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 ANIMAL L. 243, 246 (2003) (describing various studies showing a prosecution rate of three percent or less); see also Arnold Arluke & Carter Luke, Physical Cruelty Toward Animals in Massachusetts, 19751996, 5 SOC'Y & ANIMALS 195, 200 (1997) (examining cases investigated over a 21-year period by the Massachusetts Society for the Prevention of Cruelty to Animals and finding that only 0.3 percent of the cases investigated were prosecuted). 133 See AM. PROSECUTORS RES. INST., OFF. OF JUV. JUST. & DELINQ. PROTECTION, ANIMAL CRUELTY PROSECUTION: OPPORTUNITIES FOR EARLY RESPONSE TO CRIME AND INTERPERSONAL VIOLENCE 9 (2006), available at (URL removed for reprint) noting that 67% of 1,031 representative households asked “how important is it to you that animals are protected from cruelty and abuse” responded “very important”). 134 See supra text accompanying notes 118-129. 135 Mann, supra note 13 (quoting Rep. Steve King). 136 For a discussion of the view that animals are property, see generally Elizabeth L. DeCoux, Pretenders to the Throne: A First Amendment Analysis of the Property Status of Animals, 18 FORDHAM ENVTL. L. REV. 185 (2007); Darian M. Ibrahim, A Return to Descartes: Property, Profit, and the Corporate Ownership of Animals, 70 LAW & CONTEMP. PROBS. 89 (2007). 137

See Rebecca J. Huss, Valuing Man's and Woman's Best Friend: The Moral and Legal Status of Companion Animals, 86 MARQ. L. REV. 47, 93-97 (2002). 138 See Kara Gerwin, There's (Almost) No Place Like Home: Kansas Remains in the Minority on Protecting Animals from Cruelty, 15 KAN. J.L. & PUB. POL'Y 125, 130 (2005) (indicating that, in valuing loss, jurors may consider the purchase price of the animal, life expectancy, special training, veterinary expenses, and, in the case of show animals, future earnings). 139 See id. at 129 (discussing the inconsistency of law enforcement in relation to animal abuse laws); Rackstraw, supra note 132, at 249-50 (analyzing the prosecutorial process and noting how the thoroughness of investigation will impact whether prosecution is pursued); see also Loh Harrist, supra note 20 (indicating that at least one animal activist in New Orleans “thinks the cops don't take dogfighting seriously”). 140 See Gerwin, supra note 138, at 129; Corwin R. Kruse, Baby Steps: Minnesota Raises Certain Forms of Animal Cruelty to Felony Status, 28 WM. MITCHELL L. REV. 1649, 1678 (2002); Rackstraw, supra note 132, at 250-51; see also George Dohrmann, Complex Case: Answering Questions about Vick, Alleged Dogfighting, SI.com, May 31, 2007, (noting how prosecutors might be influenced by politics and explaining how the state prosecutor for the Vick case had previously chosen not to prosecute a defendant, even though the investigation ran for months, animal control had seized thirty-three dogs and a variety of training equipment from the suspect, and animal control officials indicated that the suspect was a “well-known dogfighter”). In addition to a perceived lower value to prosecuting animal crimes, according to one scholar, other rationalizations for the low prosecutorial rate for animal abuse include: 1) the fact that legislative “overcriminalization” makes certain actions criminal, in contrast to modern societal tolerances; 2) the belief that discretion is necessary to best utilize limited public resources; 3) the perceived need to individualize justice for particular perpetrators; 4) the fact that a victim has expressed a desire that the perpetrator not be prosecuted; 5) the desire to not unduly harm an individual or her reputation for various inconsequential

crimes; 6) the fact that an offender could help with the prosecution of another crime; and 7) the fact that the harm resulting from the crime can be corrected by the offender without resorting to prosecution. Rackstraw, supra note 132, at 250 (citations omitted). Because of the low prosecutorial rate, some scholars advocate the use of self-help prosecution, in which citizens draw attention to the lack of prosecution in a particular case to force prosecution. See, e.g., id. at 245; see also Gerwin, supra note 138, at 12930. 141 See Gerwin, supra note 138, at 130-31 (arguing that some jurors may issue low animal abuse penalties because animals are considered property under the law); Kruse, supra note 140, at 1679 (suggesting that judges in rural areas seem “especially prone” to lack concern for animal abuse issues because “hunting, trapping, and home slaughtering” are so common). 142 See, e.g., Frias, supra note 9 (indicating that two Palm Beach County Sherriff's deputies were arrested at a dogfight and were later found discarding a dying pit bull); Bill McKelway, Deputy in Dog Fighting Case Fired: Richmond Sheriff's Employee Dismissed After Probe Findings, RICHMOND TIMESDISPATCHHH, Apr. 30, 2009, at B06 (reporting the dismissal of a deputy sheriff after he was charged with animal cruelty and dogfighting); Six Arrested in N.O. for Dog Fighting, BATON ROUGE ADVOC., Feb. 18, 2004, at 5 (hereinafter Six Arrested) (noting that a sheriff's deputy was suspended without pay and arrested along with six other people for dogfighting). 143 See supra text accompanying note 39. 144 See Loh Harrist, supra note 20 (“These days, dogfighters will tell you it's no big deal to see off-duty police officers and sheriff's deputies at illicit dogfights-a presence that's welcome since they can warn the crowd of approaching cops or possible raids. Some dogfighters rattle off the names of top state and city politicians they claim to have seen at dogfights.”); Six Arrested, supra note 142 (noting that a sheriff's deputy told others to flee the scene as police officers arrived at a dogfight).

145 Brett Nauman, Trained to Kill: Animal Cruelty Investigators Say More Dogs Forced into Blood Sport of Fighting, PANTAGRAPH, July 6, 2006, at A1 (noting that a cruelty investigator in the Chicago area indicated that he has “often run into county sheriffs who don't consider dog fighting a crime and look the other way”). 146 See Randall Lockwood, Humane Concerns about Dangerous-Dog Laws, 13 U. DAYTON L. REV. 267, 271 (1988); Hussain, supra note 30, at 2875. 147 See Liz Austin Peterson, Animal Control Urges Law Change, HOUS. CHRON., July 30, 2008, at B1; Aline McKenzie, Never Straying from Duty, DALLAS MORNING NEWS, Oct. 7, 1998, at 1A. 148 Kevin Krause & Mel Melendez, Dog Fights Drawing Deputies' Attention, South Florida Authorities Are Talking About Joining Forces to Build Cases on Fights, Drugs and Guns, STUART NEWS, Oct. 9, 2000, at A1. 149 See Gerwin, supra note 138, at 129; Hohmann, supra note 18. 150 Cf. Pet-Abuse.com, Dog-fighting--3 Dogs Seized; Case Updates, Aug. 13, 2007, (URL removed for reprint). 151 ASPCA, Dr. Melinda Merck, ASPCA Forensic Veterinarian, (URL removed for reprint) (last visited Jan. 10, 2010). 152 See Gerwin, supra note 138, at 129. 153 See id. 154 See id. 155 Cf. Amos, supra note 79 (discussing the costs and limitations that local agencies encounter when investigating dogfighting).

156 See, e.g., Rex Bowman, Agents Say Site Was Pit Bull “Boot Camp,” RICHMOND TIMES-DISPATCH, Apr. 13, 2000, at B1 (noting a sheriff's concern that ninety different cages would be required if the pit bulls were taken from the location at which they were found). Some shelters have created a type of security kennel, which secures dangerous dogs from the regular dog population. See, e.g., Dana DiFilippo, S Kennel: Danger Zone, Illegal Dogfighting in Phila. Leads to Heightened Security at PSPCA in Juniata, PHILA. DAILY NEWS, Oct. 1, 2007, at 7. 157 See, e.g., DiFilippo, supra note 156, at 7 (noting that, in 2006, of the almost 9,000 dogs that were taken in by one of Philadelphia's animal shelters, 60% were pit bull mixes and 4,700 were euthanized). 158 See, e.g., COLO. REV. STAT. ANN. § 18-9-202.5(1)(a) (West 2004); FLA. STAT. ANN. § 828.122(6) (2006). 159 Professional dogmen tend to provide basic veterinary care to their animals to protect their investment, so dogs reflecting poor general health (notwithstanding injuries) generally come from streetfighting backgrounds. See Carrie Allan, Dog Fighting Investigations: Where We Stand, ANIMAL SHELTERING, July-Aug. 2006, at 20, 33, available at (URL removed for reprint) Although unsubstantiated, some dogfighters have also been rumored to feed their dogs gunpowder to increase their viciousness. See, e.g., Leonard Doyle, Fighting Dogs Taken from Gridiron Star's Kennels Face Death, U.K. INDEP., Aug. 24, 2007 (alleging that urban pit bull owners “turn the animals vicious by whipping them, burning them with cigarettes and putting gunpowder and jalapeno in their food”); Tom Droege, Canine Controversy: Breed Lovers Want to Keep Pets, TULSA WORLD, Feb. 12, 2006, at A1. 160 See Allan, supra note 159, at 34. 161 Id. To relieve the fighting dogs' boredom, some shelters have provided them indestructible toys for enrichment, such as bowling balls and kibble frozen

inside blocks of ice. See HSUS, Fighting Takes Toll on Shelters, July 24, 2007, (URL removed for reprint)ml. 162 See Karen Snelling, Pit Bulls Relocated After Break-In Try, MERRILLVILLE POST-TRIB., June 11, 2006, at A1. 163 See id. 164 See Evans & Forsyth, supra note 26, at 59. 165 See id. 166 See DiFilippo, supra note 156, at 7. 167 Dohrmann, supra note 16, at 44. 168 See Nauman, supra note 145. 169 See Nesbitt, supra note 78; Steve Rock, Dog Fighting: Is Increase in Pit Bull Bites Linked to a Rise in Fights?, KANSAS CITY STAR, July 16, 2006; Ishmael Tate, Dogfights Persist Despite Crackdown, COLUMBIA STATE, July 20, 2007, at A9. 170 Cf. Nesbitt, supra note 78 (stating that hunting streetfighters is “hazardous duty” for unarmed animal control officers and noting that one officer was threatened with a box cutter, another with a golf club, and many had been “cussed out and threatened”). 171 Bryan Denson & David Austin, Brutal Pit Bull Fighting Persists Even in DogFriendly Oregon, OREGONIAN, Aug. 19, 2007, at C01; Alan Judd, Dogfighting in Georgia: A Blood Sport Raid Focuses Spotlight on Dark, Gory Tradition, ATLANTA J.-CONST., Dec. 19, 1999, at D7. 172

Judd, supra note 171 (quoting Lt. Larry Gibson, Clayton County Police Department). 173 The fear of retaliation may not be as grounded in fact as it is in people's minds. Investigators of gang-related crimes in Ventura County, California, for example, “estimate roughly half of non-gang witnesses are influenced by fear, ... yet gang assaults on ordinary citizens who work with police are few and far between.” Adam Foxman, Police Say Gangs' Reputations Silence Would-Be Tipsters: Fear Thwarts Investigations, VENTURA COUNTY STAR, Feb. 15, 2009. 174 CAL. PENAL CODE § 597.5(a)(2) (West 2009). 175 Id. § 597.5(a)(1). 176 See Nesbitt, supra note 78; see also Dohrmann, supra note 16 (indicating that evidence of dogfighting in the Michael Vick case included a scale, treadmills, a rape stand, syringes, and injectable diuretics and nutrition supplements for dogs); Cynthia Hubert, Stakes Grow in Vicious Underworld of Dogfighting, SACRAMENTO BEE, Jan. 10, 1999, at A1 (noting that, in uncovering a dogfighting operation in California, investigators found fifty-five scarred pit bulls, treadmills, chains, breaking sticks, weights, a fighting pit, blood spatters where dogs were fought, dogfighting rules, schedules and journals, and championship certificates). 177 See, e.g., Jones v. State, 473 So. 2d 1197, 1201 (Ala. Crim. App. 1985) (reviewing challenge that veterinarian's testimony regarding dog's condition was not relevant to appellant's intent to fight dogs and was merely provided to inflame the passion of the jury). 178 See, e.g., Davis v. State, 907 N.E.2d 1043, 1055-56 (Ind. Ct. App. 2009) (finding that a receipt for trophies and a handwritten paper titled “April Show 2004” were inadmissible where defendant was charged with crime in 2006, but finding that error from introduction was harmless due to other overwhelming evidence against defendant).

179 See, e.g., Fuller v. State, 674 N.E.2d 576, 578-79 (Ind. Ct. App. 1996) (reviewing appellant's claim that evidence was insufficient to sustain convictions for promoting a dogfight and using a dog in a fighting contest). 180 Michael Perlstein, Fighting Back, NEW ORLEANS TIMES PICAYUNE, May 29, 2005, at 1. The Boudreaux bloodline may have gone back 200 years. See Jason Brown, Judge Acquits Man, Son, Decision: State Lacked Evidence of Men's Dogfighting, BATON ROUGE ADVOCATE, Oct. 16, 2008, at B1. 181 Perlstein, supra note 180. 182 Duggan, supra note 58; HSUS, Dogfighting Kingpin Toppled in Louisiana Raid, Mar. 23, 2005, (URL removed for reprint)Boudreaux's reputation was so legendary that a website created to solicit funds for his defense after he was arrested pulled in even international donations. Perlstein, supra note 180. 183 Perlstein, supra note 180; Aaron Kuriloff, U.S. Dogfighting's Bayou Swagger Gains Urban Cool (Update 1), Bloomberg.com, Aug. 22, 2007, (URL removed for reprint)184 See Perlstein supra note 180; Dogfighting Kingpin, supra note 182. The Boudreauxs' defense attorney suggested that the state's real purpose was to seize the dogs and terminate the bloodlines. See Brown, supra note 180. 185 See Perlstein supra note 180; Jason Brown, Dogfighting Trial Starts, Judge Trying Father, Son, BATON ROUGE ADVOCATE, Oct. 14, 2008, at B1. 186 Brown, supra note 185. 187 Perlstein, supra note 180. 188 Brown, supra note 185. 189 LA. REV. STAT. ANN. § 14:102.5(A)(7)(a) (2009).

190 Jason Brown, State Trooper Takes Stand in Dogfighting Trial of Father, Son, BATON ROUGE ADVOC., Oct. 15, 2008, at B1. 191 Id. 192 Brown, supra note 180. 193 Id. 194 Id. 195 Id. 196 Id. 197 Dogfighting Kingpin, supra note 182. 198 Perlstein, supra note 180 (quoting Kathryn Destreza, director of animal services for the SPCA). 199 Cf. Loh Harrist, supra note 20 (comparing conditions of two dogmen in New Orleans). 200 See, e.g., Connie Baggett, Pit Bulls Destroyed, MOBILE REG., Apr. 13, 2005, at A1 (noting that most of twenty-six pit bulls “stood exposed to the elements, tethered by logging chains to stakes” and that “[t]he animals were forced to lie in their own excrement, mud and rainwater with only sparse dog food and spoiled milk to eat” and with most having no water); Don Plummer, Two Charged Over Fighting Dogs in Cobb, Third Arrest Made for Gun, ATLANTA J.CONST..., Jan. 28, 2006, at E2 (noting that fifteen pit bulls were found with no food or water, indicating that one dog had eaten “dirt and rocks” and the only water available had been rainwater). 201

A Fighting Dog's Life: How Illegal Dogfighting Has Stigmatized a Breed Once Considered the All-American Pet, METROLAND, Nov. 8, 2001, at 10 (noting that, because dogfighters do not want to get caught, they keep their dogs “locked up in crates or cages, train them in dank basements and abandoned buildings, and don't generally take them out where they can be viewed-wounds, scars, poorly cropped ears and all--by suspicious neighbors”). 202 Dogmen often provide their own care for dogs injured in a fight because of the fear that veterinarians will report the fight to authorities. See Loh Harrist, supra note 20 (noting that the dogmen “suture wounds and treat infections and illnesses themselves, trading often-erroneous medical advice with their peers”). 203 See Dog Fighting FAQ, supra note 12; see also Guerrero, supra note 91 (noting that “dogs that lose fights are often shot, set on fire or left to starve in vacant buildings”); Vick Indictment, supra note 3, at 6, 12, 14, 17 (describing executions of dogs by shooting, drowning, electrocution, and being slammed to the ground). 204 See, e.g., ALA. CODE § 13A-11-241(b) (2005); ALASKA STAT. § 3.55.100 (2006); ARIZ. REV. STAT. ANN. § 13-2910 (2001); ARK. CODE ANN. § 5-62-101 (2005); CAL. PENAL CODE §§ 597.1, 597a (West 1999); COLO. REV. STAT. ANN. § 18-9-202(a) (West 2004); CONN. GEN. STAT. ANN. § 53-247(a) (West 2007); DEL. CODE ANN. tit. 11, § 1325(a) (2001); D.C. CODE § 22-1001(a) (Supp. 2007); FLA. STAT. ANN. § 828.12(a) (2006); GA. CODE ANN. § 16-12-4(a)(3), (b) (2007); HAW. REV. STAT. §§ 711-1100, 711-1109 (2007); IDAHO CODE ANN. §§ 253502(5)(b), 25-3504 (2000); 510 ILL. COMP. STAT. ANN. § 70/3 (West Supp. 2007); IND. CODE ANN. § 35-46-3-7 (West 2004); IOWA CODE ANN. § 717B.3(1) (West Supp. 2007); KAN. STAT. ANN. § 21-4310(a)(3) (1995); KY. REV. STAT. ANN. § 525.130(1)(a) (Lexis Nexis 1999); LA. REV. STAT. ANN. § 14:102.1(A)(1) (c) (2004); ME. REV. STAT. ANN. tit. 17, § 1035 (2006); MD. CODE ANN., CRIM. § 10-604(a)(5) (Lexis Nexis Supp. 2006); MASS. GEN. LAWS ANN. ch. 272, § 77 (West Supp. 2007); MICH. COMP. LAWS ANN. § 50(1)(a), (2)(a) (West Supp. 2007); MINN. STAT. ANN. § 343.21, subd. 2 (West Supp. 2007); MISS. CODE ANN. §§ 97-41-1, 97-41-7 (2006); MO. ANN. STAT. §§ 578.005(a)(1), 578.009(1)

(West 2003); MONT. CODE ANN. § 45-8-211(1)(c) (2007); NEB. REV. STAT. §§ 28-1008, 28-1009(a) (2003); NEV. REV. STAT. ANN. § 574.100(1)(b) (West 2004); N.H. STAT. ANN. § 644:8(III)(a) (West 2007); N.M. STAT. § 30-18-1(B)(2) (2004); N.Y. AGRIC. & MKTS. LAW § 353 (McKinney Supp. 2007); N.C. GEN. STAT. § 14360(a) (Supp. 2006); N.D. CENT. CODE. § 36-21.1-02(2) (2004); OHIO REV. CODE ANN. § 959.13(A)(1) (Lexis 1988); OKLA. STAT. ANN. tit. 21, § 1685 (West 2002); OR. REV. STAT. ANN. §§ 167.325(1), 167.330(1) (2005); 18 PA. CONS. STAT. § 5511(c)(1) (West Supp. 2007); R.I. GEN. LAWS. § 4-1-2(A) (1998); S.C. CODE ANN. § 47-1-40(A) (2003); S.D. CODIFIED LAWS §§ 40-1-2.3, 40-1-2.4, 40-1-27 (2004); TENN. CODE ANN. § 39-14-202 (2006); TEX. PENAL CODE ANN. § 42.09(a)(2) (Vernon 2003); UTAH CODE ANN. § 76-9-301(1)(a) (2003); VT. STAT. ANN. tit. 13, § 352(4) (1998); VA. CODE ANN. § 3.1-796.122(A)(ii) (Supp. 2007); WASH. REV. CODE ANN. § 16.52.205(2) (West Supp. 2007); W. VA. CODE ANN. § 61-8-19(a) (Lexis Nexis 2005); WIS. STAT. ANN. § 951.13 (West 2005); WYO. STAT. ANN. § 6-3-203(b) (2007). 205 COLO. REV. STAT. ANN. § 18-9-202(1.5)(a) (West 2009). 206 For example, Arizona prohibits the killing of “any animal under the custody or control of another person without either legal privilege or consent of the owner.” ARIZ. REV. STAT. ANN. § 13-2910(5) (West 2009); see also MO. ANN. STAT. §§ 578.007(6), 578.012(1) (West 2009) (prohibiting the killing of an animal except by the owner, the owner's agent, or the owner's veterinarian at the request of the owner); OHIO REV. CODE ANN. § 959.02 (West 2009) (prohibiting the malicious or willful killing of designated animals without the consent of the owner, except for certain actions by veterinarians); 18 PA. CONS. STAT. ANN. § 5511(a)(1)(i) (West 2009) (prohibiting the killing of an animal owned by another). 207 One dogfight raided in San Francisco, for example, revealed that the participants had brought in a cook for the event who served barbecue chicken, potato salad, soda, and beer. Jeffrey Mize, Dogfighting Ugly Hunt for Blood Money; Seizure of 21 Pit Bulls in Vancouver Shines Light on Issue, COLUMBIAN, Oct. 21, 2004, at A1; see also Burke, supra note 41 (noting that, at

one time, dogfights were a “Saturday ritual,” drawing 50 to 100 people, and regularly included sellers of refreshments like popcorn and chewing gum); Steve Tuttle, A Dogfighting Scandal Dogs an NFL Star, NEWSWEEK, July 30, 2007, at 38 (noting that one location was built specifically for dogfighting, “complete with bleachers and even a concession stand”); Tom Weir, Vick Case Sheds Light on Dark World of Dogfighting, USA TODAY, (URL removed for reprint) (“At some raids where spectators have fled into the woods as police invaded, ... abandoned toddler-sized chairs and nearby milk and cookies suggest some people consider dogfighting family entertainment.”). 208 See Wendy Melillo, Attack Dogs Newest Weapon on Street, SAN FRAN. CHRON., Sept. 18, 1995, at A3 (describing a neighbor's inability to stop three teen-aged youths from using a cat to train pit bulls). 209 See Guerrero, supra note 91; see also Michael Vick Pleads Not Guilty to Dogfighting Charges; How Widespread Is Dogfighting in America?--Part I, CNN NEWS, July 27, 2007 (noting that preliminary indications of the study show that one in five Chicago children in elementary school participated in dogfighting to the extent that they were “getting the dogs, bringing the dogs, and involved in the fights” (quoting Dr. Gene E. Mueller, Anti-Cruelty Society President)). 210 Guerrero, supra note 91 (quoting Dr. Gene E. Mueller, Anti-Cruelty Society President); see also Loh Harrist, supra note 20 (describing the excitement of teenagers as they discuss their enthusiasm for dogfighting). 211 See, e.g., Will Coxwell, The Case for Strengthening Alabama's Animal Cruelty Laws, 29 LAW & PSYCHOL. REV. 187, 188 (2005). 212 Susan Gaertner, Ramsey County Attorney, Address at the 42nd Ann. Crim. Just. Inst.: The Link Between Animal Abuse and a Culture of Violence 8 (Aug. 27, 2007), available at (URL removed for reprint) (emphasis omitted). 213 Interestingly, early eighteenth century woodcuts by William Hogarth entitled “The Four Stages of Cruelty” depict this connection, with the first woodcut

showing a child physically abusing a dog with an arrow, the second showing the same child, now an adult, blinding and maiming a horse that he has overloaded, the third showing the same man killing his mistress, and the fourth depicting the man's hanging. Randall Lockwood, Animal Cruelty and Violence against Humans: Making the Connection, 5 ANIMAL L. 81, 82, 86 (1999). In addition, the Federal Bureau of Investigation has used childhood animal abuse as a predictor since the 1970s. See id. at 82-83. 214 See See Spot Die: The City Needs Teeth in Its Dog Control Laws or Hundreds More Pups Will Perish, SYRACUSE NEW TIMES, Aug. 15, 2001, at 10 (hereinafter See Spot Die); see also Coxwell, supra note 211, at 190 (discussing other studies showing links between animal abuse and violent crimes against humans); Suzanne E. Tallichet & Christopher Hensley, Exploring the Link between Recurrent Acts of Childhood and Adolescent Animal Cruelty and Subsequent Violent Crime, 29 CRIM. JUST. REV. 304 (2004) (showing a link between recurring animal cruelty in childhood and adolescence and violent crime as an adult). For a more complete discussion of the connection between animal abuse and human violence, see Coxwell, supra note 211, at 188-91; Charlotte A. Lacroix, Another Weapon for Combating Family Violence: Prevention of Animal Abuse, 4 ANIMAL L. 1, 8-12 (1998); Lockwood, supra note 213, at 81-87. 215 See, e.g., Arnold Arluke et al., The Relationship of Animal Abuse to Violence and Other Forms of Antisocial Behavior, 14 J. INTERPERSONAL VIOLENCE 963 (1999). 216 See Spot Die, supra note 214. 217 Arluke et al., supra note 215, at 969 (finding that subjects who committed animal abuse were three and a half to four times more likely than the control group to have been arrested for property crimes, drug-related crimes, and disorderly conduct). 218

See LINDA MERZ-PEREZ & KATHLEEN M. HEIDE, ANIMAL CRUELTY: PATHWAY TO VIOLENCE AGAINST PEOPLE 94 (2004). In this study, researchers Merz-Perez and Heide interviewed 45 violent and 45 non-violent offenders at a maximumsecurity prison in Florida in an attempt to measure past cruelty of the offenders to four types of animal populations: wild, farm, pet, and stray animals. The researchers determined that 24% of the violent offenders interviewed committed animal cruelty towards pets, while only 7% of the non-violent offenders committed such acts. Id. at 92. The researchers noted, however, that dogfighting was a “confounding variable” because it was the only type of cruelty to pet animals that was reported by nonviolent offenders and that cultural factors may have played a role. Id. at 95 (noting that the non-violent offenders who engaged in dogfighting were African-Americans from urban areas). 219 See, e.g., FRANK R. ASCIONE, CHILDREN & ANIMALS: EXPLORING THE ROOTS OF KINDNESS & CRUELTY 55 (2005) (“Animals are abused when they are directed to become instruments of aggression. Training dogs to engage in dog fights or using a dog to purposely attack another person essentially converts an animal into a weapon. The animal becomes an extension of the antisocial behavior of its owner.”); Alan R. Felthous & Stephen R. Kellert, Psychosocial Aspects of Selecting Animal Species for Physical Abuse, 32 J. FORENSIC SCIENCES 1713 (1987), reprinted in CRUELTY TO ANIMALS AND INTERPERSONAL VIOLENCE: READINGS IN RESEARCH AND APPLICATION 225, 232 (Randall Lockwood & Frank R. Ascione eds., 1998) (hereinafter CRUELTY TO ANIMALS AND INTERPERSONAL VIOLENCE) (noting that pet dogs were beaten “to foster an aggressive disposition, so they would attack people on command or ferociously battle other dogs”). 220 See, e.g., Stephen R. Kellert & Alan R. Felthous, Childhood Cruelty Toward Animals Among Criminals and Noncriminals, 38 HUMAN RELATIONS 1113 (1985), reprinted in CRUELTY TO ANIMALS AND INTERPERSONAL VIOLENCE, supra note 219, at 194, 204 (“Cruelty to animals was sometimes used to express violent, aggressive behaviors toward other people or animals. For example, cruelty occasionally occurred as a device for instilling violent tendencies in an

animal, or for attacking other animals or people. One subject inflicted extreme pain on his animal to make it ‘mean’; another fed his dog gunpowder so it would be ‘tough’; still another used his dog to attack and kill other animals without provocation.”). 221 Certainly, some activities may fall into the abuse or cruelty category without question. For example, law enforcement easily classified as “major cruelty” an incident where a dog “was allegedly doused with sizzling cooking oil during a brutal dogfight” and burned to such an extent that euthanasia was required. Anderson, supra note 85, at 1A. In addition, some states include dogfighting within the list of actions that can constitute “animal cruelty.” See HAW. REV. STAT. § 711-1109.3 (2007); IND. CODE ANN. § 35-46-3-10 (West 2004); KY. REV. STAT. ANN. § 525.125 (Lexis Nexis 1999); N.D. CENT. CODE. § 36-21.1-07 (2004); UTAH CODE ANN. § 76-9-301(2)(3) (2003). 222 ASCIONE, supra note 219, at 28 (quoting Frank R. Ascione, Children Who Are Cruel to Animals: A Review of Research and Implications for Developmental Psychopathology, 6 ANTHROZOÖS 226 (1993)). 223 See MERZ-PEREZ & HEIDE, supra note 218, at 95 (noting that the three nonviolent offenders who engaged in past dogfighting “described dogfights as a popular neighborhood activity that, despite its illegality, was attended by both adults and children”); cf. ASCIONE, supra note 219, at 28 (noting that societies differ in their views of acceptable animal welfare standards and comparing the distaste that Americans might feel over including bullfighting as an Olympic event with the less controversial reaction that Spaniards would likely feel). 224 Ascione identifies “intention” as requiring an “understanding that one's actions can have effects on others and some level of self control such that an individual is free to choose to act or not act.” ASCIONE, supra note 219, at 29. 225 Anderson, supra note 85, at 1A. 226

Loh Harrist, supra note 20, at 21 (stating that “disturbed youths gravitate toward violently tinged pastimes”). 227 Id. (quoting Professor Ed Foulks). 228 See U.S. Cruelty Laws: Felony vs. Misdemeanor, (URL removed for reprint) (last visited Apr. 3, 2008) (indicating that counseling provisions have been enacted in Alaska, Arkansas, California, Colorado, Connecticut, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Louisiana, Maine, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Ohio, Oregon, Pennsylvania, Rhode Island, Tennessee, Texas, Utah, Vermont, Virginia, Washington, and West Virginia); see also Gerwin, supra note 138, at 138 n.162 and statutes cited therein. 229 See, e.g., MD. CODE ANN., CRIM. LAW § 10-607(b)(2) (Lexis Nexis Supp. 2006) (allowing a court to impose participation in psychological counseling as a condition of sentencing for a dogfighting violation). 230 See, e.g., People v. Jackson, No. 275908, 2008 WL 786526 (Mich. App. Mar. 25, 2008) (finding evidence sufficient to show that defendant contributed to delinquency of a minor, despite his argument that he was retrieving his minor children and did not approve of their presence at the fight, where evidence showed defendant had attended fight for at least ten minutes and that defendant had participated in the fight). 231 For an argument that animal abuse should be permitted as “specific propensity evidence” in domestic and child abuse trials, see Angela Campbell, The Admissibility of Evidence of Animal Abuse in Criminal Trials for Child and Domestic Abuse, 43 B.C. L. REV. 463 (2002). 232 See, e.g., Coxwell, supra note 211, at 189 (“One study, which used a sample of women affiliated with domestic violence agencies that had experienced domestic violence and had children, found that fifty-seven percent of the children in these environments demonstrated acts of cruelty to animals. In a

similar study, [the researcher] surveyed a sample of thirty-eight women in a domestic violence shelter and found that thirty-two percent reported childinflicted animal cruelty in the family.”); see also Frank R. Ascione, Claudia V. Weber & David S. Wood, The Abuse of Animals and Domestic Violence: A National Survey of Shelters for Women Who Are Battered, 5 SOC'Y & ANIMALS 3 (1997), available at (URL removed for reprint) (discussing the connection between animal abuse and women and children who seek protection in shelters); Lacroix, supra note 214, at 10 (discussing results of various studies); Catherine Simmons & Peter Lehmann, Exploring the Link between Pet Abuse and Controlling Behaviors in Violent Relationships, 22 J. INTERPERSONAL VIOLENCE 1211 (2007) (discussing the correlation between animal abuse and certain controlling behaviors exhibited by batterers). For a searchable map of animal abuse cases with a domestic abuse component, see Interactive Animal Cruelty Maps, (URL removed for reprint) (last visited Apr. 14, 2010). 233 See HSUS & STATE OF WISCONSIN DEP'T OF HEALTH & FAMILY SERVICES, CREATING SAFER COMMUNITIES FOR OLDER ADULTS AND COMPANION ANIMALS 75-76 (2003); B.W. Boat & J.C. Knight, Experiences and Needs of Adult Protective Services Case Managers When Assisting Clients Who Have Companion Animals, 12 J. ELDER ABUSE & NEGLECT 145 (2000). 234 ASCIONE, supra note 219, at 130-31; see also Joseph G. Sauder, Enacting and Enforcing Felony Animal Cruelty Laws to Prevent Violence Against Humans, 6 ANIMAL L. 1, 11 (2000) (“In a survey of thirty-eight women seeking protection from domestic violence, seventy-one percent of those who owned pets reported that their abusers also harmed or killed their pets.” (citing Frank R. Ascione, Battered Women's Reports of Their Partners' and Their Children's Cruelty to Animals, in CRUELTY TO ANIMALS AND INTERPERSONAL VIOLENCE, supra note 219, at 290-91)). 235 Sauder, supra note 234, at 11 (citing Carol J. Adams, Bringing Peace Home: A Feminist Philosophical Perspective on the Abuse of Women, Children, and Pet

Animals, in CRUELTY TO ANIMALS AND INTERPERSONAL VIOLENCE, supra note 219, at 318, 330). 236 ASCIONE, supra note 219, at 132. 237 Sauder, supra note 234, at 12-13 (noting a study that showed 30% to 40% of abused children become abusers themselves (citing Barbara Rosen, Watch for Pet Abuse--It Might Save Your Client's Life, in CRUELTY TO ANIMALS AND INTERPERSONAL VIOLENCE, supra note 219, at 340, 341)). 238 Joan E. Schaffner, Linking Domestic Violence, Child Abuse, and Animal Cruelty, ABA TIPS ANIMAL LAW COMMITTEE NEWSLETTER (Am. Bar. Ass'n Tort Trial & Ins. Prac. Section), Winter 2006, available at (URL removed for reprint). 239 Cf. Loh Harrist, supra note 20. 240 Gaertner, supra note 212, at 7. 241 See Walsh, supra note 50, at A1. 242 See Dog-Fighting Raids, supra note 40, at 2-4. 243 Michael S. Schmidt, Vick's Links to Gambling May Be Biggest Danger, GLOBE & MAIL, Aug. 15, 2007, at S2. 244 Id. 245 The purse for one fight at issue in the Vick case, for example, was alleged to be $23,000. See id. 246 Jack Douglas, Jr., Dogfighting Linked to Drugs, Gangs, Violence, CHARLESTON GAZETTE & DAILY MAIL, Oct. 21, 2007, at 5C. 247

See id. One account of the story states that the gunmen left with nothing. See, e.g., Cindy Horswell, Was Dog Fighting at Core of Homicide? Authorities Think Killers Were After Cash Breeder Won in Pit Bull Contest, HOUS. CHRON., Oct. 21, 2007, at A1. Another story indicates that the attack might have been partly to retaliate for a drug deal gone wrong, in which $450,000 in drug money was accidentally burned by friction and heat after being placed in a vehicle's wheels for transport from New York to Texas. Id. 248 Most of the pit bulls were euthanized based on their aggressiveness; all but one of the remaining dogs died of disease. See Cindy Horswell, Sale of Confiscated Pit Bulls is Canceled, HOUS. CHRON., Jan. 9, 2007, at B4. Interestingly, the remaining dogs (twenty-seven puppies) had been ordered auctioned by a Liberty County judge (as with livestock), but the auction was canceled after the puppies died of Parvo and blood parasites. See id. 249 Horswell, supra note 246, at A1. 250 Jack Douglas, Jr., Figure's Whereabouts a Mystery, FT. WORTH STARTELEGRAMMM, Mar. 18, 2008, at B4. 251 Horswell, supra note 246, at A1. 252 Douglas, supra note 246, at 5C. 253 For a summary of state gambling laws along with links to the related statutory provisions, see Chuck Humphrey, State Gambling Law Summary, (URL removed for reprint) (last visited Apr. 14, 2010). 254 For a summary of federal gambling laws, see Chuck Humphrey, U.S. Federal Gambling Laws, (URL removed for reprint) (last visited June 28, 2009). 255 Cf. Jay Stapleton, Dogfighting Ring Trial Begins for Daytona Beach Man, DAYTONA NEWS-J., Feb. 18, 2009, at 01C (“The Humane Society of the United States calls dogfighting ‘a highly organized underground movement often

involving other crimes, such as drugs, weapons trafficking, prostitution and money laundering.”’). 256 18 U.S.C. §§ 1961-68 (2006). 257 Id. § 1962; see also Amy A. Breyer, Asset Forfeiture and Animal Cruelty: Making One of the Most Powerful Tools in the Law Work for the Most Powerless Members of Society, 6 ANIMAL L. 203, 227 (2000) (suggesting that a RICO claim based on dogfighting might be possible in the instrumentality context of RICO because the act of dogfighting could constitute a RICO enterprise). 258 See, e.g., 18 U.S.C. § 924(c) (2006) (providing for enhanced punishment where both drug trafficking and firearms are involved). 259 See U.S. DEP'T OF JUSTICE, ATTORNEY GENERAL'S REPORT TO CONGRESS ON THE GROWTH OF VIOLENT STREET GANGS IN SUBURBAN AREAS, Apr. 2008, (URL removed for reprint). 260 Arlen Egley, Jr. & Christina E. O'Donnell, Highlights of the 2007 National Youth Gang Survey, OJJDP FACT SHEET (U.S. Dep't of Justice, Office of Juvenile Justice & Delinquency Prevention, Wash., D.C.), Apr. 2009, at 1, (URL removed for reprint). 261 See, e.g., SCOTT H. DECKER & BARRIK VAN WINKLE, LIFE IN THE GANG: FAMILY, FRIENDS, AND VIOLENCE 184-86 (1996) (discussing gang involvement in serious crimes, including drugs and violence); JUDITH GREENE & KEVIN PRANIS, JUSTICE POLICY INSTITUTE, GANG WARS: THE FAILURE OF ENFORCEMENT TACTICS AND THE NEED FOR EFFECTIVE PUBLIC SAFETY STRATEGIES 58-59 (2007), (URL removed for reprint) (discussing surprising statistics related to gang violence and drug-related crimes). 262 See UNIVERSITY OF CHI. SURVEY LAB, DOG FIGHTING IN CHICAGO EXPLORATORY RESEARCH: FINAL REPORT 2 (2008); see also Allan, supra note

159, at 22-23 (noting that gang members participate in streetfighting as a means to show power). 263 See supra text accompanying note 85. 264 See Allan, supra note 159, at 23 (noting the explanation of Scott Giacoppo, Deputy Director of Advocacy for the Massachusetts SPCA: “If I'm standing on the corner selling my drugs and I need to have the neighborhood intimidated by me so they don't call the police, I could wave a gun, but someone's going to call the cops ... But if I have a pit bull on the end of a leash, and his ears are cut down to his skull, and he's all muscular ... and the only thing separating the residents of the community from certain death by pit bull is this drug dealer holding a leash and whether or not he lets go, that's intimidating.”). 265 Rebecca Rader Brown, The Gang's All Here: Evaluating the Need for a National Gang Database, 42 COLUM. J.L. & SOC. PROBS. 293, 293 (2009) (noting that billions of state and federal dollars have been spent investigating and prosecuting gang-related crimes). 266 See, e.g., GA. CODE ANN. § 16-15-4 (2007); TEX. PENAL CODE § 71.02 (Vernon 2003). 267 See TEX. PENAL CODE § 71.02 (Vernon 2003). 268 See, e.g., HSUS, The Humane Society of the United States Releases List of Best and Worst State Dogfighting Laws, Sep. 12, 2007, (URL removed for reprint). 269 See HSUS, Dogfighting State Laws, Animal Fighting Laws: Where Does Your State Stand?, (URL removed for reprint) (hereinafter Where Does Your State Stand?). 270 See N.C. GEN. STAT. §§ 14-362.2, 15A-1340.17(c) (Supp. 2006); OHIO REV. CODE ANN. §§ 959.99(H), 2929.14(A)(4) (Lexis 1988). Two other states with low

maximum penalties are New Mexico, with a maximum of 18 months, and Rhode Island, with a maximum of two years. N.M. STAT. § 31-18-15(A)(10) (2004); R.I. GEN. LAWS. § 4-1-9 (1998). 271 Cf. Burke, supra note 41 (noting that dogfighters from Virginia used to travel to North Carolina to fight because, at the time, misdemeanor penalties applied there); Betsy Z. Russell, Dogfighting Bill Gains Support in Idaho: Vick Case Renews Call for Felony Status, SPOKESMAN-REV., Aug. 22, 2007, at 3B (noting the concerns of Jeff Rosenthal, Idaho veterinarian and director of the Idaho Humane Society, that Idaho might “be seen as some type of haven for this type of behavior” because of the lower penalties provided for dogfighting); Diane Webber, Iowa: An Animal Fighting Haven No More, HUMANE SOC'Y OF THE UNITED STATES REGIONAL NEWS, Fall 2004, (URL removed for reprint) (indicating that, at one time, Iowa had gained “the dubious distinction of being a haven for animal fighting” because Iowa's statute classified animal fighting as only a misdemeanor, whereas all the surrounding states classified the act as a felony). 272 See GA. CODE ANN. § 16-12-37(b) (2007) (five years); KY. REV. STAT. ANN. §§ 525.125(3), 532.060(2)(d) (Lexis Nexis 1999) (five years); S.C. CODE ANN. § 16-27-30(d) (2003) (five years); TENN. CODE ANN. §§ 39-14-203(c)(1), 40-35111(b)(5) (2006) (six years); VA. CODE ANN. §§ 3.2-6571(B)(1), 18.2-10(f) (Supp. 2007) (five years). 273 N.C. GEN. STAT. §§ 14-362.2, 15A-1340.17(c) (Supp. 2006) (identifying the range of penalties available for a first time Class H felony offense). Note, however, that penalties can be enhanced to up to twenty months depending on the severity of the offender's past criminal record. 274 The importance of an overlapping federal system thus becomes evident when viewed in this light because it provides a consistent penalty that crosses states lines. 275 See Where Does Your State Stand?, supra note 269.

