be false. Anyone can essentially register a dog simply by filling out paperwork and paying a fee. See American Kennel Club, (URL removed for reprint) . Eager consumers rush to breeders who claim to be AKC certified without realizing that the paperwork is no guarantee of the puppy’s temperament, health, or a that it is a good representation of its breed. Adam J. Fumarola, With Best Friends Like Us Who Needs Enemies? The Phenomenon of the Puppy Mill, the Failure of Legal Regimes to Manage It, and the Positive Prospects of Animal Rights , 6 Buff. Envtl. L.J. 253, 264-65 (1999). Puppy mills are institutions where dogs are forced to breed their whole lives until they are physically incapable. A female dog is bred every time she goes into heat, so female dogs are pregnant or nursing all the time. See (URL removed for reprint) . At that time, the dogs are either sold to other breeders, left on the side of the road, neglected, or even killed. The dogs spend twentyfour hours a day, seven days a week in cages, with often little to no contact with people or the outside world. The facilities that are classified as puppy mills are kept in deplorable and unsanitary conditions, lack proper veterinary care for the dogs, and often have USDA licenses. The reason for a USDA license is that it ensures that the facility can sell to pet stores. If a breeder is USDA licensed, it may be a warning that it could be a puppy mill because the primary purpose of the facility is to make money regardless of the health and safety of the puppies. A USDA license does mandate a series of basic requirements; however, with the lack of support personnel to enforce the requirements, facilities continue to violate the laws with little to no consequences. The consequences are felt through the mistreatment and continuous abuse of the dogs. In fact, the USDA cites conditions of licensed breeding facilities in their reports: “…outside was noted a dead adult female boxer, covered with a feed sack, who had died the day before”; “several boxers were found with skin problems and yellow matted eyes…no medical records were available on these dogs”; “temperatures in the Miller building were 34 to 39 degrees…no bedding was provided to offset the temperature.”

See (URL removed for reprint) shtml . While a retail pet store is not a puppy mill per se , the store may receive its “merchandise” directly from puppy mills or indirectly through "dog brokers." Puppy mills and pet stores sign contracts, where the puppy mill breeds a certain number of puppies and provides them to the store. The use of a dog broker is often more efficient for a store since the store then needs to contract with only a single broker to procure many different breeds of dogs. Sometimes the use of brokers also serves to insulate larger chain stores from directly dealing with a puppy mill or other less reputable breeding operations. For more on this, See Detailed Discussion of Retail Pet Stores, by Ashley Duncan, Animal Legal & Historical Center (2006) ; see also (URL removed for reprint) (illustrating how the UCC applies to pet sales contracts). The store then receives any AKC or other breed registration information from the breeder or broker, although many times these papers mean very little to ensure previous care of the animal. The puppy mills that supply sick puppies are not always the ones from backyards or in rural areas. In fact, the HSUS investigated a pet store in Hollywood ("Pets of Bel Air") that many celebrities use to buy their dogs. The store assured the Internet browsers and buyers that the puppies came from small hobby breeders and not from puppy mills. See Kathleen Summers, On the Front Lines: The Fight to Stop Puppy Mills , The Colorado Dog Magazine , Summer 2008, at 112 (pdf file - 337.85 KB). The HSUS visited five of the breeders randomly and confirmed that the facilities were puppy mills. Over one hundred dogs were living in continual confinement at each facility, some injured, others visibly stressed. According to the basic laws of supply and demand, when people continue to purchase puppies from breeders, over the Internet, and from pet stores, they are both directly and indirectly supporting the demand for these innocent creatures. Thus, the effect will be the continual supply to meet the increasing demand for dogs, regardless of the conditions at the breeders’ facilities. As technology progresses, the Internet is a convenient way to purchase a dog from an unknown source. The danger in this is buying a sick puppy from an unlicensed breeder and supporting his or her efforts to skirt the law. No current state law has any statute governing the sale of dogs through the

Internet. See Mac McLean, Customers and Experts Warn About Buying Dogs Via Internet , Bristol Herald Courier , July 4, 2008. V. Accountability A false generalization is that puppy mills are only in rural, backwoods neighborhoods or farmlands. This is far from true. In fact, the HSUS investigated Virginia in 2007, where it found hundreds of puppy mills existing in trailers, basements, and suburban backyards, even in states that are not well known for having a puppy mill problem. See Kathleen Summers, On the Front Lines: The Fight to Stop Puppy Mills , The Colorado Dog Magazine , Summer 2008, at 109 (pdf file - 337.85 KB ). Over nine-hundred dog breeders sold commercially in Virginia, and most of them were unlicensed and unmonitored by any oversight agency. Id. Since puppy mills sell their “products” to consumers in pet stores, through the Internet, and newspaper classifieds, many buyers are unsuspecting and misinformed about their new product. While the current emphasis is focused on the supply end of the puppy mill problem - the breeders - some have suggested that buyers share in some of the responsibility. However, it can be said that the emotional consequences buyers suffer when their pets become ill far exceed the monetary fines imposed on commercial breeders. There is a need for greater awareness on the part of the buyers who keep the puppy mill operations in business. VI. Conclusions and Recommendations While the problem of unethical breeders has become a national problem, the solution must be addressed at the state level. Enforcement standards should be applied in each state that has laws governing commercial breeding operations. Loopholes can be closed by states enforcing the current laws that presently exist, and providing new laws that enable the public to be knowledgeable about legitimate breeders operating within the state. Without overstepping their boundaries, states can provide clear expectation and standards for facilities that operate as commercial kennels, and allow those legitimate breeders to prosper in the production of healthy puppies; at the same time, states can prevent puppy mills from arising by forcing operations to operate as businesses such as Virginia does, and dedicating more funding to the departments that perform inspections. Under such a model law, inspections should be in the summer

and in the winter, assuring that the dogs are well taken care of in the various weather conditions. If a breeder violates the law, there should be a probationary period where the facility is monitored closely by a representative of the state’s governing agency. If the facility continues to violate the standards set by the state statute, the license should be permanently revoked and the violator should not be allowed to conduct any business with animals in the future. The dogs should be confiscated by the local animal shelters and adopted out, so long as it is in the best interest of the dog. While twenty-six states currently have commercial breeding laws, these laws are meaningless if they are not enforced. States need to work together, especially regionally, in order to ensure that illegitimate breeders do not slip through the cracks of the current laws. For example, although the Virginia business requirement applies to larger operations, smaller operations are able to avoid registering and can conduct breeding without any regulations. Each state should have licensing requirements for breeders whose primary source of income is through the sales of puppies, and include the same definition of a commercial breeder. It is the discrepancies between states that encourage those who do not wish to comply with the law. It is important to provide guidelines for even the smallest breeding operation, as the products are not merely disposable item. Some state laws treat dogs like agricultural crops—so long as they receive the necessary food, water, and shelter, the operators of the facilities are not prosecuted. In order to maintain commercial kennels that do not foster inhumane conditions, the standards need to be raised and implemented consistently. One question that often arises is “Why can’t puppy mills just be completely shut down?” The HSUS answers this question well when it states, “The disaster-level response required to remove and care for hundreds of confiscated animals is often beyond the resources of local humane societies and other enforcement agencies.” See Kathleen Summers, On the Front Lines: The Fight to Stop Puppy Mills , The Colorado Dog Magazine , Summer 2008, at 112 . States are able to act proactively to avoid such disasters. It is critical for states to act immediately and effectively on dogs’ welfare. Responsible breeders, depending on the state, are encouraged to follow the laws and regulations set

forth and preserve the integrity of the business. The general public, most importantly, can help curb the downward spiral of the disturbing business of puppy mills by decreasing the demand, ensuring they are purchasing puppies from responsible breeders, performing self-inspections of facilities and reporting violations, and avoiding buying puppies over the Internet. The commercial breeding business and the general public both need to be held accountable for this rising problem of puppy mills in the United States.

Chapter 8 Dog chaining bans

Introduction to dog chaining bans California Connecticut Oregon A Dogs Best Friend Introduction dog chaining Animal advocates want dog owners to think of dogs as members of the family. They should live inside. They should be able to move freely. They should not live in the backyard on a chain. From a public policy standpoint, it's also important that dogs not be kept on chains. Dogs kept on constraints are more likely to become aggressive. One of the most natural things a community can do to reduce dog bites is to ban dog chaining. There are different approaches to dog fighting bans. Some states recognize that is the chaining itself that leads to aggression. These types of bans will only allow dog owners to chain the dogs for a minimal amount of time. In California for example, you can temporarily chain a dog for up to 15 minutes to perform some task if you're with the dog. Other jurisdictions don't recognize the harm

in chaining the dogs. Those statutes focus on animal cruelty and ban keeping dogs on chains 100% of the time. In Oregon, you can tether a dog up to 10 hours every day of the dog's life. Robert Roth in the dog's best friend describes how tethering leads to aggression. Roth explains how tethering a dog removes that dogs ability to go into flight or flight mode. That a tethered dog does not feel like it can flee, so enters fight mode every time they encounter something scary. California HEALTH AND SAFETY CODE - HSC DIVISION 105. COMMUNICABLE DISEASE PREVENTION AND CONTROL [120100 - 122450] (Division 105 added by Stats. 1995, Ch. 415, Sec. 7. ) PART 6. VETERINARY PUBLIC HEALTH AND SAFETY [121575 - 122388] (Part 6 added by Stats. 1995, Ch. 415, Sec. 7. ) CHAPTER 8. Dog Tethering [122335- 122335.] (Chapter 8 added by Stats. 2006, Ch. 489, Sec. 1. ) 122335. (a) For purposes of this chapter, the following terms shall have the following definitions: (1) “Animal control” means the municipal or county animal control agency or any other entity responsible for enforcing animal-related laws. (2) “Agricultural operation” means an activity that is necessary for the commercial growing and harvesting of crops or the raising of livestock or poultry. (3) “Person” means any individual, partnership, corporation, organization, trade or professional association, firm, limited liability company, joint venture, association, trust, estate, or any other legal entity, and any officer, member, shareholder, director, employee, agent, or representative thereof. (4) “Reasonable period” means a period of time not to exceed three hours in a 24-hour period, or a time that is otherwise approved by animal control. (b) No person shall tether, fasten, chain, tie, or restrain a dog, or cause a dog to be tethered, fastened, chained, tied, or restrained, to a dog house, tree, fence, or any other stationary object.

(c) Notwithstanding subdivision (b), a person may do any of the following in accordance with Section 597t of the Penal Code: (1) Attach a dog to a running line, pulley, or trolley system. A dog shall not be tethered to the running line, pulley, or trolley system by means of a choke collar or pinch collar. (2) Tether, fasten, chain, tie, or otherwise restrain a dog pursuant to the requirements of a camping or recreational area. (3) Tether, fasten, chain, or tie a dog no longer than is necessary for the person to complete a temporary task that requires the dog to be restrained for a reasonable period. (4) Tether, fasten, chain, or tie a dog while engaged in, or actively training for, an activity that is conducted pursuant to a valid license issued by the State of California if the activity for which the license is issued is associated with the use or presence of a dog. Nothing in this paragraph shall be construed to prohibit a person from restraining a dog while participating in activities or using accommodations that are reasonably associated with the licensed activity. (5) Tether, fasten, chain, or tie a dog while actively engaged in any of the following: (A) Conduct that is directly related to the business of shepherding or herding cattle or livestock. (B) Conduct that is directly related to the business of cultivating agricultural products, if the restraint is reasonably necessary for the safety of the dog. (d) A person who violates this chapter is guilty of an infraction or a misdemeanor. (1) An infraction under this chapter is punishable upon conviction by a fine of up to two hundred fifty dollars ($250) as to each dog with respect to which a violation occurs. (2) A misdemeanor under this chapter is punishable upon conviction by a fine of up to one thousand dollars ($1,000) as to each dog with respect to which a violation occurs, or imprisonment in a county jail for not more than six months, or both. (3) Notwithstanding subdivision (d), animal control may issue a correction warning to a person who violates this chapter, requiring the owner to correct the violation, in lieu of an infraction or misdemeanor, unless the violation

endangers the health or safety of the animal, the animal has been wounded as a result of the violation, or a correction warning has previously been issued to the individual. (e) Nothing in this chapter shall be construed to prohibit a person from walking a dog with a hand-held leash. (Added by Stats. 2006, Ch. 489, Sec. 1. Effective January 1, 2007.) Connecticut 2012 Connecticut General Statutes Title 22 - Agriculture. Domestic Animals Chapter 435 - Dogs and Other Companion Animals. Kennels and Pet Shops Section 22-350a - Tethering dog to stationary object or mobile device. Prohibited means. Retention of other protections afforded dogs. Confining or tethering dog for unreasonable period of time. Fines § 22-350a. Tethering dog to stationary object or mobile device. Prohibited means. Retention of other protections afforded dogs. Confining or tethering dog for unreasonable period of time. Fines (a) No person shall tether a dog to a stationary object or to a mobile device, including, but not limited to, a trolley or pulley by means of: (1) A tether that does not allow such dog to walk at least eight feet, excluding the length of such dog as measured from the tip of such dog's nose to the base of such dog's tail, in any one direction, (2) a tether that does not have swivels on both ends to prevent twisting and tangling, unless a person is in the presence of such dog, (3) a coat hanger, choke collar, prong-type collar, head halter or any other collar, halter or device that is not specifically designed or properly fitted for the restraint of such dog, (4) a tether that has weights attached or that contains metal chain links more than one-quarter of an inch thick, or (5) a tether that allows such dog to reach an object or hazard, including, but not limited to, a window sill, edge of a pool, fence, public road or highway, porch or terrace railing that poses a risk of injury or strangulation to such dog if such dog walks into or jumps over such object or hazard, unless a person is in the presence of such dog. The provisions of subdivisions (1) and (2) of this subsection shall not be construed to apply to: (A) Any veterinary practice licensed pursuant to section 20-197 that tethers a dog in the course of such veterinary practice, (B)

any exhibition, show, contest or other temporary event in which the skill, breeding or stamina of such dog is judged or examined, (C) any exhibition, class, training session or other temporary event in which such dog is used in a lawful manner to hunt a species of wildlife during the hunting season for such species of wildlife or in which such dog receives training in a lawful manner to hunt such species of wildlife, (D) the temporary tethering of a dog at any camping or recreation area as expressly authorized by the Commissioner of Energy and Environmental Protection, or (E) the temporary tethering of a dog at a grooming facility in the course of grooming such dog. (b) No person shall tether a dog outdoors to a stationery object or to a mobile device, including, but not limited to, a trolley or a pulley, when a weather advisory or warning is issued by local, state or federal authorities or when outdoor environmental conditions, including, but not limited to, extreme heat, cold, wind, rain, snow or hail, pose an adverse risk to the health or safety of such dog based on such dog's breed, age or physical condition, unless tethering is for a duration of not longer than fifteen minutes. (c) Nothing in this section shall be construed to affect any protection afforded to any dog pursuant to any other provision of the general statutes, regulations of the Connecticut state agencies, local ordinance or local regulation. (d) Any person who confines or tethers a dog for an unreasonable period of time or in violation of the provisions of subsection (a) or (b) of this section shall be fined one hundred dollars for the first offense, two hundred dollars for a second offense, and not less than two hundred fifty dollars or more than five hundred dollars for a third or subsequent offense. Credits (2003, P.A. 03-212, § 1; 2010, P.A. 10-100, § 1; 2011, P.A. 11-80, § 1, eff. July 1, 2011; 2013, P.A. 13-189, § 1, eff. July 1, 2013.) Oregon ORS 167.343 (1)A person commits the offense of unlawful tethering if the person tethers a domestic animal in the person’s custody or control:

(a)With a tether that is not a reasonable length given the size of the domestic animal and available space and that allows the domestic animal to become entangled in a manner that risks the health or safety of the domestic animal; (b)With a collar that pinches or chokes the domestic animal when pulled; (c)For more than 10 hours in a 24-hour period; or (d)For more than 15 hours in a 24-hour period if the tether is attached to a running line, pulley or trolley system. (2)A person does not violate this section if the person tethers a domestic animal: (a)While the domestic animal remains in the physical presence of the person who owns, possesses, controls or otherwise has charge of the domestic animal; (b)Pursuant to the requirements of a campground or other recreational area; (c)For the purpose of engaging in an activity that requires licensure in this state, including but not limited to hunting; (d)To allow the person to transport the domestic animal; or (e)That is a dog kept for herding, protecting livestock or dogsledding. (3)Unlawful tethering is a Class B violation. [2013 c.382 §2] A DOG'S BEST FRIEND: CALIFORNIA'S NEW ANIMAL CRUELTY PROTECTIONS Copyright (c) 2007 University of the Pacific, McGeorge School of Law; Robert D. Roth (used by permission) I. Introduction Dogs are known as man's best friend, but even a dog can turn vicious when not treated with respect. 1 Dogs bite approximately 4.7 million people each year in this country. 2 With over 800,000 of these bites requiring medical attention, 3 media accounts of dog attacks are consistent and widespread across the country. 4 One scholar even argues that dog bites are reaching epidemic proportions. 5 For instance, “while the dog population increased only two percent between 1986 and 1996, the number of dog bites requiring medical attention rose thirty-seven percent.” 6 Also, dog bites are a leading cause of non-fatal injuries; approximately 960 people visit emergency rooms every day seeking medical treatment due to serious dog bites. 7

In recent years, media coverage of dog bite incidents has heightened public fear of certain dog breeds, such as Pit Bulls. 8 Accordingly, many governmental attempts to curb dog bites focus on particular breeds by regulating or banning *231 ownership of certain breeds. 9 However, such measures can be ineffective because the dog breed responsible for the most dog bites has changed several times over the years 10 and because not every dog within a breed is aggressive or violent. 11 Further, with respect to dog bites, some scholars believe other factors may be more important than the breed of dog. Dog advocates argue that owner behavior, such as tethering a dog to a stationary object, contributes to canine aggression. 13 Tethering is perceived as a public safety threat because the “intense confinement, lack of socialization and the inability to escape from perceived threats” make dogs more aggressive. 14 In fact, tethered dogs are 2.8 times more likely to attack than unchained dogs. 15 Dog advocates also present dog tethering as a health and safety issue for dogs since tethered dogs are often “forced to eat, sleep, urinate and defecate in a confined area.” 16 Moreover, tethered dogs “are rarely exercised . . . and often suffer from lack of proper food, water, shelter, and veterinary care.” 17 The issue of dog tethering came to the attention of Senator Alan Lowenthal after the City of Los Angeles enacted a dog tethering ordinance in August 2005. 18 Senator Lowenthal proposed Chapter 489 to provide local animal control officers with an additional tool to help prevent aggressive dog behavior and to promote *232 animal welfare at the state level. 19 Chapter 489, which is modeled after the Los Angeles ordinance, prohibits statewide the tethering of dogs to stationary objects. 20 Chapter 489's language is also similar to laws already enacted by approximately eighty cities and counties. 21 II. Legal Background California law prior to Chapter 489 did not address tethering as a source of dog bites but, rather, as a basic animal cruelty issue. 22 In fact, only Penal Code section 597t governed animal tethering. 23 That statute does not disapprove of animal tethering, but rather makes it a misdemeanor to deprive a confined animal of basic needs such as food, water, and shelter from the elements. 24 Section 597t also requires that tethers not be affixed in a way that could harm the animal, such as through possible entanglement. 25

California's former method of addressing dog tethering is not unique among states. 26 Since most states have not addressed tethering on a statewide level, it has fallen primarily upon local governments to implement ordinances addressing dog bite concerns. 27Early ordinances aimed at reducing dog bites focused either on individual vicious dogs that had already shown aggressive tendencies or banned or regulated particular breeds. 28 “Dangerous dog statutes” have been around for a long time and generally require dog owners to take specific precautions to ensure their vicious dogs are not a threat to the public, such as keeping the dog “indoors, or in a securely fenced yard from which the dog cannot escape.” 29 The main problem with“ dangerous dog statutes,” however, is that they often require an *233 attack or dog bite incident take place before a dog can be deemed “vicious” and subject to the statute's regulations. 30 Breed-specific regulations became popular in the 1980s as a result of the media publicizing attacks by particular breeds of dogs such as Pit Bulls. 31 Critics of breed-specific ordinances have argued that it is the treatment of a dog, not its breed, that determines whether a dog will be a public safety threat. 32 Further, dog owners' decisions to own aggressive dogs are not deterred by breed bans because they will simply find new breeds of aggressive dogs. 33 As a result, critics felt that breed specific ordinances were a product of public panic rather than science or reasoned deliberation. 34 In recent years, as studies have produced evidence regarding the negative effect of tethering dogs, many communities have begun focusing on that practice as a method of preventing dog bites and improving animal welfare. 35 While over eighty communities across the country have enacted tethering ordinances, there is little uniformity in their application. 36 Consequently, California and several other states decided to consider statewide animal tethering laws. 37 Chapter 489 represents California's attempt at one of the country's first statewide tethering statutes. 38*234 III. Chapter 489 Chapter 489 increases animal cruelty protections for dogs in California 39 by making it a misdemeanor, infraction, or warning offense to “tether, fasten, chain, tie, 40 or restrain a dog . . . to a dog house, tree, fence, or any other stationary object.” 41 The maximum punishment for a misdemeanor violation

of Chapter 489 is a fine up of to $1000 and six months in jail. 42 An infraction results in a fine of up to $250 for each dog that is tethered in violation of the statute. 43 Animal control 44 officers may also issue a “correction warning” to a person 45 who violates the statute, so long as the violation does not endanger the health or safety of the animal, the violation has not resulted in injury to the animal, and the violator has not received a prior correction warning. 46 However, Chapter 489 is not a blanket prohibition and specifies a number of situations where it is permissible to tether a dog. 47 One exception allows dogs to be tethered to a “running line, pulley, or trolley system” so long as the dog is not attached to it by a choke or pinch collar. 48 Two other exceptions include tethering in accordance with camping or recreational area rules or for a “reasonable period” 49 not exceeding three hours so as to “complete a temporary task.” 50 Under another exception, dogs may be tethered while engaged in, or actively training for, activities that use dogs and require a state license. 51 Hunting is an example of a qualifying activity. 52 Finally, a person can tether a dog while actively engaged *235 in conduct that is “directly related to the business of shepherding or herding cattle or livestock” or “cultivating agricultural products.” 53 Overall, by enacting these regulations, Chapter 489 seeks to improve animal welfare and promote public safety. 54 IV. Analysis of Chapter 489 Chapter 489 provides a new tool for animal control officers dealing with complaints of animal abuse. 55 Animal control agencies receive hundreds of calls from concerned citizens each month regarding tethered dogs. 56 However, in the past, officers addressing tethered dog complaints felt frustrated by the vagueness of Penal Code section 597t. 57 Chapter 489's three-hour time limit for tethering dogs provides a valuable tool that allows animal control agencies to address animal cruelty situations quickly. 58 While agreeing that Chapter 489 provides an additional tool to animal control agencies, opponents fear that such a tool could be applied in a discriminatory manner. 59 Supporters, however, respond that animal control officers are concerned with the welfare of the dog and not the race, social class, and location of the offending dog owner. 60*236