276 See MERZ-PEREZ & HEIDE, supra note 218, at 95. 277 HSUS, Dogfighting Fact Sheet, (URL removed for reprint)ml (last visited Aug. 9, 2009). 278 Id. 279 Compare N.Y. AGRIC. & MKTS. LAW § 351(4) (McKinney Supp. 2007) (imposing jail time up to one year and a fine up to $1,000 for paying an admission fee or placing a bet at a dogfight) with id. § 351(5) (imposing jail time up to one year and a fine up to $500 for “knowing presence as a spectator” at a dogfight). 280 Some states have already adopted such provisions. See, e.g., ALA. CODE § 31-29(a)(1) (1996) (training); ARIZ. REV. STAT. ANN. § 13-2910.01(A)(1) (2001) (training); CAL. PENAL CODE § 597.5(a)(1) (West 1999/2009) (training); DEL. CODE ANN. tit. 11, § 1326(a) (2001/2008) (training); GA. CODE ANN. § 16-1237(b)(1) (2007) (training); 720 ILL. COMP. STAT. ANN. § 5/26-5(a) (West Supp. 2007/2009) (breeding and training); MASS. GEN. LAWS ANN. ch. 272, § 94 (West 2009) (breeding and training); MICH. COMP. LAWS ANN. § 750.49(2)(g) (West Supp. 2007/2009) (breeding); N.H. REV. STAT. ANN. § 644:8-a(I) (2007) (breeding and training); OR. REV. STAT. ANN. § 167.365(1)(a) (West 2005/2009) (breeding and training). 281 See, e.g., CAL. PENAL CODE § 597i (West 1999/2009). 282 See, e.g., OR. REV. STAT. ANN. § 167.372 (2005/2009) (“A person commits the crime of possessing dogfighting paraphernalia if the person owns or possesses dogfighting paraphernalia with the intent that the paraphernalia be used to train a dog as a fighting dog or be used in the furtherance of a dogfight.”). 283 See, e.g., LA. REV. STAT. ANN. § 14:102.5(A)(1) (2004); N.Y. AGRIC. & MKTS. LAW § 351(2)(a) (McKinney Supp. 2007).

284 Carol Biliczky, Group to Battle Dog Fighting, Task Force Formed to Coordinate Battle Against Sport Described as Growing Problem, AKRON BEACON J., Aug. 1, 2001, at D1. 285 Cf. GEORGE E. DIX ET AL., MCCORMICK ON EVIDENCE § 185, at 733 (Kenneth S. Broun ed., 6th ed. 2006) (“Under our system, molded by the tradition of jury trial and predominantly oral proof, a party offers his evidence not en masse, but item by item. An item of evidence, being but a single link in the chain of proof, need not prove conclusively the proposition for which it is offered. It need not even make the proposition appear more probable than not. Whether the entire body of one party's evidence is sufficient to go to the jury is one question. Whether a particular item of evidence is relevant to the case is quite another ... Thus, the common objection that the inference for which the fact is offered ‘does not necessarily follow’ is untenable. It poses a standard of conclusiveness that very few single items of circumstantial evidence ever could meet. A brick is not a wall.” (citations omitted)). 286 See Michael H. Graham, Burden of Proof and Presumptions in Criminal Cases, 45 CRIM. L. BULL., Winter 2009, art. 6. 287 LA. REV. STAT. ANN. § 14:102.5(B) (2004). 288 TEX. PENAL CODE ANN. § 42.10(c) (Vernon 2003). 289 See Graham, supra note 286, at 160. 290 See Court of Ulster County v. Allen, 442 U.S. 140, 157 (1979). Presumptions in the criminal context are therefore misnamed because, by definition, they unconstitutionally shift the burden of producing evidence to the defendant. 291 See Francis v. Franklin, 471 U.S. 307, 317 (1985) (holding the use of mandatory presumptions unconstitutional because it “relieves the State of the affirmative burden of persuasion on the presumed element by instructing the

jury that it must find the presumed element unless the defendant persuades the jury not to make such a finding”); see also Murl A. Larkin, Texas Rules of Evidence Handbook, Part I, Article III: Presumptions, 30 HOUS. L. REV. 241, 271-72 (1993) (discussing mandatory presumptions). 292 Francis, 471 U.S. at 317 (citations omitted). 293 See Larkin, supra note 291, at 272 (“Presumptions authorize short-cuts in proof and lessen the government's evidentiary burden by placing pressure on the defendant as the person with the most knowledge to come forward with an explanation in certain circumstances.”). 294 UTAH CODE ANN. § 76-9-301.1(2) (2003); see also id. § 76-9-301.1(1)(b)-(c) (making it unlawful to “cause a dog to fight with another dog or cause a dog to injure another dog for amusement or gain” or to “tie, attach, or fasten any live animal to a machine or device propelled by any power, for the purpose of causing the animal to be pursued by a dog”). 295 MINN. STAT. ANN. § 343.31, subd. 2 (West Supp. 2007). An almost identical presumption is also created for training birds for cockfights. See id. § 343.31, subd. 3. 296 Mosedale, supra note 15, at 4 (noting that the provision was declared unconstitutional in a written opinion issued September 6, 2006, by Hennepin County Judge Kathryn Quaintance). It is unclear whether Utah's statute could withstand constitutional attack, but because it does not specifically state that the defendant must rebut the presumption, it might do so. 297 The necessity of requiring the inference to be permissive is so that the statute does not shift the burden of proof to the defendant. Of course, this does not mean that the jury might not expect a rebuttal from the defendant. As Professor Michael Graham explains: [T]he burden of production may shift in reality with the jury being ready to find each element of the charge proven beyond a reasonable doubt from proof

offered by the prosecution, unless the defendant offers contradictory evidence. Because this practical shift arises as a result of the jury's assessment of the weight of the evidence, and not as a matter of law, it is not prohibited. Graham, supra note 286. 298 See id. Professor Graham continues: “The more probably true than not true threshold standard is imposed to prevent the jury from overvaluing the weight to be given to the inference having a lesser probative value simply because the inference is instructed by the court.” Id. 299 By showing an intent to dogfight, prosecutors should overcome a defendant's possible response that the training equipment was used to lawfully train the dog for strength competitions. Cf. Davis v. Indiana, 907 N.E.2d 1043, 1055 (Ind. Ct. App. 2009) (noting that the defendant planned to introduce evidence that she bred dogs, not to dogfight, but for purposes of entering them into “weight pulling contests and treadmill races”). 300 See, e.g., Ware v. State, 949 So. 2d 169, 176 (Ala. Crim. App. 2006) (holding that evidence of 23 freshly wounded and scarred pit bulls located on defendant's property along with dogfighting equipment was enough for the jury to “reasonably exclude[] every reasonable hypothesis except that [defendant] was engaged in dog fighting”); Jones v. State, 473 So. 2d 1197, 1201 (Ala. Crim. App. 1985) (finding relevant to the issue of “intent to fight” the testimony of a shelter veterinarian and director that the seized dogs were dehydrated and undernourished, had scarring over their entire bodies and faces in varying degrees of healing, escaped their pens and fought other dogs, required placement in reinforced pens, and bit an employee); People v. McCree, No. C035853, 2002 WL 276134, at *3 (Cal. Ct. App. Feb. 27, 2002) (holding that circumstantial evidence that defendant's dogs were “heavily scarred and possessed other physical ailments common to fighting dogs” along with other circumstantial evidence was sufficient to convict defendant for violation of ownership of a dog with intent to fight or causing a dog to fight another dog); Stephens v. State, 545 S.E.2d 325, 327 (Ga. App. 2001) (noting that evidence of bloodstained pit and carpet, bite sticks, first aid kit in pit area, and scarred dogs,

among other things, would have supported dogfighting if defendant had been charged with such); Fuller v. State, 674 N.E.2d 576, 578-79 (Ind. Ct. App. 1996) (upholding conviction where evidence showed two men held pit bulls about five feet from each other, the dogs had fresh wounds, and dead pit bulls and a heavy chain were found on the property); State v. Schneider, 981 So.2d 107, 110-16 (La. Ct. App. 2008) (discussing circumstantial evidence presented and holding that it was sufficient for conviction of dogfighting); State v. Ogletree, No. 2005-P-0059, 2006 WL 2390255, at *3 (Ohio App. Aug. 18, 2006) (finding evidence sufficient to uphold dogfighting conviction where state seized 44 break sticks and a livestock antibiotic, veterinarian testified that dogs' scarring suggested dogfighting, and dog warden testified that blood spatters were consistent with dogfighting); State v. Killion, No. E2008-01350-CCA-R3-CD, 2009 WL 1748959 (Tenn. Crim. App. June 22, 2009) (upholding conviction where evidence showed blood spattered walls and blacked out window in basement, a break stick and sprayer, a digital clock with time-keeping capabilities, and two pit bulls with fresh and bleeding puncture wounds that veterinarian testified were likely caused by dogfighting); State v. Scott, No. W1999-01309-CCA-R3-CD, 2001 WL 846037, at *4 (Tenn. Crim. App. July 19, 2001) (noting that, among other things, evidence of dogfighting equipment, scarring and injuries, and “atrocious” conditions in which dogs were kept was sufficient to support appellant's guilty plea). 301 720 ILL. COMP. STAT. ANN. § 5/26-5(c-5) (West Supp. 2007). 302 VA. CODE ANN. § 3.2-6571(B)(6) (Supp. 2007). The Virginia statute enhances penalties if the animals that were fighting were dogs. Therefore, if a minor attends a dogfight, the penalty is not enhanced again merely because of the presence of the minor. See id. § 3.2-6571(B)(1). 303 See, e.g., ARK. CODE ANN. § 5-73-109 (2005); GA. CODE ANN. § 16-13-1 (2007) (prohibiting the sale, delivery, distribution, display, or provision of drugrelated objects to a minor); HAW. REV. STAT. § 712-1241(c) (2007) (classifying distribution of dangerous drugs to a minor as a Class A felony); MASS. GEN. LAWS ANN. ch. 140, § 130 (West Supp. 2007) (prohibiting the sale or provision

of weapons or ammunition to minors); MONT. CODE ANN. § 45-9-101(5) (2007) (enhancing penalties for distribution of drugs to a minor). 304 See MD. CODE ANN., CRIM. LAW § 10-607(b)(2) (Lexis Nexis Supp. 2006). 305 ARK. CODE ANN. § 5-62-101(c)(1) (2005); CONN. GEN. STAT. ANN. § 46b140(c)(4) (West 2007); D.C. CODE § 22-1001(a)(2)-(3) (Supp. 2007); ME. REV. STAT. ANN. tit. 7, § 4016(1)(D) (2006); NEV. REV. STAT. ANN. § 62E.680(1) (West 2004). 306 For a list of state laws that enhance penalties for gang-related behavior, see Nat'l Youth Gang Center, Inst. for Intergovernmental Res., Gang-Related Legislation by Subject, (URL removed for reprint) (last visited July 13, 2009). 307 See, e.g., FLA. STAT. ANN. § 775.087 (West 2006); HAW. REV. STAT. § 706660.1 (2007); OKLA. STAT. ANN. tit. 21, § 1287.1 (West 2002). 308 2009 Tex. Sess. Law Serv. 1357 (West) (S.B. 554) (amending TEX. PENAL CODE § 71.02(a)). 309 TEX. PENAL CODE ANN. § 71.02(b) (Vernon 2003); see also id. § § 12.03(a), 12.04(a), 42.10(e) (classifying and showing progression of criminal penalties). 310 See Tom McCann, Police Take Aim at Dogfighting, 10,000 Officers Train to Curb It, CHI. TRIB., July 19, 2002, at 1. 311 Chicago Animal Care & Control, Animal Abuse Training Initiative, Programs & Initiatives (URL removed for reprint) (noting training initiatives for supervisors, tactile, and narcotics officers). 312 Humane Soc'y Univ., Animal Cruelty & Fighting Investigations, (URL removed for reprint) (last visited July 19, 2009). HSUS's program also focuses on training for prosecutors, judges, and government-employed veterinarians. See id.

313 Signs of dogfighting include numerous unsocialized and chained pit bulls in a single location, scarred dogs (especially those with scars on the face, front legs, and stifle area), dogfighting equipment like treadmills, break sticks, and tires, and foot traffic at the location that arrives at unusual hours. HSUS, Taking Action to Stop Dogfighting: How to Spot the Signs and What You Can Do, (URL removed for reprint) 314 See, e.g., Craig Kapitan, Info on Animal Abuse Cases Sought, SAN ANTONIO EXPRESS-NEWS, Oct. 14, 2008, at 3B (postal carrier reported children burning tail of kitten); Margaret Smykla, Meter Readers' Home Visits Symbolize Bygone Era, PITTSBURGH POST-GAZETTE, June 5, 2008, at S2 (noting that meter readers report cases they see of child, elderly, and animal abuse); PetAbuse.com, Hoarding--15 Dogs, 23 Cats, Cages of Mice, Sept. 29, 2006, (URL removed for reprint) (utility repairman reported animal hoarder). 315 See Brown, supra note 185, at B1. 316 In some instances, an actual flight may be unnecessary. Where an address of a suspected dogfighter is known, law enforcement personnel (or even curious neighbors) can get an aerial view of the property (although possibly several years out of date) by using readily obtainable satellite imaging software such as Google Earth or Yahoo! Maps, which present a viewer with images of property that are generally close enough to see the typical signs of a large-scale breeder. Indeed, use of such software was the basis for a legal claim of ownership for a shipwreck allegedly found in Refugio, Texas, by a California man. See Nathan Smith v. The Abandoned Vessel, Findings of Fact & Conclusions of Law, Civ. Action No. H-07-784 (S.D. Tex. Apr. 27, 2009). 317 Owners of fighting dogs often use heavy chains to tether the dogs near makeshift shelters, around which the dogs have worn down circular dirt paths. Dogs are often placed close enough to another dog to maintain aggression, but far enough away that the dogs cannot physically fight. See Cindy Horswell,

Court Orders Most of 285 Pit Bulls to Be Put to Death, HOUS. CHRON., Aug. 18, 2006, at A1. 318 Alexi Howk, Cruelty May Link to Dog Fighting, TCPALM, July 29, 2007, (URL removed for reprint). Blue barrels, of course, are not always used by dogfighters, but generally the dogs are tethered separately to individual shelters. 319 HSUS, Campaign Tackles Urban Dogfighting, (URL removed for reprint)) (hereinafter Urban Dogfighting); HSUS, The HSUS Launches ‘End Dogfighting in Charlotte’ Modeled After Successful Chicago Program, Oct. 21, 2008, (URL removed for reprint) Other organizations have begun community educational efforts, although on a less grand scale than the HSUS. See, e.g., Indy Pit Crew, It's Time for the “Circle City” to BREAK the “Circle of Violence”, (URL removed for reprint)m (last visited July 20, 2009); Training Wheels Urban Solutions LugNuts Program, (URL removed for reprint) (last visited July 22, 2009). 320 A program based on a similar theory called Training Wheels was created by animal trainer Sue Sternberg. See Training Wheels Urban Solutions, (URL removed for reprint). 321 See Urban Dogfighting, supra note 319. 322 See id. As an example of the improved morale that residents of Chicago's South Side have against dogfighting, more than 50 people rallied in the area to honor the two-year anniversary of the death of Julius Birdine, a 26-year-old who was killed when he refused to fight his two pit bulls. See Erica L. Green, Dogfighting Puts Everyone's Life on the Line, HSUS Animal Cruelty & Fighting Campaign, July 8, 2008, (URL removed for reprint). Other means could also be used to unify communities against dogfighting, including participation in National Night Out, an event sponsored by the National Association of Town Watch designed to make communities more aware of and encourage participation in crime and drug prevention programs.

See National Night Out, What Is National Night Out?, (URL removed for reprint)323 Urban Dogfighting, supra note 319; see also Andy MacAlpine, Sean Moore: Reformed Fighter Is Now Friend to Pit Bulls, HSUS Animal Cruelty & Fighting Campaign, May 22, 2009, (URL removed for reprint). 324 See Urban Dogfighting, supra note 319; see also Jeff Jenkins, The Pit Bull Training Team, Springing into Action, HSUS Animal Cruelty & Fighting Campaign, June 10, 2009, (URL removed for reprint)ml (providing highlights of the 2009 training session and showing the changing relationships between owners and dogs). Other areas also offer dogfighting alternatives. See, e.g., Harris County Public Health & Environmental Services, Tricks for Pits Program, June 5, 2009, (URL removed for reprint)m; Nik Kleinberg, Don't Be Like Mike, ESPN.com, (URL removed for reprint) (last visited July 22, 2009) (describing Sue Sternberg's Lug-Nuts Program). 325 Several public figures have already made public service announcements discouraging dogfighting, including hip-hop mogul Russell Simmons, the Ohio and South Carolina attorneys general working with HSUS, and UFC champions Tito Ortiz and Andrei Arlovski, along with a number of other athletes, working with For Pit Sakes, Inc.'s Knock Out Dog Fighting program. See HSUS, Dogfighting Public Service Announcements, (URL removed for reprint); Knock Out Dog Fighting, PSAs, (URL removed for reprint). 326 Generally, Crime Stoppers programs reward tips on felonies only. See MTSU/Rutherford County Crime Stoppers, (last visited Sept. 21, 2007) (noting the general limitation of most Crime Stoppers programs). 327 See, e.g., Manatee County Crime Stoppers, Manatee CrimeStoppers Targets Dog Fighting in the New Year, Jan. 2009, (URL removed for reprint) Canine Crime Stoppers, July 16, 2008, at (URL removed for reprint)328 HSUS, HSUS Rewards, (URL removed for reprint). 329 Foxman, supra note 173.

330 See, e.g., City Continues Crack Down on Dog Fighting, Indy.gov, Aug. 29, 2006, (URL removed for reprint)noting that from the time Indiana launched Canine Crimestoppers in 2004 to the time that the article was written, the program had “led to more than 100 dog fighting investigations by Animal Care and Control officers and several successful prosecutions”). 331 HSUS recommends that membership of local task forces should include representatives from the district attorney's office, local law enforcement authorities and animal control, the mayor's office, local shelters and veterinary associations, and local anti-violence organizations. HSUS, How to Create an Animal Fighting Task Force, ((URL removed for reprint)ing) (last visited July 22, 2009). 332 Several district attorneys offices have begun centralizing animal cruelty cases in a single prosecutor, and Harris County has officially created an Animal Cruelty Division within its District Attorney's Office. See Phillips, supra note 131, at 20; Leonard, supra note 130, at 1; Kimberly Matas, Pinal County Is Going After Pet Abusers, ARIZ. DAILY STAR, Jan. 20, 2005, at H; Bill Murphy, Dogfight Unit Now Part of DA Office, Lykos Targets the Owners Who Dump Dead Dogs, HOUS. CHRON., Jan. 27, 2009, at A1. 333 Some jurisdictions have already begun forming cruelty teams or task forces. See, e.g., Leonard, supra note 130, at 1; supra note 20 and sources cited therein. 334 See, e.g., Malad Couple Face Dogfighting Charges, DESERET MORNING NEWS, Sept. 1, 2007, at B06 (noting that the dogs were not initially seized because there was question over whether seizure was allowed where the dogs did not show outward signs of being fought). 335 One of the largest dogfighting raids in the United States to date illustrates these points. The raid--known as Operation Dead Game--occurred on November 14, 2008, in and near Houston, Texas, spanned five counties, and resulted in criminal charges issued against 55 defendants, with possible charges

against 35 more still pending. Charges included dogfighting-related charges, as well as charges for drugs, gambling, and theft. The investigation into the ring took 17 months, during which time two undercover agents, working with an informant, slowly worked their way into a hobbyist-level ring where bets ranged from the thousands to the tens of thousands of dollars and spectators numbered up to 100 at a time. The ring itself had links to organized dogfighting in other states as well as in Mexico, and spectators came from as far away as the Czech Republic. The investigation and raid required the cooperation and coordination of a number of federal, state, and local agencies, including three divisions of the Texas Department of Public Safety (the Criminal Intelligence Service, Texas Highway Patrol, and DPS Aircraft), the Harris County District Attorney's Office, the Harris County Sheriff's Office, the United States Department of Agriculture (USDA), and the United States Marshal's Office. The Veterinary Public Health Division of Harris County's Public Health & Environmental Services coordinated with the Houston Humane Society and the Houston SPCA to handle the 187 dogs that were seized. See CIS Busts Major Dog-Fighting Ring, DPS CHAPARRAL (Tex. Dep't of Public Safety), Dec. 2008, at 2, available at (URL removed for reprint) ; James C. McKinley, Jr., Dogfighting Subculture, Illegal and Secretive, Is Taking Hold in Texas, N.Y. TIMES, Dec. 7, 2008, at A30; Animal Abuse Case Details: Dog-Fighting--187 Dogs Seized, (URL removed for reprint) (last update June 10, 2009). In a more recent year-long investigation led by federal authorities, over 400 dogs were seized in a raid that covered eight states--Arkansas, Illinois, Iowa, Mississippi, Missouri, Nebraska, Oklahoma, and Texas. Because of the extensive reach of the investigation and raid, numerous federal, state, and local agencies were involved, including the USDA, the Missouri State Highway Patrol, and the Federal Bureau of Investigation. See Information Issued by U.S. Attorney's Office for Western District of Missouri on July 8: Seven Defendants from Three States Indicted for Dog Fighting, U.S. FED. NEWS (July 14, 2009); Humane Soc'y of Missouri, Humane Society of Missouri Animal Cruelty Task Force Works with State and Federal Agencies on Largest Dog Fighting Raid and Rescue in U.S. History, (URL removed for reprint) 336

Investigators in Operation Dead Game, for example, were Texas Department of Public Safety officers, whereas the eight-state raid was led by federal authorities. See supra note 335. 337 The size and complexity of organized dogfighting allows law enforcement to broaden its reach and take down larger numbers of fighters and spectators. Defendants might also face higher penalties in situations where state or federal dogfighting penalties are enhanced because of the commission of a related crime at the time of the fight (e.g., gambling). 338 See Amos, supra note 79 (“Well-funded organizations like the Humane Society and the ASPCA have infiltrated dogfights in the past, but it's a rare occurrence that is difficult for a local animal welfare agency to recreate. Baltimore City's animal control department has 16 officers when fully staffed, and because of their heavy presence on the streets, their faces are immediately recognizable to members of the dogfighting community. Additionally, it takes a large amount of money to successfully coordinate and execute an undercover operation, money that isn't normally available to local agencies.”). 339 See, e.g., ARK. CODE ANN. § 5-62-120(e) (2005); OHIO REV. CODE ANN. §§ 959.132(F)(1), 959.161(D) (Lexis 1988); OR. REV. STAT. ANN. § 167.375(1) (West 2005); WASH. REV. CODE ANN. § 16.52.200(5) (West Supp. 2007). 3 STNJALP 1

Chapter 10 Dogs in hot cars

Introduction dogs in hot cars Arizona California Indiana An avoidable Tragedy: Dogs in Hot Cars Introduction dogs in hot cars It only takes a few minutes for a car to become a solar oven. It only takes 10 minutes for a car temperature to rise from 70° to 89°. If it's a hot day, that cart can reach a hundred and 14° in the same amount of time. Not only is it a crime to leave the dog in a hot car, but there are protections for good Samaritans who try to free these animals. In Arizona, there is no civil liability to someone who breaks open a vehicle to help the distressed dog in a hot car. California also relieves the same good Samaritans from any criminal responsibility from smashing these car windows.

The article "An avoidable tragedy, dogs and hot cars" written by ALDF has an excellent summary of different states laws. It also has tips on how to approach legislators on how to strengthen dogs in hot car laws. We thank ALDF for permitting us to share this critical information. Arizona Under A.R.S. 12-558.02/HB 2494 (2017): Section 1. Title 12, chapter 5, article 3, Arizona Revised Statutes, is amended by adding section 12-558.02, to read: 12-558.02. Limited liability; removing minor or confined animal from motor vehicle; definition A. A person who uses reasonable force to enter a locked and unattended motor vehicle to remove a minor or confined domestic animal is not liable for any damages in a civil action if all of the following apply: 1. The person has a good faith belief that the minor or confined domestic animal is in imminent danger of suffering physical injury or death unless the minor or domestic animal is removed from the motor vehicle. 2. The person determines that the motor vehicle is locked or there is no reasonable manner in which the person can remove the minor or domestic animal from the vehicle. 3. Before entering the motor vehicle, the person notifies a peace officer, emergency medical service provider or first responder or an animal control enforcement agency or deputy, if appropriate, of the minor or confined domestic animal. 4. The person does not use more force than is necessary under the circumstances to enter the motor vehicle and remove the minor or domestic animal from the vehicle. 5. The person remains with the minor or domestic animal until the person who is contacted as prescribed in paragraph 3 of this subsection arrives at the motor vehicle. B. A person is not immune from civil liability if the person fails to abide by any of the provisions of subsection a of this section and commits any unnecessary or malicious damage to the motor vehicle.

C. For the purposes of this section, "domestic animal" means a dog, a cat or another animal that is domesticated and kept as a household pet. Approved by the governor may 11, 2017. Filed in the office of the secretary of state may 11, 2017. California California Codes. Civil Code. Division 1. Persons. Part 2. Personal Rights. § 43.100. Property damage or trespass to motor vehicle resulting from rescue of animal; immunity from civil liability (a) There shall not be any civil liability on the part of, and no cause of action shall accrue against, a person for property damage or trespass to a motor vehicle, if the damage was caused while the person was rescuing an animal in accordance with subdivision (b) of Section 597.7 of the Penal Code. (b) The immunity from civil liability for property damage to a motor vehicle that is established by subdivision (a) does not affect a person's civil liability or immunity from civil liability for rendering aid to an animal. Credits (Added by Stats.2016, c. 554 (A.B.797), § 1, eff. Jan. 1, 2017.) [See also Criminal Code: § 597.7. Animal endangerment; confinement in unattended motor vehicle; violations and penalties; removal of animal if safety is in danger] California Codes. Penal Code. Part 1. Of Crimes and Punishments. Title 14. Malicious Mischief. § 597.7. Animal endangerment; confinement in unattended motor vehicle; violations and penalties; removal of animal if safety is in danger (a) A person shall not leave or confine an animal in any unattended motor vehicle under conditions that endanger the health or well-being of an animal due to heat, cold, lack of adequate ventilation, or lack of food or water, or other circumstances that could reasonably be expected to cause suffering, disability, or death to the animal. (b)(1) This section does not prevent a person from taking reasonable steps that are necessary to remove an animal from a motor vehicle if the person holds a reasonable belief that the animal's safety is in immediate danger from heat, cold, lack of adequate ventilation, lack of food or water, or other circumstances

that could reasonably be expected to cause suffering, disability, or death to the animal. (2) A person who removes an animal from a vehicle in accordance with paragraph (1) is not criminally liable for actions taken reasonably and in good faith if the person does all of the following: (A) Determines the vehicle is locked or there is otherwise no reasonable manner for the animal to be removed from the vehicle. (B) Has a good faith belief that forcible entry into the vehicle is necessary because the animal is in imminent danger of suffering harm if it is not immediately removed from the vehicle, and, based upon the circumstances known to the person at the time, the belief is a reasonable one. (C) Has contacted a local law enforcement agency, the fire department, animal control, or the “911” emergency service prior to forcibly entering the vehicle. (D) Remains with the animal in a safe location, out of the elements but reasonably close to the vehicle, until a peace officer, humane officer, animal control officer, or another emergency responder arrives. (E) Used no more force to enter the vehicle and remove the animal from the vehicle than was necessary under the circumstances. (F) Immediately turns the animal over to a representative from law enforcement, animal control, or another emergency responder who responds to the scene. (c) Unless the animal suffers great bodily injury, a first conviction for violation of this section is punishable by a fine not exceeding one hundred dollars ($100) per animal. If the animal suffers great bodily injury, a violation of this section is punishable by a fine not exceeding five hundred dollars ($500), imprisonment in a county jail not exceeding six months, or by both a fine and imprisonment. Any subsequent violation of this section, regardless of injury to the animal, is also punishable by a fine not exceeding five hundred dollars ($500), imprisonment in a county jail not exceeding six months, or by both a fine and imprisonment. (d)(1) This section does not prevent a peace officer, firefighter, humane officer, animal control officer, or other emergency responder from removing an animal from a motor vehicle if the animal's safety appears to be in immediate danger from heat, cold, lack of adequate ventilation, lack of food or water, or other

circumstances that could reasonably be expected to cause suffering, disability, or death to the animal. (2) A peace officer, firefighter, humane officer, animal control officer, or other emergency responder who removes an animal from a motor vehicle, or who takes possession of an animal that has been removed from a motor vehicle, shall take it to an animal shelter or other place of safekeeping or, if the officer deems necessary, to a veterinary hospital for treatment. The owner of the animal removed from the vehicle may be required to pay for charges that have accrued for the maintenance, care, medical treatment, or impoundment of the animal. (3) A peace officer, firefighter, humane officer, animal control officer, or other emergency responder is authorized to take all steps that are reasonably necessary for the removal of an animal from a motor vehicle, including, but not limited to, breaking into the motor vehicle, after a reasonable effort to locate the owner or other person responsible. (4) A peace officer, firefighter, humane officer, animal control officer, or other emergency responder who removes an animal from a motor vehicle or who receives an animal rescued from a vehicle from another person shall, in a secure and conspicuous location on or within the motor vehicle, leave written notice bearing his or her name and office, and the address of the location where the animal can be claimed. The animal may be claimed by the owner only after payment of all charges that have accrued for the maintenance, care, medical treatment, or impoundment of the animal. (5) Except as provided in subdivision (b), this section does not affect in any way existing liabilities or immunities in current law, or create any new immunities or liabilities. (e) Nothing in this section shall preclude prosecution under both this section and Section 597 or any other provision of law, including city or county ordinances. (f) Nothing in this section shall be deemed to prohibit the transportation of horses, cattle, pigs, sheep, poultry, or other agricultural animals in motor vehicles designed to transport such animals for agricultural purposes. Credits

(Added by Stats.2006, c. 431 (S.B.1806), § 2. Amended by Stats.2016, c. 554 (A.B.797), § 2, eff. Jan. 1, 2017.) See also, § 43.100. Property damage or trespass to motor vehicle resulting from rescue of animal; immunity from civil liability Share| SECTION 2. IC 34-6-2-34.3 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2017]: Sec. 34.3. "Domestic animal", for purposes of IC 34-30-30, has the meaning set forth in IC 34-30-30-1. SECTION 3. IC 34-6-2-84, AS AMENDED BY P.L.136-2015, SECTION 2, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2017]: Sec. 84. (a) "Motor vehicle", for purposes of IC 34-30-29.2 and IC 34-40-4, has the meaning set forth in IC 9-13-2-105(a). (b) "Motor vehicle", for purposes of IC 34-30-30, has the meaning set forth in IC 34-30-30-2. SECTION 4. IC 34-30-30 IS ADDED TO THE INDIANA CODE AS A NEW CHAPTER TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2017]: Chapter 30. Immunity for Removing a Domestic Animal From a Locked Motor Vehicle Sec. 1. (a) As used in this chapter, "domestic animal" means a dog, cat, or other vertebrate animal that is domesticated and: (1) kept as a household pet; or (2) intended to be kept as a household pet. (b) The term does not include an animal to which the definition of "livestock" set forth in IC 15-11-5-1 applies. Sec. 2. As used in this chapter, "motor vehicle" means an automobile, truck, or other conveyance that: (1) is designed to transport people or objects on roads and highways; and (2) contains an enclosed space into which a domestic animal may be put. Sec. 3. (a) Except as provided in subsection (c), a person who HEA 1085 —CC 1 3 forcibly enters a motor vehicle to remove a domestic animal from the motor vehicle:

(1) is liable to the owner or lessee of the motor vehicle for one-half (1/2) of the cost of repairing the damage to the motor vehicle directly caused by the person's forcible entry, unless the owner or lessee of the motor vehicle waives the person's liability under this subdivision; and (2) is immune from any other criminal or civil liability for other property damage resulting from the person's forcible entry of the motor vehicle; if all the conditions set forth in subsection (b) are satisfied. (b) For subsection (a)(1) and (a)(2) to apply to a person who forcibly enters a motor vehicle to remove a domestic animal from the motor vehicle, all the following conditions must be satisfied: (1) A domestic animal must be present in the enclosed space of the motor vehicle, and the person must reasonably believe that the domestic animal is in imminent danger of suffering serious bodily harm if the domestic animal remains in the motor vehicle. (2) The person must determine that: (A) the motor vehicle is locked; and (B) forcible entry of the motor vehicle is necessary to remove the domestic animal from the motor vehicle. (3) The person must call telephone number 911 or otherwise attempt to contact: (A) a law enforcement officer; (B) a firefighter; (C) an animal control officer; or (D) another emergency responder; before the person forcibly enters the motor vehicle. (4) The person must use no more force than is reasonably necessary to enter the motor vehicle and remove the domestic animal from the motor vehicle. (5) The person must remain with the domestic animal until a law enforcement officer, firefighter, animal control officer, or other emergency responder arrives at the scene. (c) If any of the following persons, acting in the course and scope of the person's employment, forcibly enters a motor vehicle to remove a domestic animal from the motor vehicle, the person is not liable for the cost of repairing damage to the motor vehicle caused by the person's forcible entry: (1) A law enforcement officer. HEA 1085 —CC 1

4 (2) A firefighter. (3) A government officer or employee whose primary duty is to ensure public safety. (4) An emergency responder other than those identified in subdivisions (1) through (3). (5) An animal control officer. (6) A veterinarian who is licensed or otherwise authorized to practice veterinary medicine in Indiana under IC 25-38.1-3. (7) A veterinary assistant, as defined in IC 25-38.1-1-14.7. For the purposes of this subsection, a law enforcement officer may be considered to be acting in the course and scope of the law enforcement officer's employment even if the law enforcement officer is off duty. Sec. 4. If: (1) a person forcibly removes a domestic animal from a motor vehicle as described in section 3 of this chapter; and (2) the domestic animal bites or otherwise physically injures the person during the removal; the owner of the domestic animal is immune from civil liability for any injuries sustained by the person during the forcible removal of the domestic animal. Indiana SECTION 4. IC 34-30-30 IS ADDED TO THE INDIANA CODE AS A NEW CHAPTER TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2017]: Chapter 30. Immunity for Removing a Domestic Animal From a Locked Motor Vehicle Sec. 1. (a) As used in this chapter, "domestic animal" means a dog, cat, or other vertebrate animal that is domesticated and: (1) kept as a household pet; or (2) intended to be kept as a household pet. (b) The term does not include an animal to which the definition of "livestock" set forth in IC 15-11-5-1 applies. Sec. 2. As used in this chapter, "motor vehicle" means an automobile, truck, or other conveyance that:

(1) is designed to transport people or objects on roads and highways; and (2) contains an enclosed space into which a domestic animal may be put. Sec. 3. (a) Except as provided in subsection (c), a person who HEA 1085 —CC 1 3 forcibly enters a motor vehicle to remove a domestic animal from the motor vehicle: (1) is liable to the owner or lessee of the motor vehicle for one-half (1/2) of the cost of repairing the damage to the motor vehicle directly caused by the person's forcible entry, unless the owner or lessee of the motor vehicle waives the person's liability under this subdivision; and (2) is immune from any other criminal or civil liability for other property damage resulting from the person's forcible entry of the motor vehicle; if all the conditions set forth in subsection (b) are satisfied. (b) For subsection (a)(1) and (a)(2) to apply to a person who forcibly enters a motor vehicle to remove a domestic animal from the motor vehicle, all the following conditions must be satisfied: (1) A domestic animal must be present in the enclosed space of the motor vehicle, and the person must reasonably believe that the domestic animal is in imminent danger of suffering serious bodily harm if the domestic animal remains in the motor vehicle. (2) The person must determine that: (A) the motor vehicle is locked; and (B) forcible entry of the motor vehicle is necessary to remove the domestic animal from the motor vehicle. (3) The person must call telephone number 911 or otherwise attempt to contact: (A) a law enforcement officer; (B) a firefighter; (C) an animal control officer; or (D) another emergency responder; before the person forcibly enters the motor vehicle. (4) The person must use no more force than is reasonably necessary to enter the motor vehicle and remove the domestic animal from the motor vehicle.

(5) The person must remain with the domestic animal until a law enforcement officer, firefighter, animal control officer, or other emergency responder arrives at the scene. (c) If any of the following persons, acting in the course and scope of the person's employment, forcibly enters a motor vehicle to remove a domestic animal from the motor vehicle, the person is not liable for the cost of repairing damage to the motor vehicle caused by the person's forcible entry: (1) A law enforcement officer. HEA 1085 —CC 1 4 (2) A firefighter. (3) A government officer or employee whose primary duty is to ensure public safety. (4) An emergency responder other than those identified in subdivisions (1) through (3). (5) An animal control officer. (6) A veterinarian who is licensed or otherwise authorized to practice veterinary medicine in Indiana under IC 25-38.1-3. (7) A veterinary assistant, as defined in IC 25-38.1-1-14.7. For the purposes of this subsection, a law enforcement officer may be considered to be acting in the course and scope of the law enforcement officer's employment even if the law enforcement officer is off duty. Sec. 4. If: (1) a person forcibly removes a domestic animal from a motor vehicle as described in section 3 of this chapter; and (2) the domestic animal bites or otherwise physically injures the person during the removal; the owner of the domestic animal is immune from civil liability for any injuries sustained by the person during the forcible removal of the domestic animal.