Whether Chapter 489 will succeed in reducing dog bites is up for debate. Supporters argue that tethered dogs are more aggressive because confinement removes the possibility of flight when confronted with a perceived threat. 61 Tethering also results in psychological damage due to neglect and lack of socialization. 62 As such, common sense indicates that anti-tethering laws should reduce the number of dog bites. 63 However, beyond generalized statements that anti-tethering laws work, supporters do not cite any data to indicate that communities with anti-tethering laws have reduced the number of dog bites. 64 While this may be a result of anti-tethering laws being a new phenomenon, anti-tethering laws could be vulnerable to the same argument advanced by animal advocates in opposition to breed-specific legislation: that owner behavior is ultimately the controlling factor in determining whether a dog will be vicious. 65 For instance, it could be that tethered dogs are owned predominantly by owners that engage in other abusive and neglectful behavior that makes the dogs aggressive, thereby making the act of tethering merely a symptom and not the cause of a tethered dog's aggression. Supporters also argue that Chapter 489 will address an animal health and safety issue because many tethered dogs suffer from problems such as inadequate food, exercise, and veterinary care. 66 Chapter 489's tethering prohibitions may reduce collar and tether related neck injuries and almost certainly allow a dog to get more exercise than if it were tethered. 67However, problems regarding adequate food and other related veterinary care issues, such as parasites, appear to be more logically linked to abusive and neglectful dog ownership than the act of tethering. 68*237 Further, supporters argue that hygiene-related health problems exist when dogs are forced to eat, sleep, urinate, and defecate in a confined area. 69 Opponents, however, argue that the prior law adequately addressed such problems because, if a tether is so short as to create such health and hygiene issues, then the owner has likely violated the animal cruelty provisions of Penal Code section 597t. 70 In its totality, Chapter 489 has the potential to provide a new tool for animal control officers to protect abused dogs, reduce the public safety threat of dog bites, and improve animal health and safety. It remains to be seen whether Chapter489 will accomplish its intended results. V. Conclusion

Dog bites and attacks are clearly an increasing problem in this country. 71 There is also reliable data associating dog tethering with aggressive dog behavior. 72 Further, California animal control agencies are plagued by hundreds of calls concerning tethered dogs. Prior to the passage of Chapter 489, officials felt constrained in their ability to respond due to the vagueness of animal cruelty statutes such as Penal Code section 597t. 73 Chapter 489 is a new approach to the aggressive dog problem that California legislators hope will succeed where dangerous dog statutes and breed-specific legislation have been ineffective. 74 Chapter 489 offers animal control officers a new tool for addressing abusive tethering situations by allowing them to intervene after a three-hour time limit. 75 It is also likely that Chapter 489 will reduce neck and collar injuries to previously tethered dogs and allow them to receive more exercise. 76*238 However, it remains to be seen whether Chapter 489 will actually reduce the number of dog bites and veterinary problems. 77 While supporters are confident that a reduction in these problems will be achieved, it is possible that such problems are more directly attributable to abusive and neglectful dog owners than the act of tethering. 78 Thus, while Chapter 489 may not solve the problems that result from tethering and animal neglect, it can undoubtedly be looked upon as an appropriate link in the chain. Footnotes 1 See Cynthia Hubert, Danger on a Chain: Animal Advocates Say Tethering Dogs Leads to Misery, Aggression--And Perils for People, Sacramento Bee, June 26, 2006, at E1 (arguing that dog bites and attacks are to be expected when dogs are isolated because “[i]f you treat [dogs] with no respect, that's what you'll get back”). 2 Center for Disease Control, Spotlight on Dog Bite Prevention Week, (URL removed for reprint) (last visited on July 15, 2006) (on file with the McGeorge Law Review). 3 Id. 4 See, e.g., Jayette Bolinksi, “Traumatized;” Stitches Alone May Not Heal Girl Attacked By Pit Bull, State J.-Reg. (Springfield,

Ill.), May 11, 2006, at B1 (discussing the effects of a Pit Bull attack on an eight- year-old girl); In Brief, Herald (Rock Hill, S.C.), June 21, 2006, at 2B (providing an account of a Pit Bull attack on an eleven-year-old boy); Jason McAlister, Mauled Girl Gets More Than 300 Stitches, Newark Advoc. (Ohio), Apr. 25, 2006, at 1A (reporting on an attack of a five-year-old girl by a Boxer); Jaqueline Seibel, Woman Bitten By Dog Is In Coma; She Had Surgery to Repair Fracture, Milwaukee J. Sentinel, June 22, 2006, at B1 (reporting on a leg bite by a Rottweiler/Shepard mix breed dog). 5 Safia Gray Hussain, Note, Attacking The Dog Bite Epidemic: Why BreedSpecific Legislation Won't Solve the Dangerous Dog Dilemma, 74 Fordham L. Rev. 2847, 2848-49 (2006). 6 Id. at 2849. 7 Id. at 2849-50. 8 See, e.g., Devin Burstein, Breed Specific Legislation: Unfair Prejudice & Ineffective Policy, 10 Animal L. 313, 314 (2004) (blaming public mistrust of Pit Bulls on their portrayal in the media); Hussain, supra note 5, at 2848 (“[E]xtensive media coverage of serious pit bull attacks has resulted in public fear of these dogs in particular.”). 9 See Larry Cunningham, The Case Against Dog Breed Discrimination By Homeowners' Insurance Companies, 11 Conn. Ins. L.J. 1, 7 (2004) (characterizing legislative actions following highly publicized Pit Bull attacks as “knee-jerk reactions”). The process started with attacks, then “[a]ttacks led to editorials, which led to public outrage, which led to swift and spontaneous legislative action that was based on neither good science nor good law.” Id. 10 See id. at 19 (considering Center for Disease Control studies indicating that Great Danes, Pit Bulls, Rottweilers, Huskies, and Malamutes have all been responsible for the highest number of dog bites at some point between 1979 and 1998). 11 See Burstein, supra note 8, at 323 (“It is not the breed that is inherently good or evil.”).

12 See Hussain, supra note 5, at 2850 (acknowledging that restrained dogs are more often associated with dog attacks). Dog bites also usually occur “in the home or another familiar place” and the victim is often a friend or family member. Id. Furthermore, “most attacks are perpetrated by unaltered males.” Id.; Sebastian Kitchen & Antoinette Konz, Pit Bulls Bone of Contention, Montgomery Advertiser, June 25, 2006, at A1 (contending that the viciousness of a Pit Bull “has to do with the training of the dog”). 13 See, e.g., Press Release, Am. Veterinary Med. Ass'n, Veterinarians Host National Dog Bite Prevention Week, May 18-24 (May 5, 2003) (on file with the McGeorge Law Review) (urging dog owners not to “tether or chain [their] dog [s] because this can contribute to aggressive behavior); Jenny Fillmer, County Works on Nuisance Dog Law, Springfield News-Leader (Springfield, Mo.), June 19, 2006, at 1A (“A lifetime of being constantly left alone chained to a post or a tree tends to make dogs mean... increasing the likelihood of attacks.”). 14 Assembly Committee on Business and Professions, Committee Analysis of SB 1578, at 3 (June 27, 2006). 15 Id.; Hubert, supra note 1, at E1. 16 Assembly Committee on Business and Professions, Committee Analysis of SB 1578, at 3 (June 27, 2006). 17 Id.; see also Sandra Eckstein, Valentine's Campaign Aims to Bring Dogs In Off Chains, Atlanta J.-Const., Mar. 12, 2006, at 8MS (“[Dogs] tied up outside also often suffer from numerous health problems, including skin issues, parasites and neck damage.”). 18 See Press Release, L.A. City Council, First Big Municipality/City to Ban Tethering (Aug. 3, 2005) (on file with the McGeorge Law Review) (publicizing the enactment of the city's tethering ordinance). 19 Assembly Committee on Business and Professions, Committee Analysis of SB 1578, at 3, 4 (June 27, 2006). 20 Id. at 1.

21 Id. at 4. 22 See id. at 2-3 (listing essential elements, such as food and water, that an owner had to provide to keep a tethered dog safe and discussing that an animal control officer could seize a dog only when he “ha[d] reasonable grounds to believe that prompt action [was] required to protect the health or safety of the animal”). 23 Cal. Penal Code § 597t (West 1999). 24 Id. 25 Id. 26 Assembly Committee on Business and Professions, Committee Analysis of SB 1578, at 4 (June 27, 2006); see also UnchainYourDog.Org, (URL removed for reprint) (last visited Aug. 9, 2006) (on file with the McGeorge Law Review) (noting Connecticut to be the only state with a dog tethering law as of July 2006). Connecticut's law, implemented in 2003, banned tethering an animal for “an unreasonable period of time.” Id. 27 See generally UnchainYourDog.Org, supra note 26 (tallying the number of communities implementing tethering ordinances and categorizing them by type). 28 Hussain, supra note 5, at 2880-81. 29 See Cal. Food & Agric. Code §31642 (West 2001) (containing the requirements of California's dangerous dog statute). 30 See Hussain, supra note 5, at 2855 (commenting that enforcement of dangerous dog laws is often complaint driven). 31 See Cunningham, supra note 9, at 6 (contending that the 1980s had “a number of high-profile attacks on humans by Pit Bulls,” leading to a “near-hysterical reaction by members of the communities... and by the legislators who represented them”). 32 See Hussain, supra note 5, at 2873 (“Any dog--literally any dog--can be a bad dog if the owner is a bad owner.”); Kitchen & Konz, supra note 12, at A1 (contending that the viciousness of Pit Bulls “has to do with the training of the dog”). Fletcher, Corinne 8/7/2018

For Educational Use Only A DOG'S BEST FRIEND: CALIFORNIA'S NEW ANIMAL..., 38 McGeorge L. Rev... © 2018 Thomson Reuters. No claim to original U.S. Government Works. 7 33 See Burstein, supra note 8, at 323-24 (maintaining that some dog owners “obtain an aggressive dog as a status symbol” and that such owners “do [] not care about having a specific breed of dog” so long as the dog is tough). 34 See Cunningham, supra note 9, at 7 (criticizing breed-specific legislation as “knee-jerk reactions” ... “based on neither good science nor good law”). 35 See generally UnchainYourDog.Org, supra note 26. 36 See id. (organizing cities and counties by the type of anti-tethering ordinances they enact: complete tethering prohibition, allowing tethering for limited periods of time, or allowing tethering if particular other conditions are met). 37 See generally Sean Hillard, SPCA Says “Dogs Deserve Better,” Evening Sun (Hanover, Pa.), June 28, 2006, at Local (indicating that New Jersey, New York, Maryland, and Pennsylvania also recently attempted to enact legislation to limit dog tethering). 38 See Hubert, supra note 1, at E1. 39 Compare Cal. Penal Code § 597t (West 1999) (allowing animal tethering so long as the leash, rope, or chain prevents the animal from becoming entangled and does not prevent access to food, water, and shelter), with Cal. Health & Safety Code § 122335 (enacted by Chapter 489) (prohibiting tethering a dog to a stationary object (with specified exceptions)). 40 Megan A. Senatori, There's Not Much of a Life on the End of a Rope or Chain, Fetch Magazine, Sept./Oct. 2005, available at (URL removed for reprint) (on file with the McGeorge Law Review) (stating that legal definitions vary for terms such as “tether” and “chain” but that “the Humane Society for the United States describes these

terms as referring ‘to the practice of fastening a dog to a stationary object or stake, usually in the owner's backyard, as a means of keeping the animal under control”’). 41 Cal. Health & Safety Code § 122335(b). 42 Id. § 122335(d). 43 Id. 44 See id. § 122335(a)(1) (defining “animal control” as the “municipal or county animal control agency or any other entity responsible for enforcing animal-related laws”). 45 See id. § 122335(a)(3) (defining “person” as “any individual, partnership, corporation, organization, trade or professional association, firm, limited liability company, joint venture, association, trust, estate, or any other legal entity, and any officer, member, shareholder, director, employee, agent, or representative thereof”). 46 Id. § 122335(d). 47 Id. § 122335(c); Senate Floor, Committee Analysis of SB 1578, at 3-4 (Sept. 5, 2006). 48 Cal. Health & Safety Code § 122335(c)(1). 49 See id. § 122335(a)(4) (defining “reasonable period” as “a period of time not to exceed three hours in a 24-hour period, or a time that is otherwise approved by animal control”). 50 Id. § 122335(c)(2-3). 51 Id. § 122335(c)(4). 52 See E-mail from Leticia Garcia, Legislative Consultant, to author (Aug. 7, 2006) (on file with the McGeorge Law Review). 53 Cal. Health & Safety Code § 122335(c)(5); see also id. § 122335(a)(2) (defining “agricultural operation” as “an activity that is necessary for the commercial growing and harvesting of crops or the raising of livestock or poultry”). Fletcher, Corinne 8/7/2018 For Educational Use Only A DOG'S BEST FRIEND: CALIFORNIA'S NEW ANIMAL..., 38 McGeorge L. Rev... © 2018 Thomson Reuters. No claim to original U.S. Government Works. 8

54 See Assembly Committee on Business and Professions, Committee Analysis of SB 1578, at 3 (June 27, 2006) (declaring that the purpose of Chapter 489 is to reduce dog bites and attacks and to protect the welfare of dogs). 55 See Letter from Glenn E. Howell, President, Cal. Animal Control Dirs. Ass'n, to Senator Alan Lowenthal, Cal. State Senate (Mar. 20, 2006) [hereinafter Howell Letter] (on file with the McGeorge Law Review) (emphasizing that prior law did not permit animal control intervention absent obvious signs of neglect or abuse). 56 See Letter from Pam Runquist, Chair, Steering Comm., Cal. Animal Ass'n, to Senator Alan Lowenthal, Cal. State Senate (Mar. 21, 2006) [hereinafter Runquist Letter] (on file with the McGeorge Law Review). 57 See E-mail from Leilani Yee, Buzo & Hernandez, to Leticia Garcia, Legis. Consultant to Senator Alan Lowenthal (Nov. 14, 2005) [hereinafter Yee E-mail] (on file with the McGeorge Law Review) (containing comments from Los Angeles Animal Services Department personnel regarding their frustration with the “vagueness of section 597t of the State Penal Code” as it pertains to issues such as what constitutes adequate food, water, and shelter). For instance, some Los Angeles residents used items such as “cardboard boxes, wooden crates, camper shells, tables” and even “crawlspaces under houses” as shelter for their dogs. Id. 58 See Letter from Frank Goulart, Animal Control Officer, Mount Shasta Police Dep't, to Senator Alan Lowenthal, Cal. State Senate (June 20, 2006) [hereinafter Goulart Letter] (on file with the McGeorge Law Review) (commenting that Chapter 489 provides animal control officers a means to “pro-actively prevent aggressive attacks by chained dogs and severe cases of animal neglect”). 59 See Letter from Sue Blake, Legis. Dir., Governor's Office of Planning & Research, to Senator Alan Lowenthal, Cal. State

Senate (May 18, 2006) [hereinafter Blake Letter] (on file with the McGeorge Law Review) (“[D]og owners could be cited or arrested based less on the spirit of [Chapter 489] and more on the dog's breed or the owner's race, social class, or location.”). 60 See generally Hillard, supra note 37, at Local (“We don't want to take dogs... [w]e want to educate people about how to treat dogs.”). 61 See Hubert, supra note 1, at E1 (reporting that tethering interferes with a dog's natural “flight or fight” response). 62 See Runquist Letter, supra note 56 (indicating that tethered dogs can suffer “immense psychological damage” from loneliness and boredom). 63 See Seth Freedland, Barking Up the Wrong Tree? Animal Control Officials Want To Educate The Public On the Harm Caused by Tethering Pet Dogs. PETA Wishes the City Would Go Further, Daily Press (Newport, Va.), June 6, 2006, at State and Regional News (stating PETA's view that “[w]hen cities restrict the amount of time dog owners may tether their pets, it cuts down on dog-bite cases”). 64 See, e.g., Letter from Sharon A. Coleman, President, The Animal Council, to Senator Liz Figueroa, Cal. State Senate (Mar. 30, 2006) [hereinafter Coleman Letter] (on file with the McGeorge Law Review) (“[A]nti-tethering laws have become popular based on the fiction that tethering is abusive and creates dangerously aggressive dogs.”) (emphasis added). 65 See, e.g., Burstein, supra note 8, at 323 (reminding that some legislation “does not fully consider the role of animal owners in dog attacks”); see also Hussain, supra note 5, at 2873 (“Any dog - literally any dog - can be a bad dog if the owner is a bad owner.”). 66 Letter from Jill Fritz, President, San Diego Animal Advocates, to Senator Alan Lowenthal, Cal. State Senate (Mar. 18, 2006) [hereinafter Fritz Letter] (on file with the McGeorge Law Review).

67 See, e.g., Eckstein, supra note 17, at 8MS (“[Dogs can suffer] neck damage from straining at their chains or collars that are too tight.”); Letter from Tamar Sherman, Bay Area Representative, Dogs Deserve Better, to Senator Alan Lowenthal, Cal. Fletcher, Corinne 8/7/2018 For Educational Use Only A DOG'S BEST FRIEND: CALIFORNIA'S NEW ANIMAL..., 38 McGeorge L. Rev... © 2018 Thomson Reuters. No claim to original U.S. Government Works. 9 State Senate (Mar. 17, 2006) [hereinafter Sherman Letter] (on file with the McGeorge Law Review) (stressing that tethered dogs “rarely get exercise”). 68 See generally Burstein, supra note 8, at 323 (maintaining that some legislation “does not fully consider the role of animal owners in dog attacks”). 69 Howell Letter, supra note 55. 70 See, e.g., Blake Letter, supra note 59 (advocating that prior to Chapter 489 there were “already sufficient regulations, both locally and statewide, that covered the consequences of dog tethering”); Coleman Letter, supra note 64 (asserting that the abuses that Chapter 489 seeks to eliminate were already addressed by Penal Code section 597t). 71 See Hussain, supra note 5, at 2849 (arguing that dog bites have reached epidemic proportions since increases in reported dog bites have far out paced the increase in dog population). 72 See, e.g., Runquist Letter, supra note 56 (indicating that federal research has proven that tethered dogs are 2.8 times more likely to attack than non-tethered dogs). 73 Id.; Yee E-mail, supra note 57. 74 See generally Hussain, supra note 5, at 2883 (proposing that successful legislation “should attempt a balance between protecting the public from dangerous dogs and respecting the rights of responsible owners”).

75 See, e.g., Goulart Letter, supra note 58 (commenting that Chapter 489 provides animal control officers a means to “proactively prevent aggressive attacks by chained dogs and severe cases of animal neglect”); Howell Letter, supra note 55 (emphasizing that prior law did not permit animal control intervention absent obvious signs of neglect or abuse). 76 See, e.g., Eckstein, supra note 17, at 8MS (“[Dogs can suffer] neck damage from straining at their chains or collars that are too tight”); Sherman Letter, supra note 67 (stressing that tethered dogs “rarely get exercise”). 77 See, e.g., Coleman Letter, supra note 64 (“[A]nti-tethering laws have become popular based on the fiction that tethering is abusive and creates dangerously aggressive dogs.”) (emphasis added). 78 Compare Freedland, supra note 63, at State and Regional News (stating PETA's view that “[w]hen cities restrict the amount of time dog owners may tether their pets, it cuts down on dog-bite cases”) and Eckstein, supra note 17, at 8MS (reporting parasites as a type of health problem often associated with tethered dogs), with Burstein, supra note 8, at 323 (maintaining that some legislation “does not fully consider the role of animal owners in dog attacks”). 38 MCGLR 230

Chapter 9 Dog fighting bans

Introduction to dog fighting Vermont Illinois Arizona Alaska Making the dogman heel Introduction dog fighting The Michael Vick case brought dogfighting out of the shadows, and onto the front pages of our newspapers. Dogs used in dogfighting are not family pets. They are assets used in criminal activity. However, the real crime is the way these dogs are treated. Dogs used in dogfighting are the victims of these crimes. Different states take different approaches to attack the crime of dogfighting. In Vermont even being present at a dogfight is a felony. In Illinois, selling of equipment used in dogfighting is a crime. In the article “making the dogman heel,” we read about many of the impediments to cracking down on these crimes. The article points out that many people consider dogfighting part of local culture. The report also discusses how dogfighting is a way some men choose to show their masculinity. It's important to understand the background of dogfighting to be able to craft laws to be able to bring a close to this chapter of animal cruelty.