An Avoidable Tragedy: Dogs in Hot Cars Legislation That Can Help Save Lives Animal Legal Defense Fund What You Can Do Spread the Word

Overview of State Laws Every summer, as temperatures rise, so does the danger of companion animals dying because they are carelessly left in a hot car. While humans cool themselves by relying on an extensive system of sweat glands and evaporation, dogs and other animals have a harder time staying cool, leaving them extremely vulnerable to heatstroke. Dog in car Parked cars quickly trap the sun’s heat. Even on a day when it’s 70 degrees outside, the temperature inside a car with all the windows closed can hit 89 degrees in just 10 minutes, according to the American Veterinary Medical Association. On a hot day, the temperature inside a closed car can shoot as high as 114 degrees in the same amount of time. Leaving the windows open a crack doesn’t eliminate the danger of heatstroke or death. What You Can Do Know the Law Discover which state laws and city/county ordinances in your jurisdiction address leaving animals unattended in vehicles. The issue may be addressed specifically or by way of general abuse/neglect statutes. State-by-state table Strengthen Your Laws Approach your legislators about addressing the “hot car” problem and enabling emergency rescues. Find your Elected officials Work with your legislators toward improving animal protection laws Connect Your Local Law Enforcement Agencies with ALDF Resources Let your local authorities know that the Animal Legal Defense Fund’s Criminal Justice Program attorneys offer training and resources to law enforcement agents on this and other animal law issues. Spread the Word You can help get the word out about the danger of leaving dogs in hot cars. Download and print our flyer, and hang in grocery stores, cafes, laundromats, and other locations where people may leave dogs in hot cars. Many businesses will be happy to hang a flyer in their front window if you ask

politely. And share the flyer with your local humane agencies to help them make the public aware of these laws. Download this image for Twitter, Facebook, or Instagram to share on your social networking profiles. Overview of State Laws Over half of the states have “hot car” laws (laws that prohibit leaving unattended animals in vehicles). In total, 29 states plus the District of Columbia currently have some form of a “hot car” law on the books. dog in car What “Hot Car” Laws Cover Such laws do not prohibit confinement at specific temperatures for a specific amount of time. Rather, the provisions tend to prohibit a broad range of conduct, i.e. confining an animal in a manner that endangers his/her health or safety. Limits While most “hot car” laws apply to “animals” generally, some are limited to certain kinds of animals: Just cats and dogs: Colorado, Louisiana, Maryland, and Minnesota Any companion animal: New York and Virginia Cat, dog, or other small animal: South Dakota Livestock exempted: Indiana, North Carolina, Kansas Domestic animal: Indiana, Florida and Wisconsin Domesticated companion animal: Nevada These states have “hot car” laws that allow certain public officials (e.g. law enforcement, humane officers) to break into the vehicle to rescue the animal: Arizona A.R.S. § 13-2910 California Cal. Penal Code § 597.7 Delaware 11 Del.C. § 1325(b)(6) District of Columbia DC ST § 8-1808.02 Illinois 510 ILCS 70/7.1 Indiana IC 34-30-30 Maine 7 MRSA § 4019 Maryland Md. Transp. Code § 21-1004.1

Massachusetts Mass. Gen. Laws ch. 140, § 174f Minnesota M.S.A. § 346.57 Nevada N.R.S. 202.575 (which has been amended by SB 409) New Hampshire N.H. Rev. Stat. 644:8-aa New York NY Agri. & Mkts. § 353-d North Carolina NC ST § 14-363.3 North Dakota NDCC, 36-21.2-12 Oregon ORS § 167.345 Rhode Island Gen. Laws, 1956, § 4-1-3.2 South Dakota S D C L § 40-1-36 Vermont 13 V.S.A. § 386 Virginia Va. Code Ann. § 3.2-6504.1 Washington RCWA 16.52.340 In these states, although it is illegal to leave an animal trapped in a hot car, no one is granted the authority to break into the vehicle to save the animal, not even law enforcement: New Jersey N.J.S.A. 4:22-26 West Virginia W. Va. Code, § 61-8-19 These states have “Good Samaritan” hot car laws—laws that allow private citizens to take matters into their own hands—or proposed laws: Arizona: HB 2494 provides civil immunity for persons who rescue a domestic animal from a locked and unattended vehicle after notifying law enforcement. California: Cal. Penal Code § 597.7 and Cal. Civil Code § 43.100 grants civil immunity for any person who takes reasonable steps to remove an animal from a vehicle if that animal’s “safety appears to be in immediate danger from heat, cold, lack of adequate ventilation, lack of food or water, or other circumstances that could reasonably be expected to cause suffering, disability, or death to the animal,” and that person calls law enforcement after entry. In addition, criminal immunity applies if that person takes certain steps first, such as contacting law enforcement, has a good faith believe that the entry is necessary, remains with the animal in a safe location, and uses only as much force as necessary. Colorado: Co. Rev. Stat. 13-21-108.4 grants civil and criminal immunity to persons rendering emergency assistance to a dog or cat in a locked vehicle.

Florida: Stat. § 768.139 grants civil immunity for damage to the vehicle for a person who “enters a motor vehicle, by force or otherwise, for the purpose of removing a vulnerable person or domestic animal,” as long as certain conditions are met, such as first calling 9-1-1, using no more force than is reasonably necessary, and remaining with the vulnerable person or animal in a safe location near the vehicle until law enforcement arrives. Kansas: HB 2516 grants civil immunity for damage to the motor vehicle for a person who “enters a motor vehicle, by force or otherwise, for the purpose of removing a vulnerable person or domestic animal” if certain conditions are met, including determining the vehicle is locked, notifying law enforcement first, and not using more force than necessary to enter the vehicle and remove the person or animal. Louisiana: RS 37:1738.1 provides that a person is not liable for property damage or trespass to a motor vehicle if the damage was caused while rescuing an animal in distress if certain conditions are met, including making a goodfaith attempt to locate the owner of the motor vehicle, contacting law enforcement, determining the vehicle is locked, and using only the force reasonably necessary to rescue the animal. Animal is defined as “any dog or cat kept for pleasure, companionship, or other purposes that are not purely commercial.” Indiana: IC 34-30-30 provides that a person is liable for one-half of the cost of repairing the damage to the motor vehicle directly caused by the person’s forcible entry but is immune from any further civil or criminal liability for removing a domestic animal in a locked vehicle if certain conditions are met. Massachusetts: Mass. Gen. Laws ch. 140, § 174f (Effective November 17, 2016) grants civil and criminal immunity for entering a motor vehicle to remove an animal if certain requirements are met, such as making reasonable efforts to locate the vehicle owner and notifying law enforcement. Ohio: Ohio Rev. Code Ann. § 959.133 grants civil immunity for damage resulting from forcible entry of a vehicle “for the purpose of removing an animal” or a minor from the vehicle if certain conditions are met, including having a good faith belief that the animal is in imminent danger, making a good faith effort to call 9-1-1 before entry, not using more force than is reasonably

necessary, and making a good faith effort to leave notice on the vehicle’s windshield about the reason for entry into the vehicle. Oregon: HB 2732 grants criminal and civil immunity to a person who “who enters a motor vehicle, by force or otherwise, to remove a child or domestic animal left unattended in the motor vehicle,” if that person has a good faith belief that entry is necessary to rescue the child or animal from imminent danger and that person takes certain steps before entry, such as contacting law enforcement. Tennessee: Tenn. Code Ann. § 29-34-209 allows persons to break into cars to save children or animals. Specific steps, including searching for the owner and notifying law enforcement, must be taken to qualify for protection under the law. Vermont: 12 V.S.A. § 5784 grants civil immunity to a person who “forcibly enters a motor vehicle for the purpose of removing a child or animal” if that person takes certain steps, like calling 9-1-1 and first determining that there is no reasonable method for the child or animal to exit the vehicle. Wisconsin: Wis. Stat. § 895.484 prevents Good Samaritans from being sued for breaking into a vehicle to rescue a pet or child, but only if police are contacted before the break-in to make sure the pet or child is really in danger. States with “hot car” bills pending: Good Samaritan Bills Illinois ( HB 4191; SB 2294) Kentucky ( SB 8) New Jersey ( S 1860; A 2318) New York ( S 3954; A 5609; A 4029) Texas ( SB 69; HB 401) West Virginia ( SB 326) Bills Empowering Law Enforcement to Enter Vehicle Pennsylvania ( HB 1216; SB 636) Hawaii ( SB 592) (only applies to dogs, and exempts owners who leave a window cracked at least 2 inches) West Virginia ( SB 320; HB 4359) Bills Criminalizing Leaving Animals in Vehicles in Dangerous Circumstances Michigan ( HB 5063; SB 496)

Bills Amending Existing Hot Car Law Rhode Island ( S 2089) (bill would allow law enforcement officers to hold an animal for up to 72 hours or until the date of arraignment of person charged with a violation of the law if the officer reasonably believes the animal needs additional medical treatment or observation. The court determines whether the owner may retrieve the animal after the hearing and may order the owner to pay costs of care) Penalties Most states limit penalties to misdemeanors or civil fines/infractions, even for repeat offenders, with these exceptions: New Hampshire stipulates a felony for a second or subsequent offense Neither Maine nor South Dakota provide for a penalty Reasons for Optimism “Hot car” laws are becoming increasingly more prevalent, with eleven enacted in just the last two years and two more pending. While only eight states currently allow concerned citizens to break into vehicles to rescue an animal, prosecutors may be reluctant to bring charges against rescuers, given the public relations nightmare and scant chance of a conviction. In Georgia, for example, charges were dropped against a man who smashed a car window to rescue a Pomeranian mix who was in distress. Former Animal Legal Defense Fund fellow Jennie James writes, “Given bloated dockets, crowded prisons, and mandatory sentencing schemes, prosecutors are generally motivated to dismiss or settle cases brought against meritorious defendants. Thus, the person who breaks a car window to free a trapped dog may be lauded, not charged. In fact, since police enjoy similar discretion, the dog’s rescuer may not even be arrested.” In states without hot car laws, perpetrators may still be prosecuted under the general anti-cruelty laws. In Lopez v. State , the defendant left his dog in his car on a hot day to go and watch a movie in a theater. Though Texas does not have a “hot car” law, he was ultimately convicted under the state’s anti-cruelty law.

Chapter 11 Dangerous dogs

Introduction to dangerous dog laws Colorado Delaware North Carolina A different breed of prejudice: Why is Illinois punishing dogs for the sins of their owners? Introduction Dangerous Dogs According to English law, dogs could have one "free bite." The thought was that until a dog bit someone, the owner would not know that the dog was dangerous. However, this is no longer the thinking regarding dangerous dog statute and ordinances. Now, jurisdictions layout sophisticated frameworks for dogs that are both dangerous, or potentially dangerous. Good dangerous dog laws recognize that dog bites are often the result of poor management by the dog's owner. Poor potentially dangerous dog ordinances place unrealistic restrictions on dog owners. For example, requiring insurance that no insurance company will write.

States like Delaware recognize that it is normal for a dog to bite if the dog is being harassed or beaten. In Colorado, the when a dangerous dog bites an individual this is a misdemeanor attributed to the dog's owner. The article "A different breed of prejudice; why is Illinois punishing dogs for the sins of the owner" contrasts breed specific legislation with dangerous dog ordinances. This article lays out some of the problems with how communities are dealing with the perceived problem of dog bites. North Carolina North Carolina General Statutes Annotated. Chapter 67. Dogs. Article 1. Owner's Liability. Article 1A. Dangerous Dogs. Article 2. License Taxes on Dogs; Chapter 130A. Public Health. Article 6. Communicable Diseases. Part 6. Rabies. Share| Primary Citation: N.C.G.S.A. § 67-1 to 18; N.C.G.S.A. § 130A-196, 130A-200 Country of Origin: United States Last Checked: December, 2017 more + Article 1. Owner's Liability § 67-1 . Liability for injury to livestock or fowls § 67-2 . Permitting bitch at large § 67-3 . Sheep-killing dogs to be killed § 67-4 . Failing to kill mad dog. Article 1A. Dangerous Dogs § 67-4.1 . Definitions and procedures. § 67-4.2 . Precautions against attacks by dangerous dogs § 67-4.3 . Penalty for attacks by dangerous dogs § 67-4.4 . Strict liability § 67-4.5 . Local ordinances Article 2. License Taxes on Dogs § 67-5. Repealed by Laws 1973, c. 822, § 6 § 67-11. Repealed by Laws 1973, c. 822, § 6 § 67-12. Permitting dogs to run at large at night; penalty; liability for damage § 67-13. Repealed by Laws 1973, c. 822, § 6 § 67-14. Mad dogs, dogs killing sheep, etc., may be killed

§ 67-14.1. Dogs injuring deer or bear on wildlife management area may be killed; impounding unmuzzled dogs running at large § 67-15. Repealed by Laws 1983, c. 35, § 2 § 67-16. Failure to discharge duties imposed under this Article § 67-17. Deleted § 67-18. Application of Article Chapter 130A. Public Health. Article 6. Communicable Diseases. Part 6. Rabies § 130A-196 . Notice and confinement of biting animals § 130A-200 . Confinement or leashing of vicious animals Article 1. Owner's Liability § 67-1. Liability for injury to livestock or fowls If any dog, not being at the time on the premises of the owner or person having charge thereof, shall kill or injure any livestock or fowls, the owner or person having such dog in charge shall be liable for damages sustained by the injury, killing, or maiming of any livestock, and costs of suit. § 67-2. Permitting bitch at large If any person owning or having any bitch shall knowingly permit her to run at large during the erotic stage of copulation he shall be guilty of a Class 3 misdemeanor. CREDIT(S) Amended by Laws 1993, c. 539, § 529; Laws 1994 (1st Ex. Sess.), c. 24, § 14(c), eff. March 26, 1994 § 67-3. Sheep-killing dogs to be killed If any person owning or having any dog that kills sheep or other domestic animals, or that kills a human being, upon satisfactory evidence of the same being made before any judge of the district court in the county, and the owner duly notified thereof, shall refuse to kill it, and shall permit such dog to go at liberty, he shall be guilty of a Class 3 misdemeanor, and the dog may be killed by anyone if found going at large. CREDIT(S) Amended by Laws 1973, c. 108, § 24; Laws 1977, c. 597; Laws 1993, c. 539, § 530; Laws 1994 (1st Ex. Sess.), c. 24, § 14(c), eff. March 26, 1994 § 67-4. Failing to kill mad dog.

If the owner of any dog shall know, or have good reason to believe, that his dog, or any dog belonging to any person under his control, has been bitten by a mad dog, and shall neglect or refuse immediately to kill the same, he shall forfeit and pay the sum of fifty dollars ($50.00) to him who will sue therefor; and the offender shall be liable to pay all damages which may be sustained by anyone, in his property or person, by the bite of any such dog, and shall be guilty of a Class 3 misdemeanor. Amended by Laws 1993, c. 539, § 531; Laws 1994 (1st Ex. Sess.), c. 24, § 14(c), eff. March 26, 1994. Article 1A. Dangerous Dogs § 67-4.1. Definitions and procedures. (a) As used in this Article, unless the context clearly requires otherwise and except as modified in subsection (b) of this section, the term: (1) "Dangerous dog" means a. A dog that: 1. Without provocation has killed or inflicted severe injury on a person; or 2. Is determined by the person or Board designated by the county or municipal authority responsible for animal control to be potentially dangerous because the dog has engaged in one or more of the behaviors listed in subdivision (2) of this subsection. b. Any dog owned or harbored primarily or in part for the purpose of dog fighting, or any dog trained for dog fighting. (2) "Potentially dangerous dog" means a dog that the person or Board designated by the county or municipal authority responsible for animal control determines to have: a. Inflicted a bite on a person that resulted in broken bones or disfiguring lacerations or required cosmetic surgery or hospitalization; or b. Killed or inflicted severe injury upon a domestic animal when not on the owner's real property; or c. Approached a person when not on the owner's property in a vicious or terrorizing manner in an apparent attitude of attack. (3) "Owner" means any person or legal entity that has a possessory property right in a dog.

(4) "Owner's real property" means any real property owned or leased by the owner of the dog, but does not include any public right-of-way or a common area of a condominium, apartment complex, or townhouse development. (5) "Severe injury" means any physical injury that results in broken bones or disfiguring lacerations or required cosmetic surgery or hospitalization. (b) The provisions of this Article do not apply to: (1) A dog being used by a law enforcement officer to carry out the law enforcement officer's official duties; (2) A dog being used in a lawful hunt; (3) A dog where the injury or damage inflicted by the dog was sustained by a domestic animal while the dog was working as a hunting dog, herding dog, or predator control dog on the property of, or under the control of, its owner or keeper, and the damage or injury was to a species or type of domestic animal appropriate to the work of the dog; or (4) A dog where the injury inflicted by the dog was sustained by a person who, at the time of the injury, was committing a willful trespass or other tort, was tormenting, abusing, or assaulting the dog, had tormented, abused, or assaulted the dog, or was committing or attempting to commit a crime. (c) The county or municipal authority responsible for animal control shall designate a person or a Board to be responsible for determining when a dog is a "potentially dangerous dog" and shall designate a separate Board to hear any appeal. The person or Board making the determination that a dog is a "potentially dangerous dog" must notify the owner in writing, giving the reasons for the determination, before the dog may be considered potentially dangerous under this Article. The owner may appeal the determination by filing written objections with the appellate Board within three days. The appellate Board shall schedule a hearing within 10 days of the filing of the objections. Any appeal from the final decision of such appellate Board shall be taken to the superior court by filing notice of appeal and a petition for review within 10 days of the final decision of the appellate Board. Appeals from rulings of the appellate Board shall be heard in the superior court division. The appeal shall be heard de novo before a superior court judge sitting in the county in which the appellate Board whose ruling is being appealed is located. Added by Laws 1989 (Reg. Sess., 1990), c. 1023, § 1.

§ 67-4.2. Precautions against attacks by dangerous dogs (a) It is unlawful for an owner to: (1) Leave a dangerous dog unattended on the owner's real property unless the dog is confined indoors, in a securely enclosed and locked pen, or in another structure designed to restrain the dog; (2) Permit a dangerous dog to go beyond the owner's real property unless the dog is leashed and muzzled or is otherwise securely restrained and muzzled. (b) If the owner of a dangerous dog transfers ownership or possession of the dog to another person (as defined in G.S. 12-3(6)), the owner shall provide written notice to: (1) The authority that made the determination under this Article, stating the name and address of the new owner or possessor of the dog; and (2) The person taking ownership or possession of the dog, specifying the dog's dangerous behavior and the authority's determination. (c) Violation of this section is a Class 3 misdemeanor. Added by Laws 1989 (Reg. Sess., 1990), c. 1023, § 1. Amended by Laws 1993, c. 539, § 532; Laws 1994 (1st Ex. Sess.), c. 24, § 14(c), eff. March 26, 1994. § 67-4.3. Penalty for attacks by dangerous dogs The owner of a dangerous dog that attacks a person and causes physical injuries requiring medical treatment in excess of one hundred dollars ($100.00) shall be guilty of a Class 1 misdemeanor. Added by Laws 1989 (Reg. Sess., 1990), c. 1023, § 1. Amended by Laws 1993, c. 539, § 533; Laws 1994 (1st Ex. Sess.), c. 24, § 14(c), eff. March 26, 1994. § 67-4.4. Strict liability The owner of a dangerous dog shall be strictly liable in civil damages for any injuries or property damage the dog inflicts upon a person, his property, or another animal. Added by Laws 1989 (Reg. Sess., 1990), c. 1023, § 1. § 67-4.5. Local ordinances Nothing in this Article shall be construed to prevent a city or county from adopting or enforcing its own program for control of dangerous dogs. Added by Laws 1989 (Reg. Sess., 1990), c. 1023, § 1. Delaware

Delaware Code Annotated. Title 16. Health and Safety. Part II. Regulatory Provisions Concerning Public Health. Chapter 30F. Animal Welfare. Subchapter V. Dangerous and Potentially Dangerous Dogs Primary Citation: 16 Del.C. §§ 3071F to 3081F Subchapter V. Dangerous and Potentially Dangerous Dogs § 3071F. Definitions § 3072F. Redesignated from 9 Del.C. § 921 and repealed by 80 Laws 2016, ch. 248, § 6, eff. May 25, 2016 § 3073F. Seizure and impoundment of dangerous or potentially dangerous dogs; notification of dog owner hearing procedures § 3074F. Exceptions § 3075F. Redesignated from 9 Del.C. § 924 and repealed by 80 Laws 2016, ch. 248, § 6, eff. May 25, 2016 § 3076F. Finding to declare a dog dangerous; duties of owner § 3077F. Finding to declare a dog potentially dangerous; duties of owner § 3078F. Liability of owner for costs of impoundment § 3079F. Violations by owners of dangerous or potentially dangerous dogs; penalties § 3080F. Finding to declare a dog non-dangerous § 3081F. Disposition of dogs determined to be dangerous or potentially dangerous or non-dangerous; appeal § 3071F. Definitions For the purposes of this subchapter: (1) “Animal welfare officer” means an individual employed by the Department or employed by an independent contractor of the Department or a municipality for the purpose of enforcing dog control laws, rules, regulations, and ordinances. (2) “Attack” means the deliberate action of a dog, whether or not in response to a command by its owner, to bite, seize with its teeth, or pursue any human being or domestic animal with the obvious intent to kill, wound, injure, or otherwise harm the human being or domestic animal. (3) “Dangerous dog” means any dog that the Justice of the Peace Court has declared to be dangerous by the under § 3076F of this title or any potentially dangerous dog kept or maintained in violation of § 3076F(b) of this title.

(4) “Dog” means any dog or dog hybrid. (5) “Domestic animal” means any dog, cat, poultry, or livestock. (6) “Owner” means any person who owns, keeps, harbors, or is the custodian of a dog. (7) “Non-dangerous dog” means any dog that the Justice of the Peace Court has declared to be non-dangerous under § 3080F of this title. (8) “Physical injury” means impairment of physical condition or substantial pain. (9) “Potentially dangerous dog” means any dog that the Justice of the Peace Court has declared to be potentially dangerous under § 3077F of this title. (10) “Proper enclosure” means securely confined indoors or a securely enclosed and locked pen or structure, suitable to prevent the entry of young children and designed to prevent the dog from escaping. Such pen or structure shall have secure sides and a secure top and shall also provide protection from the elements for the animal. If the pen or structure has no bottom secured to the sides, the sides must be embedded at least 2 feet into the ground. (11) “Serious physical injury” means physical injury which creates a substantial risk of death, or which causes serious and prolonged disfigurement, prolonged impairment of health, or prolonged loss or impairment of the function of any bodily organ. Credits Added by 77 Laws 2010, ch. 428, § 8, eff. July 1, 2010. Amended by 80 Laws 2015, ch. 157, § 1, eff. Aug. 11, 2015. Redesignated from 9 Del.C. § 920 and amended by 80 Laws 2016, ch. 248, § 6, eff. May 25, 2016. § 3072F. Redesignated from 9 Del.C. § 921 and repealed by 80 Laws 2016, ch. 248, § 6, eff. May 25, 2016 § 3073F. Seizure and impoundment of dangerous or potentially dangerous dogs; notification of dog owner; hearing procedures (a) An animal welfare officer shall seize and impound a dog suspected of being dangerous or potentially dangerous when the officer has reasonable cause to believe that the dog has engaged in 1 or more of the following: (1) Killed or inflicted physical injury or serious physical injury upon a human being.

(2) Killed or inflicted serious physical injury upon a domestic animal, provided the domestic animal was on the property of its owner or under the immediate control of its owner. (3) Chased or pursued a person, including a person on a bicycle, upon the streets, sidewalks, or any public or private property, other than the dog owner's property, in an apparent attitude of attack on 2 separate occasions within a 12month period. (4) Caused physical injury to a domestic animal, provided the domestic animal was on the property of its owner or under the immediate control of its owner, on more than one occasion in a 12-month period. For purposes of this paragraph (a)(4), “physical injury” means impairment of physical condition and substantial pain. (b) Any dog seized pursuant to this section shall be impounded until a final disposition as to whether the dog is dangerous or potentially dangerous. The Department shall take all reasonable action to determine the identity of the owner of the impounded dog. If the owner cannot be identified within 5 days of the dog's impoundment, unless earlier disposal is recommended by a doctor of veterinary services, the Department may dispose of the dog in accordance with this subchapter. (c) The owner of any seized and impounded dog has a right to a hearing to determine whether the dog is dangerous or potentially dangerous. (1) The Justice of the Peace Court is the Court of original and exclusive jurisdiction for hearings under this subsection. (2) Unless the owner agrees to the proposed conditions, the Department shall file a civil action with the Justice of the Peace Court within 5 business days after impoundment of the dog and identification of the dog's owner and notice to the owner. (d) The Justice of the Peace Court shall hold a hearing under this subsection within 30 days of the Department filing of a civil action. (1) All Justice of the Peace Court Civil Rules apply to proceedings under this subchapter, except where otherwise stated. (2) The Justice of the Peace Court shall keep a record, sufficient for judicial review, of all evidence taken at hearings under this subchapter, according to the Court's rules regarding the recording of proceedings.

(3) A hearing shall be held within 30 days of the Department filing a civil action. The dog may be released to its owner and the charges made under subsection (a) of this section may be dismissed, unless a delay is requested by the owner and approved by the Department for good cause at the Court's discretion. (e) If the dog owner fails to appear for the hearing, the Justice of the Peace Court shall enter a default judgment. A motion to vacate a default judgment may be filed within 10 days of the entry of the default judgment. If no motion is filed, the Department shall dispose of the dog in accordance with this chapter. (f) Nothing in this subchapter shall be construed to interfere with the provisions for protecting human health from rabies in Chapter 82 of Title 3. Credits Added by 77 Laws 2010, ch. 428, § 8, eff. July 1, 2010. Amended by 70 Laws 1995, ch. 186, § 1, eff. July 10, 1995; 79 Laws 2014, ch. 374, § 2, eff. July 31, 2014; 79 Laws 2014, ch. 376, §§ 1, 5, eff. July 31, 2014. Redesignated from 9 Del.C. § 922 and amended by 80 Laws 2016, ch. 248, § 6, eff. May 25, 2016; 81 Laws 2017, ch. 96, § 3, eff. July 21, 2017. § 3074F. Exceptions (a) Notwithstanding § 3073F of this title, no dog shall be considered dangerous or potentially dangerous if a physical injury or serious physical injury was sustained by any of the following: (1) A human being who, at the time the injury was sustained, was committing criminal trespass or other tort upon premises occupied by the owner of the dog, or was teasing, tormenting, abusing, or assaulting the dog, or was committing or attempting to commit a crime. (2) A domestic animal which, at the time the injury was sustained, was teasing, tormenting, abusing, or assaulting the dog. (3) A domestic animal while the dog was working as a hunting dog, herding dog, or predator control dog on the property of or under the control of its owner, and the injury was to a species or type of domestic animal appropriate to the work of the dog. (b) Notwithstanding § 3073F of this title, no dog shall be considered dangerous or potentially dangerous if the dog was protecting or defending a person within the immediate vicinity of the dog from an attack or assault.

(c) Notwithstanding § 3073F of this title, no military, correctional, or policeowned dogs shall be considered dangerous or potentially dangerous if the attack or injury to a person or domestic animal occurs while the dog is performing duties as expected. Credits Added by 77 Laws 2010, ch. 428, § 8, eff. July 1, 2010. Amended by 79 Laws 2014, ch. 376, § 2, eff. July 31, 2014. Redesignated from 9 Del.C. § 923 and amended by 80 Laws 2016, ch. 248, § 6, eff. May 25, 2016. § 3075F. Redesignated from 9 Del.C. § 924 and repealed by 80 Laws 2016, ch. 248, § 6, eff. May 25, 2016 § 3076F. Finding to declare a dog dangerous; duties of owner (a) The Justice of the Peace Court may declare a dog to be dangerous if it finds by clear and convincing evidence that the dog has done any of the following: (1) Killed or inflicted physical injury or serious physical injury upon a human being. (2) Killed or inflicted serious physical injury upon a domestic animal, provided the domestic animal was on the property of its owner or under the immediate control of its owner. (3) Inflicted physical injury upon a domestic animal after the dog has been declared potentially dangerous under § 3077F of this title. (b) If the Justice of the Peace Court declares a dog to be dangerous, it shall be unlawful for any person to keep or maintain such dog unless all of the following occur: (1) The dog is spayed or neutered. (2) The dog owner procures and maintains liability insurance in the amount of at least $100,000, covering any damage or injury which may be caused by such dog. (3) The dog is confined by its owner within a proper enclosure, and whenever outside of the proper enclosure the dog is securely muzzled and restrained by a substantial chain or leash, not exceeding 6 feet, and under the control of a responsible adult, or caged. (4) The dog owner displays, in a conspicuous manner, a sign on the owner's premises warning that a dangerous dog is on the premises. The sign shall be visible and legible from the public highway or 100 feet, whichever is less.

(5) The dog owner immediately notifies the Department when the dog is loose, unconfined, has attacked a human being or another domestic animal, has been moved to another address, or dies. (6) The owner meets any other condition that the Justice of the Peace Court has deemed reasonable, given the circumstances of the case. (c) It shall be unlawful for the owner of a dangerous dog to sell, offer for sale, or give away said dog to any other person other than the Department. If a dangerous dog is given to the Department, the dog shall be disposed of by euthanasia in accordance with subchapter I of this chapter. Credits Added by 77 Laws 2010, ch. 428, § 8, eff. July 1, 2010. Amended by 70 Laws 1995, ch. 186, § 1, eff. July 10, 1995; 79 Laws 2014, ch. 376, § 3, eff. July 31, 2014. Redesignated from 9 Del.C. § 925 and amended by 80 Laws 2016, ch. 248, § 6, eff. May 25, 2016; 81 Laws 2017, ch. 96, § 4, eff. July 21, 2017. § 3077F. Finding to declare a dog potentially dangerous; duties of owner (a) The Justice of the Peace Court may declare a dog to be potentially dangerous if it finds by clear and convincing evidence that the dog has done any of the following: (1) Attacked or inflicted physical injury upon a human being. (2) Attacked or inflicted serious physical injury upon a domestic animal, provided the domestic animal was on the property of its owner or under the immediate control of its owner. (3) Chased or pursued a person, including a person on a bicycle, upon the streets, sidewalks, or any public or private property, other than the dog owner's property, in an apparent attitude of attack on 2 separate occasions within a 12month period. (4) Caused physical injury to a domestic animal on more than one occasion in a 12-month period, provided the domestic animal was on the property of its owner or under the immediate control of its owner. (b) No dog may be declared potentially dangerous based solely on the dog's breed or perceived breed. (c) If the Justice of the Peace Court declares a dog to be potentially dangerous, it shall be unlawful for any person to keep or maintain the dog unless all of the following occur:

(1) The dog is spayed or neutered, provided the Justice of the Peace Court ordered the spaying or neutering as part of its decision in declaring the dog to be potentially dangerous. (2) While on the dog owner's property, the dog is kept indoors or within a securely fenced yard from which it cannot escape. (3) When off the owner's premises, the dog is restrained by a substantial chain or leash, not exceeding 6 feet, and is under the physical control of a responsible adult. (4) The owner meets any other condition that the Justice of the Peace Court has deemed reasonable, given the circumstances of the case. (d) If there are no additional instances of the behavior described in subsection (a) of this section within a 24-month period from the date the dog is declared potentially dangerous, the dog shall no longer be deemed a potentially dangerous dog. Credits Added by 77 Laws 2010, ch. 428, § 8, eff. July 1, 2010. Amended by 79 Laws 2014, ch. 376, § 4, eff. July 31, 2014. Redesignated from 9 Del.C. § 926 and amended by 80 Laws 2016, ch. 248, § 6, eff. May 25, 2016; 81 Laws 2017, ch. 31, § 2, eff. June 2, 2017; 81 Laws 2017, ch. 96, § 4, eff. July 21, 2017. § 3078F. Liability of owner for costs of impoundment If the Justice of the Peace Court declares a dog dangerous or potentially dangerous, the Court shall include in its judgment the costs associated with the care of the dog while in the Department's custody. Prior to reclaiming the dog, the owner must reimburse the Department the amount indicated in the judgment or establish a payment plan approved by the Court. If the owner does not take either action within 10 days after judgement, ownership of the dog reverts to the Department and the Department may dispose of the dog by euthanasia in accordance with subchapter I of this chapter. If a dog is determined to be nondangerous under § 3080F of this title, the owner shall not be liable for the costs of impoundment. Credits

Added by 77 Laws 2010, ch. 428, § 8, eff. July 1, 2010. Redesignated from 9 Del.C. § 927 and amended by 80 Laws 2016, ch. 248, § 6, eff. May 25, 2016; 81 Laws 2017, ch. 96, § 4, eff. July 21, 2017. § 3079F. Violations by owners of dangerous or potentially dangerous dogs; penalties (a) For a violation of § 3076F(b)(4) or (b)(6) or § 3077F(c)(1), (c)(2), (c)(3) or (c) (4) of this title, the owner of the dangerous dog or potentially dangerous dog shall be fined not less than $50 nor more than $100. For a subsequent offense within 3 years of the original court ruling or acceptance of conditions concerning dangerous or potentially dangerous dogs, the owner shall be fined not less than $100 or more than $200. (b) For a violation of § 3076F(b)(1) or (b)(5) of this title, the owner of the dangerous dog shall be fined not less than $100 or more than $250. For a subsequent offense within 3 years of the original court ruling or acceptance of conditions concerning dangerous or potentially dangerous dogs, the owner shall be fined not less than $250 or more than $500. (c) For a violation of § 3076F(b)(2), (b)(3), or (c) of this title, the owner of the dangerous dog shall be fined not less than $250 or more than $1,000. For a subsequent offense within 3 years of the original court ruling or acceptance of conditions concerning dangerous or potentially dangerous dogs, the owner shall be fined not less than $500 or more than $2,000. (d) After a dog has been declared dangerous under § 3076F(a) of this title, only a dog that, without provocation, kills, attacks, or inflicts physical injury or serious physical injury upon a human being or domestic animal shall be seized and impounded by the Department and disposed of by euthanasia in accordance with subchapter I of this chapter. For purposes of this subsection, “provocation” means any of the exceptions to finding a dog dangerous or potentially dangerous contained in 3074F(a) or (b) of this title. (e) After a dog has been declared potentially dangerous under § 3077F of this title, a dog that inflicts physical injury upon a domestic animal, or a dog that chases or pursues a person, including a person on a bicycle, upon the streets, sidewalks, or any public or private property, other than the dog owner's property, in an apparent attitude of attack, the dog shall be seized and

impounded by the Department and the Department may file a civil action for a hearing to determine whether the dog is dangerous. (f) Any fine imposed for a violation of this subchapter may not be suspended to any amount less than the minimum prescribed fine. The Justice of the Peace Court shall remit all fines imposed following a conviction for violation of this subchapter to the Department. Credits Added by 77 Laws 2010, ch. 428, § 8, eff. July 1, 2010. Redesignated from 9 Del.C. § 928 and amended by 80 Laws 2016, ch. 248, § 6, eff. May 25, 2016; 81 Laws 2017, ch. 96, § 4, eff. July 21, 2017. § 3080F. Finding to declare a dog non-dangerous If the Department fails to demonstrate by clear and convincing evidence that a dog is dangerous pursuant to § 3076F of this title or potentially dangerous pursuant to § 3077F of this title, the Justice of the Peace Court shall declare the dog to be nondangerous. Despite a finding that the dog is nondangerous, the Justice of the Peace Court may impose any condition deemed reasonable, given the circumstances of the case. Credits Added by 80 Laws 2016, ch. 248, § 6, eff. May 25, 2016; 81 Laws 2017, ch. 96, § 4, eff. July 21, 2017. § 3081F. Disposition of dogs determined to be dangerous or potentially dangerous or non-dangerous; appeal (a) If the Justice of the Peace Court determines that a dog is dangerous, the Court may direct the Department to dispose of the dog by euthanasia in accordance with subchapter I of this chapter. If the Justice of the Peace Court does not order euthanasia, the owner shall comply with all conditions that the Court orders under § 3076F(b)(6) of this title, within 30 days from the date of the order. The Justice of the Peace Court may order the dog to remain in the custody of the State until all conditions have been met. (b) If the Justice of the Peace Court determines that a dog is potentially dangerous, the owner shall comply with all conditions that the Court orders under § 3077F(c)(4) of this title, within 30 days from the date of the order. The

Justice of the Peace Court may order the dog to remain in the custody of the State until all conditions have been met. (c) If another incident occurs within the period of time allowed for compliance under subsection (a) or (b) of this section, the Department shall immediately seize the dog and dispose of it in accordance with subchapter I of this chapter. (d) If the Justice of the Peace Court determines a dog to be nondangerous, the dog shall be released to its owner, subject to any conditions imposed under § 3080F of this title. (e) The Department or the owner, if the Justice of the Peace orders the dog to be euthanized, may appeal the Justice of the Peace Court's decision to the Court of Common Pleas within 15 days of the entry of the decision. The Court of Common Pleas shall review the appeal on the record. The filing of an appeal acts as a stay of the Justice of the Peace Court's decision, pending final disposition of the appeal. The appellant shall pay the cost of transcribing the Justice of the Peace Court recording and all documents must be submitted to the Court of Common Pleas within 15 days of filing an appeal. Credits Added by 80 Laws 2016, ch. 248, § 6, eff. May 25, 2016; 81 Laws 2017, ch. 96, § 4, eff. July 21, 2017. Colorado Colorado Revised Statutes Annotated. Title 18. Criminal Code. Article 9. Offenses Against Public Peace, Order, and Decency. Part 2. Cruelty to Animals. § 18-9-204.5. Unlawful ownership of dangerous dog--legislative declaration-definitions. Title 35. Agriculture. Livestock. Article 42. Animal Protection. § 3542-115. Dangerous dog registry--created--cash fund Share| Popular Title: Dangerous Dog Law Primary Citation: C. R. S. A. § 18-9-204.5; C. R. S. A. § 35-42-115 § 18-9-204.5. Unlawful ownership of dangerous dog--legislative declaration-definitions. (1) The general assembly hereby finds, determines, and declares that:

(a) Dangerous dogs are a serious and widespread threat to the safety and welfare of citizens throughout the state because of the number and serious nature of attacks by such dogs; and (b) The regulation and control of dangerous dogs is a matter of statewide concern. (2) As used in this section, unless the context otherwise requires: (a) “Bodily injury” means any physical injury that results in severe bruising, muscle tears, or skin lacerations requiring professional medical treatment or any physical injury that requires corrective or cosmetic surgery. (a.5) “Bureau” means the bureau of animal protection in the department of agriculture, division of animal industry, created pursuant to section 35-42-105, C.R.S. (b) “Dangerous dog” means any dog that: (I) Inflicts bodily or serious bodily injury upon or causes the death of a person or domestic animal; or (II) Demonstrates tendencies that would cause a reasonable person to believe that the dog may inflict bodily or serious bodily injury upon or cause the death of any person or domestic animal; or (III) Engages in or is trained for animal fighting as described and prohibited in section 18-9-204. (c) “Dog” means any domesticated animal related to the fox, wolf, coyote, or jackal. (d) “Domestic animal” means any dog, cat, any animal kept as a household pet, or livestock. (e) “Owner” or “owns” means any person, firm, corporation, or organization owning, possessing, harboring, keeping, having financial or property interest in, or having control or custody of a domestic animal, as the term is defined in paragraph (d) of this subsection (2), including a dangerous dog as the term is defined in paragraph (b) of this subsection (2). (f) “Serious bodily injury” has the same meaning as such term is defined in section 18-1-901(3)(p) (3)(a) A person commits ownership of a dangerous dog if such person owns, possesses, harbors, keeps, has a financial or property interest in, or has custody or control over a dangerous dog.