Vermont § 13-2910.02. Presence at dog fight; classification Any person who is knowingly present at any place or building where preparations are being made for an exhibition of the fighting of animals, or who is present at such exhibition, is guilty of a class 6 felony. CREDIT(S) Added by Laws 1979, Ch. 119, § 1. Amended by Laws 1986, Ch. 42, § 2; Laws 2009, Ch. 151, § 5. Illinois Compiled Statutes Annotated. Chapter 720. Criminal Offenses. Criminal Code. Act 5. Criminal Code of 2012. Title V. Added Articles. Article 48. Animals. 5/48-1. Dog fighting § 48-1. Dog fighting. [Ed. note: For other provisions that may apply to dog fighting, see the Humane Care for Animals Act. For provisions similar to this Section that apply to animals other than dogs, see in particular Section 4.01 of the Humane Care for Animals Act.] (a) No person may own, capture, breed, train, or lease any dog which he or she knows is intended for use in any show, exhibition, program, or other activity featuring or otherwise involving a fight between the dog and any other animal or human, or the intentional killing of any dog for the purpose of sport, wagering, or entertainment. (b) No person may promote, conduct, carry on, advertise, collect money for or in any other manner assist or aid in the presentation for purposes of sport, wagering, or entertainment of any show, exhibition, program, or other activity involving a fight between 2 or more dogs or any dog and human, or the intentional killing of any dog. (c) No person may sell or offer for sale, ship, transport, or otherwise move, or deliver or receive any dog which he or she knows has been captured, bred, or trained, or will be used, to fight another dog or human or be intentionally killed for purposes of sport, wagering, or entertainment. (c-5) No person may solicit a minor to violate this Section. (d) No person may manufacture for sale, shipment, transportation, or delivery any device or equipment which he or she knows or should know is

intended for use in any show, exhibition, program, or other activity featuring or otherwise involving a fight between 2 or more dogs, or any human and dog, or the intentional killing of any dog for purposes of sport, wagering, or entertainment. (e) No person may own, possess, sell or offer for sale, ship, transport, or otherwise move any equipment or device which he or she knows or should know is intended for use in connection with any show, exhibition, program, or activity featuring or otherwise involving a fight between 2 or more dogs, or any dog and human, or the intentional killing of any dog for purposes of sport, wagering or entertainment. (f) No person may knowingly make available any site, structure, or facility, whether enclosed or not, that he or she knows is intended to be used for the purpose of conducting any show, exhibition, program, or other activity involving a fight between 2 or more dogs, or any dog and human, or the intentional killing of any dog or knowingly manufacture, distribute, or deliver fittings to be used in a fight between 2 or more dogs or a dog and human. (g) No person may knowingly attend or otherwise patronize any show, exhibition, program, or other activity featuring or otherwise involving a fight between 2 or more dogs, or any dog and human, or the intentional killing of any dog for purposes of sport, wagering, or entertainment. (h) No person may tie or attach or fasten any live animal to any machine or device propelled by any power for the purpose of causing the animal to be pursued by a dog or dogs. This subsection (h) applies only when the dog is intended to be used in a dog fight. (i) Sentence. (1) Any person convicted of violating subsection (a), (b), (c), or (h) of this Section is guilty of a Class 4 felony for a first violation and a Class 3 felony for a second or subsequent violation, and may be fined an amount not to exceed $50,000. (1.5) A person who knowingly owns a dog for fighting purposes or for producing a fight between 2 or more dogs or a dog and human or who knowingly offers for sale or sells a dog bred for fighting is guilty of a Class 3 felony and may be fined an amount not to exceed $50,000, if the dog participates in a dogfight and any of the following factors is present:

(i) the dogfight is performed in the presence of a person under 18 years of age; (ii) the dogfight is performed for the purpose of or in the presence of illegal wagering activity; or (iii) the dogfight is performed in furtherance of streetgang related activity as defined in Section 10 of the Illinois Streetgang Terrorism Omnibus Prevention Act.1 (1.7) A person convicted of violating subsection (c-5) of this Section is guilty of a Class 4 felony. (2) Any person convicted of violating subsection (d) or (e) of this Section is guilty of a Class 4 felony for a first violation. A second or subsequent violation of subsection (d) or (e) of this Section is a Class 3 felony. (2.5) Any person convicted of violating subsection (f) of this Section is guilty of a Class 4 felony. Any person convicted of violating subsection (f) of this Section in which the site, structure, or facility made available to violate subsection (f) is located within 1,000 feet of a school, public park, playground, child care institution, day care center, part day child care facility, day care home, group day care home, or a facility providing programs or services exclusively directed toward persons under 18 years of age is guilty of a Class 3 felony for a first violation and a Class 2 felony for a second or subsequent violation. (3) Any person convicted of violating subsection (g) of this Section is guilty of a Class 4 felony for a first violation. A second or subsequent violation of subsection (g) of this Section is a Class 3 felony. If a person under 13 years of age is present at any show, exhibition, program, or other activity prohibited in subsection (g), the parent, legal guardian, or other person who is 18 years of age or older who brings that person under 13 years of age to that show, exhibition, program, or other activity is guilty of a Class 3 felony for a first violation and a Class 2 felony for a second or subsequent violation. (i-5) A person who commits a felony violation of this Section is subject to the property forfeiture provisions set forth in Article 124B of the Code of Criminal Procedure of 1963. (j) Any dog or equipment involved in a violation of this Section shall be immediately seized and impounded under Section 12 of the Humane Care for

Animals Act when located at any show, exhibition, program, or other activity featuring or otherwise involving a dog fight for the purposes of sport, wagering, or entertainment. (k) Any vehicle or conveyance other than a common carrier that is used in violation of this Section shall be seized, held, and offered for sale at public auction by the sheriff's department of the proper jurisdiction, and the proceeds from the sale shall be remitted to the general fund of the county where the violation took place. (l) Any veterinarian in this State who is presented with a dog for treatment of injuries or wounds resulting from fighting where there is a reasonable possibility that the dog was engaged in or utilized for a fighting event for the purposes of sport, wagering, or entertainment shall file a report with the Department of Agriculture and cooperate by furnishing the owners' names, dates, and descriptions of the dog or dogs involved. Any veterinarian who in good faith complies with the requirements of this subsection has immunity from any liability, civil, criminal, or otherwise, that may result from his or her actions. For the purposes of any proceedings, civil or criminal, the good faith of the veterinarian shall be rebuttably presumed. (m) In addition to any other penalty provided by law, upon conviction for violating this Section, the court may order that the convicted person and persons dwelling in the same household as the convicted person who conspired, aided, or abetted in the unlawful act that was the basis of the conviction, or who knew or should have known of the unlawful act, may not own, harbor, or have custody or control of any dog or other animal for a period of time that the court deems reasonable. (n) A violation of subsection (a) of this Section may be inferred from evidence that the accused possessed any device or equipment described in subsection (d), (e), or (h) of this Section, and also possessed any dog. (o) When no longer required for investigations or court proceedings relating to the events described or depicted therein, evidence relating to convictions for violations of this Section shall be retained and made available for use in training peace officers in detecting and identifying violations of this Section. Such evidence shall be made available upon request to other law enforcement agencies and to schools certified under the Illinois Police Training Act.

(p) For the purposes of this Section, “school” has the meaning ascribed to it in Section 11-9.3 of this Code; and “public park”, “playground”, “child care institution”, “day care center”, “part day child care facility”, “day care home”, “group day care home”, and “facility providing programs or services exclusively directed toward persons under 18 years of age” have the meanings ascribed to them in Section 11-9.4 of this Code. Credits Laws 1961, p. 1983, § 26-5, added by P.A. 92-425, § 10, eff. Jan. 1, 2002. Amended by P.A. 92-650, § 15, eff. July 11, 2002; P.A. 94-820, § 5, eff. Jan. 1, 2007; P.A. 96-226, § 10, eff. Aug. 11, 2009; P.A. 96-712, § 10, eff. Jan. 1, 2010; P.A. 961000, § 600, eff. July 2, 2010; P.A. 96-1091, § 5, eff. Jan. 1, 2011. Amended and renumbered as § 48-1 by P.A. 97-1108, § 10-5, eff. Jan. 1, 2013. Arizona Revised Statutes Annotated. Title 13. Criminal Code. Chapter 29. Offenses Against Public Order. Title 13. Criminal Code. Chapter 14. Sexual Offenses § 13-2910.01. Dog fighting; classification A. A person commits animal fighting by knowingly: 1. Owning, possessing, keeping or training any animal if the person knows or has reason to know that the animal will engage in an exhibition of fighting with another animal. 2. For amusement or gain, causing any animal to fight with another animal, or causing any animals to injure each other. 3. Permitting any act in violation of paragraph 1 or 2 to be done on any premises under the person's charge or control. B. This section does not: 1. Prohibit or restrict activities permitted by or pursuant to title 3. [FN1] 2. Apply to animals that are trained to protect livestock from predation and that engage in actions to protect livestock. C. Animal fighting is a class 5 felony. CREDIT(S) Added by Laws 1979, Ch. 119, § 1. Amended by Laws 1986, Ch. 42, § 1; Laws 2009, Ch. 151, § 4. [FN1] Section 3-101 et seq.

§ 13-2910.02. Presence at dog fight; classification Any person who is knowingly present at any place or building where preparations are being made for an exhibition of the fighting of animals, or who is present at such exhibition, is guilty of a class 6 felony. CREDIT(S) Added by Laws 1979, Ch. 119, § 1. Amended by Laws 1986, Ch. 42, § 2; Laws 2009, Ch. 151, § 5. Alaska Statutes Annotated. Title 3. Agriculture and Animals. Chapter 55. Care of Animals; Control of Dogs. Article 2. Care of Animals. Title 11. Criminal Law. Chapter 61. Offenses Against Public Order. Article 1. Riot, Disorderly Conduct, and Related Offenses. Share| Primary Citation: AS § 03.55.100 - 190; AS § 11.61.140 - 145 Country of Origin: United States Last Checked: September, 2018 TITLE 3. AGRICULTURE AND ANIMALS. CHAPTER 55. CARE OF ANIMALS; CONTROL OF DOGS. ARTICLE 2. CARE OF ANIMALS. Sec. 11.61.145 Promoting an exhibition of fighting animals. (a) A person commits the crime or offense, as applicable, of promoting an exhibition of fighting animals if the person (1) owns, possesses, keeps, or trains an animal with intent that it be engaged in an exhibition of fighting animals; (2) instigates, promotes, or has a pecuniary interest in an exhibition of fighting animals; or (3) attends an exhibition of fighting animals. (b) The animals, equipment, vehicles, money, and other personal property used by a person in a violation of (a)(1) or (2) of this section shall be forfeited to the state if the person is convicted of an offense under this section. (c) In this section, “animal” means a vertebrate living creature not a human being, but does not include fish. (d) Promoting an exhibition of fighting animals (1) under (a)(1) or (2) of this section is a class C felony; (2) under (a)(3) of this section is

(A) a violation (i) for the first offense; (ii) punishable by a fine of not more than $1,000 for the second offense; and (B) a class A misdemeanor for the third and each subsequent offense. Credits SLA 1980, ch. 78, § 2. Amended by SLA 2008, ch. 40, § 17, eff. May 23, 2008; SLA 2008, ch. 96, § 8, eff. Sept. 14, 2008; SLA 2016, ch. 36, § 33, eff. July 12, 2016. MAKING THE DOGMAN HEEL: RECOMMENDATIONS FOR IMPROVING THE EFFECTIVENESS OF DOGFIGHTING LAWS Francesca Ortiz Since Michael Vick's arrest and conviction, federal, state and local governments have attempted to step up efforts at enforcing laws prohibiting dogfighting. However, because of biases held by some law enforcement personnel, prosecutors, and judges as well as burdensome investigatory costs and evidentiary problems, enforcement of the laws is ineffective in many cases. This Article discusses these issues and argues that, because of various social problems that are tied closely to dogfighting, continued efforts must be made to make prosecution of dogfighting more effective. To that end, the Article makes recommendations to address the problems that hinder enforcement. Recommendations include several statutory changes and the creation of local, state, and federal *2 task forces to improve enforcement through educational efforts, behavior modification, coordinated investigation, and cost-sharing. Introduction I. Background A. History of Dogfighting in America 1. English Origins 2. Profiles of the Dogfighter a. Common Characteristics b. Categorical Profiles 3. Rise of the Streetfight B. Criminalization 1. Federal Legislation 2. State Legislation

II. Obstacles to Enforcement A. Differing Value of Prosecutorial Worth 1. By Legislatures 2. By Law Enforcement B. Investigative and Prosecutorial Costs C. Proof Problems 1. Secrecy of Dogmen 2. Spontaneity of Streetfights 3. Unwilling Witnesses 4. Circumstantial Evidence III. Connection to Other Offenses A. Cruelty B. Child Welfare and Domestic Violence 1. Link to Development of Violent and Other Criminal Tendencies in Children 2. Link to Domestic Abuse C. Related Criminal Activity 1. Gambling, Weapons, and Drugs 2. Gangs IV. Recommendations A. Statutory Changes 1. Increased Penalties 2. Proof Requirements 3. Related Social Ills B. Joint Efforts to Reduce Dogfighting and Enforce Laws Conclusion *3 Introduction Look at ya watch and see what time it is/Time to stop dogfighting.1 On May 20, 2009, former Atlanta Falcons quarterback Michael Vick was released from prison after serving nineteen months in a federal penitentiary for his participation in a dogfighting venture.2 From April to July 2007, Vick made daily headlines as he was investigated and indicted on charges to which he eventually pleaded guilty.3 News of Vick's arrest led to an outcry against dogfighting and animal cruelty. Some, though, tried to excuse Vick's actions on

various grounds. Clinton Portis, running back for the Washington Redskins, for example, was reported as suggesting that, because a dog is considered property, ownership entitles the owner to fight it.4 Further support *4 came from Stephon Marbury, New York Knicks point guard, and NAACP Atlanta chapter president R.L. White. According to the media, Marbury explained away dogfighting as “just a sport” that is “behind closed doors,”5 and White took a similar view, considering dogfighting to be no different than hunting.6 Even Whoopi Goldberg weighed in on the subject, suggesting that Vick's actions were a result of his “cultural upbringing.”7 “There are certain things that are indicative to certain parts of our country,” she said, like “cockfighting in Puerto Rico.”8 Attitudes and assumptions such as these have hindered prosecution, even though prosecution under state and federal statutes has been on the rise. Sadly, though, the number of fights has also increased,9 making eradication of the illegal activity an uphill battle. Indeed, John Goodwin, manager of animal fighting issues for the Humane Society of the United States,10 estimates that at least 40,000 people engage in high-stakes dogfighting, with at least another 100,000 participating at the street level for bragging rights.11 He indicates that animal shelters are taking in ten times the number of pit bulls12 that *5 they have in the past, with many of the animals suffering from scars and wounds from fighting.13 Goodwin further notes that in the last ten to fifteen years, urban dogfights have begun to outnumber rural fights.14 Law enforcement focus on high-profile cases, such as the case of Michael Vick or other celebrity dogfighters,15 is an easy call. Pursuit of celebrities serves as an example to others. Media coverage is high because of their high-profile status, and a larger audience receives the message that certain activities are not tolerated.16 However, prosecution of these cases is not any easier than prosecution of any other type of dogfighting case. Law enforcement officials face a variety of difficulties, *6 not only in investigating the dogfighting rings that remain shrouded in secrecy,17 but also in proving the cases18 and even overcoming biases in the prosecution of the activity.19 Indeed, investigative difficulties have moved some jurisdictions to create task forces devoted to dogfighting enforcement issues.20

Yet continued and more effective enforcement efforts are required--and not simply because of the inherent cruelty involved in dogfighting.21 Dogfights serve as a hub for a wide variety of other social ills. For example, dogfighting has long been associated with gambling, the illegal possession of weapons or banned substances, and even prostitution.22 Indeed, as in the Vick case, a number of dogfighting rings have been discovered because of a law enforcement investigation based on other grounds.23 In addition, because dogfights are viewed as social occasions, children are often present and instructed in the ways of the dogfighter, raising issues of child welfare.24 *7 The purpose of this Article is two-fold. First, since Vick's arrest, numerous newspaper articles about dogfighting have been published. However, the articles often tend to skim the surface and give the reader little information regarding the dogfighting world and the dogfighters within it. To provide the researcher with a more accurate picture, this Article sets forth the background and current state of dogfighting, its criminalization, and the reasons that relatively few dogfighters are prosecuted. The Article also presents a detailed picture of the different types of dogfighters, discussing characteristics of dogfighters in general and the differences between each group. Second, this Article makes the case for an increased focus on dogfighting enforcement because of the sport's connection to cruelty, child welfare issues, and other criminal activities, such as gambling, gangs, weapons, and drugs. It sets out the basis for additional charges that may be used against dogfighters to assist prosecutors when a dogfighting case cannot be supported. The Article also suggests ways in which enforcement efforts might be improved by offering options to address the obstacles that currently plague law enforcement. The Article is divided into four main parts. Part I sets forth a brief history of dogfighting in America, detailing the origins of the dogfighting interest, the types of dogfighters, and the current rise in urban dogfighting. Part I ends with a discussion of the current statutory regime for prosecuting dogfighting under both federal and state law. Part II then turns to enforcement problems, detailing the difficulties that law enforcement officers and prosecutors face when attempting to enforce dogfighting laws. Part III addresses the necessity of continued enforcement, identifying other criminal activity associated with dogfighting and additional means of prosecution based on these offenses. Part

IV concludes the Article with suggestions for improving enforcement, discussing options available that may help to overcome the biases, costs, and other hurdles that make enforcement so difficult. I. Background A. History of Dogfighting in America 1. English Origins Dogfighting as practiced in the United States originated in England. British interest in dogfighting began to rise, especially among *8 the working classes, as the popularity of bull baiting began to wane.25 As one historian explains, the appeal of dogfighting was fueled by circumstances: Industrialization and urbanization in the late 18th and early 19th centuries shifted the focus of blood sports from baiting (in which dogs attacked other species) to fighting (in which dogs attacked each other). Rural laborers flocked to cities to become factory hands. They retained their love for blood sports but lacked the space and free days for baits of large animals. Dogfights, on the other hand, could be held indoors, artificial light allowing evening matches, and workers could still go to work the next day.26 “Pit” businesses filled the gap left by the loss of baiting activities, which had offered not only the entertainment of the fight but also gambling opportunities,27 and breeders turned to developing a more aggressive dog (crossbreeding bulldogs and terriers) to better meet dogfighting needs.28 As Britons immigrated to America with their fighting dogs, dogfighting came with them.29 However, Americans enjoyed the bulldog and terrier mix for more than its dogfighting capabilities, seeking it out as a farm dog, family guardian, and companion.30 The *9 dog also began to evolve as breeders crossbred the “best of the best” of the British lines, seeking to maximize gameness,31 that is, a dog's “willingness to continue to attack an opponent, or to scratch [i.e., reengage the fight], despite being overpowered and despite having been injured.”32 The resulting American Pit Bull Terrier (the dog of choice for dogfighting)33 was recognized as a standard breed by the United Kennel Club (UKC)34 in 1898 and by the American Dog Breeders *10 Association about a decade later.35 Shortly thereafter, Chauncy Z. Bennett, the founder of the UKC, wrote a set of rules for dogfighting that “brought organization ... and a semblance of respectability for the breed, if not for the fighting.”36

Dogfighting was a lawful sport for a short period in American history, although not overly popular with those outside the game.37 However, as in England, states began outlawing this activity in the latter half of the nineteenth century.38 Despite these statutes, dogfighting continued, but moved into secrecy. Although dogfighting was not limited to any particular region of the United States, Louisiana played a particularly important role as the source for the sport's “Cajun Rules.” Penned in the 1950s by G.A. “Gaboon” Trahan, a former Lafayette police chief and successful dogman, Cajun Rules are one of the more popular standards used for regulating dogfights.39 Dogfighting still exists in many parts of the country40--indeed, it is a halfbillion dollar industry41--and some say the activity is on the *11 rise. However, the nature of much of the current fighting has changed, although it is still accompanied by other societal ills. To see this change, it is helpful to have a better understanding of the types of people who engage in the activity, as discussed below. 2. Profiles of the Dogfighter a. Common Characteristics As a group, dogfighters tend to share similar characteristics: they engage in dogfighting as a show of masculinity, they often have other criminal tendencies, and they tend to rationalize their behavior by anthropomorphizing the dogs. Masculinity and brotherhood are important in the dogfighting world. During the 1990s, a team of sociologists--Rhonda Evans, DeAnn Gauthier, and Craig Forsyth--conducted a study on dogmen42 in the South to ascertain the motivation behind continued dogfighting despite its criminalization. The researchers concluded through attendance at dogfights and interviews with over thirty dogmen (who were predominately white, male, and working-class) that dogfighting, like other sports, represented a way for the dogfighters “to validate their masculine identities while remaining only on the periphery of actual violence.”43 As the sociologists explained: Research suggests that men from lower-class backgrounds, who lack opportunities for expression of masculinity through occupational success, tend to rely on more accessible routes of expression which emphasize aggression, *12 violence, and strength. This is evident in the arena of sport where

participants in boxing, football, and wrestling, are disproportionately drawn from the working-class sectors of society.44 Although dogfighting is not limited to the white male working class--it crosses racial and economic lines45--this view of dogfighting as a representation of masculinity generally holds true throughout dogfighting circles. In fact, the dogmen themselves refer to their circles as fraternities,46 and within the fraternity, senior dogmen47 are well-respected by young fighters and breeders who strive to emulate them.48 *13 Dogfighters may also have criminal tendencies apart from any dogfighting infractions. Dogfighting and other crimes are closely associated,49 and many dogfighters (at least in urban areas) have also been arrested on charges of drugs, guns, and other crimes.50 In addition, dogfighting locations often serve as the venues for commission of other crimes.51 Indeed, according to the offices of Congressmen Elton Gallegly and Earl Blumenauer, during a period of six months, every reported dogfighting arrest also included arrests for gambling and drug trafficking.52 Dogfighters also tend to justify their behavior by placing human emotions on the dogs (i.e., anthropomorphism). Typically, dogmen state that the dogs enjoy fighting and it would be cruelty not to allow them to engage in that behavior.53 This belief exists even though the gameness characteristic has been bred into the fighting dogs by humans and despite the fact that the dogs have been specifically placed into the ring and are encouraged to fight.54 As one authority explained: *14 [G]ameness involves more than just a desire to fight to the death if need be. It also involves an intense desire to please a master who wants to see the dog continue to attack at all costs. Pit men understand this desire to please on the part of the dog and capitalize on it. At any organized pit fight in which two dogs are really going at each other wholeheartedly, one can observe the owner of each dog changing his position at pit-side in order to be in sight of his dog at all times. The owner knows that seeing his master rooting him on will make a dog work all the harder to please its master.55 Thus, it is not merely instinct that makes the dogs fight, but the human factor as well. b. Categorical Profiles

Dogfighters are categorized into three types: the professional dogman, the hobbyist, and the streetfighter.56 Each category is distinguished by the stakes at issue and the locations of the dogfights as well as other traits and tendencies, as discussed below. Professionals are those dogmen who work at a national and, sometimes, international level and fight at the highest stakes.57 These dogmen are both fighters and breeders who often sell their stock for thousands of dollars because the animals come from champion bloodlines.58 Fights at the professional level are the most secretive and the most lucrative. Meeting with a professional dogman or attending a professional's fight usually requires a personal introduction or invitation from a current member of that dogfighting circle,59 and the location of a fight is usually not revealed until hours before the fight.60 *15 Stakes are highest with professional fights, with the winner of some matches taking home $100,000 or more.61 Professional fighters often set their fights in rural areas, cross state lines, and can drive hundreds of miles for a fight.62 However, there is a growing national trend to find professional or nearprofessional operations located just outside major cities, either in the suburbs or bordering rural areas.63 Professional dogmen are also communication oriented. Although secrecy is the keyword as far as outsiders are concerned, within the circle, professionals keep in touch with the activities of other fighters and breeders. Before professional fights, dogmen bond in long pre-fight meetings to discuss issues of interest, such as bloodlines, fighting results, or training issues.64 Professionals also communicate through printed and electronic media. Originally, when dogfighting was legal, newspapers published fighting results, noting the names of the dogs and their owners.65 When papers stopped printing results, the void was filled by dogfighting journals and magazines that went underground as dogfighting became illegal.66 The Internet also enables instant communication, with numerous websites providing information on bloodlines, training tips and fights, and even the Cajun Rules.67 Some even webcast their fights to allow offshore betting.68 *16 The second category is the hobbyists. According to one breeder, hobbyists are the “bush-leaguers” of the dogfighting world.69 Hobbyists--or fanciers or enthusiasts as they are sometimes called--are dogfighters who

operate at the regional level,70 tending to stay closer to home. Although hobbyists may participate in fights in rural areas, many hobbyist fights occur within the same group of hobbyists and take place in urban locations, such as abandoned buildings.71 Unlike professionals, hobbyists tend to own fewer dogs and generally do not engage in large-scale breeding,72 but they usually show more interest in the care and breeding of their dogs than streetfighters.73 They participate in dogfights not just as a means of entertainment, but also as a way to supplement their income.74 Streetfighters make up the third category. Streetfighters tend to fight in urban locations at the lowest stakes--some fighting merely for street credibility.75 Although streetfighters may engage in arranged fights that involve preparation and training, many streetfighters participate in impromptu fights,76 with traditional dogfighting rules often ignored. As one writer explains: In the dogfighting game, professional dogmen are akin to the Mafia, bestowing to the illicit activity a set of generally accepted rules. Using that parallel, streetfighters can be construed as gangs. They don't operate under many rules, and though they're involved in the same sport, the philosophies of professionals and streetfighters are, in many ways, miles apart.77 *17 The philosophical gap between streetfighters and professionals is most evident in the brutal twists that urban fights have taken. Some streetfighters, for example, engage in a fight format called “trunking,” which is “a mobile battle where two dogs are thrown into the trunk of a car and bets are placed on which dog will emerge alive when the car stops and the lid is lifted.”78 Abandoned buildings might also be used for fights to the death. Several years ago, for example, Baltimore animal control officers discovered a new wrinkle to dogfights “where three dogs would be locked inside an abandoned row house with nothing but a small bag of food. Only one dog would emerge victorious.”79 These forms of dogfight abandon the traditional reasons for watching a dogfight--to see the display of gameness.80 Except for gambling on the outcome, the fights have little resemblance to professional dogfights. Streetfighters may also breed their dogs, but often with different visions in mind than the professional. Whereas professionals seek to breed dogs with gameness, streetfighters have been known to breed dogs for size, seeking large, intimidating dogs rather than dogs with fighting tenacity.81 It is this type of

breeding that has caused *18 professionals and hobbyists to accuse streetfighters of ruining the pit bull breed, arguing that indiscriminate breeding has resulted in human-aggressive dogs, which has turned the public against the pit bull.82 Streetfighters often use their dogs for more than fighting. Gangs initially gravitated toward fighting dogs--pit bulls in particular--because they not only served as protection (“four-legged guns”),83 but also provided status: “You can't walk down the street with your 9mm hanging out of your pants, but you can walk down the street with your two-time champion pit bull.”84 Vicious or menacing dogs were also used as a way to protect illegal goods, such as drugs or weaponry. For example, drugs could be stashed in a dog's collar or inside its kennel for protection from thieves or police.85 This type of use has resulted in the destruction of a greater number of dogs during encounters with police officers.86 *19 3. Rise of the Streetfight Although dogfighting has a long history, streetfighting has been on the rise at least for the last twenty-five years.87 Some argue that increased gang activity helped move dogfighting across the nation and into western urban areas that had not appeared to have dogfighting problems before.88 Most major urban areas in the United States, of course, suffer from the activity. For example, dogfighting was so rampant in one Detroit neighborhood that postal service had to be temporarily suspended.89 According to one source, the popularity of pit bulls and other types of dogs used for fighting appeared to surge during the 1980s, when gangs “discovered dogfighting.”90 The ferocity of dogfighting may be, in part, what draws gang members to the activity. As one law enforcement official has noted: “There is a marriage between dog fighting and gangs. Dog fighting is violent and that is what gangs like.”91 Some credit the hip-hop culture with the rise in streetfighting. They argue that the celebration of pit bulls by hip-hop performers has generated a greater interest not only in the breed, but also in dogfighting among the younger generation.92 Many songs include reference to pit bulls or dogfighting. DMX, for example, is a well-known pit bull owner accused of glorifying the sport.93 His compact disc “Grand Champ,” for example, contains numerous references

to dogfighting and tells of the close relationship between the dogfighter *20 and his dog.94 Inserts within the disc case delineate the qualities of a “champion” fighting dog95 and advertise “Game Dog Professional” dog food.96 Others, however, disagree that hip-hop is responsible for increasing interest in streetfighting. Assistant Professor of Urban Education at Temple University Dr. Marc Lamont Hill, for example, suggests that making superficial connections between dogfighting and the hip-hop culture “fails to recognize the larger truth.”97 As Hill says: The world “culture” is secret-agent talk for race in this country ... It allows people to mythologize poor people, black people, brown people without being labeled a racist. There's not a culture of animal abuse in black America or Latino America. Mike Vick's actions certainly don't have anything to do with hip-hop culture. And in reality, hip-hop doesn't show images of dogfighting that much. Even when DMX does, I still don't think young people walk away after listening to his music and think about dogfighting ... But the reality of race relations in America is, one black person's bad acts are paid for by the whole community, at least within the realm of the media.98 *21 Regardless of the reason, the increase in dogfighting at all levels has raised concern among legislators, resulting in more stringent prohibitions against the activity. B. Criminalization Dogfighting is prohibited at both the federal and state levels. Although states began enacting statutes as early as the mid-nineteenth century,99 it took the federal government more than a hundred years to take its first bite at regulation. 1. Federal Legislation Federal criminalization of dogfighting is important because it provides a system that overlaps state programs, allowing federal charges to be brought in instances where state enforcement is inadequate or nonexistent or where state penalties are low. Federal regulation began in 1976 when Congress amended the Animal Welfare Act100 to prohibit certain forms of animal fighting. These provisions have been amended twice, once in 2002101 and most currently with the Animal Fighting Prohibition Enforcement Act of 2007.102

The statute works to eliminate animal fighting in several ways. Section 2156(a)(1) makes it unlawful “for any person to knowingly sponsor or exhibit an animal in an animal fighting venture, if any animal in the venture was moved in interstate or foreign commerce.”103 The statute excludes cockfighting that is otherwise permitted under the law of the state in which the fight occurs, unless the person knows that the bird was knowingly made a part of interstate or foreign commerce in order to participate in the fighting venture.104 The statute makes no *22 exemption for dogfighting and defines “animal fighting venture” as “any event which involves a fight between at least two animals and is conducted for purposes of sport, wagering, or entertainment,” but does not include activities in which hunting is the primary purpose.105 The statute also prohibits the knowing placement of a “dog or other animal” in interstate or foreign commerce if the purpose is to have the animal “participate in an animal fighting venture”106 and prohibits using the mail or other “instrumentality of interstate commerce” for promoting such ventures.107 When originally enacted, penalty for violation of the provision was a misdemeanor, with violators subject to a maximum of one year imprisonment and a $5000 fine.108 Although the 2002 amendments increased the monetary penalty to $15,000, the crime remained a misdemeanor.109 In 2007, Congress made violation of the animal fighting venture provisions a felony, with imprisonment up to three years and a $15,000 fine.110 The congressional purpose behind increasing the penalty to a felony was to give greater incentive to prosecute animal fighting cases because federal prosecutors had pursued relatively few. As the Committee Report for the 2007 Act indicates: Since [1976,] Federal authorities have pursued fewer than a half dozen animal fighting cases, despite receiving numerous tips from informants and requests to assist with state and local prosecutions. The animal fighting industry continues to thrive within the United States, despite 50 State laws that ban dogfighting ... Numerous nationally circulated animal fighting magazines still promote these cruel practices, and advertise fighting animals and the *23 accouterments of animal fighting. There are also several active websites for

animal fighting enthusiasts, and paid lobbyists advocating animal fighters' interests. ... By increasing penalties to the felony level, H.R. 137 will give prosecutors greater incentive to pursue cases against unlawful animal fighting ventures, and strengthen deterrence against them.111 The felony measure passed with a large majority--368 members in the House and unanimous in the Senate.112 It was also supported by over 400 law enforcement agencies, as well as numerous animal welfare groups and even the poultry industry.113 Not everyone was interested in raising the penalties, however, believing that dogfighting prosecution should be left to the state. Lynn Westmoreland, United States Representative from Georgia, for example, stated in an editorial that he believes federal authority in general should be decreased: “This [dogfighting] issue provides a good example. We don't need greater federal intervention on dogfighting when it's already illegal in all 50 states. Leaving the issue to the states allows each legislature to determine how it wishes to punish violators of its animal fighting laws.”114 United States Representative Scott Garrett from New Jersey agreed; he further argued that federal dollars should be used to pursue crimes requiring federal resources and not duplicate state criminal laws.115 Since enactment of the Animal Fighting Prohibition Enforcement Act, several additional bills have been introduced into Congress aimed specifically at dogfighting ventures. These bills would increase the reach of the interstate and foreign commerce provisions to not just the *24 transported animal, but also the animal's offspring, would increase the penalty to five years imprisonment, and would, like state statutes, impose penalties against spectators who attend the event.116 In addition, one bill would also extend the ban on the use of the Postal Service to uses that “in any manner further” the prohibited venture, and would create supplemental avenues for prosecution by animal welfare agencies.117 2. State Legislation State legislation regarding dogfighting takes a number of forms. The most common prohibitions include those against the dogfighting act itself, possessing dogs owned for fighting, and being a spectator at a dogfight. As discussed further below, however, inconsistencies between the statutes show

the need for an overlapping federal program and improvements in state systems. All fifty states have enacted legislation prohibiting the fighting of dogs in some form or fashion.118 Currently, all fifty states have elevated dogfighting to the felony level.119 Penalties for violation of the provisions range from as little as four to eight months in North Carolina120 to as much as ten years in Alabama, Louisiana, and *25 Oklahoma.121 Maximum fines range as high as $100,000 in Kansas, $125,000 in Oregon, and $150,000 in Arizona.122 Possession of fighting dogs is also illegal in all fifty states, with forty-six of them considering the crime a felony. The remaining states limit possession to a misdemeanor.123 Penalties for violation of the felony provisions are equivalent to the penalties that can be assessed for the act of dogfighting. Misdemeanor penalties range from six months to one year imprisonment and fines range from $300 to $15,000.124 Spectator provisions have been enacted in all but two states--Hawaii and Montana.125 Compared to the dogfighting or possession crimes, spectators are generally penalized at a lesser level. Twenty-eight jurisdictions (including the District of Columbia) consider the crime to be a felony on first conviction126 or elevate the crime to a felony *26 upon subsequent conviction.127 Twenty-one states continue to classify it as a misdemeanor.128 Penalties vary and run as low as a mere $500 fine with no jail time in Alaska for a first offense.129 II. Obstacles to Enforcement Unfortunately, despite the proliferation of laws that criminalize dogfighting activity, prosecution of dogfighters is relatively rare in most jurisdictions, and where prosecution does occur, imposed penalties are insignificant.130 The rarity of prosecution comes as no surprise, though, because prosecution rates of cases involving animal *27 cruelty in general tend to be low.131 Indeed, studies have shown a marked disproportion between the number of reports of animal cruelty and the number of prosecutions that result.132 With regard to dogfighting, reasons for the low prosecution rate include differences in the values people place on prosecution, the costs involved in investigating cases, and the difficulties of proving the criminal violations. A. Differing Value of Prosecutorial Worth

One reason that prosecution is rare is that law enforcement officials face biases of various individuals regarding the worth of prosecution, even though the United States population as a whole views enforcement of cruelty laws as a priority.133 Despite statutory provisions to the contrary, not all people view dogfighting as a crime worthy of prosecution or steep penalties. These biases occur at all levels--from legislators to the laypeople--and have an impact on how seriously law enforcement takes its duties. 1. By Legislatures Differences in how states value the prosecution of dogfighting cases are evident in two ways. First, the fact that states are inconsistent in classifying and penalizing dogfighting activity shows that legislators and their constituents differ in how reprehensible they consider the act *28 to be. Even between those states that agree that dogfighting should be a certain category (felony or misdemeanor), criminal sanctions for the activity differ,134 which shows a different value for the crime. Second, the way individual legislators vote when enacting statutes shows that the legislators (or their constituents) consider the crime to be of differing importance. For example, Congressman Steve King of Iowa voted against the recent upgrades to the federal dogfighting provisions because he believed that the activity should not be criminalized while abortion is still allowed. As he stated, “My vote says that human life needs to be elevated and stay above animal life. And I think it devalues all human life, when you set the life of an animal up above that of a human.”135 The differences in value are more understandable when one considers the legal treatment of animals as property.136 Although some statutes and courts allow compensation for companion animal loss to include such things as emotional distress,137 most states still allow compensation only for the value of the animal as determined by the market.138 The low value placed on animals in this context may negatively impact people's views about how severe criminal punishment should be for dogfighting or for animal cruelty laws in general. 2. By Law Enforcement Inconsistency in views on the seriousness of dogfighting is also evident among those who enforce the laws. Police, prosecutors, and judges may each consider the crime to be of differing value, which affects whether or how well

the crime is investigated and prosecuted *29 and how harshly the offender will be punished.139 For example, should a law enforcement officer or prosecutor perceive dogfighting to be of little value to pursue in comparison to his other cases, prosecution against a dogfighter may be given a low priority.140 Similarly, should a judge or jury consider the crime to be less egregious than other crimes, penalties dispensed may be minimal regardless of how intensely the case had been pursued by police or prosecutors.141 Lesser intensity in pursuing prosecution may also occur if law enforcement personnel participate in the sport. Dogfighting, of course, *30 is not limited to any demographic, with participants noted in many segments of society, and it is not unknown for law enforcement officials to engage in the activity.142 (Remember, the Cajun Rules were created by a Louisiana police chief, after all.143) Thus, some dogfighting may escape unpunished as any officers that might be involved serve as a warning system for the group144 or turn a blind eye to the activity.145 Enforcement of dogfighting laws is also problematic because of confusion over enforcement authority. In many cities, animal issues are handled by understaffed and underfunded animal control departments146 whose officers have little or no law enforcement authority and may be armed with little more than catch poles.147 Yet, as one animal control officer explained, police involvement in dogfighting investigations is essential because “animal control officers do not carry guns or wear bulletproof vests” and police surveillance of suspects is required.148 Part of the problem is that some police officers do not see dogfighting as falling within the realm of traditional policing; instead, *31 they consider the crime to be an issue of animal control.149 Therefore, responses to reports of dogfighting are often ineffective, with suspects and evidence disappearing if police response is not immediate. In those situations where police do respond, inexperience with investigating dogfighting, or even cruelty cases in general, may lessen the probability of successful prosecution. Officers untrained in recognizing dogfighting paraphernalia, for example, may not understand the significance of treadmills or weighted collars or might overlook a telling trophy.150 Similarly, where an investigator is unfamiliar with processing an animal cruelty scene, the value of certain physical evidence might be overlooked or misunderstood. As ASPCA

forensic veterinarian Dr. Melinda Merck explains: “Evidence associated with any crime has to be analyzed and interpreted in the proper context. In order to properly identify evidence, analyze it and interpret the findings, you have to know animals and animal behavior.”151 Inexperience with prosecuting dogfighting cases can also lead to unfavorable or inconsistent results. Generally, animal cruelty cases are distributed in a prosecutor's office as they come in, often to the newest lawyers to join the team. This leads to a situation where attorneys with the least experience are asked to present cases for which statutory or evidentiary subtleties may not be understood or where the importance of prosecution for the social good is ignored. Because of the lack of oversight, consistency may be lost, with some cases pursued vigorously and others pursued not at all.152 Further, the lack of a consistently assigned prosecutor means that neither animal control nor law enforcement officers have a regular contact with whom they can build a relationship; therefore, they may be less likely to take on longer-term investigations such as those required to prosecute hobbyist and professional dogfighters. Rather than taking a proactive approach to enforcing dogfighting laws and reducing the activity, they are left to be reactive, responding to the chance report or fortuitous tip that the activity might be occurring. *32 B. Investigative and Prosecutorial Costs The cost of investigating and prosecuting dogfighting cases also hinders prosecution. Dogfighting often receives a low priority because of the sheer number of criminal cases that police and prosecutors face on a daily basis. Crimes against humans in most circumstances are ranked higher than crimes against animals.153 Therefore, dogfighting investigation may be left solely to animal welfare organizations which often have little money for and lack the capacity to do an investigation adequate for prosecutorial purposes.154 Second, the cost of investigating dogfighting is often greater than the cost of investigating other types of crimes because of the secretive nature of the activity and the difficulty in proving that the act has occurred.155 Thus, more time may be involved in infiltrating a dogfighting ring, meeting with potential witnesses, or collecting other evidence. Even more costly, though, is the housing and feeding requirements for the dogs that have been confiscated. In many cases, housing requirements are

prohibitively high because the dogs must be caged separately to avoid having them fight each other.156 Animal shelters, already overwhelmed with strays and other animals, are forced to take many of the dogs even though they may not have the money or space to do so.157 Although numerous jurisdictions allow confiscated animals to be euthanized in certain circumstances, a hearing is generally required in order to fulfill the dog owner's due *33 process rights, and the dogs must be housed and maintained until that time.158 The costs that shelters incur when holding fighting dogs can mount up. Veterinary costs may jump when a dogfighter's hoard of dogs is discovered, as many of the animals that come in require treatment for wounds or infections. Dogs confiscated from streetfighters often must be treated for parasites or for gastric problems relating to stress and “training” foods,159 and veterinarians routinely must repair the problems caused by the at-home care provided by untrained and unskilled dogmen.160 In addition, shelters face costs caused by the dogs themselves as they destroy property deemed indestructible to other dogs, such as metal bowls, watering mechanisms, fencing, or even the kennel walls themselves.161 Further costs may be incurred from addressing security issues that plague shelters housing fighting dogs. Dogs with game, of course, are highly valued, and shelters face burglaries as owners (or others who know of the confiscation) attempt to recover the dogs.162 Such costs might include repair of fencing, kennels, and other shelter property damaged during break-ins, relocation costs for dogs moved to more secure premises, and costs of round-the-clock security when they are not.163 *34 C. Proof Problems In addition to the difficulties created by biases and costs, actually proving the violation of dogfighting statutes makes prosecution difficult. Several factors hinder investigation: the secrecy surrounding professional dogfights, the spontaneity of streetfights, unwilling witnesses, and forced reliance on circumstantial evidence. 1. Secrecy of Dogmen One of the greatest hurdles that law enforcement faces with regard to enforcing dogfighting provisions is locating the illegal activity. Although most dogfighters tend to be secretive because of the nature of the activity,

professional dogmen take that secrecy to a higher level. Strangers to the group are viewed with suspicion and even information given to insiders is provided on a need-to-know basis. While dogmen usually agree to a fight two to three months before the scheduled fight day, the location of the fight is hidden from spectators until mere hours before.164 At an appointed time, participants and spectators meet at a designated spot and then leave for the fight location at different times so as not to arouse suspicion.165 Sometimes, to ensure secrecy, spectators are taken to two or three different pre-fight locations before eventually arriving at the true location, usually deep in a rural area;166 other times, they may be bused to the location, giving up their car keys and cell phones to join the group.167 Once there, posted lookouts notify the crowd of pending raids a few minutes before they occur, often resulting in police arresting only a few as the others disperse into the night.168 Because of this secrecy, arrests of professional dogmen are difficult and cost-prohibitive, and it may take months or years to infiltrate an organization to build a case. 2. Spontaneity of Streetfights Streetfights are even more difficult to detect, not because of any particular pains that the streetfighter takes to hide the fight, but because of the spontaneity of the activity. Although some fights may be scheduled, many streetfights occur when two owners meet by chance *35 and decide to match their dogs. In these circumstances, detection generally occurs only when a law enforcement officer inadvertently discovers the activity or when neighbors report it.169 However, even if an officer finds a dogfight in progress, the officer may be unable to arrest more than one or two people, if that, because the participants and spectators quickly flee once the officer is sighted. In addition, because of the potential for violence, animal control officers may be unwilling to enter the scene, thereby frustrating arrests if all participants have dispersed by the time police arrive.170 Because catching any level of dogfighters or spectators in the act is difficult, prosecutors must seek a willing witness or base their case on circumstantial evidence, such as training equipment discovered at the location. However, as discussed below, these options are also difficult. 3. Unwilling Witnesses