(b) Any owner who violates paragraph (a) of this subsection (3) whose dog inflicts bodily injury upon any person commits a class 3 misdemeanor. Any owner involved in a second or subsequent violation under this paragraph (b) commits a class 2 misdemeanor. (c) Any owner who violates paragraph (a) of this subsection (3) whose dog inflicts serious bodily injury to a person commits a class 1 misdemeanor. Any owner involved in a second or subsequent violation under this paragraph (c) commits a class 6 felony (d) Any owner who violates paragraph (a) of this subsection (3) whose dog causes the death of a person commits a class 5 felony. (e)(I) Any owner who violates paragraph (a) of this subsection (3) whose dog injures or causes the death of any domestic animal commits a class 3 misdemeanor. (II) Any owner of a dog that is involved in a second or subsequent violation under this paragraph (e) commits a class 2 misdemeanor. The minimum fine specified in section 18-1.3-501 for a class 2 misdemeanor shall be mandatory. (III)(A) The court shall order the convicted owner and any owner who enters into a deferred judgment or deferred prosecution to make restitution to the injured or dead domestic animal's owner pursuant to applicable provisions of title 16, C.R.S., governing restitution. (B) Restitution shall be equal to the greater of the fair market value or the replacement cost of the domestic animal on the date, but before the time, the animal was injured or destroyed plus any reasonable and necessary medical expenses incurred in treating the animal and any actual costs incurred in replacing the injured or destroyed animal (B.5) An owner who violates paragraph (a) of this subsection (3) and whose dog damages or destroys the property of another person commits a class 1 petty offense. (C) Any owner whose dog damages or destroys property shall make restitution to the owner of such property in an amount equal to the greater of the fair market value or the replacement cost of such property before its destruction plus any actual costs incurred in replacing such property. (e.5) The court shall order any owner of a dangerous dog who has been convicted of a violation of this section to:

(I) Confine the dangerous dog in a building or enclosure designed to be escapeproof and, whenever the dog is outside of the building or enclosure, keep the dog under the owner's control by use of a leash. The owner shall post a conspicuous warning sign on the building or enclosure notifying others that a dangerous dog is housed in the building or enclosure. In addition, if the conviction is for a second or subsequent offense, the dangerous dog shall also be muzzled whenever it is outside of the building or enclosure. (II) Immediately report to the bureau in writing any material change in the dangerous dog's situation, including but not limited to a change, transfer, or termination of ownership, change of address, escape, or death (III) At the owner's expense, permanently identify the dangerous dog through the implantation of a microchip by a licensed veterinarian or a licensed shelter. A veterinarian or licensed shelter that implants a microchip in a dangerous dog shall report the microchipping information to the bureau within ten days after implantation of the microchip, pursuant to section 35-42-115(2), C.R.S. (IV) Prior to the implantation of the microchip, pay a nonrefundable dangerous dog microchip license fee of fifty dollars to the bureau; (V) Prior to the dangerous dog receiving any service or treatment, disclose in writing to any provider of the service or treatment, including but not limited to a veterinary health care worker, dog groomer, humane agency staff person, pet animal care facility staff person, professional dog handler, or dog trainer, each acting in the performance of his or her respective duties, that the dangerous dog has been the subject of a conviction of a violation of this section; (VI) Prior to a change, transfer, or termination of ownership of a dangerous dog, disclose in writing to the prospective owner that the dangerous dog has been the subject of a conviction of a violation of this section. (f) In addition to any other penalty set forth in this subsection (3), upon an owner's entry of a guilty plea or the return of a verdict of guilty by a judge or jury or a deferred judgment or deferred prosecution for a violation that results in bodily injury, serious bodily injury, or death to a person, the court, pursuant to applicable provisions of title 16, C.R.S., governing restitution, shall order the defendant to make restitution in accordance with said provisions. (g)(I) In addition to the penalties set forth in paragraphs (b) to (e) of this subsection (3), upon an owner's entry of a guilty plea or the return of a verdict

of guilty by a judge or jury or a deferred judgment or deferred prosecution for a violation that results in serious bodily injury to a person or death to a person or domestic animal or for a second or subsequent violation of paragraph (b) or (e) of this subsection (3) resulting in a conviction or a deferred judgment or a deferred prosecution involving the same dog of the same owner, the court shall order that the dangerous dog be immediately confiscated and placed in a public animal shelter and shall order that, upon exhaustion of any right an owner has to appeal a conviction based on a violation of this subsection (3), the owner's dangerous dog be destroyed by euthanasia administered by a licensed veterinarian. (II) In addition to any penalty set forth in paragraphs (b) to (e) of this subsection (3), for a second or subsequent violation of paragraph (b) or (e) of this subsection (3) resulting in a conviction or a deferred judgment or a deferred prosecution involving the same dog of a different owner, the court may order that the dangerous dog be immediately confiscated and placed in a public animal shelter and that, upon exhaustion of any right an owner has to appeal a conviction based on a violation of this subsection (3), the owner's dangerous dog be destroyed by euthanasia administered by a licensed veterinarian. (h)(I) An affirmative defense to the violation of this subsection (3) shall be: (A) That, at the time of the attack by the dangerous dog which causes injury to or the death of a domestic animal, the domestic animal was at large, was an estray, and entered upon the property of the owner and the attack began, but did not necessarily end, upon such property; (B) That, at the time of the attack by the dangerous dog which causes injury to or the death of a domestic animal, said animal was biting or otherwise attacking the dangerous dog or its owner; (C) That, at the time of the attack by the dangerous dog which causes injury to or the death of a person, the victim of the attack was committing or attempting to commit a criminal offense, other than a petty offense, against the dog's owner, and the attack did not occur on the owner's property; (D) That, at the time of the attack by the dangerous dog which causes injury to or the death of a person, the victim of the attack was committing or attempting to commit a criminal offense, other than a petty offense, against a person on

the owner's property or the property itself and the attack began, but did not necessarily end, upon such property; or (E) That the person who was the victim of the attack by the dangerous dog tormented, provoked, abused, or inflicted injury upon the dog in such an extreme manner which resulted in the attack. (II) The affirmative defenses set forth in subparagraph (I) of this paragraph (h) shall not apply to any dog that has engaged in or been trained for animal fighting as said term is described in section 18-9-204. (4) Upon taking an owner into custody for an alleged violation of this section or the issuing of a summons and complaint to the owner, pursuant to the Colorado rules of criminal procedure and part 1 of article 4 of title 16, C.R.S., the owner's dangerous dog may be taken into custody and placed in a public animal shelter, at the owner's expense, pending final disposition of the charge against the owner. In addition, in the event the court, pursuant to the Colorado rules of criminal procedure and part 1 of article 4 of title 16, C.R.S., sets bail for an owner's release from custody pending final disposition, the court may require, as a condition of bond, that the owner's dangerous dog be placed by an impound agency, as defined in section 18-9-202.5(5), at the owner's expense in a location selected by the impound agency including a public animal shelter, licensed boarding facility, or veterinarian's clinic, pending final disposition of the alleged violation of this section. The owner is liable for the total cost of board and care for a dog placed pursuant to this subsection (4). (5)(a) Nothing in this section shall be construed to prohibit a municipality from adopting any rule or law for the control of dangerous dogs; except that any such rule or law shall not regulate dangerous dogs in a manner that is specific to breed. (b) Nothing in this section shall be construed to abrogate a county's authority under part 1 of article 15 of title 30, C.R.S., to adopt dog control and licensing resolutions and to impose the penalties set forth in section 30-15-102, C.R.S.; except that any such resolution shall not regulate dangerous dogs in a manner that is specific to breed. (c) No municipality or county may destroy or dispose of a dog that is awaiting destruction or disposition as of April 21, 2004, in connection with a violation or

charged violation of a municipal or county ban on one or more specific dog breeds. (6) The provisions of this section shall not apply to the following: (a) To any dog that is used by a peace officer while the officer is engaged in the performance of peace officer duties; (b) To any dog that inflicts bodily or serious bodily injury to any veterinary health care worker, dog groomer, humane agency personnel, professional dog handler, or trainer each acting in the performance of his or her respective duties, unless the owner is subject to a court order issued pursuant to paragraph (e.5) of subsection (3) of this section and the owner has failed to comply with the provisions of subparagraph (V) of paragraph (e.5) of subsection (3) of this section; or (c) To any dog that inflicts injury upon or causes the death of a domestic animal while the dog was working as a hunting dog, herding dog, or predator control dog on the property of or under the control of the dog's owner and the injury or death was to a domestic animal naturally associated with the work of such dog. Credits Added by Laws 1991, H.B.91-1162, § 1, eff. July 1, 1991. Amended by Laws 1999, Ch. 94, § 1, eff. July 1, 1999; Laws 1999, Ch. 215, § 10, eff. July 1, 1999; Laws 2002, Ch. 318, § 206, eff. Oct. 1, 2002; Laws 2004, Ch. 168, § 3, eff. April 21, 2004; Laws 2004, Ch. 370, §§ 2, 3, eff. July 1, 2004; Laws 2006, Ch. 175, § 1, eff. July 1, 2006; Laws 2007, Ch. 197, § 2, eff. July 1, 2007; Laws 2012, Ch. 102, § 3, eff. Sept. 1, 2012. § 35-42-115. Dangerous dog registry--created--cash fund (1) The bureau shall establish a statewide dangerous dog registry consisting of a database of information concerning microchip types and placement by veterinarians and licensed shelters in dangerous dogs pursuant to the provisions of section 18-9-204.5(3)(e.5), C.R.S. The commissioner may promulgate such rules as may be necessary for the implementation of this section. (2) A veterinarian or licensed shelter that implants a microchip pursuant to the provisions of section 18-9-204.5(3)(e.5)(III), C.R.S., shall provide to the bureau a veterinary record of the microchip. The bureau shall maintain each veterinary record provided in a registry on a statewide database.

(3) Each person who is ordered to identify his or her dangerous dog through microchip implantation shall pay to the bureau a nonrefundable dangerous dog microchip license fee of fifty dollars, as required in section 18-9-204.5(3) (e.5)(IV), C.R.S. The bureau shall transmit all fees collected pursuant to this subsection (3) to the state treasurer who shall credit the same to the dangerous dog microchip licensure cash fund, referred to in this section as the “fund”, which fund is hereby created. The moneys in the fund shall be subject to annual appropriation by the general assembly to the bureau for the costs incurred in implementing this section. The state treasurer may invest any moneys in the fund not expended for the purpose of this section as provided by law. All interest and income derived from the investment and deposit of moneys in the fund shall be credited to the fund. Any unexpended and unencumbered moneys remaining in the fund at the end of a fiscal year shall remain in the fund and shall not be credited or transferred to the general fund or another fund. CREDIT(S) Added by Laws 2004, Ch. 370, § 4, eff. July 1, 2004. A DIFFERENT BREED OF PREJUDICE: WHY IS ILLINOIS PUNISHING DOGS FOR THE SINS OF THEIR OWNERS? 2017 U. Ill. L. Rev. 877 University of Illinois Law Review 2017 Note Laura Bueckera Copyright © 2017 by The Board of Trustees of the University of Illinois; Laura Buecker, used by permission A DIFFERENT BREED OF PREJUDICE: WHY IS ILLINOIS PUNISHING DOGS FOR THE SINS OF THEIR OWNERS? As a response to the “dog-bite epidemic” many municipalities have begun to pass two types of laws: dangerous-dog laws and breed-specific laws. This Note argues that all dog breed-specific legislation in Illinois should be replaced with breed neutral legislation. Dangerous-dog laws do not distinguish between different breeds of dogs in their attempt to keep communities safe from dogs of

irresponsible owners. Additionally, the existing dangerous-dog laws in Illinois should be strengthened, and better community education on dog behavior must be introduced. These measures, once implemented, will work together to squarely lay the blame where it belongs--on negligent owners and shelters-while keeping both dogs and communities safe. TABLE OF CONTENTS I. INTRODUCTION II. BACKGROUND A. Dog-Bite Statistics B. The Infamous “One Bite Rule” and Dangerous-Dog Laws C. Breed-Specific Legislation 1. Targeting the “Nanny Dog” 2. History of Breed-Specific Legislation D. Dog Legislation in Illinois III. ANALYSIS A. Other Factors Affecting Canine Behavior: Aggression B. Misidentifying Pit Bulls C. Little to No Decrease in Dog Attacks in Communities Implementing Breed-Specific Legislation D. Overcrowding in the United States' Animal Shelters IV. RECOMMENDATION A. Implementation of Breed Neutral Legislation in Illinois B. Strengthen Dangerous-Dog Statutes Already in Place C. Greater Personal Liability for Owners of Aggressive Dogs D. Sanctions on Animal Shelters or Breeders with Knowledge of a Dog's Violent Tendencies E. Community Education V. CONCLUSION *878 I. INTRODUCTION November 6, 2005, in Cary, Illinois, began like any other day, but that afternoon took a frightening turn for several of its citizens.1 Two ten-year-old children, Nick Foley and Jordan Lamarre, were selling Girl Scout cookies and had just raised their hands to knock on a neighbor's door when the neighbor's three pit bulls escaped from inside the home.2 The dogs attacked the children,

then proceeded to bite other residents who attempted to frighten off the animals; included in this number was the dog's owner, who had his thumb bitten off of his hand.3 When all was said and done, six people were injured, and the two children were hospitalized in serious or critical condition.4 Police finally arrived at the gory scene to shoot and kill the dogs who had wreaked havoc on the neighborhood.5 The government fined the dogs' owner only $150 for failing to control his animals, while the Foleys shelled out thousands of dollars for Nick's months-long hospital and therapy care.6 How did three supposedly domesticated animals, “man's best friend,” come to cause such devastating injury on an otherwise peaceful neighborhood? Similar stories, unfortunately, have become relatively common in the American news. In order to combat this so-called “dog bite epidemic,”7 many municipalities began to pass two types of legislation: dangerous-dog laws and breed-specific legislation.8 Dangerous-dog laws give notice of breed restriction, outline what dog behavior is prohibited by a municipality (e.g., not being leashed, trespassing, or roaming free throughout the neighborhood), create penalties for both the dog and owner should these restrictions *879 be ignored or broken, and provide reasonable rights to a hearing before penalties are imposed.9 On the other hand, breed-specific legislation targets a particular breed of dog, usually in the form of a complete ban from living in a municipality or imposing stricter regulations on them, in comparison to other dog breeds.10 This type of statute may be used to supplement already existing dangerous-dog laws.11 Breed-specific legislation has become more popular in light of the population explosion of ostensibly “aggressive breeds,” such as American Staffordshire Terriers and other pit bull-type dogs.12 While the Illinois Supreme Court prohibits local governments from adopting breed-specific animal-control ordinances or regulations,13 it has allowed certain municipalities to retain their breed-specific legislation: namely, again, banning certain breeds of dogs from residing within city limits.14 These bans fail to address the issue of dog aggression head-on and ignore the problems that lead to serious or fatal dog attacks in lieu of emphasizing responsible dog ownership and dog behavior education. Additionally, dangerous-dog laws in Illinois fail at protecting both humans and animals, as Illinois has the second highest number of dog-bite claims in the nation.15

This Note argues that all dog breed-specific legislation in Illinois should be replaced with breed neutral legislation, another term for dangerous-dog laws. Dangerous-dog laws do not distinguish between different breeds of dogs in their attempt to keep communities safe from dogs of irresponsible owners. Additionally, the existing dangerous-dog laws in Illinois should be strengthened, and better community education on dog behavior must be introduced. Part II of this Note introduces the background of breed-specific legislation and dangerous-dog laws in the United States, the dog-bite statistics that led to the adoption of these laws, and finally the adoption of breed-specific legislation, both nationally and in Illinois. Next, Part III analyzes the extent to which a dog's breed influences the likelihood of it acting aggressively, as well as other characteristics that factor into canine aggression. Furthermore, Part III explores the fact that most people cannot actually pick a “pit bull” out of a lineup of *880 other aesthetically similar dog breeds, and that breed-specific legislation in most instances has not been shown to lead to a decrease in dog attacks in municipalities that would justify its cost both to society and the government. Finally, Part IV recommends the adoption of breed neutral laws in order to take a blanket approach in addressing dog aggression, including placing higher penalties on negligent owners. Additionally, Illinois must implement comprehensive community education programs to instill knowledge about dog behavior and behavioral signals, especially to children. In order to create a safe environment for both humans and dogs, Illinois desperately needs better legal safeguards and community education programs to ensure that its number of serious dog bites and dog attack fatalities falls drastically in the coming years. II. BACKGROUND Dogs have existed as a part of human society for time immemorial; the deep emotional bond that can form between man and his animal has been the subject of many books and movies. The famous trial attorney George Graham Vest once remarked in a closing argument, “[t]he one absolutely unselfish friend that a man can have ... the one that never deserts him, the one that never proves ungrateful or treacherous, is his dog ... When all other friends desert, he remains.”16 Despite this oft-celebrated relationship, the sheer amount of dogs

in the United States understandably causes the two species to occasionally come into conflict. By studying the types and causes of these conflicts, lawmakers can create more efficient and more humane solutions for all parties involved--animal and human. Dangerous-dog laws, which place emphasis on the past conduct of the owner for creating a dangerous dog or situation, have long been prevalent in the United States; within the past few decades, however, legislators have turned to another proposed solution to dog attacks--breed-specific legislation.17 Breed-specific legislation, in contrast, focuses on the dog itself by restricting or banning the possession of certain breeds.18 Both types of laws impact the canine population in different ways, both in what types of dogs are affected and in the restrictions they impose. *881 A. Dog-Bite Statistics Dog bites are not an insignificant issue in the United States--the American Veterinary Medical Association (“AMVA”) estimates that 43 million households in the United States own canines, for a total of 69 million dogs in this country.19 Unsurprisingly, dog-bite injuries send thousands of people to the emergency room every year.20 As one author notes, among nonfatal injuries, only sports injuries send more people to the ER.21 In total, dogs bite more than 4.7 million people in this country annually.22 Of those injured, 885,000 per year seek medical attention, including 30,000 who have surgical reconstructive procedures to correct scarring caused by sharp teeth and claws.23 Additionally, 13%-18% of those injured develop infections from their wounds, which increases the severity of the attack.24 The severity of these bites vary, however, and in general fatalities from dog attacks occur infrequently. In fact, twice as many people in the United States are killed each year by lightning strikes (one hundred individuals), and three times as many are killed by falling coconuts (one hundred fifty individuals) than by dog bites (forty-two fatalities in 2014).25 Like shark attacks, dog- bite-related fatalities likely receive more media attention than these other types of fatalities due to the fact they are perceived as being particularly violent or gory in nature. One author notes that though dogs are statistically less likely to kill you than your swimming pool or SUV, humans' innate fear of predators such as wolves or bears compels us to react more emotionally when someone is killed by these

animals. This results in harsh laws penalizing those responsible, no matter if they are human or animal.26 Despite their infrequency, aggressive dogs are particularly concerning for lawmakers, as children form the single largest at-risk group for potential attacks--primarily due to the fact that children have a greater chance of sustaining a head or neck injury than other demographics.27 In *882 2014, 48% of those killed by dogs in the United States were children under the age of thirteen.28 Because children are disadvantaged against a larger, more powerful dog, this statistic emphasizes the need for more stringent laws targeting irresponsible adult owners who create these dangerous situations. Additionally, of adult fatalities in 2014, 73% were over the age of fifty.29 Thus, the biggest atrisk groups for dog attack fatalities are the very young and older adults--again, groups less able to defend themselves against a large, powerful animal. The pervasive media coverage of these fatalities as a symptom of the socalled “dog bite epidemic” seems to have originated in the 1970s.30 This type of media reporting causes the family dog to be perceived by the public as a naturally vicious creature, as apt to turn on, and bite, the hand that feeds him as an intruder to the family home.31 This view is at odds with the reality of dog bites in this country. While dog-bite-related attacks and fatalities are often violent and profoundly life-altering, the number of dog bites annually in the United States has actually decreased dramatically in the past three decades.32 For example, in Chicago, the number of reported dog bites dropped from 11,932 in 1978 to 1,931 in 2011.33 Despite this decrease in injuries, the occurrence of any unprovoked bite remains concerning, especially when those bites or attacks result in a human fatality. Part of the fault for these statistics lie in the safeguards that the state of Illinois has put in place to protect its citizens from negligent owners of aggressive dogs. Illinois' dangerous-dog laws and breed-specific legislation fail to create safe municipalities for both humans and dogs. In 2013, State Farm insurance reported that Illinois had the second highest ranking among states for reported dog-bite claims.34 That year saw 309 dog-bite claims, with a cost totaling $8.9 million.35 Only California, the most populous state in the nation, reported more--449 claims for a total of $14.7 million.36 Considering the major population difference between the two states, the amount of bites Illinoisans

suffer each year is *883 disproportionately large. Illinois statutes that are intended to protect citizens against dog attacks fail to do so with any regularity. B. The Infamous “One Bite Rule” and Dangerous-Dog Laws The so-called “one-bite rule” has its origins in English courts, beginning several hundred years ago.37 Based on the idea that an owner should be responsible for the damages his dog causes, liability was based on the owner's knowledge (or “scienter”) that the dog was dangerous and the owner's negligence in allowing it to cause harm to others.38 While the one bite rule would allow an injured person to pursue a claim against the dog's owner, these claims were not always successful, as many bite victims no doubt discovered to their detriment. As one author notes, “[t]his standard sometimes allowed [dog owners] to escape responsibility unfairly because the injured person could not prove the dog was dangerous or that the guardian knew about the animal's predilection for violence.”39 The idea of the one-bite rule has continued up until the present age, and (to an extent) rightfully so--dogs are, for legal purposes, considered the property of their humans, and a man must not use his property to cause harm to others.40 This should include creating an aggressive or vicious animal through neglect or violent actions toward it. Legal definitions of what makes a dog “aggressive” or “vicious” vary between jurisdictions.41 In order to balance this, many jurisdictions use hearings to make the final call on the aggressiveness of the animal before labeling it as such.42 One bite rules have many flaws, including the reality that a dog's first bite may be fatal or the belief that all dog bites are the result of the animal's behavior problems.43 One bite laws gave dog bite victims little recourse and provided dog owners no incentive to prevent the bites, which could potentially be fatal, even though it may be the first time the dog has bitten anyone.44 Thus, one bite laws have, for the most part, fallen by the wayside. *884 Currently, most states favor dangerous (or aggressive) dog laws.45 These laws hold dog owners responsible for the supervision and actions of their pets.46 While imposing penalties on owners who fail to do so, they typically also consider that situations can arise in which a dog's aggression is warranted from fear or previous harm caused by an individual.47 Additionally, some animal activists even advocate for holding owners who breed dogs they know to

be aggressive and selling the offspring of that union to be liable both civilly and criminally for any damage done by those offspring.48 Dangerous-dog laws nationwide share numerous characteristics. Usually they include four sections. The first section states the definition of what characterizes a dangerous dog or a vicious dog.49 Second, the statute describes the procedure that officially decides whether a dog is dangerous.50 This is usually an official complaint followed by an investigation by local animal control or another authority, then finally a hearing discussing the results of that investigation.51 Third, the law will state the restrictions to be placed on the “dangerous” dog (which can range from registering the dog as a dangerous dog to sterilization and liability insurance).52 Finally, it states the penalties for owners who violate these restrictions, which includes the consequences for a dog that has attacked and injured someone after being declared dangerous.53 The penalties for violating dangerous-dog restrictions are initially monetary in nature, but if the dog has attacked a person after being officially declared dangerous, the owner may be guilty of a criminal offense.54 The government then usually seizes and destroys the dog.55 Despite many challenges, American courts have almost uniformly upheld dangerous-dog laws as valid uses of state police power.56 The first known instance of dog legislation discussed in the courtroom comes in Sentell v. New Orleans Carrollton R.R. Company, a case that established the power of the state to regulate dogs as pets.57 The plaintiff's Newfoundland dog had been killed by the defendant railroad company; he filed suit to recover the dog's value.58 The railroad company protested that the owner had not been in compliance with the city's ordinances *885 that regulated pet dogs and, therefore, should not be allowed to recover damages.59 In response, the owner challenged the constitutionality of these ordinances.60 The Supreme Court of the United States upheld New Orleans' dog-restriction ordinances, stating that it was within the power of the state to regulate how dogs behave. For example, the city could require license tags (and the accompanying fee) for all dogs within city limits.61 The Court held that a dog owner only has a qualified property interest in his or her pet, allowing the state legislature to make decisions concerning that pet which are “necessary for the

protection of its citizens.”62 Sentell became the touchstone for lower courts when crafting both breed-specific or breed-neutral legislation. To this day, the ability to regulate the possession of dogs within a municipality has been held to be fully within the police power of the state.63 Consequently, dangerous-dog laws are rarely challenged on constitutional grounds, as they serve a state's legitimate interest in promoting public health and welfare.64 The same cannot be said for breed-specific legislation. C. Breed-Specific Legislation Breed-specific legislation garners more public outrage in the United States than breed neutral legislation. As can be gathered from its name, breed neutral legislation (also known as aggressive/dangerous-dog laws, as stated above) considers all dangerous dogs on par with one another once it has been determined the dog is vicious, regardless of what breed they belong to. In contrast, breed-specific legislation focuses on a specific breed of dog considered to be a danger to humans based solely on membership in said breed.65 Breed-specific legislation first identifies the breed of dog a jurisdiction has identified as an issue, then imposes restrictions on said breed, most severely in the form of a complete ban of that breed from residing in that jurisdiction.66 Owners of breeds deemed “dangerous” have challenged breedspecific legislation over and over again, precisely *886 because mere ownership of such a dog constitutes prima facie evidence that the dog is “dangerous” or “vicious.”67 “What some laws are saying, unequivocally, is that any dog that falls into the group in question is deserving of being singled out, extirpated from the family, and euthanized simply by virtue of membership in that group.”68 Dog owners protest that, unlike breed-neutral aggressive/dangerous-dog statutes, breed-specific legislation singles out a certain breed of dog, and therefore targets the owners of these dogs differently from owners of unregulated breeds.69 Opponents of these statutes argue that the legislation is too vague, as it does not adequately define the term “pit bull” or how one is to be recognized.70 Dog owners who are successful in combatting this legislation argue that the vagueness of the law provides them with insufficient notice that they are harboring a forbidden breed, and thus violates their Due Process rights.71

1. Targeting the “Nanny Dog” America maintains a tumultuous relationship with what it commonly perceives to be the most vicious of dog breeds. One journalist remarked, “[p]it bulls have been both glorified and victimized by their reputation.”72 And that reputation has only spread and darkened over the years as the population of pit bull-type dogs exploded in the United States.73 In 1993, pit bulls accounted for less than 1% of the total dog population in this country.74 When a dog breed census was held again ten years later, however, the number of pit bulls in the United States had increased fivefold.75 This trend has more than likely continued in the following years, causing the pit bull population in America to climb higher yet in 2016. Why do people react so negatively to one breed of dog and fawn over others such as the Golden Retriever or Poodle? As stated above, two animal-law attorneys suggest that humans sensationalize dog attacks because they, unlike swimming pools and car crashes, spark the primal *887 fear of predators that humans inherited from their ancestors.76 When the dogs in question are described as having a powerful build, in addition to large, muscular jaws, one can perceive why such an animal might be singled out in comparison to a smaller breed that is less threatening in appearance. One trait of these more threatening dogs that supporters of breed-specific legislation focus on is the characteristic “lock bite” that most bully breeds, including pit bull-type dogs, are purported to possess.77 Upon further research, however, evidence shows that pit bulls possess the same jaw muscles and bone structure exhibited by other similarly sized dogs, such as a Labrador retriever.78 The existence of the so-called lock bite derives from the pit bull's appearance, not actual physiology. Though the dogs are known for their powerful bite, the research shows that the bite force this bite exerts is lacking.79 What is known, however, is that the average dog-bite exerts about 320 pounds of pressure per square inch; in a simulated sleeve-bite test utilized for three breeds of dog, an American Pit Bull Terrier actually recorded the lowest score when compared to both a Rottweiler and German Shepherd.80 Are pit bulls more inherently dangerous than those breeds? It seems unlikely.

Furthermore, the overall number of annual dog-bite fatalities has not increased over the past two decades: twenty-five deaths were reported in 1990.81 This number has held steady with only twenty-four deaths in 2008.82 The number of dog-bite-related fatalities, of course, varies annually,83 but this should be considered in conjunction with the population increase in pit bulltype dogs in the United States,84 and the fact that pit bull-type dogs and mixes were responsible for one-third of said fatalities between 1981 and 1992.85 An advocate for breed neutral legislation points out that the breeds of dogs responsible for dog-bite-related fatalities have changed over time.86 Again, even the report that sparked the “dog-bite epidemic” scare concluded that more than twenty-five different dog breeds were involved in human fatalities over the twenty year time span it studied.87 Other breeds that have led in highest number of fatalities over the past forty *888 years include German Shepherd Dogs, Great Danes, and Rottweilers.88 Some even predict the pit bull may soon be overthrown as the most feared dog in the United States as the desire for the high-energy Belgian Malinois, a breed of shepherd dog frequently utilized by the military, increases.89 One concern animal advocates have about breed-specific legislation regards the idea that banning one “aggressive breed” such as pit bulls or Rottweilers will encourage people who desire a so-called “dangerous dog” to simply purchase another breed with similar qualities, such as large size or predisposition to stranger aggression.90 This may have contributed to the increase in the pit bull population within the past few decades as owners of dogs such as German Shepherds and Dobermans were confronted with bans specific to those breeds. No matter what factors led to its development, the reputation of the pit bull still stands as the “Al Capone of dogs.”91 2. History of Breed-Specific Legislation Breed-specific legislation typically develops in response to a well-publicized dog attack with serious and/or fatal consequences.92 Currently, twenty-nine states permit the passing of breed-specific legislation, and those statutes are presently being enforced somewhere within each state.93 Though Sentell first addressed the power of a state to regulate dog ownership, breed-specific legislation was first discussed in much later cases.94

Breed discrimination, as recognized today, seems to have its origins from a September 15, 2000, issue of the Journal of American Veterinary Medical Association, in an article called “Breeds of Dogs Involved in Fatal Human Attacks in the United States Between 1979 and 1998.”95 In reality, the report itself states that though pit bull and Rottweiler-type dogs accounted for more than half of the fatalities, it also emphasizes that more than twenty-five different breeds were implicated, and that numerous other factors besides breed contributed to the deaths.96 Breed-specific legislation has been challenged in court on the basis of “overinclusiveness, underinclusiveness, vagueness and violation of *889 fourteenth amendment protection.”97 Most commonly, opponents of the laws bring suits centered around violations of Equal Protection and Due Process under the Fourteenth Amendment.98 Courts, however, have concluded that because dog owners are not a suspect class and, therefore, warrant only minimal scrutiny; owning a pet is not a fundamental right and many courts have held that the government has a rational basis for labeling pit bulls as dangerous dogs and regulating dangerous dogs for the good of public welfare, thus, most Equal Protection claims have failed.99 In order for a class to survive a constitutional challenge, it must be neither overbroad nor under-inclusive.100 As stated above, breed-specific legislation has been challenged on both fronts. Opponents to the statutes bring overbreadth challenges based on the idea that lawmakers “overgeneralized” when passing the law and now subject both the aggressive and obedient dogs of the target breed to restrictions.101 Courts generally accept non-suspect classifications as long as they are based on a reasonable foundation, however, and most have accepted that the classification of a certain breed as dangerous is rationally related to promoting public safety and welfare.102 Under-inclusive challenges view the issue from the opposite angle-challengers state that breed-specific language does not address dangerous dogs from other breeds, only the targeted breed.103 As Hussain remarks in her article, however, the Supreme Court allows legislatures to tackle an issue by providing “piecemeal” remedies, refusing to invalidate a law solely because a classification is under-inclusive.104

In Vanater v. Village of South Point, the defendant municipality enacted an ordinance banning the ownership of any pit bull-type dog within city limits.105 A man who had previously purchased such a dog for his wife *890 filed a claim in order to keep their dog.106 The court held that the criminal ordinance (which assigned a $1,000 fine or imprisonment of less than sixty days, or both, as punishment) preventing the harboring of pit bull-type dogs within village limits was not overly broad.107 As discussed above, local governments have a large amount of discretion to enact regulations as long as those regulations are not contrary to the general laws of the state.108 The court held that controlling dogs as part of the “public health” and safety provisions of a police power is acceptable.109 Because pit bulls have inherent characteristics of exceptional aggression, the court stated that the municipal ordinance was reasonable in order to protect public safety.110 The court also provided a resource for those who have questions about their dog's breed or want to learn how to train their dog--a guide from the American Kennel Club (“AKC”).111 Additionally, breed-specific legislation has been under fire for depriving dog owners of their Due Process rights, which can be considered either substantive or procedural. Procedural Due Process, which focuses on how laws are applied, gives owners of “dangerous” dog breeds an extra weapon for their arsenal: a void for vagueness challenge, which focuses on a statute's lack of notice that would give citizens adequate warning that their behavior is prohibited.112 Most commonly, the vagueness in question concerns the statute's definition of a “pit bull.”113 Again, as pit bulls are not a recognized breed, no single “breed standard” exists by which to identify them.114 Vague laws give local animal control enforcement insufficient direction on the method to accurately identify the dogs that the statute concerns.115 Without proper instruction, authorities can enforce these laws arbitrarily.116 Thus, pit bull owners have challenged breed-specific statutes for failing to adequately define what characteristics describe a pit bull. These challenges have been met with mixed results. Some were successful; for instance, the Court in American Dog Owner's Ass'n v. City of Lynn held that the municipality's breed-specific legislation did not clearly identify the breed against which it was implemented.117 The court warned that enforcement of

breed bans relies on a subjective understanding of dog breeds and can leave dog owners guessing at what conduct or appearance *891 is prohibited, which may be impossible to furnish.118 Citizens were directed to follow AKC or UKC standards as to what characteristics mark a dog as a “pit bull.”119 Many vagueness challenges fail, however, allowing breed-specific legislation to remain in place.120 The next Section discusses the breed-specific legislation currently in place in Illinois. D. Dog Legislation in Illinois The statutory code of Illinois makes a distinction between “dangerous” and “vicious” dogs. A dangerous dog, as defined per the Illinois Compiled Statutes, is an animal that is not on the property of its owner, and behaves in a way that would cause a reasonable person to fear a serious, unjustified injury or a dog that has bitten someone without justification and without causing a serious injury.121 A vicious dog, by contrast, is a dog that attacks a person and causes a serious injury, or even death, or is a dog that has been found to be “dangerous” per the above definition on three separate occasions.122 The determination of these statuses is to be made by the administrator of the Animal Control Act (a veterinarian) or by a law-enforcement officer.123 Additionally, Illinois law imposes harsh penalties on those who use dogs for fighting, recognizing that there is a strong link between dog attacks and the underlying cause of dog fighting.124 As one representative explained, “‘[f]requently, dogs are trained to be vicious by owners who wish to use their animals in dog fights, and what's worse is that a lot of dog fights have connections to street gangs. I introduced this legislation to crack down on this cruel blood sport ...”125 In 2007, Chicago police reported a dramatic increase in dog fighting within the city, pointing out that it is a favored form of gambling within gangs.126 Recognizing that dog *892 fighting goes hand in hand with gang violence is an important step toward placing the responsibility for dog aggression and dog-bite-related fatalities squarely on the heads of those irresponsible owners who encourage this form of animal cruelty. While the Illinois Compiled Statutes bans breed-specific legislation, it allows for “home rule” (which allows home rule cities to pass breed-specific laws “if justified”).127 Additionally, breed-specific legislation that was already in place

at the time the ban was enacted remained firmly in place through grandfather clauses.128 Some towns and municipalities escaped the Illinois Supreme Court ban on breed-specific legislation within the state. Aledo, Barry, East Dubuque, Addison, and Golf ban pit bulls from living within their municipal boundaries.129 Additionally, North Chicago, Rock Falls, and Buffalo Grove placed restrictions on pit bulls, with Buffalo Grove also adding Rottweilers into that classification.130 Interestingly, while the village of Lincolnwood has not restricted or banned pit bulls outright, its municipal code states that pit bulls are automatically considered to be a per se vicious dog, which comes with its own set of restrictions.131 Other municipalities have taken breed-neutral routes in order to curtail the prevalence of dog attacks or fatalities within their local boundaries. Waukegan, for example, enacted a law that prohibits the selling of dogs or puppies by anyone in the city but registered breeders, doling out large fines for those who violate it.132 This, according to Waukegan's Animal Control Director, is one of the harshest animal-control laws in the state of Illinois.133 Most municipalities, however, do not have such strict ordinances; that effect is explored in Part III of this Note. III. ANALYSIS While courts may believe that breed-specific legislation should be effective, the numerous other factors contributing to dog aggression should be taken into consideration when developing legislation aimed at protecting society against dog-bite fatalities. Furthermore, the harm that befalls both responsible owners and innocent dogs is a serious casualty of breed-specific legislation. Breedspecific legislation carries its own set of problems and prejudices that foster fear in lieu of knowledge and education *893 about dog behavior and what makes a dog aggressive towards humans. The Humane Society explains the issues with this type of legislation: Most existing laws relating to the control of dangerous animals are derived from centuries-old English Common Law. This approach has failed to recognize the complex role of dogs in our culture and changing social trends that have resulted in widespread keeping of potentially dangerous animals. Also, most laws fail to take into consideration modern knowledge about animal behavior,

animal welfare and the epidemiology of animal bites. Finally, many existing laws place the burden of punishment on the offending animal, when in fact it is an irresponsible owner who is usually the direct or indirect cause of dangerous incidents.134 Breed-specific legislation creates frightening consequences for docile pets not shown to be aggressive, their owners, and surrendered animals that have no place to go except as a burden to shelters. A. Other Factors Affecting Canine Behavior: Aggression While undoubtedly true that certain innate characteristics were selected for in the development of certain breeds (i.e., a German Shepherd's innate drive to “herd” other domestic animals and small children),135 an individual dog's personality is the sum of many different moving parts, and many popularly accepted stereotypes about a dog's breed may not be true at all. The American Temperament Testing Society objectively evaluates dog temperaments through a uniform test, and, in 2006, 84.1% of American Pit Bull Terriers passed, compared to only 71.4% of Chihuahuas.136 This test was designed to measure certain psychological characteristics of dog breeds: The ATTS Temperament Test focuses on and measures different aspects of temperament such as stability, shyness, aggressiveness, and friendliness as well as the dog's instinct for protectiveness towards its handler and/or selfpreservation in the face of a threat ... Failure on any part of the test is recognized when a dog shows: Unprovoked aggression Panic without recovery Strong avoidance137 *894 In fact, the breed standard for Staffordshire Bull Terriers requires the dogs to be “sweet-natured and family-oriented.”138 These traits were emphasized so heavily in the past that the dogs were colloquially called “‘nanny dog[s]’: a child's patient playmate and steady guardian.”139 While many proponents of breed-specific legislation will be quick to point out that pit bull breeders previously specifically selected the dogs to display aggression toward other dogs,140 most animal-rights advocates counter that pit bulls were bred first for human companionship.141 Additionally, unlike in humans, animal aggression and human aggression are not synonymous in dogs, meaning that a