Even though there are usually several witnesses to dogfighting activity, garnering one willing to testify for, or even talk to, the prosecution is difficult. Those who watched the fight, for example, may be unwilling to step forward because of potential prosecution as a spectator, retribution by fellow lawbreakers, or merely a sense of honor among thieves. Neighbors who see a fight occurring or who know of a fight location may also keep quiet because they are intimidated by the participants and fear retaliation.171 As one officer noted, this fear may not be unfounded: “Most [dogfighters] are not friendly people ... Eighty percent of the people I've dealt with have gone on to bigger and better crimes.”172 Regardless of whether the fear is justified,173 fear of *36 involvement makes both investigation and prosecution of dogfighting more difficult as fewer crimes are reported and prosecutors are left with no eyewitness proof of actual dogfighting. Instead, prosecutors must rely on circumstantial evidence to prove the crime, which has problems in its own right. 4. Circumstantial Evidence Because of the lack of willing witnesses, law enforcement and prosecutors must often rely on indirect evidence to make a case; however, proving a case using circumstantial evidence is not easy. To prove a violation of actual dogfighting, prosecutors must show not just dogs fighting, but also that the defendant was the impetus behind the fight and, sometimes, the reason for the fight (e.g., for entertainment purposes or to receive some benefit). California's statute is typical of many state statutes. It prohibits the defendant from, “[f]or amusement or gain, caus[ing] any dog to fight with another dog, or caus[ing] any dogs to injure each other.”174 Possession statutes generally prohibit ownership, possession, or training coupled with intent to use the dog for dogfighting. California's statute, again typical of most others, requires proof that the defendant “[o]wns, possesses, keeps, or trains any dog, with the intent that the dog shall be engaged in an exhibition of fighting with another dog.”175 Since catching dogfighters in the act of actual dogfighting is rare, prosecutors must rely on indirect evidence to prove the violation. Dead, injured, or scarred dogs may be some evidence that a fight between dogs occurred, but it is not necessarily proof that the defendant “caused” the dogfight. Proving violation of a possession statute is equally difficult, not only because it would be rare to

catch a defendant in the act of training a dog, but also because of the requirement that the prosecutor prove an intention to fight the dog. Therefore, prosecutors must rely on other physical evidence found at a scene, such as scales or washtubs, training equipment like treadmills or jennies, or even *37 dogfighting journals, to try to convince a jury that a violation has occurred.176 Problems with using circumstantial evidence in proving violations of dogfighting statutes include overcoming objections regarding relevance177 and prior bad acts178 and being challenged on appeal for sufficiency of the evidence.179 Even where the evidence is admitted, the jury (or judge in a nonjury trial) may not make the connection between the indirect evidence and the offense or may reject the evidence entirely. The case against alleged Louisiana dogman Floyd Boudreaux is a case in point. Boudreaux is a world-renowned breeder of game pit bulls, with some of the puppies from his top stock--the very old Boudreaux bloodline and the newer Eli bloodline-- selling for thousands of dollars.180 A known dogfighter when dogfighting was legal, Boudreaux is now in his seventies and is considered “royalty”181 by dogfighting circles and has been given such monikers as the “Don of Dogfighting” and the “Godfather.”182 In 2005, after one of the largest *38 raids in Louisiana history, Boudreaux and his son were arrested and charged with over forty counts of breeding or training a fighting dog, animal cruelty, illegal possession of anabolic steroids, and possession of a sawed-off shotgun.183 Fifty-seven pit bulls, some with scars, were found chained to broken-down shelters; after confiscation and veterinary evaluation, they were put down.184 Police also recovered from Boudreaux's property, among other things, steroids, exercise treadmills, computer records, a video featuring Floyd Boudreaux, dogfighting magazines containing Boudreaux bloodline advertisements, and photos of Boudreaux's more valuable dogs.185 After three years of delays, the Boudreauxs were tried in 2008,186 with both defendants denying that they had bred or trained fighting dogs.187 They rejected a trial by jury, seeking sole resolution by District Judge Kristian Earles.188 The Louisiana statute required proof that the defendants owned, possessed, kept, or trained a dog for dogfighting purposes.189 The prosecution introduced ninety-five pieces of evidence to produce its case. During crossexamination, the Boudreauxs' defense attorney elicited from witnesses that investigators had not checked whether the seized treadmills worked and

showed that only one of the confiscated breaking sticks showed any markings, which were so faint that it was impossible to determine whether they were made by dogs.190 In addition, although a veterinarian testified that many of the dogs' wounds were consistent with dogfighting, she admitted they could have had other causes. She also testified that one of the dogs had its teeth removed by a human and was likely used to train other *39 dogs.191 The state tried to conclude with testimony from an award-winning animal control superintendant who had worked on the Vick case, but was unable to have her deemed an expert because, among other things, she was not formally educated, had not testified before, and was being paid by the Humane Society of the United States.192 The state sought a stay to appeal the decision, but the stay was denied by the court.193 On the third day of trial, the prosecution rested its case, after which the judge directed the verdict, acquitting the defendants for lack of evidence.194 In seeking the verdict, the defense argued that the prosecution had shown no evidence of intent to fight the dogs and had introduced no witnesses who had ever seen the Boudreauxs conduct or attend a dogfight, even when it was still legal.195 Although the prosecution argued that the evidence, taken in its entirety, showed that the defendants were breeding fighting dogs, the court disagreed, stating “[t]he state has to come forward with some proof.”196 Although the Boudreauxs' arrest has been hailed as a major victory for dogfighting,197 the unsatisfactory resolution of the case (from the state's point of view) demonstrates the problems of trying to use indirect evidence to prove a case. Despite a reputation of breeding game dogs--as one investigator explained, “Floyd is sort of like the Adam in the dogfighting world. He's the standard everybody else judges their dogs by”198--the state was unable to convince the judge to make a connection between an intent to fight and the dogs, the paraphernalia, and the training equipment found on Boudreaux's property, and he was therefore not convicted. III. Connection to Other Offenses That a state has criminalized dogfighting should be reason enough to pursue enforcement of the dogfighting laws, but the *40 activity's connection to other criminal offenses may be more persuasive to those jurisdictions reluctant to expend the time or money involved in investigating and prosecuting

dogfighters. As noted above, dogfighting is associated with other social ills, such as cruelty to animals, child welfare and domestic violence issues, and other criminal conduct such as gambling, gangs, weapons, and drugs. Outside of the dogfighting-related offenses themselves, then, pursuit of dogfighters is important as a way to expand the net for these other issues. Further, because prosecution of a dogfighting offense may be impossible or impracticable in certain cases, successful prosecution based on periphery offenses ensures the imposition of at least some penalty and recognition of wrongdoing. A. Cruelty In addition to the cruelty inherent in having one dog fight another, dogs that are kept for dogfighting are often subjected to actions that would constitute cruelty under state animal welfare laws. Although some dogmen may treat their animals relatively well between fights,199 many dogfighters subject their dogs to harsh living conditions, providing insufficient food and water200 and little socialization.201 Some fighters may also provide their dogs with little or inadequate medical treatment after a fight202 or may even kill the dogs that lose, sometimes in horrific fashion.203 *41 Prosecutors can bring claims under animal welfare statutes in addition to, or in lieu of, dogfighting actions, especially where proof of a dogfight or possession of a fighting dog is questionable. All states have animal anti-cruelty statutes, and though differing in the details, each statute does require provision of adequate food, water, and medical care or contains a comparable provision that prohibits neglect.204 In addition, in instances where an animal death or injury has occurred, prosecution may be possible under provisions that prohibit killing or harming an animal. For example, Colorado law prohibits a person from knowing, reckless, or criminally negligent torture, *42 needless mutilation, or needless killing of an animal.205 This provision applies regardless of whether the animal is owned by the person causing the harm or is owned by another. However, some jurisdictions, although having provisions that prohibit unnecessary or cruel injuries regardless of ownership of the animal, still follow traditional rules that allow an owner to kill his own animal, but not the animal of another.206 In those cases, and depending on the action at issue, a prosecutor might be hindered rather than helped by the statute.

B. Child Welfare and Domestic Violence Child welfare issues are also raised by dogfighting. Children attend dogfighting events at all levels, from professional fights where the occasion may be seen as a family event (complete with supper provided)207 to streetfights where children may not only be spectators but actual participants.208 The number of children who witness these events is startling. One study in Chicago, for example, revealed that *43 more than twenty percent of second to eighth grade students had attended a dogfight.209 Perhaps more unnerving than the numbers, though, is the children's view of dogfighting as a commonplace and exciting activity. As one researcher explained: A 7th grader told us a dogfight is the most exciting thing in his neighborhood and that dogfights are the place to meet girls ... It is normal entertainment for [neighborhood children]. They don't have movie theaters; they don't have cable TV. They don't need to care whether the media are too violent or cruelty is too much in the Nintendo games ... They have the violence for real in their alleys.210 1. Link to Development of Violent and Other Criminal Tendencies in Children Attendance at dogfighting events or being raised in an environment where dogfighting activity occurs is unhealthy for children (if not others as well) because animal abuse negatively impacts childhood development and can influence whether the children will become violent toward humans in the future.211 As Ramsey County (Minnesota) Attorney Susan Gaertner explains: [Dogfights] affect children in a number of ways. Not only are they taught to take pleasure in the pain of a creature, but they are taught that their affection for a being is expendable. Very often the parents are taking the family pet ... into the dog fight, where it will likely be injured or killed. Imagine what that does to a child.212 *44 Sadly, statistics show that what that often does is to instill violent and criminal tendencies in the child. Animal abuse in general has long been understood to be a predictor of future human violence,213 and statistics repeatedly show a strong connection between animal abuse and both human violence214 and the commission of non-violent crimes.215 One study notes, for example, that “46 percent of sexual homicide perpetrators, 48 percent of all

convicted rapists, 60 percent of those who commit aggravated assault, and ... 100 percent of all serial killers abused animals” at some time during their lives.216 As for nonviolent crime, researchers have found a correlation between animal abuse and property crimes, drug-related crimes, and disorderly conduct.217 Although no published studies appear to directly link the act of dogfighting with future violence and crime, and one study considers *45 the act to be a “confounding variable” in animal abuse research,218 at least some researchers consider dogfighting to be within the scope of animal abuse.219 Other types of animal abuse often accompany dogfighting (for example, the use of bait animals during training or the killing of a losing animal).220 Acts of abuse and the fight itself should fall within the general definitions of abuse or cruelty used in this type of research.221 For example, Professor Frank Ascione, a noted author of *46 numerous studies and books on the connection between animal abuse and violence and crime, defines animal abuse as “socially unacceptable behavior that intentionally causes unnecessary pain, suffering, or distress to and/or death of an animal.”222 One might question, of course, whether dogfighting or the acts typically associated with dogfighting constitute socially unacceptable behavior (at least within dogfighting circles, which view the act as a sport)223 and whether the intent of the actions is to cause pain, suffering, or distress.224 The criminalization of the act, however, suggests that outside dogfighting circles, the actions are socially unacceptable. Further, although the intent may not be to cause harm to the dogfighter's own dog during the fight, the intent is to cause pain and suffering to the opposing dog in order to win the match and certainly to cause death if a dog is terminated for losing a match. Even without direct sociological studies, evidence is growing suggesting a connection between dogfighting and other juvenile crimes. Animal control investigations in at least some jurisdictions support such a link,225 and psychiatrists suggest that dogfighting “could have a disturbing impact on emotionally troubled or vulnerable youths, making them more prone to destructive behavior.”226 Tulane University School of Medicine professor and psychiatrist Ed Foulks, for example, has stated that dogfighting is “a pernicious exercise ... that causes not only pain in dogs but pain in humans. Violence becomes a nonchalant part of everyday life ... Children and adolescents are

learning *47 values ... and incorporating a culture that would encourage violent behavior of this kind, even as a spectator ...”227 Because of the links between animal abuse and later violence, more than half of the states now require or permit a judge to order counseling where a juvenile is found engaging in animal cruelty.228 Thus, in instances of childhood participation in dogfighting, a court might impose psychological counseling, which could help address the future criminal potential of the child.229 In addition, since attendance at dogfighting events exposes children to the peripheral criminal activities that accompany dogfights, prosecutors can turn to child welfare laws (such as those aimed at prohibiting neglect or endangerment of a child) as a basis for prosecution because of the exposure of children to illegal activities. If the child is provided alcohol or controlled substances at the event, for example, a person--even one that is not the parent--could also be prosecuted for contributing to the delinquency of a minor.230 2. Link to Domestic Abuse Animal abuse is also an indicator of domestic abuse,231 with connections to not only spousal and child abuse,232 but to elder abuse as *48 well.233 Studies have shown that a person who abuses a spouse or partner, parent, or child is also likely to have abused the victim's pet. For example, one study found that, of 101 battered women who entered a shelter, fifty-four percent reported that their partners abused their pets, while such reports were made by only five percent of 120 non-battered women at the shelter.234 Although the reasons for animal abuse vary, when connected to domestic abuse, the cruelty is often intended as psychological abuse of the human victim or as a means to control and dominate.235 Indeed, many battered women either refuse to leave their abuser or eventually return because of concern for a pet's welfare. In the abovedescribed study, for instance, one quarter of the battered women put off seeking shelter because of fear for their pet's safety.236 *49 As for children, those who live in abusive homes in turn may abuse animals themselves.237 As Professor Joan Schaffner explains the problem: [C]hildren who are exposed to family abuse are at a greater risk of psychological and behavioral problems. These behavioral problems often include animal cruelty ... [C]hildhood animal abuse is, in turn, linked to

persistence of anti-social, aggressive behavior into adolescence and adulthood with animal cruelty identified as one of four factors that predict interpersonal violence. Thus, the cycle is complete; children from abusive family settings themselves grow up and abuse their own families.238 When it comes to dogfighting, the fact that children see adults engaging in the activity lends a certain aura of permissibility to the event. As with any type of animal cruelty, what has been learned at home is likely to continue as children become dogfighters and spectators later in life.239 As with the connection between dogfighting and violent and non-violent crimes, there are no direct studies indicating that dogfighting is linked to domestic violence. However, the same arguments can be made showing that dogfighting and its accompanying activities would constitute animal abuse as defined in the studies. Anecdotal evidence also supports the connection. Gaertner, for example, notes that dogfighting was exposed only after an investigation was begun for a complaint of domestic violence. As she explains of one case, dogfighting took place in the basement of a home in which a dogfighter, his girlfriend, and children lived. The abused girlfriend eventually called for help, which resulted in the police subsequently finding evidence of dogfighting activity and a videotape of a dogfight. As Gaertner describes: *50 [The] tape, and the dog-fighting operation surrounding it, were found only after his girlfriend fled a terrifying domestic violence at his hands. The spine-chilling complaint describes how he threw her on a bed, choked her, ripped her necklace, hid her purse and keys and pulled the phone out of the wall when she tried to call 911. He told her that if she tried to leave, he would tie her up, duct tape her, and then bury her, and that no one would find her. She was scared to leave because the pit bulls that surrounded the house would bark. In the end, she escaped. When investigators looked into her complaint, they found the dogs, and evidence that they were being fought. But they might never have found it if not for the tip from a domestic violence victim.240 Because of the strong link between domestic and animal abuse, it is worthwhile to at least be aware that where dogfighting occurs, evidence of domestic violence may also exist and be pursued under the domestic violence laws. Further, as in Gaertner's case, a call on domestic violence may lead to proof of dogfighting. Because of this connection, coordinated activity between

child and animal welfare agencies as well as different divisions of the prosecutor's office could result in greater enforcement against both types of abuse. C. Related Criminal Activity Perhaps the most well-known connection with dogfighting is the one that exists with criminal offenses involving gambling, gangs, weapons, and drugs. Participants in dogfighting--both dogmen and spectators--often have previous criminal records. A study of dogfighting in Chicago, for example, showed that over a three-year period, “86 percent of the offenders had two previous arrests, 70 percent had previously committed felonies, 59 percent were members of street gangs and 91 percent were male.”241 With these statistics, then, it is unsurprising that prosecutors usually include not only dogfighting charges, but also charges related to other criminal activity that was uncovered along with the dogfighting. Indeed, a collection of peripheral charges associated with thirtyseven dogfighting raids occurring across the nation between 1996 and 2004 shows that, of that number, law enforcement officials seized money in eighteen of the *51 raids, drugs in thirty-three of the raids, and weapons in twenty-four of the raids.242 With such a close connection to these criminal offenses, pursuit of dogfighting is worth expenditure of extra time and money because of the added value that law enforcement receives when a bust is successful. In many circumstances, both state and federal charges are available. 1. Gambling, Weapons, and Drugs Gambling, of course, is closely related to dogfighting, especially at the hobbyist and professional levels, which can involve large amounts of money. Generally, one finds two types of bets at these fights--bets between owners and bets between spectators.243 The bets between owners are what fund the purse for the fight. Each owner finances one-half of the purse, which goes in full to the owner of the winning dog after the fight.244 The purse in a professional fight can run into the tens of thousands of dollars.245 Along with gambling, however, comes all the criminal activity that attaches to it, including guns, drugs, and even murder. An investigation in Liberty County, Texas, is illustrative. In August 2006, three men broke into the home of twenty-seven-year-old Thomas Weigner, Jr. After restraining Weigner's parents

with tape, one of the men shot Weigner above the knee in front of his wife and two of his young children, allegedly seeking return of a $100,000 wager that had been made on a dogfight in a nearby county.246 When Weigner bled to death (the gunman hit an artery), the men fled, taking up to $500,000 with them.247 Investigators arrived shortly thereafter, finding not only *52 the crime scene, but also 285 pit bulls that, based on their bloodlines, were valued at over one million dollars.248 Ten months later, a suspect in the shooting was located as a result of an unrelated arrest for his alleged attempt to buy $89,000 in cocaine.249 The suspect eventually jumped bail,250 but a search of his home uncovered rifles, shotguns, a grenade, ten pit bulls, a variety of illegal drugs, and $4,000 in cash.251 In an interesting twist that shows the small world of professional dogfighters, the suspect was also believed to have sold two pit bulls to Vick for $2,000 each.252 As the above example shows, dogfighting is often intimately linked with other types of crime, and pursuit of dogfighters will help law enforcement fight other criminal activities. For instance, all states have gambling laws,253 as does the federal government,254 which allows pursuit of participants and spectators based on betting activity. Charges under statutory money laundering provisions or for conspiracy might also be appropriate.255 Even the federal Racketeer Influenced and Corrupt Organizations Act (RICO)256 and analogous state statutes might be used if a pattern of racketeering can be shown.257 *53 State and federal criminal laws relating to illegal drugs and weaponry are also important because they will both remove the contraband from the streets and stringently penalize the convicted.258 2. Gangs Gang membership is also linked to dogfighting. According to the National Youth Gang Survey, as of 2007, the United States is home to approximately 27,000 active gangs nationwide (in mostly urban and suburban areas),259 with total gang membership up to 788,000.260 Long associated with violent crime and drug trafficking,261 gang membership shares a similarly close relationship with dogfighting and ownership of aggressive dogs. A survey of Chicago-area dogfighters by the Humane Society of the United States and the University of Chicago Survey Lab indicates that gang members use streetfighting not only as a way to appear tough and gain street credibility, but also as a way to earn

money, fight boredom, and work out street or gang conflicts.262 Further, gang members use their dogs as a means of protection of both themselves and their contraband263 and as a way to intimidate *54 neighbors and potential witnesses, which can make prosecution of crimes difficult.264 In the last twenty years, gang activity has engendered such concern that a number of jurisdictions have created anti-gang task forces, and billions of state and federal dollars have gone toward investigating and prosecuting gangrelated crimes.265 Indeed, as part of the battle against gangs, a number of states and localities have enacted anti-gang statutes and ordinances that are aimed at reducing gang participation and gang crime.266 Texas law, for example, enhances criminal penalties if a member of a “criminal street gang” engages in certain offenses, including gambling, promotion of prostitution, money laundering, and certain drug and weapons offenses.267 Because of the link between dogfighting and gang activities, use of anti-gang statutes may result in even greater penalties should such activity occur at a dogfight involving gang members. Therefore, from the perspective of reducing gang activity, pursuit of penalties against streetfighting is worthwhile. IV. Recommendations As set out in Part II of this Article, two basic obstacles hinder enforcement of dogfighting laws: the low value placed on prosecuting dogfighters and the costs and proof problems that make successful investigation and prosecution of the crime difficult. Because of the close ties between dogfighting and other criminal activities as well as the sociological connection to the development of violent and abusive *55 behaviors in young dogfighters and spectators, efforts should be made to improve enforcement of the dogfighting laws. Recommendations for doing so are set out below. They include strengthening the value of prosecution by implementing statutory changes and encouraging cooperation between jurisdictions and between public and private authorities. A. Statutory Changes Part of the reason for infrequent enforcement of dogfighting laws is the low value that some states and individuals place on prosecution of the crime and the difficulty that exists for successful prosecution of defendants. Through legislative changes, states can encourage greater enforcement by increasing

penalties for dogfighting and related offenses and by streamlining proof requirements so that prosecutors can more efficiently make a case. 1. Increased Penalties Until just a few years ago, states varied as to whether they classified dogfighting as a misdemeanor or a felony. After Michael Vick was arrested, animal welfare organizations condemned a number of states for their classification of dogfighting as the lower-level offense.268 Legislatures responded with a flurry of activity that resulted in felonylevel consistency for the act of dogfighting across the nation.269 Despite these changes, however, statutory penalties still vary greatly, with some states--North Carolina and Ohio, in particular--having maximum penalties of only a few months for first time offenders.270 These low penalties can be interpreted as a general indication of the states' lower value of the crime (i.e., these states consider the offense *56 less grave than other states). Law enforcement, when faced with limited resources, may therefore tend to ignore enforcement of this crime in favor of enforcement of others. By increasing penalties, then, a state may send a stronger message to law enforcement, prosecutors, and dogfighters about the seriousness of dogfighting. In addition, raising penalties in low-penalty states may also ease the enforcement burden in those states. Substantial differences in the severity of penalties raises the possibility that some offenders (mainly, professional dogmen) could gravitate to lower-penalty states to engage in this activity, making a few states dogfighting hotspots.271 North Carolina is a prime example. The maximum penalty for dogfighting in each of the five adjoining states--Virginia, Kentucky, Tennessee, South Carolina, and Georgia--is at least five years.272 By contrast, the maximum penalty for the same act in North Carolina is ten months.273 Thus, for the cost of a few hours' drive, dogmen living in the surrounding states can minimize their penalties by holding their fights in North Carolina.274 If North Carolina police officers spend less time enforcing (having received the message that was conveyed by the legislature through the statute), the citizens of North Carolina suffer, not only because of the dogfighting, but also because of all the other *57 criminal activity that comes with it (e.g., weapons and drugs). Even if the crime is enforced at the same frequency as the surrounding states, if the state has become a hotspot, the

citizens still suffer as the police are faced with a greater group of potential defendants. By increasing the penalty, then, the state can send two messages: first, that dogfighting should be taken seriously as a crime and, second, that out-of-state dogfighters will get no benefit by conducting their criminal activity within North Carolina borders. Increased federal efforts could bolster state schemes and send the same messages. Where a dogfighting hotspot or lax state enforcement exists, prosecution under the federal dogfighting law could be used to elevate punishment to levels consistent with surrounding states. Federal involvement might also force state action by shining a light on the state's lack of response, galvanizing the public to demand greater state enforcement or an improvement in state laws. Where dogfighting rings involve several states, federal involvement could also be used to ensure consistency of penalties. States should also raise penalties for status as a spectator at a dogfight. Currently, twenty-seven states classify it as a felony, twenty-one states classify it as a misdemeanor, and two states do not criminalize it at all.275 Increasing spectator penalties could help cut down on behavior that encourages continued dogfighting. Indeed, part of the lure of dogfighting, especially at the professional and hobbyist level, is the gambling that accompanies the actual fight.276 Admission fees from spectators and the gambling that occurs at a dogfight are the main source of a fight's profit.277 As one animal welfare group has explained: “[S]pectators do not merely happen upon a fight; they seek it out. They are willing participants who support a criminal activity through their paid admission and attendance.”278 For states that wish to make a distinction between spectators at gambling and non-gambling dogfights, states can create tiered penalties as New York has, elevating spectator fines if gambling is present at the dogfight.279 By increasing *58 penalties, the state can create a greater deterrent, which may reduce the overall interest in dogfighting activity. In addition, where states have not already done so, statutes should be amended to include other dogfighting-related activity. All states currently penalize the act of dogfighting and ownership or possession of a fighting dog; however, other activities that have significant implications for continued dogfighting should be prohibited. For example, breeding dogs to be used for fighting purposes not only keeps a steady supply of dogs on the market for

dogfighters, but also keeps the interest in the activity alive. Training dogs for fighting has a similar impact. In either case, states should penalize the activity because it will allow the state to cast a greater net for offenders and partly relieve the difficult burden that prosecutors face when forced to prove that a defendant has “caused” a dogfight.280 States could even go so far as to prohibit ownership or possession of dogfighting equipment, a provision already included in some cockfighting statutes.281 Although similar equipment might be used to train dogs for weight pull training competitions, states could limit the scope of the provision by linking it to an intent to use the equipment for dogfighting purposes.282 Increasing statutory penalties or increasing the scope of the law, of course, does not guarantee that greater enforcement will occur or that convicted dogfighters will serve longer sentences. Many states merely set out a range of penalties that are available should a defendant be convicted. A judge or jury may always issue penalties at the lower end of the scale. However, by allowing higher penalties to be issued, the state has at least given a better indication of how serious it deems *59 the crime, and therefore enforcement should become a higher priority to police and prosecutors. 2. Proof Requirements States should also consider clarifying their proof requirements to streamline prosecution of dogfighting cases. In most states, prosecuting the crime of dogfighting generally requires reliance on circumstantial evidence. Direct evidence of dogfighting is rare because it is not often that defendants are caught in the act, especially in the case of spontaneous streetfighting. In many states, the prosecutor must prove that the defendant “caused” the dogs to fight or injure one another.283 This proof requirement might be relatively easy if there is an eyewitness who can testify that the dogfighters placed their dogs in the dogfighting pit and gave the orders to fight. However, finding an eyewitness is difficult because dogfighters and spectators tend to scatter when law enforcement arrives on the scene,284 not only because of potential penalties arising from the act of dogfighting, but because of other illegal activities that may be going on (e.g., activities relating to weapons, drugs, and gambling). The use of circumstantial evidence can become problematic for prosecutors, however, if the court deems the evidence irrelevant to proving the crime and

excludes it. In such a case, conviction may become impossible because an essential piece of the evidence needed for the jury to infer the charged violation of the law is missing.285 Prosecutors can also run into problems if, even with all circumstantial evidence presented, the jury does not make the necessary inference *60 either because it is not a natural conclusion or because the jurors are not aware that they are permitted to draw the inference.286 States can help lower these prosecutorial hurdles by revising statutes to specifically allow the admission of certain types of evidence to prove dogfighting offenses or by creating permissive inferences that will help jurors see appropriate steps in logic. As to the first, by designating within the statute the types of evidence that are admissible, the prosecutor is saved from battling anew in each case the relevance of certain circumstantial evidence. Some states have already taken this step. Louisiana, for example, specifically provides that the following evidence can be admitted to prove ownership, possession, keeping, or training a fighting dog: (i) Possession of any treadmill wheel, hot walker, cat mill, cat walker, jenni, or other paraphernalia, together with evidence that the paraphernalia is being used or intended for use in the unlawful training of a dog to fight with another dog, along with the possession of any such dog. (ii) Tying, attaching, or fastening any live animal to a machine or power propelled device, for the purpose of causing the animal to be pursued by a dog, together with the possession of a dog. (iii) Possession or ownership of a dog exhibiting injuries or alterations consistent with dogfighting, including but not limited to torn or missing ears, scars, lacerations, bite wounds, puncture wounds, bruising or other injuries, together with evidence that the dog has been used or is intended for use in dogfighting.287 The Texas statute also includes an evidentiary provision, stating that a conviction for participating in the earnings of or operating a dogfighting facility or allowing use of the location where the dogs are fought “may be had upon the uncorroborated testimony of a party to the offense.”288 States should also consider amending their dogfighting statutes to create permissive presumptions (better described as “instructed *61 inferences”)289

that the jury may draw if basic facts like those specified above are proven. Because of the state's burden to prove every element of a criminal offense beyond a reasonable doubt, the state may not shift the burden of proof to the defendant.290 However, the state can create a permissive presumption as long as the inference to be drawn is not mandatory.291 According to the United States Supreme Court, a permissive presumption is one that “allows--but does not require--the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one and which places no burden of any kind on the defendant. In that situation the basic fact may constitute prima facie evidence of the elemental fact.”292 The use of permissive presumptions is especially appropriate in situations where the defendant has greater access than the government to proof of the crime.293 This is the situation that arises with dogfighting, because it is rare that police officers come upon a scene of dogs in actual combat or being trained. Two states--Utah and Minnesota--have created statutory presumptions based on proof similar to that provided for in the Louisiana statute, although Minnesota's provision has been held unconstitutional because of its mandatory nature. Utah's statute provides that prima facie evidence of a defendant's violation of causing a dogfight or using live bait animals in training devices exists if the defendant is in possession of both a fighting dog and “any breaking stick, treadmill, hot walker, cat mill, cat walker, jenni, or other paraphernalia” and there is “evidence that the paraphernalia is being used or is intended for use in the unlawful training of a dog to fight *62 with another dog.”294 Minnesota created a presumption of training a fighting dog that was rebuttable by a preponderance of the evidence if the state could show certain actions indicative of training, to wit, “fresh wounds, scarring, or other indications that the dog has been or will be used for fighting” and possession by the defendant of “training apparatus, paraphernalia, or drugs known to be used to prepare dogs to be fought.”295 Because Minnesota's statute appeared to create a mandatory presumption that shifted the burden of proof to the defendant, the provision was struck down as unconstitutional by a trial court in 2006.296 For a state creating a presumption, the statute should be drafted in a way to pass constitutional muster by ensuring not only that the jury is free to reject the

inference created297 but also that a rational connection exists between the basic fact proved and the inferred fact. As Professor Michael Graham explains: Whether sufficient rational connection exists between the basic fact and the fact to be inferred ... depends not only upon the natural strength of the logical inference but also upon the wording of the particular instruction given. Rational connection also varies depending on whether the *63 fact to be inferred is an element of the offense or negates a defense or whether the fact to be inferred has a lesser effect ... [A]t a minimum for an instructed inference to be given the court must determine that the fact to be inferred more probably than not flows from the basic fact.298 Inferences could possibly be used to help show a defendant's violation of at least some of the provisions set out above by the Utah and Minnesota statutes. If a prosecutor can prove that the defendant is in possession of both a fighting dog and dogfighting equipment and has intent to use the dog for fighting and the dog has fresh wounds or scarring consistent with dogfighting, there is likely a rational connection between these findings and proof of actual dogfighting, as well as possession and training.299 Indeed, in cases in which the sufficiency of evidence has been reviewed for dogfighting convictions, courts in several jurisdictions have upheld the juries' decisions based on these same types of evidence,300 suggesting that such inferences *64 arise “more probably than not” from the facts proven and that a similar inference should pass constitutional scrutiny. In addition, by allowing the jury to reject the inference (e.g., in those cases where the jury is not quite convinced that the provision was violated), the inference would stay within constitutional bounds since the prosecutor is still bound by the standard to prove the violation beyond a reasonable doubt. 3. Related Social Ills Because of the detrimental impact that dogfighting can have on childhood development, states should consider statutory provisions that address this issue, either by deterring behavior that may lead to juvenile participation in dogfighting or by addressing the potential impact of the dogfight. As to participation, states might take two approaches. First, states could make it a crime to encourage youths to participate in dogfighting or dogfighting-related activities. Illinois takes this approach by specifically prohibiting the solicitation

of minors to engage in dogfighting.301 Second, states might enhance penalties otherwise authorized for conviction of a dogfighting offense if the defendant also encouraged a minor to watch or engage in the activity. Virginia, for example, elevates misdemeanor penalties issued for fighting of animals that are not dogs to the felony level if a person “permits or causes” a minor to attend an animal fight or engage in certain specified activities, such as training.302 Taking either approach *65 would not only help deter juvenile participation, but also would bring dogfighting statutes in line with other statutes that criminalize actions or enhance penalties for influencing a minor with regard to weapons or drugs.303 Alternatively, or perhaps in addition to penalization, states might address the impacts that dogfighting has on minors by ordering psychological counseling as part of a sentence for minors caught engaging in or watching a dogfight. Maryland specifically provides for psychological counseling of juvenile participants in dogfighting,304 and a number of other states have counseling provisions included within or related to the animal cruelty portions of their laws.305 By requiring counseling, minors can be encouraged to work through issues that cause their behavior (or at least better understand it) and possibly be re-sensitized to the violence of dogfighting. In addition, because of the close connection that dogfighting has to other illegal activities, states might consider additional deterrents. Many states already permit enhancement of penalties for defendants who commit crimes for gang-related offenses306 and for crimes committed while in the possession of a weapon.307 States might also consider adding dogfighting to the list of activities covered by their organized crime statutes, which would then enhance the penalty for dogfighting-related convictions. Texas, for example, amended its organized crime provision to specifically include any offense listed in the dogfighting section, which covers not only the act of dogfighting *66 but also all related activities (e.g., training, possession, spectator status, and so on).308 The statute's enhancement thus would elevate a conviction of dogfighting from a state jail felony to a felony in the third degree, while conviction for being a spectator would be enhanced from a misdemeanor to a state jail felony.309 B. Joint Efforts to Reduce Dogfighting and Enforce Laws

In addition to making the statutory changes suggested above, federal, state, and local governments must make conviction an obtainable goal. To do so requires joint efforts at three levels: educating enforcement personnel and local citizens, creating local and state task forces, and encouraging public and private cooperation in responding to enforcement. Education is key in the battle against dogfighting, not only to increase reporting and discovery of dogfighting activity but also to unify communities against the offenders and the offense. Local governments can provide such education through their own efforts or with the assistance of private groups. In 2002, for example, the Chicago Police Department responded to the city's increase in dogfighting by training patrol officers to recognize signs of dogfighting and abuse,310 and training continues today through the Department's cooperation with Chicago Animal Care and Control.311 Similarly, the Humane Society of the United States (HSUS) offers dogfighting and cruelty training programs nationwide to all criminal justice personnel, including police and animal control officers.312 Such training programs allow law enforcement agencies to use their officers more effectively. By recognizing the behavior and paraphernalia associated with *67 dogfighting,313 even officers who respond to calls unrelated to a dogfighting disturbance can assist in identifying suspects of dogfighting offenses. Local governments might also increase reporting by offering similar training to those who routinely gain lawful access to private property. Meter readers, postal carriers, utility repairman and the like have been known to report suspected animal cruelty seen in the course of their duties,314 and proper training in recognizing the signs of dogfighting may prove helpful in garnering more reports. Pilots and spotters in police helicopters and traffic choppers could also be trained because of their unique vantage point. Large-scale operations often show evidence of possible breeding or training activity that, although not visible from the street, is clearly visible by aerial surveillance. A flyover above the home of Boudreaux, for example, resulted in a search warrant after a Louisiana state trooper spotted what looked like treadmills and a fighting pit on Boudreaux's property.315 Similarly, aerial surveillance316 can usually pinpoint possession of fighting dogs because of the way they are maintained, especially *68 when there are

large numbers.317 Dogfighting expert Mark Kumpf was reported as stating that aerial surveillance is an easy way to locate dogfighting activity. In his words, “If you're flying over you look for blue plastic barrels. They use them as shelters for the dogs because they're inexpensive and rugged. They are the housing of choice.”318 Although such evidence may not be enough to convict, it could pave the way for further investigation. Educating the populace, on the other hand, requires greater effort than merely offering a local training program because individuals must be encouraged to overcome the fear of becoming involved at the expense of retribution. Particular efforts must be made to reach the targeted audiences, namely, the dogfighters and spectators themselves and their communities, because often people are unaware of the signs of dogfighting or that the activity is illegal, or they may feel that not reporting the crime is the status quo. HSUS efforts provide a good example of an education program, as the organization has started “End Dogfighting” campaigns in several problem urban areas, including Chicago, Atlanta, and Charlotte, North Carolina.319 The campaigns take a comprehensive approach, providing education to both law enforcement and the communities plagued with dogfighting. As for the communities, the campaigns are multi-pronged, aimed at education, *69 community building, and behavior modification.320 Because of the particular impact of dogfighting on children, HSUS developed an eight-week middle-school curriculum targeted at reshaping current views of dogfighting.321 Community building is accomplished through various HSUS events aimed at creating trust, including vaccination clinics, rallies, and involvement of religious leaders.322 The dogfighters themselves are targeted through the use of “anti-dogfighting advocates” (young men from the community) who intervene in dogfights and mediate disputes,323 while those in danger of becoming dogfighters are encouraged to join “pit bull training teams” that provide alternatives to dogfighting and create stronger bonds between the dogs and their owners.324 Public service announcements featuring *70 sports figures or celebrities might also be used to modify behavior by making visible role models who discourage dogfighting.325 To encourage reporting, telephone tip lines are important, especially where the report can be anonymous and rewarded. A number of jurisdictions have

teamed up with Crime Stoppers programs--now made easier with the elevation of dogfighting to felony status326--to reward informants who provide information leading to an arrest.327 HSUS also offers awards up to $5,000 for reports of dogfighting and other animal-related crimes.328 Despite concern that even anonymous reporting might have repercussions, at least where gangs are concerned,329 telephone tip lines are proving successful.330 Jurisdictions can also take a more proactive approach to dogfighting by using other methods to uncover the activity. Because streetfighting generally does not cross jurisdictional boundaries and occurs on an unplanned basis, local task forces can be formed to create an overall approach to attack the problem.331 One goal, for example, *71 might be to create an understanding of the problems that each authority faces when attempting to enforce dogfighting laws and to try to work them out. For example, animal control and law enforcement authorities might cooperate regarding misunderstood jurisdictional issues by dedicating an armed officer to assist animal control officers on dangerous calls, such as dogfighting. Similarly, the prosecutor's office could appoint a single prosecutor to oversee case management of all animal-related cases to promote consistency of prosecution and to reduce the learning curve.332 By creating a better-integrated team that responds to and prosecutes dogfighting (as well as other animal-related crimes), jurisdictions should see a reduction in the impacts caused by inexperience and enforcement and prosecutorial bias.333 The task force might also be used to open avenues of communication between and within departments to aid in effective enforcement. Prosecutors, for instance, might detail the types of evidence that investigators should look for to ensure a well-presented case and caution police officers of common evidentiary snags.334 Similarly, sharing information between police divisions (e.g., passing on tips from the narcotics division or vice squad to animal cruelty officers) or between Child Protective Services and the police department (e.g., information regarding items spotted during a home visit) may help in identifying additional dogfighting suspects. Similarly, if animal control officers are trained to recognize domestic abuse issues, they can return the favor and report child or adult protective issues when they make animal cruelty calls. *72 Local task forces could also identify areas that require targeted programs and implement them. For example, animal control and/or law enforcement

could increase their presence in areas known for dogfighting to monitor and discourage the activity. Additionally, educational or behavioral modification programs such as those discussed above could also be implemented in at-risk neighborhoods to reduce the number of dogfights. State-level task forces may be useful in creating a comprehensive approach to combating dogfighting statewide. Such task forces might review the overall dogfighting situation in the state to determine the gravity of the problem and prioritize areas requiring special need. State level task forces might also review current laws and make recommendations to close loopholes in statutes and create incentives for greater enforcement. Finally, a cooperative public and private response is essential to enforcement, especially for investigation at the hobbyist and professional levels. Cooperation between law enforcement authorities, animal control, and local humane shelters often occurs already for street level fighting because of insufficient public resources. Many local humane shelters work closely with law enforcement and prosecutors in dogfighting and cruelty cases, serving as initial investigators, providing veterinary care and shelter for seized animals, and testifying in court. This partnership--as well as coordination with other local, state, and federal authorities--is essential for investigating and prosecuting hobbyist and professional dogfighting because such fights generally cross jurisdictional lines, involve the arrest and prosecution of numerous defendants, and in many cases result in the seizure, evaluation, and possible destruction of overwhelming numbers of fighting dogs and bait animals.335 *73 Investigation into hobbyist and professional dogfighting rings is longterm, requiring gradual infiltration into the upper levels of dogfighting circles, and is usually done by state or federal authorities because of cost and jurisdictional limitations of local agencies.336 Investigators generally work undercover, and the investigations suffer from the same problems borne by other covert criminal operations (e.g., finding and paying for informants and surveillance, placing the lives of law enforcement officers in danger, risking the creation of entrapment defenses, creating bad publicity, and so on). Because of these issues, it is essential that the agencies most responsible for the investigation be committed to the project. Although garnering this commitment might be difficult in situations where individuals value