dog may be perfectly reliable around people, but unable to be comfortably in the same room or on the same sidewalk as another dog. A dog's reproductive status enormously impacts its aggression. Neutering male dogs decreases the amount of testosterone in their system, creating an advantage when fighting aggressive tendencies.142 Testosterone may create a lower aggression threshold in dogs, which makes aggressive responses to threatening or frustrating situations more likely.143 According to the American Veterinary Medical Association, “intact” (unneutered) male dogs are responsible for at least 70% of reported dog-bite incidents.144 Intact dogs may be involved in as many as 84.4% of dog-bite-related fatalities.145 A 1997 study by the University of California, Davis, observed common problem behaviors in male dogs (e.g., urine marking, mounting, aggression toward canine and human family members).146 Specifically, neutering positively affected aggression toward family members and other dogs within the home (25% of the dogs improved by more than 50%).147 Even more importantly, 10%-15% percent of *895 dogs studied showed less aggression toward strange dogs and intruders.148 The cost of spaying or neutering is relatively small compared to the benefits it provides--one service in the Chicagoland area provides spay/neuters for only sixty dollars.149 Other animal-advocacy groups will occasionally offer a reduced rate for pit bulls in order to encourage their adoption.150 Of course, in addition to reducing the aggressiveness of the animal, sterilizing both male and female dogs prevents unwanted litters of puppies, reducing the already overburdened shelter system and lowering the numbers of stray dogs left to roam the streets without owner supervision.151 Owners' actions may also negatively impact the aggression levels of their dogs. Reckless owners who “abused, neglected, chained, and/or failed to properly supervise their dog” were implicated in 84% of dog attacks in 2006.152 Dog abuse or cruelty may include beating, shooting, or stabbing the animal, while neglect involves depriving the animal of necessary food, water, shelter, or veterinary care.153 Dogs that are neglected frequently fail to hone important socialization skills at critical points in their development, leaving them unable to respond appropriately in threatening situations. Additionally, if dogs have negative experiences with other animals or people early in their growth, it can

be very difficult for them to overcome the fear and aggression they develop in response.154 Popularity of a dog breed almost certainly affects the number of bites in a city. For example, generally pit bull-type animals do not cause the majority of dog bites in a municipality.155 For example, between 2012 and 2013, 6,500 dog bites were reported in the Denver area; the top five breeds responsible were, in order, Labrador retrievers, German Shepherds, pit bulls, Chihuahuas, and bulldogs.156 This supports the proposition that there must be another factor at play in determining what causes dogs to bite besides breed. One confirmation for this theory comes from the Center for Disease Control, which strongly opposes breed-specific *896 legislation, a position it reached after a thorough study of human dog-bite-related fatalities.157 Another factor that has an effect on canine behavior is tethering, such as chaining the animal to a stationary object such as a tree or fence.158 Dogs that are restrained on the property of their owner are more likely to cause a serious or fatal attack in comparison to those that are roaming the streets.159 By reducing the permitted movement of the dog, owners can create territoriality and fear of strangers in poorly socialized dogs, which spells disaster when a stranger walks into the dog's comfort zone.160 A fearful animal is an aggressive animal. In order to combat this problem, towns such as Lawrence, Kansas, have enacted legislation that restricts the amount of time a dog can be tethered, unsupervised, per day.161 Lawrence saw great results--reported instances of dog fighting and neglect have dramatically dropped.162 These statistics show that communities may be better served by enacting legislation that focuses on owners who fail to neuter their dogs, who practice animal abuse, or who fail to properly supervise their animals. Breed-specific legislation removes the burden of responsibility from the owner and places on the dog itself. B. Misidentifying Pit Bulls Contrary to popular belief, no one true “pit bull breed” actually exists. The pit bull only emerged within the past two centuries as Englishmen sought to create the ultimate fighting dog through breeding programs focusing on combining the power of the bulldog and the endurance of the terrier.163 The dog gained quite a bit of favoritism, as it was used by the American military in

both war and propaganda.164 While originally the pit bull's hostility was only meant to be directed at other dogs, beginning in the 1980s the United States saw a population increase, due to their popularity as “man eaters,” in use by drug dealers and other *897 types of criminals looking for a status symbol, the “macho” dog.165 Dog fighting has also reared its ugly head again as a popular “recreational activity.”166 This breeding and crossbreeding in order to create the perfect dogfighter means that more than twenty-five distinct dog breeds have been labeled at one point or another as “pit bulls.”167 Included in the breed formation list are American Pit Bull Terriers, American Bulldogs, American Staffordshire Terriers, Bull Terriers, other Bulldogs, Bullmastiffs, Boston Terriers, Boxers, French Bulldogs, and Staffordshire Bull Terriers.168 The three breeds most commonly identified as pit bulls are the American Staffordshire Terrier, the Staffordshire Bull Terrier, and the American Pit Bull Terrier.169 They do indeed share many characteristics, including the “impression of great strength,” a medium-sized muscular physique, short coat, and strong, powerful head.170 Additionally, most people have a great deal of difficulty just generally telling these breeds apart.171 In order to combat this confusion, many American cities have passed laws banning any dog that merely resembles a pit bull.172 In addition to negatively affecting pit bulls, these laws put non-pit-bull-type dogs in danger. For example, in 2007, animal-control officers in Kansas City seized residents Mike and Amy Johnson's dog Niko for an alleged violation of the city's pit bull ban.173 Eight months passed before the Johnsons managed to secure Niko's freedom through a canine DNA test, which confirmed that Niko was not, in fact, a pit bull but rather a Boxer mix.174 During this time away from his family, Niko was incarcerated at the pound, losing significant weight and developing an illness before finally being freed.175 While requiring DNA tests for breed-specific legislation enforcement may seem like a solution to the many problems of such statutes, DNA tests carry their own risks. For example, if a jurisdiction that does not train its police officers or animal control officers in the proper methods for DNA collection and analysis, that jurisdiction could be held liable if it was to destroy a dog based on a result from a faulty test.176 This would lead to increased costs for the

municipality in order to verify a *898 dog's breed, in addition to the costs of litigation in order to defend the failure to do so.177 Though DNA tests are an objective way of determining a dog's breed, they come with their own sets of concerns for both the dog owner and the municipality that orders them. C. Little to No Decrease in Dog Attacks in Communities Implementing Breed-Specific Legislation While both dangerous-dog laws and breed-specific legislation have been upheld as constitutional, “[c]onstitutionality ... is not indicative of efficacy. Indeed an evaluation of practical considerations such as statistical evidence, enforcement costs, and the laws' effect on public safety reveal that dangerousdog laws are a more effective and efficient means of regulating dangerous dogs.”178 Both animal lovers and dog-bite-victim advocates debate the wisdom of implementing breed-specific legislation within individual municipalities, and in part this debate has been spurred on by the lack of concrete information on how breed-specific legislation affects communities. No nationwide studies have been performed on the efficacy of breed-specific legislation in the United States, and only a few have been performed outside the country. One of the more recent ones involved a Spanish study of the effects stemming from the implementation of breed-specific legislation in Aragon, Spain, in 1999.179 Researchers tracked the number of medically attended dog bites in the city for five years after the law was introduced.180 While the breeds of dogs affected by the legislation were responsible for only 2.4% of the dog bites before the legislation was enacted, that percentage actually rose slightly to 3.5% of recorded dog bites afterward.181 This study points out two important facts--that the “aggressive” breeds the law aimed at accounted for a very small portion of the total bites both before and after it was passed, and that the implementation of breed-specific legislation was not successful in protecting people from dog bites. Individual American communities with implemented breed-specific legislation report that they too have found the statutes to be ineffective and costly. Prince George's County in Maryland currently bans pit bulls from residing within that jurisdiction.182 The Maryland Dog Federation discovered that since its passing in 2003, enforcing the breed ban has been expensive and ineffective, and instead, the county has inefficiently utilized public services and

resources to impound docile dogs instead of *899 solely removing aggressive dogs.183 The Best Friends Animal Society estimates that as of 2015, the county has spent around $1.3 million annually enforcing the restriction.184 While the cost may be justified if the ban succeeds in eliminating dog attacks or fatalities, a task force authorized by the county in 2003 to examine the results of the ban found that “the public safety benefit is unmeasurable,” and that dog bites had decreased uniformly among all breeds of dog, with no focus on a certain breed.185 It is unclear whether the time and expense spent policing the breed ban justifies the cost to both the local municipality and the citizens, or whether another solution would be more efficient in protecting public health and safety. As one advocate stated, “‘I always question why people agree with the breed ban because their response is [that they don't want dangerous dogs in the neighborhood] ... My response is that we have dangerous dog laws [for that].”’186 Additionally, the Denver Animal Control Director admits that, twenty years after a pit bull ban was enacted in Denver, Colorado, he is unsure that the ban has made Denver any safer against dog attacks and fatalities.187 Denver does know, however, that its city is less safe than Boulder. Boulder has breed neutral legislation in the form of dangerous-dog laws that focus on educating and regulating dog owners in lieu of targeting specific breeds.188 Denver had six times as many hospitalizations related to dog bites than Boulder, even though Denver's population was not even twice the size of Boulder's, between 1995 and 2006.189 In this instance, breed-specific legislation did not solve an aggressive dog problem in this city. It may have even led to a by-blow issue, as discussed below: where do “aggressive breed” dogs go when they are banned from an entire city, especially one as large as Denver? D. Overcrowding in the United States' Animal Shelters “Between six and eight million unwanted dogs and cats enter animal shelters each year, and three to four million of these animals must be euthanized because there are not enough households to adopt them all.”190 Broken down further, this means that 1.2 million dogs are euthanized each year,191 and pit bulls make up approximately 60% of these dogs euthanized *900 in shelters annually,192 despite only accounting for around 5% of the United States' petdog population.193 These disproportionate statistics owe their existence to

numerous factors, but one of those undoubtedly concerns that pit bulls are the dogs most likely to be affected by breed-specific legislation in municipalities. As stated above, a large majority of the dog breeds in shelters are pit bulls or pit bull mixes.194 For example, in Chicago, pit bulls make up about 40% of the dogs who enter Chicago Animal Care and Control.195 Sadly, the same dogs are two-thirds of the canine population that are euthanized if they cannot be adopted out.196 These facts are particularly striking as they come at a time when the number of impounded and euthanized animals has steadily declined, primarily due to increased sterilization of pets and adoptions.197 While the number of animals euthanized in Chicago dropped by more than half each year from 2006 to 2013, the number of pit bulls impounded and euthanized rose steadily.198 Why are pit bulls so populous in shelters? Dogs wind up in shelters for a myriad of reasons--owners die, the dogs slip their leash and are lost, the new baby is allergic. Sometimes an owner simply grows tired of the responsibility and surrenders the dog for no other reason. With pit bulls, however, the reasons are particularly distressing. “The problem is simple, advocates say: People keep breeding pit bulls for money, and owners can't or won't handle them. So they end up as one of the most commonly abused, neglected and euthanized pets.”199 An already overpopulated breed, combined with a fear originating in extensive media coverage of attacks by pit bulls,200 leads to the dogs being labeled “unadoptable” by those who work in shelters.201 In fact, pit bulls have been forced to stay so long in one shelter that the management decided to increase their adoption fee to more than twice that for other breeds of dogs in order to help pay for the cost of housing them for such a long period of time.202 While many of the dogs are deemed “adoptable,” as shelters become more and more full with this breed, it becomes harder and harder to find them responsible homes.203 *901 Additionally, breed-specific legislation frequently involves restricting where these animals can live. As it becomes more difficult for owners of these animals to find legal housing, potential adopters may feel discouraged from adopting pit bulls from shelters in fear that they may not be able to find a living situation that allows them in the future.

While other factors clearly contribute to the concerning amount of overcrowding in America's animal shelters, breed-specific legislation plays a large role in this, as well by limiting where some of the most at-risk breeds can reside and by fostering an image of an innately vicious dog in the minds of potential adopters. Without breed-specific legislation, a plethora of additional opportunities would be available to these alienated dogs. IV. RECOMMENDATION As long as man and animal cohabitate, the danger of dog bites and even dogbite fatalities will continue to exist. Simply no method exists to completely eliminate this threat. States such as Illinois, however, can implement different strategies in order to help lower these numbers of injuries and fatalities as much as possible. First, all breed-specific legislation in Illinois's municipalities should be replaced with breed-neutral legislation in the form of aggressive or dangerous-dog laws. Second, the state should take steps to strengthen current aggressive dog statutes already in place. This can be done in part by creating greater personal liability for owners of dogs who demonstrate uncontrollably aggressive behavior and do not follow their local dangerous-dog law requirements. In the same vein, shelters and breeders who adopt out or sell dogs they have reason to believe are vicious should be sanctioned by the state and have their licensure revoked. Finally, and perhaps most importantly, the state should implement educational programs that are mandatory for school children and also offered at community centers--these programs will focus on learning to recognize dog behavior and appropriate reactions to aggressive dogs. By choosing to reform the way it currently treats dogs, owners, and potential attack victims, Illinois can create a safer environment for both its canine and human citizens. A. Implementation of Breed-Neutral Legislation in Illinois In order to formulate a more effective approach, it is first important to pinpoint reasons why existing laws are not working.204 These can include: inadequate budget to enforce, inadequate training to deal with animal issues in a humane way, the low priority that animal issues are given within the community, or lack of support from law enforcement.205 In addition, breedspecific legislation encourages the development of societal *902 fears or bias

against bully breeds. Defending breed legislation can be expensive for municipalities, both in time and money.206 Illinois should alter its existing breed-specific legislation to implement narrowly drawn dangerous-dog statutes. New legislation should target individual dogs with known histories of attacking a person or another animal without provocation or recorded instances of aggression that suggest the risk of a future attack.207 Per ASCPA suggestions, owners of dogs that are determined dangerous should be required at the very least to take actions such as: 1) having the dog evaluated by a certified animal behaviorist or veterinarian in order to determine an appropriate course of training or treatment; 2) spaying or neutering the animal in question; and 3) leashing and/or muzzling the dog while in public.208 Euthanasia should only be used in extreme instances, such as in the event that an animal has actually attacked a human. Should an owner choose noncompliance with these statutes, he or she runs the risk of having the dog removed or destroyed. Owners of dogs deemed dangerous, however, must also have opportunities to appeal charges made against their animal in court. B. Strengthen Dangerous-Dog Statutes Already in Place Illinois has already implemented dangerous-dog statutes statewide, but these could be strengthened to produce even better results towards the state's goal of reducing dog bites and dog-bite fatalities for its citizens. Studies have shown that adopting breed-neutral laws with stiff, strictly enforced fines can lead to a massive downtrend in dog attacks throughout a city--Calgary enacted stringent fines such as an automatic $350 fine for any dog bite to a person and a $250 fine for dog-on-dog attacks or for having an unlicensed animal.209 In just two years after enacting these measures, Calgary has seen a 56% decrease in aggressive-dog incidents and a 21% drop in reported dog bites.210 Strengthening aggressive-dog statutes and imposing harsher penalties on owners in Illinois will reinforce the duty that a dog owner has to both the general public and his own animal--the duty to protect others from being injured by his or her own property and the duty to do what is best for the dog, even if that means keeping it on a short leash. *903 C. Greater Personal Liability for Owners of Aggressive Dogs

States should pass strong laws that give heavier penalties to owners of dogs who break local animal ordinances.211 Why hold owners so strictly responsible? The answer seems obvious. As one expert points out: Dogs are the property, for better or for worse, of their owners ... You can't write a law that a dog is going to be able to read. You need to write laws that hold owners responsible for the behavior of their dogs and for them to have care and control of their dogs.212 The only person who has the time and resources to ensure that a dog is welltrained and well-treated on a day-to-day basis is the dog's owner. Many animal-welfare advocacy groups adopted this notion. For example, the ASPCA supports the notion that dog owners should be held responsible for the actions of their dogs that cause unjustified harm or damage.213 State governments, however, have not universally accepted this idea. Many states assign very little personal liability to the owners of aggressive dogs; for instance, two jurisdictions in both Texas (Bell County) and Ohio (Montgomery County) each incurred two dog-bite fatalities in 2014.214 No felony charges came from any of the four fatal attacks.215 On the other hand, Washington state's laws are among the harshest for the owners of aggressive dogs.216 The statutes assign strict liability for the owners of dogs that bite.217 While landlords are generally protected from liability stemming from dog bites, anyone who “harbors, keeps or is negligent” with a dog is liable for any injuries caused by said dog.218 Another form of owner-targeted legislation concerns restricting or even banning high-risk owners from harboring a dog. While a firearm can be deadly in the hands of certain people, so too can a powerfully built dog. As Schaffner points out, “just as gun ownership is a constitutional right in our country but nevertheless can be restricted in appropriate circumstances, as in the case of convicted felons, the same can be true for dog ownership, especially if the dogs might be used as a weapon.”219 In fact, Illinois began restricting some felons from owning unsterilized dogs in 2006--the first state to do so.220 This law criminalizes, as a misdemeanor, owning an unsterilized dog by those who have been convicted of a forcible felony, felony gun charges, drug charges, or felony violations *904 of the Humane Care for Animals Act.221 Additionally, these types of felons cannot own a dog that has been declared “vicious” by the

court.222 Should the felon owner choose to not follow statutory orders for dog ownership, that charge could be raised to a felony.223 As noted above, unsterilized dogs are implicated in the majority of dog-bite-related fatalities, so requiring a felon's dog to be sterilized and micro-chipped is a step in the right direction. St. Paul, Minnesota, introduced a stellar ordinance imposing heavy consequences on reckless dog owners. Should a pet owner be cited more than one time for animal abuse or neglect, he or she is prohibited from owning another pet.224 The city further requires all dogs over the age of three months to have a valid license; licenses cost fifty-seven dollars if the dog is not sterilized, but only eleven dollars if it is.225 This ordinance clearly targets owners of intact dogs, rewarding them through a simple drop in fee should they choose to sterilize the animal. It is a simple remedy to the aggressive-dog problem, but a practical one. Illinois already doles out a strong punishment for those owners who fail to control a dog designated as “vicious” by local authorities--if that dog inflicts serious, unprovoked injury on a person, the owner will be charged with a Class 3 felony.226 Additionally, if the owner knowingly fails to comply with the vicious dog regulations and that dog kills someone, the owner will be guilty of a Class 2 felony.227 D. Sanctions on Animal Shelters or Breeders with Knowledge of a Dog's Violent Tendencies In addition to supporting stronger dangerous-dog-owner liability, the ASPCA also recommends that owners who breed dogs that they know possess stronger aggressive propensities toward humans or other animals should be held criminally liable.228 Because researchers have found that impulsive, inappropriate aggression in dogs is highly inheritable,229 those who breed dogs that exhibit these behaviors consciously choose to increase the numbers of potentially aggressive dogs in the community. This is extremely negligent behavior that could put both the *905 offspring of these dogs and the humans with whom they interact with into danger. The entire pit bull “breed” is concerning because, as stated above, pit bulls are in reality only a mishmash of other existing breeds and have no real breed standard that breeders try to adhere to. A poorly bred dog could be descended

from intentionally created attack dogs, and if the owner has not tracked the lineage of the dogs he or she seeks to breed, no one would be the wiser that this predisposition to human aggression exists in the dog's bloodline.230 Illinois should institute a licensure program specifically directed at dog breeders in order to ferret out irresponsible or ill-prepared dog owners who would be less likely to produce a mentally sound, stable animal. Of all the factors that influence canine behavior, this is the most preventable--by supporting spaying and neutering of dogs with aggressive tendencies, and thus not allowing them to breed, responsible owners and veterinarians can curtail the production of yet another generation of carelessly bred dogs that would likely wind up in the pound or destroyed. E. Community Education While breed-neutral dangerous-dog statutes will help to keep people safe from dogs, all of the laws in the world will not keep dogs safe from humans if said humans cannot learn to read normal canine behavior and expression. As stated above, most dogs display physical “warning signs” that will tell an educated observer what they are feeling in that particular moment. Body language, expression, vocalizations, and positions of both ears and tail indicate whether a dog is comfortable and relaxed or anxious and scared. Many people, especially those who have never owned a dog or young children, are illiterate in this primitive language. They cannot read the signs a dog is giving them, and a strong “Stay away!” message may go unrecognized. This results in even a normally passive, sociable dog reacting negatively to unwanted attention. When this happens, often it leaves a shocked person with a bite and a dog with a mark against its name. Who is to blame: the dog giving the signal or the person unable to read it? Community education on dog behavior and what to do when confronted with an aggressive dog goes a long way in establishing harmony between the two species in a society. The most vulnerable population--children--are the easiest to reach through in-school programs similar to the fire- and policesafety workshops that most young students go through in elementary school. Having presenters come into schools to hold demonstrations with a live dog about the proper etiquette for approaching and interacting with it will engage and train children. Learning how to spot signs of aggression and fear will

empower them to avoid *906 dangerous situations. This type of education should be mandatory in Illinois elementary schools. Additionally, community centers can hold their own education programs in the same way, but perhaps more geared toward adults with more general education about the responsibilities of owning a dog (spaying or neutering, vaccinating, and proper methods of training, among other things). This can be equated with providing swimming lessons at a community pool--a necessary training that all should learn in order to avert a future tragedy. Local governments can even marry education and greater personal liability for dogs by taking a leaf from Italy's book. That country requires all new prospective dog owners to take a short training course on dog care and dog legislation.231 While this may be difficult to enforce in Illinois right off the bat, due to the number of backyard breeders and the lack of oversight given to both breeder registration and dog ownership in general, these short educational courses could be required as a supplement to fines given for ordinance violations such as lack of registration of a dog, much like traffic school for reckless drivers. Community leaders must also become more involved in educating the public about dog behavior and bite prevention. For example, Calgary, Canada, encourages animal-control officers to step out of their vehicles and speak with the public.232 Illinois could support a similar system that emphasizes a similar “community policing/problem-solving” approach233 by authorities, allowing them to disseminate information to owners, outside of schools and town halls, who may not be able to make organized educational events. By providing the basic tools needed by all those who come into contact with dogs, authorities and local governments can protect their citizens simply through much-needed education. V. CONCLUSION “Man's best friend” has guarded its master's homes and families for thousands of years, but, like many other possessions, a dog can transform into a danger, or even a weapon, if handled incorrectly. While governments have long acknowledged this harm by enacting statutes that allow victims of dog attacks to recover from the dog's owner and punish said owner for his or her negligence, these protections must be honed even further in order to protect

both man and animal. Illinois must take up this responsibility and do the same. This can include converting all breed-specific legislation within the state to the more breed-neutral aggressive dog statutes. Additionally, Illinois's aggressive dog statutes already in *907 place should be strengthened to serve as a stronger deterrent to negligent owners. Finally, communities should confront the heart of the problem by educating people of all ages on proper dog etiquette, how to recognize nervous or aggressive dog behavior, and how to respond in the event that a hostile dog confronts them. These measures, once implemented, will work together to squarely lay the blame where it belongs--on negligent owners and shelters-while keeping dogs and communities alike safe. Dogs should remain revered for the deep emotional bond they form with humans and be kept only, as one judge described them, “givers and receivers of love.”234 Footnotes a1 J.D. Candidate, 2017, University of Illinois College of Law. I would like to thank Dr. Kelsey Stocks for the inspiration as well as Lindsey Lusk for her overwhelming support and friendship. I dedicate this Note to my parents, Fritz and Jan, who instilled in me from birth a love and respect for all animals. 1 Jason George et. al, Pit Bulls Maul 6 Neighbors Near Cary, CHI. TR. (Nov. 6, 2005), (URL removed for reprint) 2 See George et al., supra note 1. 3 See id. 4 Id. 5 Id. 6 Carolyn Starks & John Keilman, Finding Strength to Be a Kid, CHI. TR. (Aug. 15, 2006), (URL removed for reprint) . 7 Safia Gray Hussain, Attacking the Dog-Bite Epidemic: Why Breed-Specific Legislation Won't Solve the Dangerous-Dog Dilemma, 74 FORDHAM. L. REV. 2847, 2848 (2006) (citing Kenneth Morgan Phillips, Dog Bite Statistics, DOGBITELAW (Nov. 11, 2005), (URL removed for reprint). 8 Id. 9 Id. at 2854-56.

10 See Karyn Grey, Breed-Specific Legislation Revisited: Canine Racism or the Answer to Florida's Dog Control Problems?, 27 NOVA L. REV. 415, 416-17 (2003). 11 Hussain, supra note 7, at 2848, 2854 (citing DENVER, COLO., CODE ORDINANCES div. 3, § 8-55 (1989)); MIAMI-DADE COUNTY, FLA., CODE ORDINANCES art. II, § 5-17 (1989)). 12 Animal Cruelty: Dog Fighting, ASPCA, (URL removed for reprint) 13 Breed Specific Prohibited or Restricted Ordinances, AVMA, (URL removed for reprint). 14 See, e.g., BARRY, ILL., CITY CODE TIT. 5, CH. 5, § 2 (1997); Illinois BreedSpecific Laws, DOGSBITE.ORG, (URL removed for reprint) 15 Illinois Among Top 3 States for Dog Bite Claims, NBC CHI. (May 14, 2014), (URL removed for reprint). Interestingly, Chicago ranks as the fifth-highest city for dog attacks on postal-service workers, with forty-seven attacks reported in 2013; Houston held the top spot with sixty-three attacks in the same year. Id. 16 George G. Vest, Eulogy of the Dog (Sept. 23, 1870), (URL removed for reprint). Vest was representing a man whose hunting dog had been shot and killed by a local farmer; he presented this closing argument in the form of a eulogy for the dog in lieu of recapping evidence presented during the trial. He won the case and $50 worth of damages. George Graham Vest, WIKIPEDIA, (URL removed for reprint) (last visited Jan. 26, 2017); see also Burden v. Hornsby, 50 Mo. 238, 238-39 (1872). 17 See infra Part II.B. 18 Hussain, supra note 7, at 2848. 19 U.S. Pet Ownership Statistics, AMVA, (URL removed for reprint)). 20 All Dog Bite Statistics, DOGBITELAW.COM, (URL removed for reprint). 21 Hussain, supra note 7, at 2850 (citing Matt Wapner & James F. Wilson, Are Laws Prohibiting Ownership of Pit Bull Type Dogs Legally Enforceable?, 216 J. AM. VETERINARY MED. ASS'N 1552, 1552 (2000)). 22 MARGARET C. JASPER, PET LAW 20 (2007). 23 Authorities also believe that dog bites constitute 76%-94% of all animal bite injuries, especially in low- to middle-income countries. Animal Bites, WORLD HEALTH ORG. (Feb. 2013) (URL removed for reprint). 24 Id.

25 Bernard E. Rollin, Ethics and Breed-Discriminatory Legislation, in A LAWYER'S GUIDE TO DANGEROUS DOG ISSUES xv (Joan Schaffner ed., 2009); 2014 Dog Bite Fatalities, DOGSBITE.ORG, (URL removed for reprint). 26 Ledy Vankavage & Joan E. Schaffner, Ordinances Targeting Reckless Owners and Damaged Dogs: Is Canine Profiling Effective?, in A LAWYER'S GUIDE TO DANGEROUS DOG ISSUES 9 (Joan Schaffner ed., 2009). 27 Animal Bites, supra note 23. 28 2014 Dog Bite Fatalities, supra note 25. 29 Id. 30 See David Harris et al., Dog Bites - An Unrecognized Epidemic, 50 BULL N.Y. ACAD. MED. 981, 981 (1974). 31 Cynthia A. McNeely & Sarah A. Lindquist, Dangerous Dog Laws: Failing to Give Man's Best Friend a Fair Shake at Justice, 3 J. ANIMAL L. 99, 100 (2007). 32 Reported Bites Decreasing, NAT'L CANINE RES. COUNCIL (Nov. 6, 2013), (URL removed for reprint) 33 Id. 34 Illinois Among Top 3 States for Dog Bite Claims, supra note 15. 35 Id. 36 Id. For comparison's sake, Illinois' population in 2013 was 12,890,552; California's population was 38,431,393, almost three times as large. Annual Estimates of the Resident Population: April 1, 2010 to July 1, 2014, U.S. CENSUS BUREAU: AM. FACTFINDER, (URL removed for reprint). In total, one-third of homeowner-insurance claims nationwide are due to dog bites. Charles Toutant, Putting a Leash on Dog-Bite Claims: Carriers Seek to Limit Homeowner Coverage for Fierce Canine Breeds, 173 N.J. L.J. 277, 277 (2003). 37 Phyllis Coleman, Dog Bites Human: Why Florida Lawyers Should Care and What They Need to Know, 88 FLA. B.J. 26, 26 (2014). 38 Id. 39 Id. 40 Id.; see, e.g., Lesher v. Reed, 12 F.3d 148, 150-51 (8th Cir. 1994) (holding that dogs are property subject to Fourth Amendment seizure requirements). 41 INT'L INST. OF MUN. CLERKS, REGULATING DANGEROUS OR VICIOUS DOGS 3, 5 (1987). 42 Id at 5-6.

43 Id. at 2. One Georgia judge points out the main flaw in one bite rules: “A dog should have no greater right to a first bite than one has to a first murder. And as between the dog owner and a blameless victim, the owner is almost certainly in the better position to judge the dog's proclivity to bite.” Clark v. Joiner, 530 S.E.2d 45, 48 (Ga. Ct. App. 2000). 44 Coleman, supra note 37, at 26. 45 McNeely & Lindquist, supra note 31, at 100. More than thirty states, the District of Columbia, and many cities have adopted this type of legislation. Hussain, supra note 7, at 2854-55. 46 Position Statement on Dangerous Dog Laws, ASPCA, (URL removed for reprint). 47 Id. 48 Id. 49 Mcneely & Lindquist, supra note 31, at 112. 50 Id. 51 Id. 52 Id. 53 Id. 54 Id. 55 Id. 56 Hussain, supra note 7, at 2856, 2868. 57 Sentell v. New Orleans & C.R. Co., 166 U.S. 698 (1897). 58 Id. at 700. 59 Id. at 698. 60 Id. 61 Id. at 706. 62 Id. at 704. 63 Id. at 706. 64 See Nicchia v. New York, 254 U.S. 228 (1920) (holding aggressive dog laws did not violate an owner's Due Process rights). But see Phillips v. San Luis Obispo Cty. Dep't of Animal Regulation, 183 Cal. App. 3d 372 (Cal. Ct. App. 1986) (holding unconstitutional a local municipal ordinance permitting the destruction of a dog without giving notice to the owner or allowing the owner to

contest the “dangerous” label, in addition to stating that dogs are their owners' personal property and have economic and personal value). 65 These bans most commonly restrict the “pit bull” class of dogs, but can also include “American Bulldogs, Rottweilers, Mastiffs, Dalmatians, Chow Chows, German Shepherds, Doberman Pinschers, or any mix of these breeds-and dogs who simply resemble these breeds.” Breed-Specific Legislation, ASPCA, (URL removed for reprint)). 66 Hussain, supra note 7, at 2861. 67 Id. 68 Rollin, supra note 25, at xix. 69 Hussain, supra note 7, at 2861. 70 Vankavage & Schaffner, supra note 26, at 14. 71 Id. 72 Robert McCoppin, Pit Bull Overload Floods Shelters, Strains Rescues, CHI. TR. (Dec. 5, 2013), (URL removed for reprint) 73 One author argues that this population explosion has two main roots-Hurricane Katrina and the Michael Vick dogfighting scandal. Charlotte Alter, The Problem with Pit Bulls, TIME (June 20, 2014), (URL removed for reprint) Rescuers who adopted dogs left behind after the hurricane became especially attached to the breed, a feeling that only increased when news of Vick's involvement with dogfighting came to light. Id. This led to an increase of adoptions by sympathetic but inexperienced owners and a population increase due to lack of sterilization of the dogs. Id. 74 Benjamin Moore, Here's Why You See So Many Pit Bulls in Shelters, BARKPOST, (URL removed for reprint) (last visited on Oct. 13, 2016). 75 Id. 76 Vankavage & Schaffner, supra note 26, at 9. 77 D. CAROLINE COILE, PIT BULLS FOR DUMMIES 23 (Wiley Pub., Inc., 2001). 78 Toledo v. Tellings, No. L-04-1224, 2006 WL 513946 at *3 (Ohio Ct. App. Mar. 3, 2006). 79 McCoppin, supra note 72, at 2. 80 5 Bully Breed Myths Debunked, ANIMAL PLANET, (URL removed for reprint).

81 Vankavage & Schaffner, supra note 26, at 8-9. 82 Id. 83 NAT'L CANINE RES. COUNCIL, FINAL REPORT ON DOG-BITE RELATED FATALITIES 1 (2014), (tallying the unconfirmed number of dog-bite fatalities in 2014 at forty-one deaths). 84 See Alter, supra note 73. 85 Hussain, supra note 7, at 2851. 86 Id. at 2873 (citing J.J. Sacks et al., Breeds of Dogs Involved in Fatal Human Attacks in the United States Between 1979 and 1998, 217 J. AM. VETERINARY MED. ASS'N 836, 839 (2000)). 87 Vankavage & Schaffner, supra note 26, at 9. 88 Sacks et al., supra note 86, at 839. 89 Roy Rivenburg, How Pit Bulls Became the “Bad Boys” of the Dog World, L.A. TIMES (June 20, 2015), (URL removed for reprint). 90 Sacks et al., supra note 86, at 839. 91 Rivenburg, supra note 89. 92 Hussain, supra note 7, at 2859 (“Breed-based enactments generally follow on the heels of a highly publicized serious or fatal dog attack by a particular breed and are proposed by the legislature in response to public outcry and fear.”). 93 BSL CENSUS, (URL removed for reprint) (last visited Jan. 26, 2017). In totality, more than 700 cities in the United States utilize breed-specific legislation. Breed Specific Legislation, supra note 65. 94 Sentell v. New Orleans & C.R. Co., 166 U.S. 698, 702 (1897). 95 Vankavage & Schaffner, supra note 26, at 9. 96 Sacks et al., supra note 86, at 836-40. 97 HUMANE SOC'Y OF THE U.S., REGULATING DANGEROUS OR VICIOUS DOGS 8 (1987). 98 Hussain, supra note 7, at 2861. 99 Again, many times breed-specific legislation is implemented only after a serious or fatal attack perpetrated by the breed now under fire. Id. at 2862. See State v. Peters, 534 So.2d 760, 763 (Fla. Dist. Ct. App. 1988) (holding that there is no constitutional guarantee of Equal Protection stating that the law must treat

all dog owners alike, only possibly a guarantee “that all owners of defined pit bulls will be treated alike”). 100 See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) (outlining the requirements for a group to be considered a “suspect classification” that calls for a higher standard of judicial review). 101 Hussain, supra note 7, at 2863. 102 See, e.g., Greenwood v. City of North Salt Lake, 817 P.2d 816 (Utah 1991) (holding that though viciousness is not an inherent characteristic of the pit bull “breed,” the ordinance was still rationally related as the city had experienced an uptick in dog bites and attacks by those dogs in recent years in comparison to other breeds). The court stated that, “[a]lthough it may be true that not all pit bulls are dangerous, the evidence supports the conclusion that, as a group, pit bulls are dangerous animals.” Id. at 821. See also Garcia v. Vill. of Tijeras, 767 P.2d 355 (N.M. Ct. App. 1988). 103 Dana M. Campbell, Pit Bull Bans: The State of Breed-Specific Legislation, AM. BAR ASS'N, (URL removed for reprint). 104 Hussain, supra note 7, at 2864 (citing Williamson v. Lee Optical of Okl., Inc., 348 U.S. 483, 489 (1955)). 105 Vanater v. Vill. of South Point, 717 F. Supp. 1236, 1238-39 (S.D. Ohio 1989). 106 Id. 107 Id. at 1239, 1246. 108 Id. at 1241. 109 Id. 110 Id. at 1243. 111 Vanater v. Vill. of South Point, 717 F. Supp. 1236, 1244 (S.D. Ohio 1989). 112 Hussain, supra note 7, at 2866. 113 Id. 114 See supra Part II.C.i. Compare to a breed standard for, say, a Border Collie, that sets out very defined features characteristic to that breed. See Border Collie, AM. KENNEL CLUB, (URL removed for reprint). 115 Vankavage & Schaffner, supra note 26, at 14. 116 Id.

117 Am. Dog Owners Ass'n, Inc. v. City of Lynn, 533 N.E.2d 642, 646 (Mass. 1989). 118 Id. at 647 (“[The 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.”’). 119 Id. 120 See Am. Dog Owners Ass'n v. City of Yakima, 777 P.2d 1046, 1047, 1049 (Wash. 1989) (holding that a city ordinance banning pit bulls gave sufficient notice of what was prohibited, that the statute sufficiently described the types of dogs to be restricted, and that the statute was not constitutionally vague). 121 510 ILL. COMP. STAT. 5/2.05a (2005). 122 510 ILL. COMP. STAT. 5/2.19b (2003). 123 510 ILL. COMP. STAT. 5/15-15.1 (2015). 124 Press Release, Office of the Governor, Gov. Blagojevich Signs Legislation Toughening Penalties Against Owners of Vicious Dogs that Endanger the Public (May 31, 2006) [hereinafter Press Release], (URL removed for reprint) 125 Id. 126 Laura Allen, Illinois Law Bans Felons from Owning Unspayed/Unneutered or Vicious Dogs, ANIMAL LAW COALITION (Aug. 18, 2007), (URL removed for reprint) Illinois in part bases this statute in the recognition that “dangerous” dogs have become a status symbol among young men. “Interestingly, a just released study suggests people with ‘vicious' or aggressive dogs tend to have engaged in some illegal activity. Moreover, those owners with vicious dogs who have been cited for failure to register or keep the dog confined on the premises are more than 9 times likely to have been convicted of a crime involving a child, 8 times more likely to be have been convicted of drug crimes, and 3 times more likely to have been convicted of domestic violence crime.” Id. 127 510 ILL. COMP. STAT. 5/24 (2003).