enforcement of the offense less than local authorities, commitment may be more easily granted where costs are shared and there is promise of a higher payout in terms of the numbers of defendants caught, the types of crimes covered, and the possibility of higher penalties.337 *74 Cost-sharing is important because of the high cost of investigation, particularly where the size of the dogfighting ring is large and the organization widespread and complex. Although local funds are scarce for assisting largescale investigations,338 state and federal authorities can agree to share these costs, especially where both state and federal charges are possible. The brunt of prosecution costs, of course, lies at the local level, as do the enormous costs related to animal management (housing, feeding, etc.), which are often shared between public and private shelters. Because dozens or even hundreds of dogs might be seized during a raid, local animal control resources are usually overwhelmed, and private humane shelters must assist to ensure a successful raid and prosecution. The total costs are not insignificant and, despite statutory provisions allowing reimbursement,339 are rarely recovered, which affects the shelter's ability to pursue other cruelty cases in the future. Prosecutors can assist cost recovery by insisting upon, as a measure of cooperation, a reasonable reimbursement share to be paid by each defendant seeking a plea bargain. In this way, shelters may find defendants digging deeper into their resources to pay their fair share. Conclusion Since Michael Vick's arrest and conviction, national attention has focused on dogfighting, resulting in revision to a number of statutory provisions relating to the offense and an increase in prosecution of the crime. Despite this step forward, more work needs to be done. Many states and localities, and even the federal government, still resist *75 spending time or money on enforcement of dogfighting laws, even though dogfighting has strong ties to other criminal acts, such as gambling, drugs, weapons possession, and gang membership. Prosecution of the crime is also made difficult by the secrecy of hobbyist and professional dogfighting, the spontaneity of streetfighting, the unwillingness of many witnesses to come forward, and the necessity of using indirect evidence to prove most cases. To weaken resistance to enforcing the laws, states should amend their statutes to strengthen penalties for dogfighting and related

offenses, allow enhancement of dogfighting penalties for commission of related crimes at a dogfight, and streamline evidentiary requirements by specifically designating indirect evidence as relevant proof and creating permissible statutory inferences. In addition, by creating state and local task forces, enforcement can be improved through coordination of investigation and by local efforts at education. Costs can also be shared between various agencies as well as public and private animal welfare groups to decrease the impacts of investigation and prosecution. Footnotes a1 Presidential Research Professor and Professor of Law, South Texas College of Law. The author wishes to thank Belinda Smith, Chief, Animal Cruelty Section, Harris County District Attorney's Office; Dr. Dawn Blackmar, Director, Veterinary Public Health at Harris County Public Health & Environmental Services; and Sherry Ferguson, Executive Director, Houston Humane Society, for providing insight into the world of dogfighting and animal cruelty response. Thanks also to Professors Sandra Carnahan, Bill Wilks, and Amy Bures-Danna and attorney Melanie Renazco for comments on earlier drafts of this piece, as well as to Lindsay Lutterbie for her able research assistance. 1 Humane Soc'y of the United States (HSUS), Demetrius Ware's Rap Lyrics, available at (URL removed for reprint). Chicago seventh-grader Demetrius Ware wrote his rap “Why,” excerpted above, and submitted it as an entry in (and won) an HSUS competition. 2 Larry O'Dell, Vick Released from Prison, QB Heads for Home in Virginia After 19 Months on Dogfighting Conviction, CHARLESTON GAZETTE, May 21, 2009, at 4B. After his release, Vick remained in federal custody, largely confined to his home, and was required to maintain a paying job. His federal custody ended on July 20, 2009. See David Macaulay, Vick Free from Confinement Today, DAILY PRESS (Newport News, Va.), July 20, 2009, at A1. He has since signed a contract to play with the Philadelphia Eagles. See ESPN.com, Vick, Eagles Agree to 2Year Deal, Aug. 14, 2009, (URL removed for reprint) 3

Summary of the Facts at 3-4, 9, United States v. Michael Vick, No. 3:07CR274 (E.D. Va. Aug. 24, 2007) (hereinafter Vick Summary of Facts); Indictment at 4, United States v. Purnell A. Peace, Quanis L. Phillips, Tony Taylor & Michael Vick, No. 3:07CR274 (E.D. Va. July 17, 2007) (hereinafter Vick Indictment). 4 Mark Ferenchik, Can It Be Debated?, COLUMBUS DISPATCH, Aug. 28, 2007, at 1A (“It's his property. It's his dog. If that's what he wants to do, do it.” (quoting Clinton Portis)); see also Mike Bianchi, Despicable Dogfighting Reflects Poorly on Our Culture, ORLANDO SENTINEL, May 27, 2007, at C1 (“Somebody needs to tell Clinton Portis you can't make meth [methamphetamine] on your property, you can't set kittens on fire on your property and you can't fight dogs to the death on your property ... Dogfighting is a felony, and the NFL needs to hold these guys accountable. It's irresponsible and dangerous for sports figures and celebrities to have such a nonchalant attitude toward this extreme form of animal cruelty.” (quoting John Goodwin of HSUS responding to Portis's comments)). 5 Ferenchik, supra note 4, at 1A. 6 Id. 7 Richard L. Eldredge, Wednesday Talk, ATLANTA J.-CONST., Sept. 5, 2007, at B2; see also Vick May Work with Humane Society, N.Y. TIMES, May 21, 2009, at B15 (noting that Wayne Pacelle, president of HSUS, stated that “dogfighting was a ‘culturally complex problem’ prevalent among black urban teenagers”). 8 Lisa de Moraes, Whoopi, Day 2: She Doesn't Condone Dogfighting, WASH. POST, Sept. 6, 2007, at C07; see also Boston Legal: The Chicken and the Leg (ABC television broadcast Oct. 9, 2007), unofficial transcript available at (URL removed for reprint) (portraying a Mexican immigrant as a defendant in a cockfighting case and translating the defendant's testimony as “[Cockfighting is] part of our Mexican culture. As little children, we're raised to revere the noble cockfighting rooster”). 9

Carlos Frias, Vicious Fight, PALM BEACH POST, June 3, 2007, at 1B (noting that dogfighting is on an “upswing”); Wendy Koch, Dogfighting Raids Climb after Vick; Case Raises Awareness of Dog Torture, Killings, USA TODAY, Aug. 30, 2007, at 1A (noting that, in July and August 2007, law enforcement authorities pursued 25 more dogfighting cases--up to 42 from 17--than they had during the same time the previous year). 10 HSUS, Subject Experts, (URL removed for reprint). 11 Benita Y. Williams, Cases of Animal Cruelty Abound, KANSAS CITY STAR, Sept. 3, 2007, at B1. 12 General reference to the term “pit bull” (without more) can be confusing because the term may be used to refer generally to several different breeds. See Jamey Medlin, Pit Bull Bans and the Human Factors Affecting Canine Behavior, 56 DEPAUL L. REV. 1285, 1285 n.12 (2007); see also infra notes 30-35 and accompanying text (discussing the American Pit Bull Terrier). Although “pit bulls” are commonly viewed as the preferred fighting dog in the United States, other dogs are used for fighting as well, including the Fila Brasileiros, Dog Argentinos, and Presa Canarios. See Am. Soc'y for the Prevention of Cruelty to Animals (ASPCA), Dog Fighting FAQ, (URL removed for reprint) (hereinafter Dog Fighting FAQ). To avoid confusion, this Article will avoid use of the generic term “pit bull” where possible and use the term “fighting dog” as a general reference to a dog that is used to fight other dogs. 13 Brian Mann, Illegal Dogfighting Rings Thrive in U.S. Cities, NPR, July 20, 2007, available at (URL removed for reprint)14 Id. (“Up until 10 or 15 years ago, this was pretty much an entirely rural activity ... Now, there's still a lot of dog fighters in the rural areas, but they've kind of been overtaken by an urban crowd.” (quoting John Goodwin)). 15 See Frias, supra note 9, at 1B (“Vick isn't the first athlete to be connected to dogfighting. NBA player Qyntel Woods was accused of hosting dogfights at his Portland home in 2004 and he eventually pled guilty to first-degree animal

abuse. Former NFL running back LeShon Johnson received a five-year deferred sentence in 2005 after officials seized 200 dogs during a raid of his dogfighting operation that led to 20 people being convicted. And former Dallas Cowboys lineman Nate Newton was arrested at a dogfight in Texas, although charges were later dropped.”); see also Mike Mosedale, Public Enemy Number One, CITY PAGES (Minneapolis/St. Paul), Oct. 25, 2006, at 4-6, (URL removed for reprint) (discussing the extensive involvement of Will Grigsby, an International Boxing Federation junior flyweight champion, in dogfighting). 16 See George Dohrmann, The House on Moonlight Road, SPORTS ILLUSTRATED, June 4, 2007, at 44 (suggesting that federal law enforcement sought to indict Michael Vick on dogfighting charges because “an indictment filed against one of the NFL's signature stars would boost their broader efforts to combat the grisly pastime of dogfighting”). A study by The Pew Research Center for the People and the Press indicated that one quarter of Americans closely followed media coverage of the Vick case, although the survey respondents split on racial lines over the question of whether the media treated Vick fairly. Pew Research Ctr. for the People & the Press, Michael Vick Case Draws Large Audience, Aug. 28, 2007, (URL removed for reprint) 17 See Joanne Kimberlin & Phillip Taylor, World of the Pit Difficult to Penetrate, DAILY PRESS (Newport News, Va.), Sept. 17, 2000, at B3; Mann, supra note 13. 18 Mann, supra note 13; see also James Hohmann, Officials Face Challenge as They Confront Dogfighting in Texas: Tougher Penalties on the Way, but Blood Sport Grows and Enforcement Proves Difficult, DALLAS MORNING NEWS, Aug. 22, 2007; Hanna Gibson, Dog Fighting Legal Overview, Mich. St. U. Coll. Law Animal Legal & Historical Center (2005), available at (URL removed for reprint)19 See infra Part II.A. 20 See Gibson, supra note 18; see also Eileen Loh Harrist, Fight Clubs: They Call It ‘The Game’: Two Dogs, Their Owners, Pride and Money, GAMBIT WKLY., July 10, 2001, at 21 (discussing actions taken by the New Orleans Anti-Dogfighting Task Force, which includes members from the SPCA and the Housing Authority

of New Orleans); Karen Lee Ziner, Blood Sport, PROVIDENCE J.-BULL., May 2, 2004, at A (discussing the Rhode Island animal fighting coalition and noting that such coalitions also exist in New Hampshire, Connecticut, and Maine). 21 See infra Part III.A (discussing animal cruelty in the context of dogfighting). 22 See, e.g., Anthony Westbury, Drugs, Prostitution, Often Trail Dog Fights, FORT PIERCE TRIB. (Fort Pierce, Fla.), July 12, 2005, at B1; Gibson, supra note 18. 23 For example, the case against Vick arose not because of a dogfighting investigation, but because of the arrest of his cousin, Davon Boddie, on drug charges. See Nancy Grace & Mike Brooks, NFL Star Michael Vick Indicted on Federal Dog-Fighting Charges, Part 1, CNN NEWS, July 18, 2007, transcript available at (URL removed for reprint). Boddie identified Vick's house as his home address, which was subsequently searched pursuant to an arrest warrant. Id. The authorities discovered fifty-four American Pit Bull Terriers with scars and injuries associated with dogfighting, along with several pieces of dogfighting equipment. See Vick Summary of Facts, supra note 3, at 9. 24 See, e.g., Loh Harrist, supra note 20, at 21. 25 Bull baiting was an activity where a dog (or more often several dogs) attempted to pin a bull to the ground while avoiding being gored. See Medlin, supra note 12, at 1288. For a description of a typical English bull-bait, as described in England's early nineteenth century journal The Sporting Magazine, see HOUNDS IN THE MORNING: SUNDRY SPORTS OF MERRY ENGLAND 138-42 (Carl B. Cone, ed. 1981). 26 Edmund Russell, A Tale of Two Smithfields, UVA TOP NEWS DAILY, Sept. 11, 2007, (URL removed for reprint)19 DEVIANT BEHAVIOR 51, 51-52 (1998) (stating that the “lower visibility” of dogfighting compared to baiting activities added to dogfighting's popularity). 27

See Rhonda D. Evans & Craig J. Forsyth, Entertainment to Outrage: A Social Historical View of Dog Fighting, 27 INT'L REV. MOD. SOC. 59, 61 (1997); Russell, supra note 26. 28 See Russell, supra note 26. 29 As in England, Americans at one time participated in baiting sports, with evidence suggesting the existence of this activity as early as 1726. Evans & Forsyth, supra note 26, at 52. It is unclear when dogfighting first arose in the United States, although some have noted that the Staffordshire terrier arrived in the United States in approximately 1817. See, e.g., Gibson, supra note 18. 30 See Medlin, supra note 12, at 1288. The reputation of the pit bull in the early 20th century was much kinder than it is today, and its image was often used to promote trust in products. Buster Brown shoes and RCA both used pit bull images to convey the quality of their products. See, e.g., id. at 1289 (Buster Brown); Bull & Terrier, Origin & History, (URL removed for reprint) (noting use of the pit bull for advertising the clarity of the RCA phonograph as well as “to illustrate American neutrality without fear in 1914, the toughness of Levi jeans, and as a ‘defender of Old Glory”’). Some pit bulls also held celebrity status, while others were the companions of celebrities. See Medlin, supra note 12, at 1288-89 (describing the popularity of the Little Rascal's Petey, Juneau's official greeter Patsy Ann, and the World War I hero Stubby, and noting that Helen Keller owned a pit bull); Safia Gray Hussain, Note, Attacking the Dog-Bite Epidemic: Why Breed-Specific Legislation Won't Solve the Dangerous-Dog Dilemma, 74 FORDHAM L. REV. 2847, 2853-54 (2006) (noting that Theodore Roosevelt owned a pit bull). 31 JOE STAHLKUPPE, THE AMERICAN PIT BULL TERRIER HANDBOOK 34 (2000). 32 CARL SEMENCIC, THE WORLD OF FIGHTING DOGS 40 (1984). Unlike other dogs, the survival instinct has been bred out of many fighting dogs, resulting in gameness. See Julie Bank & Stephen Zawistowski, Game Dogs, ASPCA

Education: Resources, (URL removed for reprint) (“One of the most important steps in breeding fighting dogs was to eliminate [the survival instinct] aspect of their behavior. Fighting dogs will continue to attack regardless of the submission signals of an opponent. Similarly, these dogs will continue to fight even though badly injured.”). 33 Evans & Forsyth, supra note 27, at 60. 34 The American Kennel Club (AKC) does not recognize the “American Pit Bull Terrier” as a registered breed. However, it registers and has established standards for the Staffordshire Bull Terrier and the American Staffordshire Terrier, both of which originated from the original bulldog and terrier mixes in England. See American Kennel Club, Staffordshire Bull Terrier History, (URL removed for reprint); American Kennel Club, American Staffordshire Terrier History, (URL removed for reprint). Interestingly, legislation regulating or banning “pit bulls” often defines the term as including American Pit Bull Terriers, American Staffordshire Terriers, Staffordshire Bull Terriers, and mixes of each. See, e.g., Amy Cattafi, Breed Specific Legislation: The Gap in Emergency Preparedness Provisions for Household Pets, 32 SETON HALL LEGIS. J. 351, 354-55 (2008) (describing Denver's breed-specific ordinance). One expert notes that the AKC-registered American Staffordshire Terrier was merely an American Pit Bull Terrier registered under a different name to avoid the “pit connotation.” See STAHLKUPPE, supra note 31, at 54, 58 (noting that the breed was originally registered as the Staffordshire Terrier in 1936, but later changed to the American Staffordshire Terrier in 1972 to distinguish it from the English version of the breed). Although American Pit Bull Terriers and American Staffordshire Terriers may look similar, for the most part the breeds are now separate with only a few dogs still registered with both the UKC and AKC. See id. at 58-59. Advocates of American Pit Bull Terriers note the loss of gameness in American Staffordshire Terriers as a distinguishing characteristic between the breeds. See id. at 61-62 (“From the perspective of gameness, the APBT and the Amstaff are as far from being the same breed as the Collie and the Border Collie are in sheepherding ability.”). 35

STAHLKUPPE, supra note 31, at 55, 57. 36 Id. at 55. 37 Id. at 43 (noting that dogfighting audiences generally consisted of “[d]ogfighters, pit dog breeders, gamblers, and the retinue of hangers-on who preyed on the gamblers--prostitutes, sycophants, muggers, and creditors,” as well as “the morbidly curious, the thrill-seekers, and the sadistic elements of the community”). 38 See, e.g., Evans & Forsyth, supra note 26, at 52 (noting a New York statute enacted in 1856 that prohibited dogfighting, cockfighting, and ratting). 39 Loh Harrist, supra note 20. Cajun Rules are not the only rules that dogfighters might use. Other rules that have been used for dogfighting include Al Brown's Pit Rules and Armitage's Rules. See GEORGE C. ARMITAGE, THIRTY YEARS WITH FIGHTING DOGS 123-33 (Read Country Books 2004) (1935) (reprinting Armitage's Rules and Regulations to Govern Dogfighting); SEMENCIC, supra note 32, at 41-46 (reprinting Al Brown's Pit Rules); RICHARD F. STRATTON, THE WORLD OF THE AMERICAN PIT BULL TERRIER 252-54 (1983) (reprinting the English Rules of 1850 and the Police Gazette Rules of 1900). 40 For example, a chart of select dogfighting raids prepared by the Animal Legal and Historical Center sets out dogfighting arrests in seventeen different states across the continental United States that occurred between 1996 and 2004. See Dog-Fighting Raids: A Comparative Analysis of Peripheral Criminal Activity and Seizures, Mich. St. U. Coll. Law Animal Legal & Historical Center, (URL removed for reprint) (last visited Sept. 17, 2007) [hereinafter Dog-Fighting Raids]; see also SEMENCIC, supra note 32, at 39 (“The fact of the matter is that dogfighting is not confined to small pockets of the South but rather that organized fights are being held as a spectator sport throughout the United States, Canada and Mexico. While the average New York City dweller feels closer to bullfights in Madrid than to dogfights in the United States, I have known Bulldog men

residing in New York City who own a dozen pit dogs that are fought on a regular basis throughout the country.”). 41 Bill Burke, Once Limited to the Rural South, Dogfighting Sees a Cultural Shift, VIRGINIAN-PILOT, June 17, 2007. 42 “Dogmen” is the name by which breeders of fighting dogs and high-stakes fighters refer to themselves. Frias, supra note 9, at 1B. 43 Rhonda Evans, DeAnn K. Gauthier & Craig J. Forsyth, Dogfighting: Symbolic Expression and Validation of Masculinity, 39 SEX ROLES: J. RES. 825, 827 (1998). 44 Id. at 829 (citations omitted). 45 To some extent, dogfighting crosses gender lines in the form of spectators. See Evans & Forsyth, supra note 26, at 54 (noting that, although women are rarely dog handlers, they participate as spectators and actively participate in gambling). Indeed, the United Kingdom's National Canine Defence League (established in 1891) described in an early anti-dogfighting booklet the insidious impacts of dogfighting on not only young men, but women as well: Young women, future mothers of the race, are being accustomed to find entertainment in some of the filthiest spectacles that have ever been staged. Vampires or ghouls, in a mad twilight of the mind they sit, leaning forward in ecstatic anticipation. Pity, an emotion they can never feel, must move us when we see to what extremes unbalanced humanity can go. And few will not be angry at the thought that every day a new recruit is drawn from the ranks of our cherished youth and maidenhood. MIKE HOMAN, A COMPLETE HISTORY OF FIGHTING DOGS 243-44 (1999). However, nothing limits women to just the role of spectator. One reporter has noted the activities of a female pit bull breeder who is a well-published scientist, medical researcher, and patent holder with alleged links to a highlevel dogman in North Carolina. See Jennifer Strom, Orange Dog Panel Member Quits, INDEP. WKLY., Apr. 25, 2007, at 5. 46

See Evans & Forsyth, supra note 26, at 55 (noting that the term “fraternity” is used in both dogfighting and cockfighting circles). 47 According to one study, breeders hold the highest position in dogfighting circles because “[breeding] is the facet on which every other element within the sport is based and without it the sport could not exist.” Id. at 55. 48 One young dogfighter described the relationship between senior dogmen and junior dogmen as follows: The old timers do most of the talking and we just listen. People will think you're crazy if you go in there [to a pre-fight meeting] talking a lot and you're just a newcomer. That's a privilege that has to be earned and the old timers have more than earned it. Someday we'll be in their position and everybody will listen to what we have to say. We'll be the teachers instead of the students. Id. at 62 (quoting an unidentified dogfighter). 49 See supra Part III. 50 See Daniel Walsh, Cop Faces 5 Charges of Animal Cruelty, PRESS OF ATLANTIC CITY, Sept. 18, 2007, at A1 (noting an analysis by Chicago Police of a threeyear period of dogfighting during which 332 people were arrested for the offense and, of that number, 70% were convicted felons); Mich. St. U. Coll. Law Animal Legal & Historical Center, Dog-Fighting Database: Criminal Profile of the Urban Dog-Fighter, (URL removed for reprint) (collecting data “of known and suspected dog-fighters in a smaller urban community” to show the “criminal propensity of dog-fighters”). 51 See Dog-Fighting Raids, supra note 40, at 2-4 (collecting data showing “peripheral criminal activity” at various dogfighting raids in several states). 52 Elton Gallegly, Press Release, Gallegly & Blumenauer Introduce Federal Dog Protection Act, Aug. 3, 2007. 53

See, e.g., SEMENCIC, supra note 32, at 269-70 (“What an average person doesn't realize about fighting dogs is that no one forces them to fight; they enjoy it! There is no fun for a good fighting dog like rolling it out with a capable opponent. Anyone who has ever seen a game pit dog face another dog will realize that the pit dog needs no coaxing in order to be willing to attack.”); STRATTON, supra note 39, at 195 (stating that “the cur (i.e., non-Pit Bull) fights out of fear or for dominance, while a Pit Bull fights for the sheer enjoyment of it”). 54 See MITCHELL JONES, THE DOGS OF CAPITALISM, BOOK 1: ORIGINS 26263 (1988) (describing how dogs are encouraged to return to a fight--i.e., scratch--after it has turned from an opponent or cried out); Drew Jubera, Dogfighting: A Shadow World of Bloodlust, ATLANTA J.-CONST., July 20, 2007, at A1 (“The dogs are so exhausted, their mouths wrapped around a part of the other dog, both lying on the floor, breathing super heavy, their lungs about to explode. Their handlers are on the floor with them, pounding on the floor, encouraging them with commands.”). 55 SEMENCIC, supra note 32, at 67-68. 56 Dohrmann, supra note 16, at 44. It is not unknown for a dogfighter to move from one category to another. See, e.g., Mosedale, supra note 15, at 5 (describing a former dogfighter's move from a streetfighter to a professional based on the performance of his Grand Champion dog and his acquisition of a mentor professional). 57 See Loh Harrist, supra note 20. 58 See, e.g., Paul Duggan, A Blood Sport Exposed, Vick's Case Puts Dogfighting Culture in the Spotlight, WASH. POST, Aug. 22, 2007, at A01, available at (URL removed for reprint)ml (stating that a game fighter in its prime could sell for $10,000 or more). 59 See Loh Harrist, supra note 20.

60 Until revealed, the fight location is generally known only to the actual participating dogfighters and the location owner. Secrecy is required to prevent raids by law enforcement. See Evans & Forsyth, supra note 26, at 59-60 (suggesting also that a raid will “push those marginal dogmen and spectators out of the sport” and that, since dogfighting has “such a small fraternity [, it] cannot afford to lose any peers”). 61 Id. at 56; see also Joelton Dog Fighting Bust Gains National Attention, THE CITY PAPER, Oct. 11, 2007, (URL removed for reprint)] (“[S]uburban operations with a dozen or fewer dogs can see tens of thousands of dollars change hands every weekend at fights and nearly $50,000 in annual, untaxed revenue from breeding dogs.”). 62 Loh Harrist, supra note 20. 63 Joelton Dog Fighting, supra note 61. 64 Evans & Forsyth, supra note 26, at 60. 65 See, e.g., HOMAN, supra note 45, at 202-23 (reprinting newspaper articles from the 1800s about dogfights in America). The link between a dog and its owner-trainer or breeder is so close that fighting dogs of superior bloodlines are often known partly by the name of the owner. See, e.g., STAHLKUPPE, supra note 31, at 49; see also HOMAN, supra note 45, at 242-43 (picturing various fighting dogs, including Russell's Tip, O'Donnell's Sean, Hall's Champion Old Swamper, and Snakeman's Pedro Junior). 66 See Loh Harrist, supra note 20 (identifying various dogfighting journals such as the Sporting Dog News, Pit Bull Reporter, and The American Pit Bull Terrier Gazette). 67

See Hanna Gibson, Dog Fighting Detailed Discussion, Animal Legal & Historical Center, (URL removed for reprint) (noting that “cyber-dogmen” websites and message boards appear as legitimate breeding sites and provide disclaimers that the information is provided “for entertainment purposes only”); see also Burke, supra note 41 (noting that dogfighting websites often include notations that dogfighting is not condoned and that descriptions of dogfights are fictional). 68 Burke, supra note 41. 69 Id. (quoting an unnamed pit-bull breeder). 70 See Loh Harrist, supra note 20. 71 Id. 72 Id. 73 Dog Fighting FAQ, supra note 12. 74 Id. 75 See, e.g., Cindy Wolff, Premature Death Is the Fate of Fighting Dogs, MEMPHIS COM. APP., Mar. 29, 1998, at F4. 76 See id. 77 Loh Harrist, supra note 20; see also STAHLKUPPE, supra note 31, at 51 (“Equating the gangs and thugs that fight dogs in alleys and vacant buildings with the true Pit Bull Terrier enthusiasts is like making some connection between a baseball player who earns his living swinging a bat and a mugger who makes his living also swinging a bat.” (quoting an unidentified pit bull terrier breeder)). 78

Jim Nesbitt, Urban Dog Fighters Tough to Track, NEWS & OBSERVER (Raleigh, N.C.), Aug. 12, 2007, at A1; see also Pet Pulse, Trunking: The Hidden World of Dog Fighting, Aug. 26, 2008, (URL removed for reprint). 79 Chuck Amos, Dogfights and the Fight to Stop Them, BALT. DOG MAGAZINE, Winter 2007. 80 As one author explains: Thousands of dollars are often gambled on the results of these pit fights ... by people who care far less about the money involved than they do about the aggression and ability displayed by the dogs in question. There is a vicarious thrill one receives from watching a fighting dog attack its opponent in the face of all odds; for some people, the thrill relieves the frustrations of normal life in a way that no other spectator sport can. SEMENCIC, supra note 32, at 39-40. 81 STAHLKUPPE, supra note 31, at 13 (discussing how streetfighters have bred true American Pit Bull Terriers with other larger aggressive breeds, creating “large and powerful and quite vicious dogs that did share some pit dog genetic heritage”); Gloria Campisi & Leon Taylor, Dogs of Death Where Life's the Pits; Behind Bars, Fighters Face Death Sentences, PHIL. DAILY NEWS, Aug. 8, 1997, at 3 (noting that streetfighters are cross-breeding in an attempt to get more aggressive characteristics and strength, such as mixes between Rottweilers and Shar-Peis). 82 See, e.g., STAHLKUPPE, supra note 31, at 8-9, 13. Interestingly, one scholar notes that “[p]roblems with unstable pit bulls only began surfacing in the 1980s,” suggesting “something other than genetics--perhaps human influence-is at work.” Medlin, supra note 12, at 1295. This modification of the traditional pit bull might be attributable to the increased association of pit bulls and gangs because, according to one report, it was during that time period that pit bulls became popular with gangs. See Julie Sullivan, Pit Bulls: A Popular Pariah, OREGONIAN, Aug. 29, 2004, at A01.

Tales of pit bull attacks on humans, especially children, have resulted in some towns and cities banning the breed from their jurisdictions. See, e.g., Medlin, supra note 12, at 1290 (noting that as many as 200 counties in the United States and several large cities have banned pit bulls). This move for breed-specific legislation is vigorously disputed in many areas, and many jurisdictions have rejected the legislation because of constitutional issues, future enforcement problems, and objection from the community. See, e.g., Hussain, supra note 30, at 2859-68. 83 Strat Douthat, Pit Bulls Becoming the Weapon of Choice for Inner-City Gangs, HOUS. CHRON., Nov. 13, 1994, at A9. 84 Kathleen Parrish, Dogfighting: Underground Epidemic Difficult to Stop: Forty Thousand in Nation Train Canines in Illegal Blood Sport, Police Hampered by Weak Laws, MORNING CALL, May 14, 2006 (quoting John Goodwin of HSUS). 85 See, e.g., Lynn Anderson, Putting a Leash on Dogfighting in Underworld of Drugs and Violence, Pit Bulls Can Be as Menacing as Those Who Own Them, BALT. SUN, Aug. 26, 2007, at 1A (noting that 45 tubes of cocaine were discovered inside a flashlight and kept near the dogs outside). 86 See, e.g., Amanda Iacone, Drug House Keepers Add Teeth, Dogs Deter Rival Dealers and Hinder Police, Officers Say, FORT WAYNE J. GAZETTE, July 31, 2005, at 1C (stating that officers in Fort Wayne encounter dogs in at least twothirds of police raids and that shooting aggressive dogs is more commonplace). 87 John Simerman, Dogfighting Crosses Economic and Cultural Divisions, ALAMEDA TIMES-STAR, Aug. 27, 2007. 88 See id. 89

Ben Schmitt, Contests of Cruelty, DETROIT FREE PRESS, Sept. 7, 2007 (noting that U.S. mail service was halted for almost two months because daytime dogfights occurred two to three times a week in the neighborhood). 90 Sullivan, supra note 82, at A01. 91 Agustina Guerrero, Police Say Dogfights Becoming Gang Game, Bouts Increasing All Over Chicago, CHI. TRIB., July 29, 2001, at 1 (quoting Chicago Police Sergeant Steve Brownstein). 92 See, e.g., Burke, supra note 41; Kevin Van Valkenburg, Dogfight Fans Aren't So Easy to Categorize, Experts Say Interest Tends to Cross Lines of Race, Geography, BALT. SUN, July 29, 2007, at 1D. 93 See, e.g., SMOKEY D. FONTAINE, E.A.R.L.: THE AUTOBIOGRAPHY OF DMX 167-71 (2002) (discussing how DMX would fight his dog, Boomer, against cats, raccoons, and other dogs). 94 DMX, Dog Intro, on GRAND CHAMP (Def Jam 2003) (“I don't really trust humans that much these days/****, fact of the matter is, I trust dogs more than I trust humans/****, nothin' like that dog love I tell you/Not just any dog, gotta be a pit bull/Yep, that's the only dog for me/You don't wanna get caught in a pit with one a them boy/They make good companions, but even worse enemies/It's all on how you take it.”). Other entertainers who have used pit bulls in their work include Missy Elliott, who features pit bulls on her CD “This Is Not a Test,” and Jay-Z, who features in his video “99 Problems” dogs in a pit with spectators nearby. See Burke, supra note 41. 95 HSUS, DMX's Pit Bulls Seized, Aug. 31, 2007, (URL removed for reprint)96 See Van Valkenburg, supra note 92, at 1D. 97 Id. 98

Id. (quoting Dr. Marc Lamont Hill); see also Kathy Rudy, Op-Ed., Michael Vick, Dog Fighting and Race, Duke U. Office of News & Comm., Aug. 29, 2007, (URL removed for reprint) (“I am not saying dog fighting is acceptable, but rather that Vick should be publicly criticized for that activity, not for his participation in hip-hop subculture. Whether or not dogs are fought more by minorities than white people is actually unknown, but the media representations of the last several weeks make it appear that black culture and dog fighting are inextricably intertwined. We need to find ways to condemn dog fighting without denigrating black culture with it.”). 99 The ASPCA notes that its founder, Henry Bergh, wrote the first known animal fighting law in 1867 for New York. Although restrictions in Washington, D.C. and California can be traced back to 1892 and 1905, respectively, the ASPCA notes that most states enacted dogfighting laws in the 1980s. Dog Fighting FAQ, supra note 12. 100 Animal Welfare Act Amendments of 1976, Pub. L. No. 94-279, § 17, 90 Stat. 421. 101 Farm Security & Rural Investment Act of 2002, Pub. L. No. 107-171, tit. X, §§ 10302(a), 10303(a), 116 Stat. 491, 492. 102 Pub. L. No. 110-22, § 3, 121 Stat. 88 (2007). 103 7 U.S.C. § 2156(a)(1) (2006). 104 Id. § 2156(a)(2). This provision was necessary at one time when cockfighting was still legal in a number of states; however, all fifty states and the District of Columbia now have cockfighting statutes in place. Louisiana became the last state to ban the activity when it enacted its cockfighting statute, effective August 2008. Russell McCulley, Louisiana to Be Last State to Ban Cockfighting, Reuters, June 28, 2007, (URL removed for reprint). For a list of state cockfighting laws, see HSUS, State Cockfighting Laws, May 2009, (URL removed for reprint). 105

7 U.S.C. § 2156(g) (2006). 106 Id. § 2156(b). 107 Id. § 2156(c). 108 See Animal Welfare Act Amendments of 1976, Pub. L. No. 94-279, § 17, 90 Stat. 421. 109 See Farm Security & Rural Investment Act of 2002, Pub. L. No. 107-171, tit. X, § 10303(a)(1), 116 Stat. 491, 492. 110 See Animal Fighting Prohibition Enforcement Act of 2007, Pub. L. No. 110-22, § 3(3), 121 Stat. 88. 111 H.R. REP. NO. 110-27(I), at 2 (2007), reprinted in 2007 U.S.C.C.A.N. 37, 38. 112 See Michael Markarian, Op-Ed., Putting More Bite into Animal-Cruelty Legislation, N.J. RECORD, Aug. 29, 2007, at L09. 113 Id. 114 Lynn Westmoreland, Editorial, Dogfighting Penalty Best Handled by States, ATLANTA J.-CONST., at A15. 115 Scott Garrett, Editorial, Why I Voted Against the Federal Dog-Fighting Law, N.J. RECORD, Sept. 4, 2007, at L07 (“My vote was to stop federal law enforcement from further creeping into state criminal statutes. Regrettably, with each passing year, Congress seems to expand the reach of federal law, overlapping significantly with state law in ways that diminish our ability to marshal federal resources to fight criminal activity. When we allow federal law enforcement to pursue federal crimes and state law enforcement to pursue state crimes, we can take a bigger bite out of crime overall.”). 116

See Federal Dog Protection Act, H.R. 3327, 110th Cong. § 2 (2007); Dog Fighting Prohibition Act, H.R. 3219, 110th Cong. § 2 (2007). 117 See Federal Dog Protection Act, H.R. 3327, 110th Cong. § 2 (2007). The extension of the ban on the use of the mails would, for example, cover dogfighting paraphernalia (e.g., training tools, videos, and magazines). 118 Note, however, that criminalization of dogfighting--that is, fighting between one or more dogs--does not mean that other activities involving a fighting dog are prohibited. For example, some states still allow fights between dogs and feral hogs, although several states have moved to ban this type of activity. See Mark Davis, Hog-Dog Events Stir Controversy, ATLANTA J.-CONST., July 30, 2006, at C1 (noting that all Southern states, except Georgia, have banned hogdog fighting). 119 See HSUS, Fact Sheet: Dogfighting State Laws, Sept. 2009, (URL removed for reprint) (hereinafter Ranking of State Dogfighting Laws) (comparing the penalties of the dogfighting laws of each state). 120 N.C. GEN. STAT. §§ 14-362.2, 15A-1340.17(c) (2006). 121 See ALA. CODE §§ 3-1-29(a)-(b), 13A-5-6 (2005); LA. REV. STAT. ANN. § 14:102.5(A)(1), (C) (2004); OKLA. STAT. ANN. tit. 21, § 1694, 1699.1(A) (West 2002). Note, however, that the penalties in each of these states range from one to ten years. Most states provide for a maximum of five years. See Ranking of State Dogfighting Laws, supra note 119. 122 See ARIZ. REV. STAT. ANN. §§ 13-801(A), 13-2910.01(B) (2001); KAN. STAT. ANN. §§ 21-4315, 21-4503a(a)(3) (1995); OR. REV. STAT. ANN. §§ 161.625(1)(d), 167.365(2) (West 2005). 123 Possession of fighting dogs is a misdemeanor in New York, Texas, and West Virginia. N.Y. AGRIC. & MKTS. LAW § 351(3) (McKinney Supp. 2007); TEX. PENAL CODE ANN. § 42.10(a)(5), (e) (Vernon 2003); W. VA. CODE ANN. § 61-8-

19(a) (Lexis Nexis 2005); see also 2009 Nevada Assembly Bill No. 199, 75th Reg. Sess. (May 22, 2009) (adding NEV. REV. STAT. ANN. § 574.070(2), which makes possession of a fighting dog a felony only upon conviction of a second or subsequent offense). 124 See N.Y. AG. & MKTS. LAW § 351(3) (McKinney Supp. 2007) (one year and $15,000); W. VA. CODE ANN. § 61-8-19(a) (Lexis Nexis 2005) (six months and $300). 125 See Ranking of State Dogfighting Laws, supra note 119. Bills to create spectator provisions were introduced in the 2009 legislative session for both Hawaii and Montana, but none were passed before the close of the regular sessions. See H.B. 730/S.B. 763, 25th Leg. Reg. Sess. (Haw. 2009); H.B. 349, 61st Leg., Reg. Sess. (Mont. 2009). Spectator provisions in animal fighting statutes in a number of states have been upheld despite constitutional attack. See, e.g., Gonzalez v. State, 941 So.2d 1226 (Fla. App. 2006); People v. Cumper, 268 N.W.2d 696 (Mich. 1978); State v. Arnold, 557 S.E.2d 119 (N.C. App. 2001); Commonwealth v. Craven, 817 A.2d 451 (Pa. 2003); State v. Tabor, 678 S.W.2d 45 (Tenn. 1984). 126 See ALA. CODE § 3-1-29(b) (1996); ARIZ. REV. STAT. ANN. § 13-2910.02 (2001); COLO. REV. STAT. ANN. § 18-9-204(1)(b)(I), (2) (West 2004); CONN. GEN. STAT. ANN. § 53-247(c) (West 2007); DEL. CODE ANN. tit. 11, § 1326(b) (2001); D.C. CODE § 22-1015(b) (Supp. 2007); FLA. STAT. ANN. § 828.122(3)(h) (2006); GA. CODE ANN. § 16-12-37(c) (2007); LA. REV. STAT. ANN. § 14:102.5(A) (6), (C) (2004); MASS. GEN. LAWS ANN. ch. 272, § 95 (West Supp. 2007); MICH. COMP. LAWS ANN. § 750.49(2)(f), (4) (West Supp. 2007); MISS. CODE ANN. § 97-41-19(2) (2006); NEB. REV. STAT. § 28-1005(3) (2003); N.H. STAT. ANN. § 644:8-a(II) (West 2007); N.J. STAT. ANN. § 4:22-24(b) (West 1998); N.M. STAT. § 30-18-9(A)(1), (C) (2004); N.C. GEN. STAT. § 14-362.2(c) (Supp. 2006); OHIO REV. CODE ANN. §§ 959.16(A)(5)-(6), 959.99(H) (Lexis 1988); OR. REV. STAT. ANN. § 167.370 (2005); 18 PA. CONS. STAT. § 5511(h.1)(6) (West Supp. 2007); R.I. GEN. LAWS. § 4-1-11 (1998); VT. STAT. ANN. tit. 13, §§ 352(6), 353(a)(3)

(1998); VA. CODE ANN. § 3.2-6571(A)(2), (B)(1) (Supp. 2007); WASH. REV. CODE ANN. § 16.52.117(1)(b), (2) (West Supp. 2007). 127 See 720 ILL. COMP. STAT. ANN. § 5/26-5(g), (i)(3) (West Supp. 2007) (second offense); IOWA CODE ANN. §§ 717D.2(10), 717D.4(2) (West Supp. 2007) (second offense); NEV. REV. STAT. ANN. § 574.070(2), (4) (West 2004) (third offense); S.C. CODE ANN. § 16-27-40(b) (2003) (third offense). 128 See ALASKA STAT. § 11.61.145(a)(3), (d)(2) (2006); ARK. CODE ANN. § 5-62120(b) (2005); CAL. PENAL CODE § 597.5(b) (West 1999); IND. CODE ANN. § 35-46-3-10 (West 2004); KAN. STAT. ANN. § 21-4315(c) (1995); KY. REV. STAT. ANN. § 525.130(1)(a), (4) (Lexis Nexis 1999); ME. REV. STAT. ANN. tit. 17, § 1033(2)-(2-A) (2006); MD. CODE ANN., CRIM. LAW § 10-605(a), (c)(1) (Lexis Nexis Supp. 2006); MINN. STAT. ANN. § 343.31, subd. 1 (West Supp. 2007); MO. ANN. STAT. § 578.025(2) (West 2003); N.Y. AGRIC. & MKTS. LAW § 351(4) (McKinney Supp. 2007); N.D. CENT. CODE. § 36-21.1-07(2) (2004); OKLA. STAT. ANN. tit. 21, § 1698 (West 2002); S.D. CODIFIED LAWS § 40-1-9 (2004); TENN. CODE ANN. § 39-14-203(a)(4), (d) (2006); TEX. PENAL CODE ANN. § 42.10(a) (6), (e) (Vernon 2003); UTAH CODE ANN. § 76-9-301.1(4) (2003); W. VA. CODE ANN. § 61-8-19b (Lexis Nexis 2005); WIS. STAT. ANN. § 951.08(3) (West 2005); WYO. STAT. ANN. § 6-3-203(g) (2007). 129 See ALASKA STAT. §§ 11.61.145(a)(3), (d)(2), 12.55.035(b)(7) (2006). 130 See, e.g., Joey Bunch, Prosecution of Dogfighting Cases Is Kept on Short Leash Despite the Blood Sport's Suspected Popularity in the West, DENVER POST, July 30, 2007, at B01 (reporting that “dogfighting cases are timeconsuming and expensive, and tend to slip down the priority list because the cases rarely result in punishment that would deter the activity”); Jack Leonard, Putting the Hurt on Pet Abusers, L.A. TIMES, Feb. 8, 2009, at A1 (reporting that the defendant spent only one day in jail for his first dogfighting conviction, spent twenty-three days for his second conviction, and was sentenced to five years on his third conviction). 131

Prosecution rates of animal cruelty and other crimes may be rising, however, in jurisdictions where such cases are assigned to permanent animal cruelty prosecutors rather than to prosecutors on a rotating basis. See Allie Phillips, The Few and the Proud: Prosecutors Who Vigorously Pursue Animal Cruelty Cases, PROSECUTOR, July-Sept. 2008, at 20; see also infra note 332 and accompanying text (recommending designation of dedicated animal cruelty prosecutors). 132 See Jennifer H. Rackstraw, Reaching for Justice: An Analysis of Self-Help Prosecution for Animal Crimes, 9 A