128 Illinois Breed-Specific Laws, supra note 14. 129 Id. 130 Id. 131 Lincolnwood, Ill., An Ordinance Amending Chapter 9, Article 3, Section 9-3-13 of the Municipal Code of Lincolnwood Regarding Dangerous Dogs and Cats (June 15, 2006); Illinois Breed-Specific Laws, supra note 14. 132 McCoppin, supra note 72. 133 Id. 134 HUMANE SOC'Y OF THE U.S., supra note 97, at 4. 135 See The History of the German Shepherd Dog, GERMAN SHEPHERD DOG CLUB OF AM., (URL removed for reprint) (describing the development of the German Shepherd Dog breed by selecting dogs that instinctively herded sheep without any formal training). 136 Rollin, supra note 25, at xxiii. 137 Description of the Temperament Test, AM. TEMPERAMENT TEST SOC'Y, INC., (URL removed for reprint) (last visited Jan. 26, 2016). 138 Meet the Staffordshire Bull Terrier, AM. KENNEL CLUB,. (URL removed for reprint) 139 Id. 140 Alter, supra note 73. 141 Sara K. Enos, The Problem with People, Not Pit Bulls, TIME (June 26, 2014), (URL removed for reprint) 142 See James O'Heare, The Effects of Spaying and Neutering on Canine Behavior, ASS'N OF ANIMAL BEHAVIOR PROF., 2006, (URL removed for reprint) (“Testosterone tends to promote greater reactivity in dogs. They trigger a little quicker to aversive stimuli and respond a bit more intensely and for slightly longer duration. Affecting the magnitude of aggressive behavior could be particularly helpful in many cases.”). See also Mat Ward, Neutering Male Dogs--The Behavioural Effects of Castration, ASS'N OF PET BEHAVIOUR COUNSELLORS, (URL removed for reprint) 143 Ward, supra note 142. 144 Gail C. Golab, A Community Approach to Dog Bite Prevention (Abstract), AVMA (June 2001), (URL removed for reprint)While intact females are usually not as prone to bouts of aggression as intact males are, they can attract free-

roaming intact males, a demographic that is high-risk for aggression and, after reproducing, are extremely protective of their offspring. Id. 145 Final Report on Dog Bite-Related Fatalities, NAT'L CANINE RES. COUNCIL (2014), (URL removed for reprint)146 Sophia Yin, Does Spaying or Neutering Your Pet Really Improve Behavior?, HUFFINGTON POST (Nov. 17, 2011), (URL removed for reprint) 147 Id. 148 Id. 149 See Pit Bulls: Our Programs, SPAY ILLINOIS, (URL removed for reprint). Sixty dollars represents the price as of November of 2015. See id. 150 As an example, the Champaign County Humane Society will spay/neuter pit bulls at a flat rate of $20 per animal, including vaccines and rabies registration. Services for Pet Owners, CHAMPAIGN CTY. HUMANE SOC'Y, (URL removed for reprint) 151 Amy Brannan, Benefits of Spaying and Neutering Your Dog, CANINE J. (May 12, 2014), (URL removed for reprint) 152 Joan E. Schaffner, in Introduction to A LAWYER'S GUIDE TO DANGEROUS DOG ISSUES 1 (Joan Schaffner ed., 2009). 153 Animal Abuse and Neglect, HUMANE SOC'Y OF THE U.S., (URL removed for reprint). 154 Causes of Dog Aggression, K9AGGRESSION.COM, (URL removed for reprint) / (last visited Jan. 26, 2017). 155 Vankavage & Schaffner, supra note 26, at 16 (stating that the vast majority of dog bites are logically caused by the most popular breeds of dogs, e.g., Labrador Retrievers). 156 Jeremy Jojola, Dog Breeds that Bite the Most Along the Front Range, 9NEWS, (URL removed for reprint) 157 Sentell v. New Orleans, 166 U.S. 698, 698 (1897). 158 Vankavage & Schaffner, supra note 26, at 21. 159 Hussain, supra note 7, at 2850. 160 Vankavage & Schaffner, supra note 26, at 21. 161 CODE OF LAWRENCE KAN. § 3-105 (2016). 162 Mike Belt, Dog Fighting, Animal Cruelty Cases on Decline, LJWORLD (Sept. 6, 2008), (URL removed for reprint)

163 Carolyn Starks & John Keilman, The Enduring Agony of a Pit Bull Rampage, CHICAGO TRIB. (Aug. 13, 2006), (URL removed for reprint) (“The resulting mix, refined over time, was short but incredibly muscular, its tapered head equipped with powerful jaws. Above all, the dog was ‘game’: It had the will to keep fighting until death.”). See also Jon Bastian, How Did Pit Bulls Get Such a Bad Rap?, CESAR'S WAY, (URL removed for reprint). Bastian also cites an alternative history of the development of pit bulls, which traces their descent from a breed known as “Molossus” (now extinct) that was originally utilized by the ancient Greeks as a shepherd or guard dog, which made its way to Great Britain through wars of conquest, eventually becoming what is now known as the Mastiff and spreading throughout the Roman Empire. Id. Used mostly as war dogs, they interbred with many local breeds on the continent, eventually resulting in what is today referred to as a “pit bull” dog. Id. 164 Bastian, supra note 163. 165 Starks & Keilman, supra note 163. 166 Bastian, supra note 163. 167 Rollin, supra note 25, at xxii; McCoppin, supra note 72; Starks & Keilman, supra note 163. 168 Vankavage & Schaffner, supra note 26, at 8. 169 Hussain, supra note 7, at 2851. 170 Meet the American Staffordshire Terrier, AM. KENNEL CLUB, (URL removed for reprint); Meet the Staffordshire Bull Terrier, supra note 138. 171 Enos, supra note 141. The difficulty of identifying a true “pit bull” can be seen through a quiz online. PICK THE PIT, (URL removed for reprint). 172 Vankavage & Schaffner, supra note 26, at 7. 173 Campbell, supra note 103. 174 Id. 175 Id. 176 Vankavage & Schaffner, supra note 26, at 14-15. 177 Id. at 15. 178 Hussain, supra note 7, at 2881. 179 Belén Rosado, et al., Spanish Dangerous Animals Act: Effect of the Epidemiology of Dog Bites, 2(5) J. VETERINARY BEHAV. 166-74 (2007). 180 Id. at 167.

181 See id. at 170. 182 Andrew Michaels, Dog Owner's Group Pushing to End Prince George's County Pit Bull Ownership Ban, BALT. SUN (Sept. 2, 2015, 6:00 AM), (URL removed for reprint). 183 Id. In fact, in 2015 one group estimates that of the 178,000 dogs living in the county, 12,848 were pit bull-type dogs, almost two decades after the ban was enacted in order to eliminate the pit bull “breed” from the jurisdiction within ten years. Id. 184 Costs include “enforcement, kenneling and veterinary care, euthanizing and disposal, litigation and DNA testing ...” Id. 185 Expense, STOPBSL.ORG, (URL removed for reprint) (last visited Jan. 26, 2017). 186 Michaels, supra note 182. 187 Vankavage & Schaffner, supra note 26, at 16. 188 Id. 189 Id. 190 JASPER, supra note 22, at 5. 191 Pet Statistics, ASPCA, (URL removed for reprint) 192 2009 U.S. Shelter Data: Pit Bulls Account for 58% of Dogs Euthanized, DOGSBITE.ORG (Aug. 24, 2009), (URL removed for reprint); see also Pit Bulls and euthanasia rates, SAVE-A-BULL RESCUE (Nov. 12, 2015) (URL removed for reprint) (“Studies estimate that up to 1 million [pit bulls] are euthanized per year, or 2,800 per day ... A study by the organization Animal People reports a 93% euthanasia rate for pit bulls and only 1 in 600 Pits finding a forever home.”). 193 2009 U.S. Shelter Data: Pit Bulls Account for 58% of Dogs Euthanized, supra note 192. 194 See McCoppin, supra note 72. 195 Id. 196 Id. 197 Id. 198 Id. 199 Id. 200 Hussain, supra note 7, at 2848.

201 Ella McComas, Breed Unadoptable, SENTINEL (Nov. 2, 2003), (URL removed for reprint) 202 Id. 203 Id. 204 HUMANE SOC'Y OF THE U.S., supra note 97, at 3-4. 205 Effective Canine Legislation, AM. CANINE FOUND., (URL removed for reprint) 206 Id. 207 This is the position advocated for by the ASPCA, one of the preeminent animal advocacy groups in the nation. See generally Position Statement on Dangerous Dog Laws, supra note 46. 208 Id. 209 Vankavage & Schaffner, supra note 26, at 20. 210 Id. 211 See HUMANE SOC'Y OF THE U.S., supra note 97, at 13-14. 212 Peter Marcus, Do Dog Breed Bans Work?, STOPBSL (Mar. 3, 2009), (URL removed for reprint) 213 Position Statement on Dangerous Dog Laws, supra note 46. 214 2014 Dog Bite Fatalities, supra note 25. 215 Id. 216 HUMANE SOC'Y OF THE U.S., supra note 97, at 14. 217 Washington (State) Dog Bite Law, DOGBITELAW.COM, (URL removed for reprint) (last visited Jan. 26, 2017). 218 Id. 219 Vankavage & Schaffner, supra note 26, at 18-19. 220 720 ILL. COMP. STAT. 5/12-36 (2012). 221 Vankavage & Schaffner, supra note 26, at 19. 222 Id. 223 Press Release, supra note 124. 224 ST. PAUL, MINN., MUN. CODE § 200.02(d). 225 Id. at § 310.18(f). 226 510 ILL. COMP. STAT. 5/26(b) (2012). 227 Id. 228 Position Statement on Dangerous Dog Laws, supra note 46.

229 Alexandra Semyonova, The Science of How Behavior Is Inherited in Aggressive Dogs, ANIMALS24-7.ORG (July 30, 2013), (URL removed for reprint) (citing one study performed by Linda Van Den Berg that determined dogs with inappropriate impulsive aggression seem to share the same physical abnormalities in their brains, and another study performed by a researcher on aggression in Golden Retrievers, with results that indicate “high heritability of impulsive aggression”). 230 Starks & Keilman, supra note 163. 231 Vankavage & Schaffner, supra note 26, at 21. 232 Id. at 20. 233 See id. 234 Rollin, supra note 25, at xxi.

Chapter 12 Feral cat colonies

Introduction feral cat colonies Rhode Island Connecticut California A Detailed Discussion of Feral Cat Issues Introduction feral cat colonies How to manage feral cats is one of the most highly contested issues and animal welfare. Some organizations want to create ordinances that allow caretakers to care for feral cat colonies. Other animal welfare organizations

think that it is a cruel life to live visit Farrell. These groups call for trapping and euthanizing of these animals. Some locales ban the feeding affair. Others allow caregivers to keep colonies. In California, when a feral cat finds its way into an animal shelter, the animal shelters allowed to euthanize the animal without holding it for adoption. In Connecticut, keepers of feral cats are responsible for the property damage done by those cats. David Fry in "A detailed discussion of feral cat issues" discusses the issues surrounding feral cat legislation. This article is an excellent analysis of feral cat issues published by the Animal Legal & Historical Center. Fry's article an analysis of what it means to "own" one of these animals. Rhode Island § 4-22-5 Holding At-Large or Impounded Cats. (a) In the case of any at-large or roaming or feral cat released to or impounded in a licensed animal shelter or licensed municipal pound wearing any form of identification specified in the definitions section the animal shelter or pound shall make a reasonable attempt to notify the owner by telephone, or by sending written notice to the owner. The at-large or roaming or feral cat shall be held by the animal shelter or pound for not less than five days, after which time the animal shelter or pound may offer the cat for adoption, sale or otherwise dispose of the cat, if not sooner recovered by the owner. The five days shall not include any day or part thereof that the public pound or animal shelter is not open for a specified period of time, not to be less than one-half the normal hours of business. An owner wishing to recover the cat shall pay the reasonable and customary daily impoundment fees and other associated fees for each full day, or fraction thereof, that the cat is held by the animal shelter or pound. The provisions of this section relating to the five (5) day holding period shall not be deemed to apply to any cat which, impounded hereunder, was injured or maimed, and after the cat has been examined by a licensed veterinarian who shall confirm, in writing, that the cat be destroyed for humanitarian purposes. (b) In the case of any at-large or roaming or feral cat released to or impounded in a licensed animal shelter or licensed municipal pound not

wearing any form of identification as specified in the definitions section, the animal shelter or pound shall hold the at-large or roaming or feral cat for not less than two (2) days, after which time the animal shelter or pound may offer the cat for adoption, sale or otherwise dispose of the cat, if not sooner recovered by a person claiming ownership. The two (2) days shall not include any day or part thereof that the public pound or animal shelter is not open for a specified period of time, not to be less than one-half the normal hours of business. The owner or keeper of any cat so impounded shall pay the reasonable and customary daily impoundment fees and other associated fees for each full day, or fraction thereof, that the cat is held at the animal shelter or pound. The provisions of this section relating to the two (2) day holding period shall not be deemed to apply to any cat which, impounded hereunder, was injured or maimed, and after the cat has been examined by a licensed veterinarian who shall confirm, in writing, that the cat be destroyed for humanitarian purposes. (c) If an at-large or roaming or feral cat without identification released to or impounded in a licensed animal shelter or a licensed municipal pound is dangerous and presents a danger to the safety of shelter personnel, the cat may be euthanized prior to the expiration of its holding period at the discretion of an animal control officer, a licensed veterinarian or the shelter management. P.L. 1999, ch. 291, § 1. Connecticut § 22-339d. Municipal control of feral cats (a) A municipality may adopt an ordinance requiring the registration, within one year of the adoption of such ordinance, of keepers of feral cats in residential or commercial areas. Such ordinance shall require that any such keeper shall register with the animal control officer for such municipality who shall provide information to the registrant regarding the proper care and management of feral cats. For purposes of this section, "feral cat" means a freeroaming domestic cat which is not owned and "keeper" means any person or organization, harboring, regularly feeding or having in his or its possession any feral cat. Refusal to permit any animal control officer to impound a feral cat shall be deemed evidence of keeping. Such ordinance shall require that such

keepers shall provide for the vaccination of such cats against rabies and the sterilization of such cats. Such keeper shall be considered an eligible owner for purposes of the animal population control program established under sections 22-380e to 22-380m, inclusive, provided such cats are adopted from a municipal pound. (b) A municipality may adopt an ordinance providing that no person owning or keeping any cat shall permit such animal to (1) substantially damage property other than the property of the owner or keeper or (2) cause an unsanitary, dangerous or unreasonably offensive condition. Violation of such provision shall be an infraction. CREDIT(S) (1996, P.A. 96-243, § 1.) California § 31752.5. Legislative findings and declarations (a) The Legislature finds and declares the following: (1) Domestic cats' temperaments range from completely docile indoor pets to completely unsocialized outdoor cats that avoid all contact with humans. (2) "Feral cats" are cats with temperaments that are completely unsocialized, although frightened or injured tame pet cats may appear to be feral. (3) Some people care for or own feral cats. (4) Feral cats pose particular safety hazards for shelter employees. (5) It is cruel to keep feral cats caged for long periods of time; however, it is not always easy to distinguish a feral cat from a frightened tame cat. (b) For the purposes of this section, a "feral cat" is defined as a cat without owner identification of any kind whose usual and consistent temperament is extreme fear and resistance to contact with people. A feral cat is totally unsocialized to people. (c) Notwithstanding Section 31752, if an apparently feral cat has not been reclaimed by its owner or caretaker within the first three days of the required holding period, shelter personnel qualified to verify the temperament of the animal shall verify whether it is feral or tame by using a standardized protocol. If the cat is determined to be docile or a frightened or difficult tame cat, the cat shall be held for the entire required holding period specified in Section 31752. If

the cat is determined to be truly feral, the cat may be euthanized or relinquished to a nonprofit, as defined in Section 501(c)(3) of the Internal Revenue Code, animal adoption organization that agrees to the spaying or neutering of the cat if it has not already been spayed or neutered. In addition to any required spay or neuter deposit, the pound or shelter, at its discretion, may assess a fee, not to exceed the standard adoption fee, for the animal released. CREDIT(S) (Added by Stats.1998, c. 752 (S.B.1785), § 14.) Detailed Discussion of Feral Cat Legal Issues Share Author: David Fry Place of Publication: Michigan State University College of Law Publish Year: 2010 Primary Citation: Animal Legal & Historical Center Used by permission Summary: This article addresses three primary legal questions. First, the article discusses issues related to ownership of and responsibility for feral cats, analyzing the treatment of ownership and responsibility under both feral cat statutes and common law. Second, the article addresses the question of whether feral cat keepers or caretakers can be held civilly liable for the actions of feral cats. Third, the article discusses the ways in which feral cat keepers or caretakers may be exposed to criminal liability for abandonment, neglect, or failure to comply with state or local animal ownership requirements. Table of Contents I. Introduction II. Ownership of and Responsibility for Feral Cats A. Solutions of State and Local Governments B. Jurisdictions Without Feral Cat Statutes or Ordinances C. Do Statutes Abrogate the Common Law Duties of Caretakers? D. The Nature of the Feral Cat and Varying Degrees of Ownership E. The Sliding Scale of Feral Cat Ownership III. Potential Exposure to Civil Liability

A. Nuisance Claims B. Damage to Property or Injury to Persons IV. Potential Exposure to Criminal Liability A. Abandonment and Neglect B. State Registration and Spay/Neuter Requirements V. Conclusion I. Introduction When a person sees a malnourished kitten roaming her neighborhood, her first instinct is often to stop and help. In doing so, it is unlikely that the individual will carefully consider the legal ramifications of her actions before giving the cat food and water or bringing it into her garage to give it shelter from the cold. Will the kindhearted bystander wonder whether feeding the cat will cause her to become the cat’s legal owner? Will she consider the possible rights and responsibilities that might arise from her caretaking? Will she attempt to prevent the cat from trespassing on her neighbor’s property or bringing other cats to the neighborhood? If she moves to a new neighborhood, might she be held criminally liable for abandoning the cat she once cared for? Is she subject to other ownership requirements, such as ordinances requiring registration or sterilization? The answers to these questions can vary widely depending on where the individual lives. Although some state and local governments have enacted statutes and ordinances attempting to resolve some of these issues, most jurisdictions do not have any laws governing the care and ownership of feral cats. This article attempts to clarify the answers to these questions, giving feral cat caretakers, property owners, and others interested in the issue a clearer understanding of their legal rights and obligations. (For further discussion of general issues pertaining to feral cats and feral cat colonies, see Anthony B. Lacroix, Feral Cats , Animal Legal & Hist. Center (2006)) . This article addresses three primary legal questions. First, the article discusses issues related to ownership of and responsibility for feral cats, analyzing the treatment of ownership and responsibility under both feral cat statutes and common law. Second, the article addresses the question of whether feral cat keepers or caretakers can be held civilly liable for the actions of feral cats. Third, the article discusses the ways in which feral cat keepers or

caretakers may be exposed to criminal liability for abandonment, neglect, or failure to comply with state or local animal ownership requirements. II. Ownership of and Responsibility for Feral Cats A. Solutions of State and Local Governments What does it mean to “own” a feral cat? At common law, the answer to this question is unclear. Subject to some limitations, a person typically owns an animal when she has possession over it (for wild animals, ownership is subject to obtaining proper title from the state; for domestic animals, ownership is often subject to the property interest of the animal’s prior owner). See David Favre & Murray Loring, Animal Law 21–25 (1983) . The problem, however, is that people do not generally “possess” a feral cat in the same way that they would possess a dairy cow, a housecat, or a parrot. They typically do not care where the feral cat spends most of its time, they rarely try to confine it, and their interaction is generally limited to providing the animal with food and water. As discussed below, this diminished level of control makes it difficult to determine how feral cat ownership should be determined in common law jurisdictions. To ameliorate this problem, several states have enacted laws that modify this common law view of ownership and enable local governments to impose specific requirements on keepers and caretakers of feral cats. 1. Specific Statutory Solutions Many state and local governments have not directly addressed the issues of ownership and responsibility related to feral cats. In fact, only thirteen states and the District of Columbia have any laws that even mention feral cats ( California , Connecticut , Delaware , the District of Columbia , Illinois , Indiana , Kentucky , Maine , Nebraska , New York , Rhode Island , Texas , Vermont , and Virginia ). Generally, the state laws that do address these issues do not create substantive guidelines. Rather, they typically authorize local governments to enact their own ordinances. The result of this approach is that the law of feral cats can, and often does, vary drastically within the same state. To understand the varying approaches taken by each state, it is instructive to look at those states that authorize local governments to enact ordinances regulating feral cat ownership. Connecticut allows municipalities to require feral cat “keepers” to register with the local animal control officer. C. G. S. A. § 22-339d . The statute defines a “keeper” as “any person or organization,

harboring, regularly feeding or having in his or its possession any feral cat.” The law further clarifies that an individual is more likely to qualify as a “keeper” if she attempts to prevent an animal control officer from impounding feral cats. After registering with the municipality, the feral cat keeper must vaccinate and sterilize the cats in her care. Finally, the statute permits local municipalities to enact separate ordinances prohibiting cat owners—including feral cat keepers —from “substantially damag[ing] property” or “caus[ing] an unsanitary, dangerous or unreasonably offensive condition.” Id. Similarly, Delaware defines a “keeper” of a stray cat as any person who has possession of or control over the animal and has fed the cat for three or more consecutive days. 3 Del. C. § 8217 . The statute further defines “keepers” as “owners.” Id. Maine’s animal welfare law is structured in much the same way, although it requires an individual to feed an animal for ten consecutive days before she becomes a “keeper” and, by extension, an owner. 7 M.R.S.A. § 3907 . Like Connecticut, Delaware, and Maine, Rhode Island states that any individual “who permits a cat to habitually be or remain on or be lodged or fed within such person’s property or premises” qualifies as an owner. RI ST § 4-222 . Further, the statute provides that “any refusal to permit any animal control officer to impound such cat shall be deemed evidence of ownership . . . .” Id. Rhode Island then allows local governments to implement permitting requirements for feral cat caretakers. RI ST § 4-24-3 . At least one other state, however, has taken a different approach. Illinois explicitly exempts feral cat caretakers from its definition of animal ownership, as long as the caretaker is participating in an authorized trap-neuter-release program (“TNR program”). 510 I.L.C.S. 5/2.16 . This may reflect the legislature’s intent to solve the problem of discouraging good Samaritans. As discussed below, some individuals may be disinclined to care for feral cats if they believe that doing so may expose them to civil or criminal liability. By identifying particular, positive programs—such as TNR programs—and explicitly exempting participants from the definition of “owner,” Illinois attempts to ensure that (1) fear of potential liability does not create a disincentive to participate in such a program, and (2) other individuals who might qualify as “caretakers” or “keepers” are held responsible for the actions.

In general, though, these state laws are strictly definitional. They do not address specific issues related to liability, but rather (1) help to resolve the problem of classifying feral cats and (2) enable local governments to enact their own solutions. For example, by defining keepers as “owners” and authorizing municipal permitting requirements for feral cat caretakers, a state like Rhode Island is able to address issues related to feral cats without imposing substantive requirements on the entire state. 2. Interpreting Feral Cat Legislation Even in jurisdictions that have statutes or ordinances pertaining to feral cats, it is difficult to know how those laws will be interpreted by a court. Cases are scarce, and the cases that do exist are unpublished and highly fact-specific. For example, an Indiana trial court recently found that a woman who fed feral cats and participated in a TNR program was not liable for negligently allowing the cats to damage the plaintiff’s property. Baker v. Middleton , C.A. No. 29D050605-SC-1055 (Ind. Super. Ct. Mar. 2, 2007) (pdf file - 628.01 KB). In Baker , the defendant fed and watered four cats that lived in the neighborhood. These cats damaged the plaintiff’s home, destroying insulation, a vapor barrier, and duct work. The cats also urinated and defecated in the crawl space of the home. The court found that the total amount of damage caused by the cats to the plaintiff's property was approximately $2000. Id . at 2. The court held that the defendant did not owe a duty to the plaintiff to prevent the feral cats from causing this damage, and therefore, the defendant’s failure to prevent the cats from damaging the plaintiff’s property did not constitute negligence. The plaintiff argued that a town ordinance and a county ordinance independently imposed a duty on the defendant to control the cats and prevent them from damaging the plaintiff's property. The town ordinance required “[e]very person responsible for an animal located within the City to ensure that such animal . . . [d]oes not become a public nuisance,” does not run at large, and “[d]oes not defecate on the property of another ” The county ordinance, which the court found to be the controlling law in the case, stated that “[i]t shall be unlawful for a person to provide food, water or shelter to a colony of feral cats.” However, the county ordinance explicitly exempted individuals who provide food, water or shelter in conjunction with an authorized TNR program. Thus, because the defendant was participating in a

TNR program, the county ordinance could not serve as a basis for finding that the defendant was negligent in caring for the feral cats. Id. at 2–6. The court went on to reject two alternative theories of negligence proffered by the plaintiff. First, the plaintiff argued that the defendant was responsible for the damage caused by the cats because the defendant returned the altered cats to the plaintiff's neighborhood with the knowledge that the cats would likely return to the plaintiffs’ home. The court rejected this argument because, as a factual matter, the record showed that a local organization returned the cats to the neighborhood—not the defendant. The court further noted that the county ordinance appears to contemplate and accept the possibility that feral cats, once altered, will be returned to the colonies from which they were captured. Id. Second, the plaintiff argued that the defendant was responsible for the damage caused by the cats because feeding and watering an animal serves as an invitation to stay in the area. Relying on testimony from the director of Indy Feral, a local organization that works with feral cat colonies, the court found that feral cats will stay with their colonies in a specific location regardless of whether they are fed and watered. In fact, the court noted that Indy Feral's website, offered as an exhibit by the defendant, states that feral cats will become an even greater nuisance if they are not fed on a regular basis, since this will require to the cats to forage for food. Finally, the court dismissed the plaintiff's trespass claim for lack of evidence. Id. The Baker court concluded its opinion, however, by raising an important concern about the balance between animal protection statutes and private property rights. The court noted that the plaintiff could have prevented most— if not all—of the damage caused by the feral cats if the plaintiff had simply been notified of the colony's presence in the neighborhood. The court further suggested that counties might resolve this problem by modifying their feral cat ordinances to require feral cat caretakers to notify neighbors “of the colony's existence, the potential for damage from such a colony, and appropriate preventative measures that could be taken.” Id. This case illustrates the careful balancing act involved in crafting a feral cat statute or ordinance. Concern for animal welfare is typically the driving force behind feral cat legislation, but it is important that animal welfare advocates

adequately address the concerns of property owners who may be adversely affected by feral cat colonies. At the same time, an overly burdensome notice requirement could easily become a strong disincentive to individuals who may have otherwise considered becoming feral cat caretakers. Therefore, a notice requirement like that suggested by the Baker court would have to be drafted carefully to avoid creating a significant burden on potential feral cat caretakers. B. Jurisdictions Without Feral Cat Statutes or Ordinances Part of the difficulty in determining the default state of the law in the absence of a feral cat statute or ordinance arises from the fact that there are very few court decisions addressing issues related to feral cats. Of the judicial opinions written, most of them involve interpretations of feral cat ordinances—like the one at issue in Baker —further complicating the question of what happens when no such law exists. However, at least two sources, the Baylor Law Review article and Baker ,indicate that courts and juries may be unwilling to afford protection to feral cats or assign responsibilities to their caretakers when those rights and responsibilities have not been explicitly outlined by a statute or local ordinance. It is possible, then, that individuals who care for feral cats in these jurisdictions would not be required to comply with any of the requirements imposed on animal owners, nor would they be liable for any damages caused by the animals’ behavior. Further, feral cat caretakers in these jurisdictions may have a difficult time protecting feral cat colonies from animal control agencies and the actions of private citizens. According to one source, the law in Texas prohibiting cruelty to animals did not specifically protect feral cats until 2007. Jeremy Masten, Note, Don’t Feed the Animals: Queso’s Law and How the Texas Legislature Abandoned Stray Animals, a Comment on H.B.2328 and the New Tex. Penal Code § 42.092 , 60 Baylor L. Rev. 964, 973–74 (Fall 2008) . As a result, many criminal defendants who were arrested on animal cruelty charges were acquitted because their alleged crimes had been committed against feral animals. Arguably, the Texas statute already protected feral cats, since it protected “domesticated animals.” However, the failure to explicitly include feral animals in the definition of domesticated animals apparently compelled an interpretation—at least in the minds of many jurors and legislators—that those animals were excluded from the law's protection. See id. at 966–67.

C. Do Statutes Abrogate the Common Law Duties of Caretakers? Another indicator that courts may be unwilling to independently determine the rights and responsibilities of feral cat caretakers is the Indiana Superior Court's decision in Baker v. Middleton , C.A. No. 29D05-0605-SC-1055 (Ind. Super. Ct. Mar. 2, 2007) (pdf file - 628.01 KB). As discussed above, the issue in Baker required the court to interpret a feral cat ordinance . This ordinance clearly outlined the rights and duties of feral cat caretakers, giving the judge a legal basis for deciding whether the defendant was liable for damage to the plaintiff's property. Despite the fact that a feral cat ordinance was the controlling law in the case, the judge still held in favor of the defendant because that ordinance did not specifically create a duty owed by the defendant to the plaintiff. A statute conferring certain rights and responsibilities was not enough; the court would not find the existence of a general duty unless such a duty was explicitly defined by the law. See id. at 4–5; see also McElroy v. Carter , No. M2005-00414-COA-R3-CV, 2006 WL 2805141, at *6 (Tenn. Ct. App. Sept. 29, 2006) (holding that a domestic cat owner is not under a general duty to prevent property damage caused by the cat unless the damages were foreseeable). Although the Baylor Law Review article and the Indiana Superior Court case suggest that a court may not hold caretakers responsible for the behavior of feral cats, the case law on this issue is nearly nonexistent. Further, the cases that do exist have been based on specific local laws, making it more difficult to determine what a judge might do in the absence of such a statute. This interpretation of the law may be further supported, however, by the fact that state and local governments found it necessary to enact feral cat legislation in the first place. Generally, legislatures pass laws to correct perceived deficiencies in existing law, particularly when there is no indication that the new legislation is intended to codify the current common law rule. Therefore, in the absence of a specific statute defining the rights and responsibilities of feral cat caretakers, an individual who regularly cares for feral may not qualify as an owner or a legally designated caretaker D. The Nature of the Feral Cat and Varying Degrees of Ownership A further problem is the relatively limited degree of control exercised by the defendant in Baker. The caretaker in that case merely fed and watered the cats. She did not provide shelter or veterinary care, and she never relocated or

confined the animals. The question, then, is what will a court in a common law jurisdiction do when faced with a feral cat keeper or caretaker who has exhibited greater evidence of ownership than the defendant in Baker ? Feral cats do not fit neatly within the common law categories of animal ownership. The first problem is the question of whether feral cats are wild or domestic animals. “A wild animal is an animal that belongs to a category of animals that have not been generally domesticated and that are likely, unless restrained, to cause personal injury.” Restatement (Third) of Torts: Physical and Emotional Harm § 22(b) (2005) . An animal is feral if it “[e]xist[s] in a wild or untamed state, either naturally or having returned to such a state from domestication.” The American Heritage Science Dictionary (Houghton Mifflin 2002). Feral domestic cats would almost certainly not be considered wild animals, since domestic cats have, by definition, been generally domesticated and are generally unlikely to cause personal injury. However, it is possible that individual members of a domestic species could be considered wild if those individual animals have not been domesticated. David Favre & Murray Loring, Animal Law 8 (1983). If an animal has never been owned or directly cared for by any human, then it may be classified as wild even if it is a member of a domesticated species. See id. at 10. So while feral cats are part of a domesticated species, it is possible that a court might find that specific feral cats qualify as wild animals, which would subject their owners and keepers to different requirements than owners and keepers of domestic cats. The most significant responsibility would be the imposition of strict liability on keepers and caretakers of feral cats in jurisdictions where keepers and caretakers are considered “owners.” See Restatement (Third) of Torts: Physical and Emotional Harm § 22(a) (2005). The fact that classifying feral cats as wild animals would expose feral cat caretakers to strict liability would probably make a court less likely to find a feral cat to be a wild animal. The policy rationale supporting strict liability is that a wild animal is so inherently dangerous that the burden should be on the owner, who made a conscious decision to possess the animal, to control the animal at all times. See David Favre & Murray Loring, Animal Law 7 (1983); see also Eyrich v. Earl , 495 A.2d 1375, 1377 (N.J.Super. Ct. App. Div., 1985) (stating that keepers of wild animals are strictly liable). This rationale is less persuasive

when applied to feral cats for two reasons. First, feral cats are members of the same species as domestic cats. In that sense, they are unlikely to pose a serious threat to humans, and any risk that they do pose is likely to be understood by the general public. See David Favre & Murray Loring, Animal Law 7 (1983) . But see Allen v. Cox , 942 A.2d 296, 304 (Conn. 2008) (holding that when a cat's owner knows that the cat has a propensity to be violent, the owner may be liable for reasonably foreseeable injuries caused by the cat's aggressive behavior). Second, keepers and caretakers do not exercise the level of control over feral cats that owners of wild animals exercise over those animals. Owners of wild animals intentionally possess those animals, knowingly exposing themselves to the risks that a wild animal’s presence might pose to the local community. In contrast, keepers and caretakers usually care for feral cats where they find them, exercising a limited degree of control over the animals. These important distinctions would explain why some states have specifically excluded feral cats from their statutory definitions of “exotic” or “wild” animals. See, e.g. , Exotic Mammal, Ind. Code § 14-8-2-87 (2009 ); Wild Mammals, Defined, Neb. Rev. St. § 37-246 (2008). At the same time, the level of control exercised by feral cat keepers and caretakers is often significantly less than the control exercised by an owner of a domestic housecat. Someone who cares for a feral cat is likely to limit her activity to feeding, watering, and in some cases spaying or neutering the animal. She is unlikely to provide shelter or regular veterinary care, and she would presumably be less likely to assert ownership over the cat or try to keep it from straying. And a feral cat, generally speaking, is less likely to be tame than a domestic housecat. Therefore, feral cats do not quite fit within the common understanding of domestic cat ownership. E. The Sliding Scale of Feral Cat Ownership The question, then, is if a feral cat is not quite a wild animal and not quite a domestic animal, how will a court determine ownership? As discussed above, there are serious policy concerns that would likely preclude the imposition of strict liability on feral cat keepers or caretakers, making it implausible to define feral cats as wild animals. Although feral cats do not necessarily fit within the common understanding of domestic animal ownership either, the ordinary liability imposed on domestic animal owners does not present the significant

policy problems raised by strict liability. Thus, the most rational way to determine ownership of feral cats is to use a modified version of the legal regime for owners of domestic animals, in which courts look at the extent to which a particular keeper or caretaker has exercised control over a feral cat and then imposes limited liability in a way that reflects that level of ownership. Under this regime, if a keeper or caretaker has given a feral cat food and water every day for several years and has provided the animal with periodic veterinary care, that person is more likely to be viewed as an owner—and subject to liability—than a person who has merely fed a feral cat once a day for six months. This type of sliding scale would enable courts to hold feral cat keepers and caretakers responsible when their actions reflect a relatively high degree of ownership. Simultaneously, this system would allow the casual good Samaritan to feed a feral cat without fear of liability. This rule would effectively advance two competing policy goals: (1) encouraging people to care for feral cats and (2) holding caretakers more responsible when their actions begin to look more like those of an owner than those of a caretaker. III. Potential Exposure to Civil Liability In states that have not addressed feral cats in their laws, to what extent can a caretaker be liable for tort damages caused by feral cats? The answer to this question is likely to depend on the degree of control that the individual exercises over the cats. In states and local jurisdictions where caretakers or keepers of feral cats are considered “owners,” it is quite possible that a feral cat caretaker could be subject to tort liability for trespass and nuisance claims. A. Nuisance Claims In one recent case, a California appellate court recently held that the plaintiffs’ nuisance claim, which was based on the defendants’ alleged failure to cease activity that resulted in the attraction of feral and domestic cats to the plaintiffs’ backyard, survived summary judgment. Kyles v. Great Oaks Interests , No. H028774, 2007 WL 495897 (Cal. Ct. App. Feb. 16, 2007) . In Kyles , the plaintiffs were members of a family residing in a home located next to an apartment complex. Upon moving into the home, the family noticed that many domestic and feral cats were frequently coming onto their property, and the cats had been defecating and urinating in the plaintiffs’ yard. Although the plaintiffs attempted to trap the cats and bring them to animal control, the

animal shelter ultimately told the plaintiffs that the shelter did not have room to house any more cats. The cats continued to come to the plaintiffs’ yard, and the plaintiffs claimed that the cats were attracted due to the failure of the neighboring apartment complex to ensure that its tenants placed lids on the trash receptacles. The family brought suit against the apartment complex, the city, the county, and the garbage disposal company servicing the apartment complex, alleging, among other things, that attracting the cats constituted a nuisance. Id. at *1–4. The trial court granted summary judgment for the defendants, but the appellate court rejected the trial court’s analysis of the plaintiffs’ nuisance claim. In determining whether the nuisance claim could be decided on summary judgment in favor of the defendants, the appellate court evaluated whether the plaintiffs had adequately shown that the defendants owed them a legal duty of care, that the defendants breached that duty, and that the breach was the cause of the plaintiffs’ damages. The court noted that there was evidence presented to the trial court that the defendants had “caused a large number of cats to be attracted to the area and frequent Plaintiffs’ backyard,” thereby interfering with the plaintiffs’ use and enjoyment of their property. Further, the court stated that the plaintiffs’ claim of “severe emotional distress that arises out of the alleged nuisance of having to deal with a large number of cats on their property . . . also survives summary adjudication.” Thus, the appellate court partially reversed the trial court’s grant of summary judgment, holding that the defendants could, in fact, be liable under a nuisance theory for damages arising from actions that caused “the presence of [a] large number of cats on Plaintiffs’ property.” See i d. at *1, *5–6, *13–14. It is important to note, however, that very few cases have addressed the issue of civil liability for feral cat keeping or caretaking. Further, cases like Kyles are limited in their usefulness since they do not present a single, bright-line legal rule for determining ownership of feral cats. Rather, the cases look closely at evidence of ownership to determine whether the keeper or caretaker should be subject to liability. As discussed above, this varying degree of control over feral cats is why common law jurisdictions are likely to determine liability based on the amount of control that a particular keeper or caretaker has exercised. B. Damage to Property or Injury to Persons

In jurisdictions where feral cat keepers or caretakers are considered the cats' legal owners, keepers and caretakers may also be liable for damage caused by feral cats to property or persons. The key question in either case is whether the owner has a duty to control the cat's behavior. Unless the cat has vicious tendencies that are known to the owner, a court is likely to find a duty only if the damages caused by the cat were reasonably foreseeable. The Tennessee Court of Appeals recently held that a cat's owner did not owe a duty to prevent her cat from trespassing on her neighbor's property. McElroy v. Carter , No. M2005-00414-COA-R3-CV, 2006 WL 2805141, at *6 (Tenn. Ct. App. Sept. 29, 2006) . The cat allegedly scratched the paint on the neighbor's truck, but because this kind of property damage was not reasonably foreseeable, the court held that the owner was not liable for any damages that her cat may have caused. Id. In another case, a New York state trial court held that a store owner could be liable for personal injuries caused by a stray or feral cat in the store. Fiori v. Conway Org. , 746 N.Y.S.2d 747, 750 (N.Y. App. Div. Dec. 14, 2001) . In Fiori , a customer sued a store owner after the customer was attacked by a cat that had taken up residence in the store and was being fed by store employees. The plaintiff argued that the store owner was liable under a common law negligence theory for breaching his duty to provide a safe environment for customers. The court accepted the plaintiff's claim that the aggressive tendencies of stray and feral cats pose certain risks that domestic housecats do not, especially when they are cornered by human. It could be foreseeable, then, that a stray or feral cat in a store could injure customers who came on the premises. Based on these unique risks, the court articulated a limited exception to the general rule that the negligence standard does not apply to injuries caused by domestic animals, holding that the store owner could be liable for failing to maintain safe premises for his customers. Id. at 748–50. The reasoning in these cases could be applied to feral cat keepers in caretakers in jurisdictions that consider keepers and caretakers to be owners. When damage to property or persons is reasonably foreseeable, a court in these jurisdictions could impose civil liability on keepers and caretakers for breaching their duty to control the feral cats in their care. On the other hand, in cases like

McElroy where the owner had no reason to foresee any damage or injury that her cat might cause, a court may be unlikely to find that such a duty exists. Top of page IV. Potential Exposure to Criminal Liability Determining when a feral cat caretaker may be criminally liable is a complex issue that has not been extensively addressed. One commentator who has analyzed the issue in Texas raised the possibility that an individual who cares for a feral cat could be held criminally liable for abandonment if that individual ceased to provide the cat with food and water or failed to pay for the cat’s necessary medical treatment. See generally Jeremy Masten, Note, Don’t Feed the Animals: Queso’s Law and How the Texas Legislature Abandoned Stray Animals, a Comment on H.B.2328 and the New Tex. Penal Code § 42.092 , 60 Baylor L. Rev. 964 (Fall 2008) . In 2007, the Texas legislature amended its animal protection statute to include feral cats and dogs in the statute’s definition of “animal.” This amendment was passed in response to several instances in which juries acquitted defendants who were accused of cruelty to feral animals because feral animals were not explicitly protected by the state’s animal cruelty statute. Id. at 973–74, 966. A. Abandonment and Neglect The problem noted in the Baylor Law Review article, however, is that this broadened definition of “animal” may expose a caretaker of a feral cat to criminal liability for neglect and abandonment if, at some point, she ceases to care for the animal. The possibility of criminal penalties could serve as a significant deterrent to potential feral cat caretakers, thereby undercutting the statute’s purpose of promoting the welfare of feral animals. See id. at 983–84, 988–90. B. State Registration and Spay/Neuter Requirements Similarly, some states classify feral cat caretakers as “owners” and further require owners to spay and neuter their pets or immunize them against rabies. Thus, feral cat caretakers could be subjected to the same fines and citations as other animal owners if they fail to comply with these laws. Virginia’s comprehensive animal statute is a clear illustration of how a caretaker might be exposed to criminal liability for failure to comply with registration and spay/neuter requirements. The statute explicitly includes feral cats in its

definition of “companion animal.” Va. Code Ann. § 3.2-6500 . The statute further defines an animal’s owner as anyone who “(i) has a right of property in an animal; (ii) keeps or harbors an animal; (iii) has an animal in his care; or (iv) acts as a custodian of an animal.” Id. Given the status of feral cats as “companion animals,” anyone who provides food, water, or shelter to a feral cat would almost certainly fall under Virginia’s definition of an “owner.” Under Virginia law, local governments may “ prohibit any person other than a releasing agency that has registered as such annually with local animal control from owning a cat four months old or older within such locality unless such cat is licensed as provided by this article.” Va. Code Ann. § 3.2-6524(B) . Further, it is a misdemeanor for a “cat owner to fail to pay any license tax required by this chapter before February 1 for the year in which it is due.” Va. Code Ann. § 3.2-6587(A)(2 ). It is certainly plausible, then, that a feral cat caretaker in Virginia could be required to comply with the same requirements imposed on owners of domestic cats. Similarly, Kentucky has enacted a statute that states, “[a]ny person with feral cats on his premises shall make a reasonable effort to capture or vaccinate the cats.” KY ST § 258.015 . Likewise, an Ohio appellate court has upheld a local ordinance that made it a criminal offense for, among other things, an “owner, keeper or harborer of” a cat to allow the cat to run at large. Christman-Resch v. City of Akron , 825 N.E.2d 189, 676 n.1, 686 (Ohio Ct. App. 2005) . The court did not, however, address the question of whether a feral cat caretaker could be held criminally liable under the ordinance—a distinct possibility, given the ordinance’s broad definition of ownership. Although, as in Virginia, there is no indication that ownership requirements are actively being imposed on feral cat caretakers, the possibility that this might occur under the current law further highlights the importance of cautiously drafting feral cat legislation. Thus, it is vital that the drafters of feral cat legislation consider the effect that such legislation might have as a disincentive to individuals who may otherwise be inclined to care for the very animals that feral cat laws are intended to protect. V. Conclusion Only thirteen states and the District of Columbia have enacted statutes that mention feral cats, and none of those statutes directly address liability. Local laws, on the other hand, vary significantly from town to town, and some of

those laws may even go so far as to expose unwitting caretakers to civil or criminal liability. The majority of cases that have addressed liability for feral cat owners are unpublished decisions involving local ordinances, highlighting the impossibility of discerning a single set of guidelines for dealing with feral cats. Thus, when a statute or local ordinance explicitly defines the role and responsibility of a feral cat keeper or caretaker, it is important to look closely at the statute, ordinance, and any relevant case law to fully understand the risks, rights, and responsibilities associated with caring for feral cats. In the vast majority of jurisdictions, however, courts will have no guidance other than common law. As discussed above, feral cats do not fit neatly within the common law of animal ownership. In light of the policy implications associated with defining feral cats as wild animals and thereby subjecting keepers and caretakers to a strict liability regime, a court would be more likely to find that feral cat keepers and caretakers are analogous to owners or keepers of domestic animals. This would expose keepers and caretakers to liability for the actions of feral cats, but it is plausible that a court would limit the liability of those keepers and caretakers to reflect the more limited degree of control that they exercise over the cats. Under this system, a person who feeds feral cats outside of her office building every morning might not be subjected to liability at all, whereas a person who provides shelter, food, water, and veterinary services for a group of feral cats would be more likely to be liable for the actions of those animals. What, then, is the answer to the question of whether feral cat keepers and caretakers are the animals' owners? May keepers and caretakers be held civilly liable for the actions of feral cats in their care? Could they be exposed to criminal liability for abandonment, neglect, or failure to comply with registration or spay/neuter requirements? Unfortunately, the answers to these questions are unclear and depend heavily on the local law. Even in common law jurisdictions, the scarcity of published judicial opinions makes it difficult to determine what a judge will decide in a particular case. Ideally, more state and local legislatures should begin to address this complex and convoluted area of law. Until then, however, only the courts can provide clearer guidance for keepers and caretakers in common law jurisdictions. When they do attempt to resolve these issues, judges and legislatures must take care to ensure that the

legal regime they impose on feral cat keepers and caretakers is not overly burdensome. Keepers and caretakers provide a valuable service, and the law should not discourage these individuals from caring for animals in need.

Chapter 13 Gas chamber bans

Introduction gas chamber bans California South Carolina Texas Detailed Discussion of Animal Euthanasia Introduction gas chamber bans Nobody likes talking about what is the best method to euthanize mammals. It forces us to think about the death of these animals. However, the discussion needs to take place. A community has to decide what is a humane method of euthanasia. There are two very distinct ways that jurisdictions deal with regulating euthanasia of companion animals. The state of California outlaws methods it considers cruel. For example, gas chambers are illegal. South Carolina takes a different approach. Rather than saying what is not allowed, it lists the methods that are allowed in the state. Alexandra Kleinfeldt with the animal legal & historical center gives us a detailed discussion of animal euthanasia. This article points out the difference between the concept of euthanasia, and of killing animals. They are not the same concept. Euthanasia is derived from the idea of "a good death" and involves the concept of having mercy. Most animals we kill in the United States do not die this good death.

California (a) A person, peace officer, officer of a humane society, or officer of a pound or animal regulation department of a public agency shall not kill an animal by using either of the following methods: (1) Carbon monoxide gas. (2) Intracardiac injection of a euthanasia agent on a conscious animal, unless the animal is heavily sedated or anesthetized in a humane manner, or comatose, or unless, in light of all the relevant circumstances, the procedure is justifiable. (b) With respect to the killing of a dog or cat, a person, peace officer, officer of a humane society, or officer of a pound or animal regulation department of a public agency shall not use any of the methods specified in subdivision (a) or any of the following methods: (1) High-altitude decompression chamber. (2) Nitrogen gas. (3) Carbon dioxide gas. South Carolina § 47-3-420. Allowable methods of euthanasia. (A) Only the following methods of euthanasia may be used to kill animals impounded or quarantined in animal shelters, and the procedure applicable to the method selected must be strictly followed: (1) Sodium pentobarbital or a derivative of it by means of: (a) intravenous injection by hypodermic needle of a lethal solution; (b) intraperitoneal injection by hypodermic needle of lethal solution as a last resort only when location of an injection into the vein is difficult or impossible; (c) intracardial injection by hypodermic needle if the dog or cat is unconscious; (d) intravenous injection of these solutions must be specifically injected according to the directions of the manufacturers for intravenous injections; (e) an animal may be sedated with an approved and humane substance before euthanasia is performed;

(f) the solutions may not be administered via intrathoracic, intrapulmonary, subcutaneous, intramuscular, intrarenal, intrasplenic, or intrathecal routes or in any other nonvascular injection route except as provided above; (g) administration of injections must be done only by a licensed veterinarian or by a euthanasia technician or Department of Natural Resources employee, trained and certified for this purpose in a euthanasia training class taught by a licensed South Carolina veterinarian or an individual or entity approved by the State Board of Veterinary Examiners, which must include training in tranquilizing animals. A person certified pursuant to this subitem must continue to maintain his proficiency by successfully completing a training course taught by a licensed South Carolina veterinarian or an individual or entity approved by the State Board of Veterinary Examiners every five years; (h) all injections must be administered using an undamaged hypodermic needle of a size suitable for the size and species of animal; (i) an animal shelter, governmental animal control agency, or the Department of Natural Resources (department) may obtain sodium pentobarbital or a derivative or tranquilizing agent by direct licensing. The animal shelter, governmental animal control agency, or department must apply for a Controlled Substance Registration Certificate from the federal Drug Enforcement Administration (DEA) and a State Controlled Substances Registration from the Department of Health and Environmental Control (DHEC). If an animal shelter, governmental animal control agency, or the department is issued a certificate by the DEA and a registration by DHEC pursuant to this subitem, the animal shelter, governmental animal control agency director or his designee, and the department's applicant are responsible for maintaining their respective records regarding the inventory, storage, and administration of controlled substances. An animal shelter, governmental animal control agency and its certified euthanasia technician, and the department and its certified employees are subject to inspection and audit by DHEC and the DEA regarding the recordkeeping, inventory, storage, and administration of controlled substances used under authority of this article; (j) oral administration of sodium pentobarbital is permitted for the purpose of anesthetizing animals, provided a lethal dose of sodium pentobarbital is administered to euthanize the animal; and

(k) carbon monoxide gas, carbon dioxide gas, or other nonanesthetic inhalants may not be used to perform euthanasia. (2) A substance which is clinically proven to be as humane as sodium pentobarbital and which has been officially recognized as such by the American Veterinary Medical Association may be used in lieu of sodium pentobarbital to perform euthanasia on dogs and cats, but succinylcholine chloride, curare, curariform mixtures, carbon monoxide gas, carbon dioxide gas, or any substance which acts as a neuromuscular blocking agent may not be used on a dog or cat in lieu of sodium pentobarbital for euthanasia purposes. (3) Shooting may be used in a location other than a shelter as a means of euthanasia only in an emergency situation to prevent extreme suffering or in which the safety of people or other animal life is threatened or where it is considered necessary by the South Carolina Department of Natural Resources to eliminate or control the population of feral animals. (4) In cases of extraordinary circumstance where a dog or cat poses an extreme risk or danger to the veterinarian, physician, or lay person performing euthanasia, the person is allowed the use of any other substance or procedure that is necessary to perform euthanasia on a dangerous dog or cat. (B) In any of the previously listed methods, an animal may not be left unattended between the time euthanasia procedures have commenced and the time death occurs, and the animal's body may not be disposed of until death is confirmed by a certified euthanasia technician. (C) Under no circumstance shall a chamber using commercially bottled carbon monoxide gas or other lethal gas or a chamber which causes a change in body oxygen by means of altering atmospheric pressure or which is connected to an internal combustion engine and uses the engine exhaust for euthanasia purposes be permitted. Credits HISTORY: 1980 Act No. 357, § 2; 1993 Act No. 181, § 1168, eff July 1, 1994; 2000 Act No. 293, § 2, eff May 19, 2000; 2016 Act No. 175 (H.3343), § 1, eff May 23, 2016. Texas AN ACT

relating to methods used by an animal shelter to euthanize a dog or cat. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1. Section 821.051, Health and Safety Code, is amended by amending Subdivisions (3) and (4) and adding Subdivision (5) to read as follows: (3) "Board" means the executive commissioner [Texas Board of Health]. (4) "Department" means the [Texas] Department of State Health Services. (5) "Executive commissioner" means the executive commissioner of the Health and Human Services Commission. SECTION 2. Subsection (a), Section 821.052, Health and Safety Code, is amended to read as follows: (a) A person may euthanize a dog or cat in the custody of an animal shelter only by administering sodium pentobarbital [or commercially compressed carbon monoxide]. SECTION 3. Section 821.054, Health and Safety Code, is amended to read as follows: Sec. 821.054. REQUIREMENTS FOR USE OF COMMERCIALLY COMPRESSED CARBON MONOXIDE. (a) The executive commissioner [board] by rule shall establish: (1) standards for a carbon monoxide chamber used to euthanize an animal to which Section 821.052(b) applies [in the custody of an animal shelter]; and (2) requirements and procedures for administering commercially compressed carbon monoxide to euthanize an animal to which Section 821.052(b) applies [in the custody of an animal shelter]. (b) A person administering commercially compressed carbon monoxide to euthanize an animal to which Section 821.052(b) applies [in the custody of an animal shelter]: (1) may use only a carbon monoxide chamber that meets the standards established by department [board] rule; and (2) may administer the commercially compressed carbon monoxide only in accordance with the requirements and procedures established by department [board] rule. SECTION 4. Not later than December 1, 2013, the executive commissioner of the Health and Human Services Commission shall adopt rules necessary to

conform to Subsection (a), Section 821.052, and Section 821.054, Health and Safety Code, as amended by this Act. SECTION 5. A person subject to Subsection (a), Section821.052, Health and Safety Code, as amended by this Act, is not required to comply with that subsection or any rules adopted under that subsection until January 1, 2014. SECTION 6. This Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2013. Detailed Discussion of Animal Euthanasia Author: Alexandra Kleinfeldt Place of Publication: Michigan State University College of Law Publish Year: 2017 Primary Citation: Animal Legal & Historical Center. Country of Origin: United States Summary: This paper addresses animal euthanasia and its position with state legislatures. It examines the reasons of different groups requesting animal euthanasia, highlights state laws addressing different euthanasia methods and who may perform euthanasia, and includes a survey of state law approaches. The paper concludes with an examination of the legal and ethical issues involved with animal euthanasia such as veterinarians’ and animal shelter employees’, the emerging trend of in-home euthanasia, provisions in one’s last will and a comparison between animal cruelty and animal euthanasia. Table of Contents I. Introduction II. Distinguishing Euthanasia from Killing III. Euthanasia Statistics and Trends IV. Reasons Supporting Euthanasia Requests A. Pet Owners B. Public Animal Shelters C. Animal Control and Law Enforcement D. Private Humane Societies and Shelters V. Methods of Companion Animal Euthanasia

A. Injections/Noninhaled Agents B. Gas Chamber C. Decompression Chambers D. Gunshot/Physical Method VI. Who May Perform Animal Euthanasia VII. Survey of State Laws Concerning Animal Euthanasia A. Approved Methods by Law B. Inhumane Methods of Euthanasia C. Emergency Euthanasia under State Law D. Accountability and Euthanasia Records Laws VIII. Legal and Ethical Issues with Animal Euthanasia A. Ethical Concerns and the AVMA Guidelines for the Euthanasia of Animals B. The In-home Euthanasia Movement C. My Last Will: Pet Euthanasia Requests D. Animal Cruelty Versus Euthanasia IX. Conclusion I. Introduction Animals have been companions to humans for thousands of years. Most Western countries consider their pets as a member of their family. It comes as no surprise that people continue to hold a close relationship to their companion animal during their last days and even after their death – in the United States, one’s pet can be buried at one of about 600 pet cemeteries. (Sara A. Wiswall, Animal Euthanasia and Duties Owed to Animals, 30 McGeorge L. Rev. 801 (1999)). The Hartsdale Pet Cemetery was the first pet cemetery, established in 1896 in the state of New York, and continues to be the oldest operating pet cemetery in the world. (About, Hartsdale Pet Cemetery, (URL removed for reprint)). In Florida, the legislature passed a law that allows a pet owner to have his cremated pet remains buried along with him in his casket or urn as long as the remains are not being commingled. (FLA. STAT. § 497.273(4)). However, not all animals share a similar destiny of being able to peacefully leave this world. Millions of animals are being euthanized each year under questionable circumstances. In fact, euthanasia is the most common cause of death for healthy unwanted dogs and cats. (Rebecca J. Huss, Rescue

Me: Legislating Cooperation Between Animal Control Authorities and Rescue Organization, 39 Conn. L. Rev. 2059 (2007)). Animal euthanasia has been part of human culture for millennia or many years. (Brian K. Cooke, Extended Suicide With a Pet, 41(3) J. Am. Acad. Psychiatry L., 437, 438 (2013); Taimie L. Bryant, Sacrificing the Sacrifice of Animals: Legal Personhood for Animals, the Status of Animals As Property, and the Presumed Primacy of Humans, 39 Rutgers L. J. 247 (2008)). In ancient Egypt, pet owners requested their pets to be buried with them. However, most of the time the animals were still alive at the master’s death. (Brian K. Cooke, Extended Suicide With a Pet, 41(3) J. Am. Acad. Psychiatry L., 437, 438 (2013). As a result, the pets were euthanized and mummified with their owners to be united forever. Today, there are new factors underlying pet euthanasia, although healthy pets are still killed much like ancient Egypt. In addition, the person or entity requesting euthanasia or ordering an animal to be euthanized is not limited to a pet owner. The act of performing euthanasia of an animal is mainly limited to veterinarians or certified euthanasia technicians, but can also extend to police officers (or other governmental personnel) under certain situations. Notably, almost all states have enacted some kind of laws that regulate animal euthanasia, including the procedures to be used as well as persons who may perform the euthanasia of an animal. This paper addresses animal euthanasia and its position with state legislatures. Methods and provisions differ from state to state, with some states recognizing the importance to provide detailed guidelines while others needing to improve their outdated laws in their dealings with this topic. This paper begins with a discussion on the historical origins of animal euthanasia by explaining the difference between euthanasia and killing as well as statistical data for animal euthanasia and where the trend is heading. The paper then examines the reasons of different groups that request animal euthanasia. In addition, the paper highlights state laws addressing different euthanasia methods and who may perform euthanasia. This includes surveying how different state laws approach issues like inhumane euthanasia methods, emergency euthanasia, and the requirement of maintaining records related to animal euthanasia. Finally, the paper concludes with an examination of the legal and ethical issues involved with animal euthanasia such as veterinarians

and animal shelter employees dealing with euthanasia requests, the emerging trend of in-home euthanasia, provisions in one’s last will to request his or her companion animal to be euthanized, and a comparison between animal cruelty and animal euthanasia. II. Distinguishing Euthanasia from Killing Euthanasia has its origin in the Greek language. (Methods For the Euthanasia of Dogs and Cats: Comparison and Recommendations, World Society for the Protection of Animals, (URL removed for reprint)). “Euthanatos” translates into “good death,” and is defined as an act of either killing or permitting the death of a terminally ill or hopelessly injured individual or animal by using a humane method for reasons of mercy. (Merriam-Webster, available (URL removed for reprint). Euthanasia is considered humane either by painlessly administering a lethal dose of an agent or by a method of euthanasia recognized by the AVMA, the American Veterinary Medical Association, “the nation’s leading advocate for the veterinary profession,” (Who We Are, AVMA (2017), (URL removed for reprint)” (510 ILCS 70/2.09). These requirements can be accomplished by using a method that causes the instant “loss of consciousness followed by cardiac and respiratory arrest” leading to the animal’s death. (Definition of Euthanasia, Iowa State University, College of Veterinary Medicine, available at (URL removed for reprint)). Killing an animal is defined as to end a life, to cause the physical death (Black’s Law Dictionary 4th Ed., or “to slaughter (an animal) for food.” (Merriam-Webster, available at (URL removed for reprint)). However, euthanasia in veterinary medicine also includes the death of healthy animals. (Antonio Ortega-Pacheco & Matilde Jiménez-Coello, Debate For and Against Euthanasia in the Control of Dog Populations, Euthanasia - The "Good Death" Controversy in Humans and Animals 233 (2011). Humane organizations argue that depending on the circumstances of the euthanasia, even though the euthanasia is painless, it still should not be considered a mercy killing because euthanasia should only be based on a medical decision in the best interest of the companion animal. (The Difference Between Euthanasia and Killing, The Alley Cat, available at (URL removed for reprint)). Animal welfare advocates often compare animal euthanasia to the selective killing of humans. They suggest that if a human were homeless and or poor, society would never consider to request that human to be euthanized. (Rachel

Cartledge, Killing Healthy Animals, an Ethical Dilemma?, 56 St. George’s University SVM Paws Print (2008), available at (URL removed for reprint). In fact, it would be called murder. Advocates suggest that euthanasia of humans is considered as a degradation of the person being killed making it look like the person performing the euthanasia is superior to the person being euthanized. (Tomas A. Cavanaugh, Dignity, Pet Euthanasia and Person Euthanasia, In G.E.M. Anscombe and Human Dignity by John Mizzoni (2016). The same can be argued as true for animal euthanasia, with the logic of animals being subordinate to humans. Scholars are even drawing a parallel between today’s requests for euthanasia of humans and the procedure of euthanasia of humans during the second world war, when certain groups of people were considered to be “unworthy of life,” and defective and therefore were euthanized. It is important to understand the underlying implications of euthanasia: degradation and superior power, and how dangerous this tool is. Some argue that the death of a human signifies the ultimate loss of that person and that person cannot be replaced. A dog or a cat however is not necessarily irreplaceable even though animal owners do not tend to directly replace the animal after it has been euthanized. (Tomas A. Cavanaugh, Dignity, Pet Euthanasia and Person Euthanasia, In G.E.M. Anscombe and Human Dignity by John Mizzoni (2016). Society should not hide behind the ‘safety’ of euthanasia when healthy animals are being euthanized for reasons such as overpopulation, being strays, or when the owner or shelter is unable to carry the financial burden of taking care of the animal. (Rachel Cartledge, Killing Healthy Animals, an Ethical Dilemma?, 56 St. George’s University SVM Paws Print (2008), available at (URL removed for reprint). Despite these discussions about euthanasia being morally and ethically right or wrong, in the majority of countries, including the United States, animals are considered personal property, and an euthanasia request for a healthy companion animal by its owner is lawful. (Antonio Ortega-Pacheco & Matilde Jiménez-Coello, Debate For and Against Euthanasia in the Control of Dog Populations, Euthanasia - The "Good Death" Controversy in Humans and Animals 233 (2011), available at (URL removed for reprint) III. Euthanasia Statistics and Trends

There are no exact numbers of animals being euthanized each year. Only a few states require animal shelters to keep records about animals being euthanized. (From Death Row to Adoption: Saving Animals by Car, Van, Bus and Even Plane, Bangor Daily News, available at (URL removed for reprint)). Even where numbers are collected, the data may be inaccurate or underreport animals euthanized since the numbers available are based on voluntary surveys conducted at animal shelters or are projections based on older surveys. (Paul C. Bartlett et al., Rates of Euthanasia and Adoption for Dogs and Cats in Michigan Animal Shelters, 8(2) J. Applied Animal Welfare Sci. 97 (2005). Despite this, there does appear to be a downward trend in the past several decades. According to the Humane Society of the United States, euthanasia of animals in shelters has been declining sharply since 1970 when fifteen million cats and dogs had been euthanized (Statement on Euthanasia, The Humane Society of the United States, available at (URL removed for reprint)). A recent publication by the American Society for the Prevention of Cruelty to Animals (ASPCA) states that about 1.5 million animals - 670,000 dogs and 860,000 cats - in shelters have been euthanized during the past years. There is a steady decline of animal euthanasia over the years as apparent from the euthanasia rates in the 1970s and even from 2011 when about 2.6 million dogs and cats were euthanized. (Shelter Intake and Surrender, Pet Statistics, ASPCA, available at (URL removed for reprint). Such a decline can be attributed to changes in how animal populations are controlled. One reason that animal euthanasia is declining is that many states have implemented spay-neuter program. Another reason is a recently adopted initiative of adoption campaigns where animals in “high-kill southern regions” are transported to areas where animals for adoptions are needed. (From Death Row to Adoption: Saving Animals by Car, Van, Bus and Even Plane, Bangor Daily News, available at (URL removed for reprint). While trends may indicate an overall decline in pet euthanasia, the ability of an owner to decide his or her pet’s fate has not changed. IV. Reasons Supporting Euthanasia Requests Euthanasia of animals might be requested by individuals or even organizations such as animal shelters, pounds, rescues, and pet shops, (AVMA Guidelines for the Euthanasia of Animals: 2013 Edition, AVMA (2013), available at (URL removed for reprint) or even a government agency. Each person or

institution may request the euthanasia of animals for a different reason, such as terminal illness, illness, accident, behavioral issues, age, life changing circumstances, overpopulation, or convenience. (Antonio Ortega-Pacheco & Matilde Jiménez-Coello, Debate For and Against Euthanasia in the Control of Dog Populations, Euthanasia - The "Good Death" Controversy in Humans and Animals 233 (2011), available at (URL removed for reprint). Even Natural disasters like Hurricane Harvey that recently destroyed thousands of homes have an impact on animal euthanasia. Families might have been forced to leave their pets behind (Natural Disasters Reshape Animal Rescue, WNYC Radio, available at (URL removed for reprint). Facing a hurricane also puts animal shelters in a difficult spot. Most of the time, shelters are already filled to its capacity. The threat of flooding leaves shelters sometimes no other option but to euthanize the animals currently in the shelter to safe those from the flooding and already make room for those animals that become victims of the hurricane and lose their home. (Dogs Safe After Risking Euthanasia In Wake Of Harvey, KRGV available at (URL removed for reprint)). Those animals that become victims of natural disasters are “stray or become strays at the time of the disaster.” (Sebastian E. Heath & Robert D. Linnabary, Challenges of Managing Animals in Disasters in the U.S., 5(2) Animals 173 (2015), available at (URL removed for reprint). The reasons underlying euthanasia may vary greatly, and often have little bearing on the outcome. However, the issue of who makes the request, whether an individual pet owner or government entity, affects both the method of euthanasia and the speed at which euthanasia can occur. A. Pet Owners As previously mentioned, companion animals are deemed the personal property of their owners in all fifty states. Animals can be bought, sold, adopted, transferred, gifted, devised, and even humanely euthanized by their owners. (David Favre, Living Property: A New Status for Animals Within the Legal System, 93 Marq. L. Rev. 1021 (2010). Generally, three main reasons exist for pet owners euthanizing their animals: (1) medical/ health euthanasia; (2) economic euthanasia; and (3) convenience euthanasia. 1. Medical/Health Euthanasia

Oftentimes, the major, and also justifiable, reason for owners of companion animals to request their pet to be euthanized is based on the health of the animal. The decision is made from a medical standpoint to be in the best interest of the animal due to the companion animal’s quality of life based on a terminable illness or suffering of the animal. (Susan J. Hankin, Making Decisions About Our Animals' Health Care: Does It Matter Whether We Are Owners or Guardians?, 2 Stan. J. Animal L. & Pol'y 1 (2009). Such reasoning is deemed merciful because it delivers the animal from pain, avoiding unnecessary prolonging of the animal’s suffering and distress. The owner and veterinarian facilitate the decision for the animal to “go to sleep” in dignity. Besides the medical based reasons for an owner to request a pet to be euthanized, an owner might request the euthanasia of a perfectly healthy pet. Such requests can be based on “economic, emotional, and space limitations or changes in lifestyle.” (Rachel Cartledge, Killing Healthy Animals, an Ethical Dilemma?, 56 St. George’s University SVM Paws Print (2008), available at (URL removed for reprint). 2. Economic Euthanasia The Great Recession of 2008 also spawned unforeseen collateral damage: economic euthanasia of pets. One reason for economic euthanasia relates to an owner’s inability to continue paying the mortgage for his home, resulting in a foreclosure, leaving the owner with no other option in his mind than to have his companion animal euthanized because he is unable to pay the medical bills incurred for treating his pet. Even without the foreclosure crisis the United States faced just a few years ago, some owners have their pets euthanized when they are moving into a smaller home, rental, or even move in with family because the pet is getting too expensive to take care of it. (Stacy A. Nowicki, Give Me Shelter: The Foreclosure Crisis and Its Effect on America’s Animals, 4 Stan. J. Animal L. & Pol’y 97 (2011). Economic euthanasia also occurs in cases when the companion “animal has a treatable condition, but the client cannot afford (or chooses not to spend the money on) the treatment and requests instead that the animal be humanely euthanized.” (Susan J. Hankin, Making Decisions about Our Animals' Health Care: Does It Matter Whether We Are Owners or Guardians?, 2 Stan. J. Animal L. & Pol'y 1 (2009). Despite the potential ethical issues of euthanizing for purely economic reasons, no state

law has been enacted demanding an owner to justify his or her reasons to have his or her pet euthanized. 3. Convenience Euthanasia Another form of euthanasia by pet owners may be termed convenience euthanasia, which describes an owner’s request to have his healthy companion animal euthanized “because it is no longer convenient to keep” it. (Susan J. Hankin, Making Decisions about Our Animals' Health Care: Does It Matter Whether We Are Owners or Guardians?, 2 Stan. J. Animal L. & Pol'y 1 (2009)). Such decision to euthanize is solely being made based on the owner’s convenience, e.g., he or she is moving and can no longer provide enough space for the pet or the cute puppy has grown into a full size dog, which is less cute in the owner’s opinion. The law provides minimal to no restraints on owners who request convenience euthanasia. In fact, Missouri specifically enacted a regulation that when an owner of a dog or cat requests the euthanasia of his pet no holding period is required and the animal may immediately be euthanized upon the owner’s request. (2 CSR 30-9.020(13)(C)). B. Public Animal Shelters While pet owners face few legal or regulatory hurdles in electing euthanasia for their pets, public animal shelters may face holding periods and other procedural steps. Several reasons underlie the euthanasia of animals by these entities. Animal shelters and pounds mostly dispose of animals to take in new pets, to deal with diseases, or based on financial reasons due to lack of funding or understaffing. (The Difference Between Euthanasia and Killing, The Alley Cat (2017), available at (URL removed for reprint). For shelters, euthanasia is a method to fight overpopulation of animals in their care due to the number of animals within the shelters and the minimal rate of adoption. (Antonio OrtegaPacheco & Matilde Jiménez-Coello, Debate For and Against Euthanasia in the Control of Dog Populations, Euthanasia - The "Good Death" Controversy in Humans and Animals 233 (2011). Animal shelters also induce euthanasia on animals due to economic and financial reasons. They might not receive enough founding or donations to be able to provide enough care for all animals, or employ sufficient number of staff to take care of the animals within the shelter. Generally, each state’s law provides criteria for when animals may be

euthanized by public shelters as well as guidelines on euthanasia methods and performance of euthanasia. (see Infra Sections V, VI, VII). C. Animal Control and Law Enforcement The court might order humane euthanasia of a dog if a judge determines the dog to be dangerous, i.e. the dog has a known vicious tendency supported by previous unjustified attacks on an individual causing serious physical injury or even death amongst other factors. (NY CLS Agr & M § 123 (3)(b)). Law enforcement officers have the authority to conduct emergency euthanasia of dogs and cats in the event that such an animal is found maimed, wounded, injured or diseased and the owner cannot be located in a timely manner without the animal unnecessarily suffering. (Miss. Code Ann. § 97-41-3 (2)(a)(i); Code of Ala. § 34-29-132). Statutes also allow the humane euthanasia in emergency events and describe the humane euthanasia methods to be performed by law enforcement officers. (510 ILCS 70/4.02(a)). For example, New Mexico allows euthanasia performed by a law enforcement officer by gunshot (§ 16.24.3.8. NMAC(A); Code of Ala. § 34-29-132 (1)), and Alabama allows a law enforcement officer to perform euthanasia by injection with a barbiturate drug (Code of Ala. § 34-29-132 (1)). Ohio prohibits the killing of a dog that is chasing, injuring, threatening, or killing another dog but implemented the exception that law enforcement officers are allowed to kill “a dog that attacks a police dog.” (ORC Ann. 955.28(A)). Some states such as Wisconsin enacted laws that allow police officers to perform euthanasia of an animal if the law enforcement officer reasonably believes that the animal is either dangerous or injured. (Wis. Stat. § 173.25). After reviewing these statutes it can be said that law enforcement officers have great discretion in determining the euthanasia of an animal in certain emergency situations. Therefore, a few states added additional restrains to situations when the owner cannot be located after reasonable efforts have been made such as consulting with a licensed veterinarian (Code of Ala. § 34-29-132 (1)). The majority of states are silent about law enforcement officers performing emergency euthanasia. D. Private Humane Societies and Shelters Humane Society organizations differ with public animal shelters by one major factor: funding. While animal shelters, pounds, or animal control are

receiving their funding from the government, humane societies live through donations. Another difference between those institutions is that while animal control takes in stray animals, humane societies mostly just take in adoptable animals based on available space. By making such a choice upfront, humane societies are less likely to euthanize animals. However, sometimes humane societies still have to make the decision to request the euthanasia of an animal. They only do so in cases when the animal shows aggressive behavior, is severely ill or injured, and the humane society is unable to provide adequate treatment. (The Differences: Animal Control Vs. Humane Society, WCYB (May 2016), available at (URL removed for reprint). Some humane societies, on the other hand, might have a contract with animal control, which can lead to higher euthanasia rates to make room for the next animals they have to take in to honor the contract with animal control. (Shelter, SPCA, humane society, or rescue?, Adopt a Pet (March 2010), available at (URL removed for reprint). The practice of euthanasia in private shelters is not without controversy. In 2015, a report revealed that the majority of animals in PETA’s only shelter (located in Virginia) had been euthanized between 1998, when reporting date concerning euthanasia became mandatory (PETA’s The Best – At Killing Dogs And Cats, Center for Consumer Freedom (March 2017), available at (URL removed for reprint) and the revelation in 2015. (PETA’s Virginia Shelter Killed 88% Of Rescued Pets Last Year, Up 30%: Report, Washington Times (February 2015), available at (URL removed for reprint). Numbers of animals that had been euthanized during those years ranged from about 73% to about 97%. (PETA’s Pet Killing Claimed 1,456 Victims in 2015, Center for Consumer Freedom (March 2016), available at (URL removed for reprint). Virginia generally has a low euthanasia rate with shelters euthanizing 38.5% of its cat and 17.5% of its dog intake in 2013 whereas PETA euthanized 83.8% of the cats and 68.4% of the dogs they took in during the same year. (PETA Euthanized A Lot Of Animals At Its Shelter In 2014, And No-Kill Advocates Are Not Happy About It, Huffington Post (February 2015), available at (URL removed for reprint). Based on those findings, the legislature acted immediately and passed a law in February 2015 defining “a private animal shelter as a place where the primary mission is to find permanent homes for animals.” (At PETA’s Shelter, Most

Animals Are Put Down. PETA Calls Them Mercy Killings., Washington Post (March 2015), available at (URL removed for reprint). Despite this newly enacted law, and while the average rate for animal euthanasia in Virginia’s shelters amounted to 16.9 percent in 2016, PETA euthanized about 72 percent during the same period of time. (PETA Shelter Was A ‘Slaughterhouse,’ Group Claims, Fox News (March 2017), available at (URL removed for reprint) . PETA justifies its euthanizing practice by claiming “it must euthanize animals because it’s an ‘open-admissions’ shelter.” (PETA Euthanized A Lot Of Animals At Its Shelter In 2014, And No-Kill Advocates Are Not Happy About It, Huffington Post (February 2015), (URL removed for reprint). Being an openadmissions shelter, PETA argues that it is taking in all those “aggressive, sick, elderly, injured, feral, and otherwise unadoptable animals” that other shelters are turning away. (PETA Shelter Was A ‘Slaughterhouse,’ Group Claims, Fox News (March 2017), available at (URL removed for reprint). PETA’s statement is clear: “To be able to offer refuge to every animal in need, open-admission shelters must euthanize unadopted and unadoptable animals.” (PETA Shelter Was A ‘Slaughterhouse,’ Group Claims, Fox News (March 2017), available at (URL removed for reprint). While private animal shelters’ mission is to safe and provide homes for unwanted animals, some of the privately owned shelters have to make the decision to have animals euthanized in some instances. V. Methods of Companion Animal Euthanasia Usually, euthanasia of an animal takes place either at a veterinarian clinic when the euthanasia has been requested by an individual owner, or at public animal shelters by certified technicians. The preferred and most humane method for animal euthanasia is by intravenous injection, but the AVMA guidelines also recognize other acceptable methods, acceptable methods with conditions, and adjunctive methods as well as unacceptable methods for euthanizing a companion animal. (AVMA Guidelines for the Euthanasia of Animals: 2013 Edition, AVMA (2013, available at (URL removed for reprint). In recent decades, certain methods of euthanasia such as gas chambers have ceased and even have been outlawed due to humane concerns. A. Injections/Noninhaled Agents The AVMA is recognized as an accrediting body and educational resource in aiding to set guidelines for veterinarians. Its guidelines offer support for

veterinarians such as discussing methods for the euthanasia of animals. The preferred method of euthanasia is an intravenous injection of a barbituric acid derivative. (AVMA Guidelines for the Euthanasia of Animals: 2013 Edition, AVMA (2013), available at (URL removed for reprint). A barbiturate is a synthetic drug that is used as a central nervous system depressant, which can result in mild sedation as well as coma. It is mostly being used as a sedative or part of anesthesia. (What Are Barbiturates?, News Medical (June 2016), available at (URL removed for reprint). The most used form of a barbituric acid derivative is pentobarbital or a pentobarbital combination product. There are two similar procedures when using intravenous injections to euthanize a companion animal. One approach is to administer the barbiturate intravenous just by itself. Another approach is to use the barbiturate after the pet had been sedated or anesthetized. (AVMA Guidelines for the Euthanasia of Animals: 2013 Edition, AVMA (2013), available at (URL removed for reprint). The main reason why barbiturates are being administered is that these drugs cause the animal to be deeply anesthetized and therefore unconscious before the drugs result in respiratory failure. (Antonio Ortega-Pacheco & Matilde Jiménez-Coello, Debate For and Against Euthanasia in the Control of Dog Populations, Euthanasia - The "Good Death" Controversy in Humans and Animals 233 (2011)). In the event that intravenous administration would be dangerous or impractical, as is the case for smaller animals like small dogs and cats, the AVMA guidelines suggest to administer sodium pentobarbital intraperitoneal. There are also other noninhaled agent methods available for animal euthanasia such as nonbarbiturate anesthetic overdose, administration of tributame, or use of T-61. (AVMA Guidelines for the Euthanasia of Animals: 2013 Edition, AVMA (2013), available at (URL removed for reprint). B. Gas Chamber There is a huge controversy with regard to using gas chambers as a method to euthanize animals. Using gas chambers as a method to euthanize animals had been a recognized method for animal euthanasia in U.S. animal shelters since World War II. The AVMA had previously considered the use of carbon monoxide as an acceptable method to euthanize animals when using the proper equipment. (Animal Gas Chamber Draw Fire In U.S., National

Geographic (April 2005, available at (URL removed for reprint). In 2007, the AVMA revised its guidelines to incorporate that “[c]arbon monoxide is extremely hazardous for personnel because it is highly toxic and difficult to detect.” (Gas Chambers, Utah Animal Rights Coalition (no date), available at (URL removed for reprint). Most animal-welfare advocates added that this method is inhumane to animals. (Animal Gas Chamber Draw Fire In U.S., National Geographic (April 2005), available at (URL removed for reprint). In addition, advocates argue that the method is outdated, causes unnecessary pain and suffering to animals, and is even more expensive than performing euthanasia by injections. (Gas Chambers, Utah Animal Rights Coalition (no date) available at (URL removed for reprint). The argument about causing unnecessary pain has been proven to be true. The entire process of euthanizing an animal by gas takes about twenty-five minutes. The procedure begins with placing one or more animals within an airtight chamber before “a high concentration of bottled carbon monoxide gas is released. (Animal Gas Chamber Draw Fire In U.S., National Geographic (April 2005), available at (URL removed for reprint). Before the gas can take full effect, a certain concentration of that gas has to reach the lungs of the animal. When several animals have been placed in the chamber, it becomes impossible for each animal to receive the appropriate amount of lethal gas. (Euthanasia via Gas Chambers, The Humane Society Veterinary Medical Association (October 2014), available at (URL removed for reprint). Normally the animal will be unconscious fairly quickly, but the animal might only get dizzy and start to panic. At that point, fights amongst the animals placed in the gas chamber together can break out. (Animal Gas Chamber Draw Fire In U.S., National Geographic (April 2005), available at (URL removed for reprint). All in all, the euthanasia method by use of gas chamber is inhumane since the animal’s death might be prolonged and leaves the animal to suffer. (Euthanasia via Gas Chambers, The Humane Society Veterinary Medical Association (October 2014), available at (URL removed for reprint). As of July 2016, twenty-two states have banned the use of gas chambers as means to animal euthanasia, whereas five states (Illinois, Kansas, Louisiana, Maryland and North Carolina) have implemented partial bans on gas chambers. There are no known gas chambers in use at this time in these states.

Of those five partial-ban states, Kansas, Louisiana, Maryland, and North Carolina specifically banned carbon monoxide (CO), but did not ban the use of carbon dioxide (CO2), whch left a loophole to technically still use CO2. As of 2016, even California had a loophole in its laws, allowing animal shelters to still use gas chambers when euthanizing animals. Although the use of several gases had been banned since 1998, the legislature had not included carbon dioxide in that ban. (Animal Rights Activists Aim To End Gas Chamber Use In California Shelters, KCBS (June 2016), available at (URL removed for reprint). Nineteen states have no formal ban on the use of gas chambers to euthanize pets; however, there is no indication that those states use this method. In Missouri, Ohio, Utah, and Wyoming, the legislature has not banned the use of gas chambers, and the use of gas chambers as a euthanasia method is either confirmed or suspected. (Eliminating Gas Chambers, Animal Sheltering (2017), available at (URL removed for reprint)). All in all, about seventy gas chambers located within thirteen states have voluntarily closed its doors since 2013. The most important organization to advocate ending the use of gas chambers as a euthanasia method is The Humane Society of the United States. Its goal is to ensure that gas chambers are being completely abolished as a method to euthanize animals. (Brining An End To Inhumane Euthanasia, Humane Society of the United States (2017), available at (URL removed for reprint). C. Decompression Chambers In 1950, (T. Carding & Michael W. Fox, Euthanasia of Dogs and Cats: An Analysis of Experience and Current Knowledge With Recommendation for Research, ISAP Special Reports (August 1978)) the American Humane Association (AHA) endorsed the use of decompression chambers for homeless dogs and cats. (Decompression: A New Way to Torture Chickens & Turkeys to Death, United Poultry Concerns (April 2011), available at (URL removed for reprint). The method of killing pets by the use of decompression is performed by placing the animals in cages inside a cylindrical chamber, and then reducing the ambient air pressure. (T. Carding & Michael W. Fox, Euthanasia of Dogs and Cats: An Analysis of Experience and Current Knowledge With Recommendation for Research, ISAP Special Reports (August 1978)). Decades after the endorsement by the AHA in 1950, the City of Berkeley, California became the first to declare decompression to be inhumane and ban

the use as a euthanasia method in 1972. (Decompression: A New Way to Torture Chickens & Turkeys to Death, United Poultry Concerns (April 2011), available at (URL removed for reprint). A huge controversy arose between animal shelters and animal advocates and the public, whereby the latter wanted shelters to convert their euthanasia method from decompression chambers to euthanasia by intravenous injection of sodium pentobarbital as the common method. In 1978, the ASPCA regained its role as national organization and started “to convert euthanasia methods from decompression to lethal injection of sodium pentobarbital.” (Marion S. Lane & Stephen L. Zawistowski, Heritage of Care: The American Society for the Prevention of Cruelty to Animals (Praeger Publishers, 2008)). More and more cities decided against the use of decompression chambers for euthanasia and, by the end of 1985, the use of decompression chambers to kill animals in shelters had been completely banned in the United States. (Decompression: A New Way to Torture Chickens & Turkeys to Death, United Poultry Concerns (April 2011), available at (URL removed for reprint). D. Gunshot/Physical Method Death by gunshot as a euthanasia method is typically allowed only in emergency situations, when the animal would experience unnecessarily prolonged pain and suffering or the animal poses an imminent danger to human life. The use of gunshot should not be considered a routine method to euthanize companion animals nor should a gun be used when other methods are available. In addition, the use of a penetrating captive bolt might be a safe and applicable method to euthanize a dog or rabbit in a laboratory. (AVMA Guidelines for the Euthanasia of Animals: 2013 Edition, AVMA (2013), available at (URL removed for reprint). VI. Who May Perform Animal Euthanasia The 1957 movie “Old Yeller,” which is based on the same-named book, tells about a family who had to shoot its beloved dog. The dog had been bitten by a “wolf infected by rabies” when the dog tried to protect its family. (Old Yeller, Wikipedia, available at (URL removed for reprint)). While no law during the 19th and early 20th century prohibited an owner to put one’s own dog “down,” today a local veterinarian does the job. In fact, most states are very specific on who can perform the task. Forty-five out of fifty states allow a licensed

veterinarian to perform euthanasia of an animal. (State Laws Governing Euthanasia, AVMA Division of State Advocacy & Leadership (last updated July 2017), available at (URL removed for reprint). New Jersey specifically permits New Jersey licensed veterinarians (N.J.A.C. 8:23A-1.11(e)), and Vermont only authorizes Vermont licensed veterinarians (CVR 20-022-020(III)(A)) to perform euthanasia of animals. All other states are silent with regard to the license issuance authority. Georgia also permits a licensed physician to perform euthanasia of animals. (O.C.G.A. §4-11-5.1(f)). In addition to veterinarians, the majority of states implemented a special training program to become a certified euthanasia technician to perform euthanasia. (State Laws Governing Euthanasia, AVMA Division of State Advocacy & Leadership (last updated July 2017), available at, (URL removed for reprint). Florida only allows employees or agents of public or private agencies or animal shelters to become certified euthanasia technicians after successfully completing a sixteen-hour euthanasia technician certification course. (Fla. Stat. §828.058(4)(a)). Just a few states like Delaware (16 Del. C. § 3004F(d)(4)) permit licensed or registered veterinarian technicians to perform euthanasia of an animal. Some states demand additional requirements that the licensed veterinarian technician has to be employed or an agent of a licensed veterinarian or shelter like in Alabama (Code of Ala. § 34-29-131(c)), or that the licensed veterinarian technician is under the indirect supervision of a licensed veterinarian like in Pennsylvania (3 P.S. § 328.304(a)(2)) or Washington (WAC 246-935-050(4)(a), (g)). Iowa, in addition to permitting licensed veterinarians to perform euthanasia of animals, also refers to the 2007 AVMA guidelines for further information on who may perform euthanasia of animals. (21 IAC 67.9). Similarly, Kansas refers to the 2000 Report of the AVMA Panel on Euthanasia. (K.A.R. 9-18-31; K.S.A. § 47-1718(a)). Massachusetts is even more unclear in regards to animal euthanasia. The statute allows euthanasia of dogs or cats “whose killing is authorized . . . only by the administration of barbiturates in a manner deemed acceptable by the American Veterinary Medical Association Guidelines on Euthanasia.” (ALM GL ch. 140, § 174A)

States like California, Indiana, Mississippi, and Tennessee respectively allow employees of animal shelters, humane societies, animal control agencies either with proper training or under the direction and supervision of a licensed veterinarian to perform euthanasia on animals. (State Laws Governing Euthanasia, AVMA Division of State Advocacy & Leadership (last updated July 2017), available at (URL removed for reprint). Interestingly, Georgia permits lay persons who are trained to properly and humanely use euthanasia methods under the supervision of a licensed veterinarian or physician to perform animal euthanasia. (O.C.G.A. §4-11-5.1(f)). Normally, euthanasia of an animal takes place at the veterinarian office or clinic, or in a shelter performed by one of the persons listed above. A fairly new trend is emerging where owners are able to request that their companion animal may be euthanized at home. There are discussions about the pros and cons of such request, but when the euthanasia of a companion animal is performed at home, normally only veterinarians or licensed euthanasia technicians may perform the process. (At-Home Pet Euthanasia, WebMD (2011), available at (URL removed for reprint). VII. Survey of State Laws Concerning Animal Euthanasia A. Approved Methods by Law Forty-nine out of fifty states have enacted laws in regards to the euthanasia of animals with North Dakota being the lone holdout. Most state laws cover three general areas: (1) who may perform animal euthanasia; (2) what methods (chemicals or otherwise) may be used; and (3) what exceptions exist for emergency euthanasia. In recent years, there has been a push to outlaw certain methods of animal euthanasia deemed inhumane such as the use of gas chambers. Examining those state laws, most states limit the ability to perform animal euthanasia to licensed veterinarians. As referred to previously, certain states such as Arkansas (A.C.A. § 4-97-103) or Delaware (16 Del. C. § 3004F(d)(4)), amongst other states, permit certified euthanasia technicians to perform euthanasia of animals. Other states again include provisions in their laws permitting shelter employees under the supervision of a licensed veterinarian to perform euthanasia, e.g. Mississippi (Miss. Code Ann. § 73-39-61(q)). Some states like Michigan (R 338.3507) require an animal control or shelter employee

to complete an adequate training of eight hours, and others such as Tennessee (Tenn. Code Ann. § 44-17-303(d)) require the shelter employee to complete a euthanasia technician certification course. The majority of states have implemented rules to use sodium pentobarbital as the standard method for animal euthanasia. The use of other means as euthanasia methods such as administering other drugs, or the use of gunshot may be allowed in emergency situations. Such circumstances arise when the standard method is either not available, would lead to prolonged pain and suffering for the animal, or the animal poses a threat to health and safety to personnel or the public and therefore euthanasia by gunshot or another drug can be justified. B. Inhumane Methods of Euthanasia There has been a push by animal advocates to move from certain methods of euthanasia in animal shelters. Particularly, there has been a movement to ban the use of gas chambers for animal destruction as discussed previously. Due to the unnecessary suffering caused by the unequal distribution of gas based on the number of animals placed in the gas chamber at the same time, leaving some of the animals with not enough gas concentration in the lungs and therefore prolonging the death, gas chambers are considered an inhume method for animal euthanasia. Currently, only twenty-two states have implemented bans on the use of gas chambers in public animal shelters. Additional unacceptable methods for animal euthanasia include the subcutaneous, intramuscular, intrapulmonary, and intrathecal injections of injectable euthanasia agents, which are not acceptable due to a high possibility of causing pain to the animal as well as being less effective. Furthermore, the guidelines also prohibit the poisoning of a companion animal by any household chemicals, disinfectants, cleaning agents or pesticides, as well as drowning or hypothermia as euthanasia methods. The AVMA guidelines do not outright prohibit electrocution of dogs, though the guidelines agree that disadvantages outweigh the advantages of this approach. (AVMA Guidelines for the Euthanasia of Animals: 2013 Edition, AVMA (2013), available at (URL removed for reprint). Florida is very specific in regards to the methods to be used not to be used for animal euthanasia. According to Fla. Stat. §828.058 and §828.065, the

administration of sodium pentobarbital, or a sodium pentobarbital derivative to euthanize a dog or a cat is permitted. In addition, the statute also lists the method of administration of the lethal solution in an order of preference, stating that an intravenous injection by hypodermic needle is the preferred method followed by intraperitoneal injection by hypodermic needle, or intracardial injection by hypodermic needle when “the dog or cat is unconscious with no corneal reflex.” (Fla. Stat. §828.058(1)) But other states also provide such detailed information as to the method of injection to be used such as Georgia (O.C.G.A. § 4-11-5.1(a)), Idaho (IDAPA § 46.01.01.205-02), Nevada (NAC § 638.515 (NRS § 638.070, § 638.119)) Ohio (ORC Ann. § 4729.532(A)), Oklahoma (4 Okl. St. § 502), and South Carolina (S.C. Code Ann. § 47-3-420(A)(1)) to name a few. Arizona revised A.R.S. § 11-1021(B) with effective date of August 9, 2017 to only permit the use of sodium pentobarbital or a derivative of sodium pentobarbital to destroy an animal. Until then, an animal also could have been destroyed by using a T-61 euthanasia solution or its generic equivalent. Some states refer to the methods that are recognized by the AVMA to be humane. Those states include Colorado (C.R.S. § 18-9-201, C.R.S. § 35-80-102), Georgia (O.C.G.A. § 4-11-5.1(b)), Hawaii (HRS § 711-1108.5(3)), Iowa (Iowa Code § 21-67.9(162)), Kansas (K.A.R. 9-18-31), Kentucky (KRS § 258.095), Missouri (2 CSR § 30-9.010(Y)), North Carolina (N.C. Gen. Stat. § 19A-24(a)(5)), Oklahoma (4 Okl. St. § 501(3)(c)), and Pennsylvania (3 P.S. § 328.302(a), (c)). Other states formulate specific prohibitions on methods that are not allowed to be used. Florida, again, is one of those states. Pursuant to Fla. Stat. §828.058(3), certain substances such as succinylcholine chloride, any substance acting as a neuromuscular blocking agent are prohibited methods of animal euthanasia so are chambers which cause changes in body oxygen. Pennsylvania enacted 3 P.S. § 328.301 to prohibit the destruction of animals using methods such as high altitude decompression chambers or decompression devices, drowning, chloroform, ether, or carbon monoxide gas amongst others. In Kentucky, the legislature enacted KRS § 258.505 to prohibit gunshots as a routine method for euthanasia, at least in animal shelters. The same statute does allow the use of gunshots in an animal shelter only when an animal is considered to be “a threat to the health or safety of” a person that is lawfully

present at the shelter. (KRS § 258.505). Another exception in that statute refers to peace officers and animal control officers that are not in a shelter for situation such as impossibility to seize the animal, the animal is “a threat to the health or safety of the general public, or” the animal is injured or has a physical condition causing the animal suffering. (KRS § 258.505). In California, Cal. Pen Code § 597u(b) prohibits the killing of dogs and cats by means of high-altitude decompression chambers, nitrogen gas and carbon dioxide gas. Illinois specifically prohibits persons to “knowingly poison or cause to be poisoned any dog or other animal.” (510 ILCS 70/6). C. Emergency Euthanasia under State Law The exceptions mentioned in the previous section already illustrated a few options of emergency euthanasia. Several states have enacted certain rules to provide justification for emergency euthanasia and defined situations in which emergency euthanasia is permitted. As already discussed, gunshots might be a permissible method for emergency euthanasia as it is in Kentucky. Maine as well permits the destruction of animals by shooting an animal in emergency situations such as threats to the safety of people or other animals or when regular methods of euthanasia cannot be implemented und would cause undue suffering pursuant to 17 M.R.S. § 1043. Such shooting might only be “performed by highly skilled and trained personnel.” (17 M.R.S. § 1043). New Mexico permits the use of gunshot for field emergency euthanasia “performed by a commissioned law enforcement officer” under § 16.24.3.8 NMAC and § 16.24.3.15 NMAC. According to § 16.24.3.15 NMAC, situations considered to be emergencies are such situations when an animal “is in severe, acute distress or is irremediably suffering” and any delay or even moving of the animal would result in severe pain and suffering. Alabama permits immediate euthanasia by “a law enforcement officer, a veterinarian, or an agent or designee of a local animal control unit” in the event that an animal is “so injured or diseased” and seems to suffer, and it seems reasonable to believe that the animal is near death without any possibility to be cured, or is considered dangerous. (Code of Ala. § 34-29-132). Such permission for the emergency euthanasia still is limited. Before immediate euthanasia may be performed the law enforcement officer first has to make reasonable but unsuccessful efforts to locate the owner or a veterinarian before such officer in

good faith may destroy the animal by shooting the animal. (Code of Ala. § 3429-132). Florida, pursuant to Fla. Stat. §828.058(3), allows the humane destruction through immediate euthanasia by “a law enforcement officer, a veterinarian, or an agent of a local animal control unit or the designee of such an agent” in emergency situations which exists in the event of injured, diseased, or dangerous animals. Some states, for example Alaska, allow for lawful killing of dogs in situations where the dog is vicious running at large. (Alaska Stat. § 03.55.010). New Hampshire legalizes the killing of a dog by any person when the dog “suddenly assaults the person while such person is peaceably walking or riding without the enclosure of its owner or keeper.” (RSA § 466:28). Another example is the state of New York. Pursuant to NY CLS Agr & M §374(4)(a), the New York legislature permits euthanasia of an animal by gunshot in emergency situations when the animal poses “an imminent threat of serious physical injury to a person or to another animal” and any humane method of euthanasia permissible under the law of New York cannot be performed or an animal is severely injured and suffering and no other method to aid the animal is possible. Wisconsin took another approach. Under Wis. Stat. § 173.25, “a political subdivision, . . . a humane officer or a law enforcement officer who” reasonably believes that an animal is dangerous “is not liable for damages for the loss of the animal resulting from euthanizing the animal.” All in all, several states enacted laws providing information and permission for emergency euthanasia whereas each state considers different situations to represent an emergency. D. Accountability and Euthanasia Records Laws As previously discussed, most states do not require recordkeeping for the performance of euthanasia. Therefore, the numbers for animal euthanasia are estimates, based on voluntary surveys. There are only a few states that require shelters to keep records of the performance of euthanasia of animals. In enacting Code of Ala. § 3-10-3, Alabama legislature requires animal shelters to report the number of animals that had been euthanized based on overcrowding, health, or behavior on a monthly basis. Connecticut requires pet shop owners to maintain records for dogs and cats acquired by pet shop owners in regards to euthanasia and the method used according to Regs., Conn. State

Agencies § 22-344-25c(a)(4). Similar to Alabama, Delaware law requires animal shelters shall maintain records about the euthanasia rate, including the age of each animal, and each shelter must publish the information on the shelter’s website every quarter pursuant to 16 Del. C. § 3007F. Florida enacted § 823.15(2)(a), which compels a “public or private animal shelter, humane organization, or animal control agency operated by a humane society or by a county, municipality, or other incorporated political subdivision, divided into species” to collect data about euthanasia requested by the owner as well as euthanasia performed by the organization, and the data must be made available to the public. Animal shelters and pounds in Iowa are required under 21 IAC 67.7(2)(d)(1) to maintain “euthanasia records, including date of entry, source of animal, and date of euthanasia” for twelve months. La. R.S. § 3:2465, which is effective as of August 1, 2017, requires with subsection (D) that records “shall be prepared for every animal that” is being euthanized including the date and such “records shall be available for inspection at all times.” Maryland has enacted Md. AGRICULTURE Code Ann. § 2-1602, which requires in subsection (h) that animal control shelters must submit reports to the Department on a quarterly basis providing the numbers of cats and dogs that have been disposed, by listing each method of disposal, including euthanasia. Michigan has very strict laws in regards to records for the dispensation of sodium pentobarbital. (R 338.3510). Pursuant to R 338.3510(1)(f), (4) “animal control shelter, animal protection shelter, or by the class b dealer” must record information “of the dispensation of the pre-mixed solution for the purpose of practicing euthanasia,” showing the quantity used, as well as “the time and date it was dispensed,” and such records must be kept for two years. In South Carolina, animal shelters must compile records about the method of euthanasia and submit “the report to the Department of Labor, Licensing and Regulation” every year before the end of January for the department to publish such reports on its Internet website. (S.C. Code Ann. § 40-69-300(D)). There are additional states that enacted different laws to maintain and keep records in regards to animal euthanasia such as Nebraska (Nebraska Admin. Code Title 23, Ch. 18, 010.05A and 010.06F), New Jersey (N.J.A.C. § 8:23A-1.13), Nevada (NAC 638.535), New Mexico (16.24.3.11 NMAC), New York (10 NYCRR §

80.134(j)), Oregon (OAR 855-080-0100(1)(b)), Tennessee (Tenn. Comp. R. & Regs. R. 1730-05-.14), Vermont (CVR 20-022-020 IV-8), Washington (WAC 246886-080), and West Virginia (W. Va. CSR § 26-5-13). These relatively new laws making the reporting of euthanasia data mandatory at least for public shelters may reflect a greater push toward transparency in local government. In enacting laws that make recordkeeping of euthanasia of animals in shelters mandatory and accessible to the public, the legislatures of those states turning towards greater transparency of an animal shelters operation. Advocates as well as the public appreciate such transparency because based on the now publicly available information; donors are now certain where their donations go, whether the shelter is a no kill shelter or kill shelter. (Ballot Petitions Tackle Animal Shelter Records, Euthanasia, Enterprise News (updated September 2015), available at (URL removed for reprint). Whereas public shelters are required to provide records to their municipalities or other governmental authorities, private shelters might most likely keep records, but they are not required by law to collect and submit the data. (State Law Kicks in; Humane Society Euthanasia Stats Public, Sun Sentinal (August 2013), available at (URL removed for reprint). While one reason behind those recordkeeping laws is the transparency, such laws also direct towards a possible method to control euthanasia of animals. (Not All County Animal Shelters In Florida Are Following A New Law, WUFT (July 2013), available at (URL removed for reprint). Receiving mandatory data from animal shelters about euthanasia rates might help the states to implement better programs to reduce animal euthanasia. It also may encourage adoption of animals in shelters due to the public’s awareness based on the transparency of euthanasia rates. VIII. Legal and Ethical Issues with Animal Euthanasia Although the legislatures have adopted euthanasia methods and guidelines to assist veterinarians, animal euthanasia still poses ethical and sometimes legal dilemmas. In particular, those administering euthanasia drugs may experience moral concerns when asked to perform “convenience euthanasia.” The pet owners’ ability to choose euthanasia even emerges with testamentary planning for humans. The evolution of animal welfare laws may also implicate animal euthanasia, with some forms of “euthanasia” being deemed outright animal abuse.

A. Ethical Concerns and the AVMA Guidelines for the Euthanasia of Animals Every time a healthy companion animal is being requested to be euthanatized, veterinarians face a moral dilemma. (Antonio Ortega-Pacheco & Matilde Jiménez-Coello, Debate For and Against Euthanasia in the Control of Dog Populations, Euthanasia - The "Good Death" Controversy in Humans and Animals 233 (2011)). The veterinarian is left with evaluating the ethical standpoint of when euthanizing an animal is appropriate. Veterinarians receive guidance and support with regard to “the morality of euthanasia” as well as “ethic decision aids for euthanasia” from the the introduction of the AVMA Guidelines for the Euthanasia of Animals. (Oliver Knesl et al., Veterinarians and Humane Endings: When Is It the Right Time to Euthanize a Companion Animal?, 4:45 Frontiers in Veterinary Science 1 (2017)). The AVMA issued its first guidelines in 1963 to convey an ethical approach concerning “the death of an animal.” To support the veterinary profession with guidance on the ethical issue when intentionally killing an animal the AVMA intended the guidelines to offer the legislative body with guidance to protect the welfare of animals. The AVMA wants to ensure that an intentional killing of an animal by a veterinarian or other professional “is done with respect for the interests of the animal and that the process is as humane as possible (i.e., that it minimizes pain and distress to the animal and that death occurs as rapidly as possible).” (AVMA Guidelines for the Euthanasia of Animals: 2013 Edition, AVMA (2013), available at (URL removed for reprint). Receiving an owner’s request to euthanize a healthy companion animal constitutes a moral dilemma within the profession because of the veterinarians’ awareness that dogs are able to experience pain as well as pleasure. (Antonio Ortega-Pacheco & Matilde Jiménez-Coello, Debate For and Against Euthanasia in the Control of Dog Populations, Euthanasia - The "Good Death" Controversy in Humans and Animals 233 (2011)). In the event that an owner requests the euthanasia of his healthy companion animal because the owner is unable to continue to keep it at home or it is less convenient to keep the animal, a veterinarian should be firm and discuss alternative options with the owner to avoid euthanizing the healthy animal. (AVMA Guidelines for the Euthanasia of Animals: 2013 Edition, AVMA (2013), available at (URL removed for reprint). But there is also the opposite situation where an owner is seeking to prolong the life of an animal

suffering from an untreatable illness or serious injury leaving the veterinarian with the moral dilemma that the animal is unnecessarily suffering when no euthanasia is being provided. (Antonio Ortega-Pacheco & Matilde JiménezCoello, Debate For and Against Euthanasia in the Control of Dog Populations, Euthanasia - The "Good Death" Controversy in Humans and Animals 233 (2011)). In situations like this, a veterinarian has the ethical responsibility to guide the owner to the compassionate treatment option of euthanasia in order to avoid the prolonged suffering of the animal. (AVMA Guidelines for the Euthanasia of Animals: 2013 Edition, AVMA (2013), available at (URL removed for reprint). Not only veterinarians have to deal with such a moral dilemma. Animal shelters and pounds are facing a moral dilemma because animal euthanasia is being used as a method to control overpopulation but euthanasia only offers a temporary relief “to cure the symptoms rather than causes of the problem of overpopulation.” Euthanasia imposes moral stress on animal shelter workers even though the workers are aware that euthanasia of animals is one method to approach overpopulation. (Antonio Ortega-Pacheco & Matilde Jiménez-Coello, Debate For and Against Euthanasia in the Control of Dog Populations, Euthanasia - The "Good Death" Controversy in Humans and Animals 233 (2011)). Such policy does not change the issue that shelter employees have to act against their interests of taking care and interacting with the animals in the shelter when they are confronted with the task to euthanize the animals. (Stephanie S. Frommer & Arnold Arluke, Loving Them to Death: BlameDisplacing Strategies of Animal Shelter Workers and Surrenderers, 7 Society & Animals 1, (1999). Animal shelter employees who are certified as euthanasia technicians “often experience guilt, grief, and frustration” due to them performing euthanasia. (Benjamin E. Baran et al., Euthanasia-Related Strain and Coping Strategies In Animal Shelter Employees, 235 JAVMA 83 (2009)). At least, the euthanasia training for shelter employees normally contains seminars on how to handle “the irony that responsible animal care sometimes includes killing animal.” (Antonio Ortega-Pacheco & Matilde Jiménez-Coello, Debate For and Against Euthanasia in the Control of Dog Populations, Euthanasia - The "Good Death" Controversy in Humans and Animals 233 (2011)).

The previous explanations show that not only must veterinarians and animal shelter employees have to constantly deal with the ethical and moral dilemma of curing and caring for the animals under their control, but they must sometimes cause the death of healthy animals. Mainly for animal shelter workers, the underlying factor of animal euthanasia is overpopulation, but concerns over rabies/other diseases and environmental damage play a role. Still, there will always be the ethical and moral concern when healthy animals need to be euthanized. Euthanasia will not solve the problem of overpopulation, which can only be solved by educating the public to avoid continuous breeding as well as owners abandoning their pets. (Antonio OrtegaPacheco & Matilde Jiménez-Coello, Debate For and Against Euthanasia in the Control of Dog Populations, Euthanasia - The "Good Death" Controversy in Humans and Animals 233 (2011)). As long as all of the causes of overpopulation are still in place, veterinarians and animal shelter employees will continue to face the ethical and moral predicament of caring for animals by performing euthanasia. B. The In-home Euthanasia Movement During the past years, a movement for at-home euthanasia evolved, which is gaining more and more in popularity. (At-Home Pet Euthanasia, WebMD (2011), available at (URL removed for reprint) Veterinarians not only have to perform the medical part of euthanasia but also have to slip into a non-medical role, as they try to counsel grieving pet owners facing euthanasia of animal companions. (Euthanasia, the Difference Between Human and Animal Medicine or The Need for a Painless Method of Killing, The Anstendig Institute (1989), available at (URL removed for reprint). Being aware of the emotional toll it takes on pet owners, veterinarians have begun to offer in-home animal euthanasia. The Association for Pet Loss and Bereavement serves as a platform for veterinarians, listed by state, who offer in-home euthanasia and pet owners looking for a veterinarian in their area who performs euthanasia at home. (InHome Euthanasia, Association for Pet Loss & Bereavement, available at (URL removed for reprint). As of now, veterinarians in thirty-three states participate in at-home euthanasia. The advantage of in-home euthanasia is for the owner who just lost his or her companion to not need to drive the body of the pet

home if local law allows the owner to bury the pet in the backyard. (At-Home Pet Euthanasia, WebMD (2011), available at (URL removed for reprint) However, one negative aspect for euthanasia being performed at home is the possibility that something might go wrong during the procedure which could be detrimental to the animal or owner. (At-Home Pet Euthanasia, WebMD (2011), available at (URL removed for reprint). Taking a look at the state laws does not offer much assistance in regards to in-home euthanasia. No state has prohibited the use of sodium pentobarbital by a veterinarian outside his or her office or clinic. Certain state laws and regulations may indirectly affect at-home euthanasia. R 338.3502 in Michigan specifies that only registered animal control or protection shelters “may apply for a permit to store, handle, and use a commercially prepared, pre-mixed solution of sodium pentobarbital to practice euthanasia on animals.” West Virginia prohibits a certified euthanasia technician to perform his or her services “outside the direct authority of the animal control facility which employs him or her.” (W. Va. Code § 30-10-14(c)). In Delaware, animal shelters are required to “have a specific area designated for euthanasia” that is explained in more detail in 16-4000-4501 Del. Code Regs. § 10.2. Texas enacted 25 Tex. Admin. Code § 169.84(b)(4), which requires animal shelters to use “a quiet location” with sufficient lighting as the area to administer injections of sodium pentobarbital for euthanizing animals. Illinois requires animal shelters to apply for certification as euthanasia agencies and mandates such agencies to “[k]eep the conditions of the euthanasia area clean and sanitary.” (510 Ill. Comp. Stat. Ann. 72/25(a)(3)). Florida legislature explicitly sets standards for mobile veterinary practices for agricultural animals with Fla. Admin. Code Ann. 61G18-15.0025(1)(b)(6) where mobile unites have to be equipped with a chemical method of euthanasia that has been approved by the AVMA. The laws in Florida are silent with regard to mobile veterinary units for companion animals. Since animal shelters in several states are required by law to apply for a permit and to maintain records of performing euthanasia, those organizations seem to be limited to perform euthanasia only in their facilities. All in all, states are more interested in imposing stricter provisions on animal shelters than on veterinarians in regards to the use of

sodium pentobarbital, leaving a loophole for veterinarians to perform in-home euthanasia of companion animals at the owner’s request. C. My Last Will: Pet Euthanasia Requests As with any other request, an animal owner can include a request in his or her will to have his or her companion animals killed upon the owner’s death. (Taimie L. Bryant, Sacrificing the Sacrifice of Animals: Legal Personhood for Animals, the Status of Animals As Property, and the Presumed Primacy of Humans, 39 Rutgers L. J. 247 (2008)). The reason for such a directive could be based on the owner’s concern that the pets might be distressed after the owner’s death. He or she inserts a provision in his or her last will to request the executor of his estate to euthanize the companion animal. Whatever the reason, the legal issue goes to the enforceability of such a clause in a will. So far, judges have refused to grant such provision in the decedent’s last will. The courts reason that the invalidation of an unethical clause in a will supports public policy and that the clause may be nonenforcable. (Gerry W. Beyer, Pet Animals: What Happens When Their Humans Die?, 40 Santa Clara L. Rev. 617 (2000); Capers Estate, 34 Pa. D. & C.2d 121 (C.P. 1964)). The case of Capers Estate, 34 Pa. D. & C.2d 121 (C.P. 1964) is used as an example where the owner, Mrs. Isa Caspers, directed the executor to have her two Irish setters “destroyed in a humane manner” (Capers Estate, 34 Pa. D. & C.2d 121 (C.P. 1964)) because she was afraid that either one of the dogs would grieve for her or that no other person would be willing to take care of them the same way she did. The court decided that the euthanasia of the two Irish setters served no purpose and would be an act of cruelty. The court also held that even though an owner has a right to “’dispose’ of property in a will, the owner has no power to order the destruction of property, be it a pet animal or any other type of property.” After determining that it would be unethical to enforce the provision (Gerry W. Beyer, Pet Animals: What Happens When Their Humans Die?, 40 Santa Clara L. Rev. 617 (2000)), the court ruled that upholding this provision of the last will was against public policy. Therefore, Mrs. Caspers’s direction to the executor of the will to destroy her Irish setters was declared invalid. (Capers Estate, 34 Pa. D. & C.2d 121 (C.P. 1964); In re Estate of Miller, NO. 1514-0948, Pa. Dist. & Cnty., Dec. LEXIS 565 (Pa. C.P. June 3, 2015)).

In 1980, another case dealing with a provision in a will to order a dog to be destroyed upon the owner’s death caught the public’s attention in California. In Smith v. Avanzino, No. 225698 (Super. Ct., San Francisco County, June 17, 1980), the San Francisco Society for the Prevention of Cruelty to Animals (SPCA) held the owner’s dog in custody after the owner’s death, while the executrix filed suit in order to reclaim possession of the dog to implement the decedent’s last will provision. Similar to the court in Capers Estate, 34 Pa. D. & C.2d 121 (C.P. 1964), the court in Avanzino held the provision of the last will invalid as well. (Francis Carlisle, Student, Destruction of Pets by Will Provision, 16(4) Real Property, Probate and Trust Journal 894 (1981); Taimie L. Bryant, Sacrificing the Sacrifice of Animals: Legal Personhood for Animals, the Status of Animals As Property, and the Presumed Primacy of Humans, 39 Rutgers L. J. 247 (2008)). Since those cases had been decided, all fifty states have now passed pet trust laws. Animal owners’ concerns that there is no other option for their companion animals once the owner has passed are now untrue. Instead of going against public policy, a testator now can set up a trust to care for his or her pet after the testator’s death. D. Animal Cruelty Versus Euthanasia As mentioned in Section II, there is a difference between euthanasia (“the good death”) and the killing of an animal. Before anti-cruelty laws have been enacted, owners were able to kill their own animals as they saw fit. Now, society is more sensible to animal welfare and care, and with it the duty towards animals, diverging from seeing animals as mere property and conferring limited rights by enacting animal anti-cruelty statutes to protect animals from abuse or neglect. (Ann Hartwell Britton, Bones of Contention: Custody of Family Pets, 20 J. Am. Acad. Matrimonial L. 1 (2006)). Commonwealth v. Kneller, 971 A.2d 495 (2009) In 2008, the issue of determining whether a dog had been euthanized or killed according to the law came before the Superior Court of Pennsylvania. In Commonwealth v. Kneller, 971 A.2d 495 (2009), the court had to decide whether Ms. Kneller had violated 3 P.S. § 325, the anti-cruelty law when she asked her boyfriend to shot the family dog. 3 P.S. § 325 stated that only any police officer or constable was authorized to destroy any animal under his control if such

animal was either “injured, disabled, diseased past recovery, or unfit for any useful purpose.” The court had to take various other statutes into consideration including 18 Pa. C.S.A. § 5511(a)(2.1)(i), (iii) (repealed), which provided that “if one willfully and maliciously ‘kills, maims, mutilates, tortures or disfigures any dog or cat whether belonging to himself or otherwise’” he or she committed a misdemeanor of the first degree. (18 Pa. C.S.A. § 5511(a)(2.1)(i)). 18 Pa. C.S.A. § 5511(a)(2.1)(iii) added that ” [t]he killing of a dog or cat by the owner of that animal is not malicious if it is accomplished in accordance with the act of December 22, 1983 (P.L. 303, No. 83) referred to as the Animal Destruction Method Authorization Law.” (3 P.S. § 328.2 of the Animal Destruction Method Authorization Law has been restructured and can now be found at 3 P.S. § 328.302 with different wording.) 3 P.S. § 328.2(b) provided that "[n]othing in this act shall prevent a person or humane society organization from destroying a pet animal by means of firearms." The court held that while 3 P.S. § 325 places a restriction on animal owners to destroy their dogs or cats, one could also interpret that it was the legislature’s intent to permit “owners to destroy their unwanted cats and dogs as long as they are not cruel” since the law allowed owners to “destroy that dog or cat by means of an overdose of barbiturates or ‘by means of firearms.’” Based on the finding that the statutes can be interpreted differently, the court concluded that the statute was ambiguous and it could not uphold Kneller’s conviction. The Commonwealth appealed and the Supreme Court of Pennsylvania went with the lower court’s dissenting opinion by vacating the Superior Court’s order and remanding the case to the Superior Court “for further proceedings pursuant to Judge Stevens' dissenting opinion.” (Commonwealth v. Kneller, 987 A.2d 716 (2009)). Judge Stevens questioned the validity of Kneller’s testimony that her child had been bitten by the dog since there had been no evidence of such incident been provided. He also took into consideration that the dog had been hit with a shovel several times before being shot, which the majority opinion did not consider at all. Such act does not constitute a humane act of destruction. Judge Stevens also argued that a perfectly healthy dog may only be humanely destroyed by gunshot when a person sees said dog “in the act of pursuing, wounding or attacking human beings.” (3 P. S. § 459-501(a)). Judge

Stevens pointed out that the legislature did not intend to provide dog owners with “carte blanche authority to kill her dog for any reason or no reason.” (PA Appeals Court Says It’s OK To Shoot Your Dog, The Inquirer, (Updated February 2009), available at (URL removed for reprint). Since no evidence had been provided, the Supreme Court of Pennsylvania and Judge Stevens made sure that the enacted statutes protecting animal rights were followed. Both made a point that a dog owner cannot just kill his or her dog in a cruel manner to then claim he or she had humanely destroyed said dog. People v. Larson, 885 N.E.2d 363 (2008) Similarly, in People v. Larson, 885 N.E.2d 363 (2008), the defendant challenged the aggravated-cruelty-to-an-animal law he was charged with as being unconstitutional. In particular, defendant claimed it was impossible for a reasonable person to be able to assess which acts or methods may be used as a permissible method “to euthanize one’s own companion animal.” Apparently, the statute did not provide any clarification of what “euthanasia and recognized methods approved by the Department of Agriculture” mean. In addition, defendant refers to 510 ILCS 70/3.02 as being “an abrogation of his commonlaw property right to dispose of his property.” The basis of the case was defendant’s shooting of the family dog. Unfortunately, the law does not explicitly ban a dog owner from shooting the family dog whereas the legislature specifically “ban[ned] breeders from shooting their dogs.” (PA Appeals Court Says It’s OK To Shoot Your Dog, The Inquirer, (Updated February 2009), available at (URL removed for reprint). The court in People v. Larson, 885 N.E.2d 363 (2008), concluded that the statute in question was not unconstitutional because it believed that a reasonable person understood the meaning of the aggravated-cruelty statute as to prohibit intentional conduct that results in injury or death of the companion animal and that the statute provided adequate notice of such prohibition. Further, the court stated that “a person of ordinary intelligence would reasonable know that . . . she or he may not simply grab a firearm, take the family dog outside, and shoot the dog in the head three times so as to kill it.” Defendant’s argument that euthanasia not being defined was also rejected by the court, pointing to 510 ILCS 70/2.09, which defines euthanasia and refers to the Report of the AVMA with regard to methods for euthanasia. The court

acknowledges that reviewing the AVMA report involves more effort, but directly shuts down the argument that euthanasia is legally undefined counts as an excuse. Both cases had to determine whether an owner of a dog violated the state’s cruelty to animal statutes when the owner shoots or gives orders to shoot the family dog, or if the owner was excused by one of the euthanasia statutes. After reviewing both cases, it becomes apparent that the owner of a companion animal cannot take the pet and cause its death directly by whatever method the owner thinks appropriate and available to him or her. However, the owner of a dog might be excused shooting his or her dog in certain situations, such as the dog being in the process of attacking or wounding another person, among a few other exceptions. IX. Conclusion Animal euthanasia is a controversial topic. There are several factors involved in the reasoning behind the request for animal euthanasia. It is important to understand such factors in order to implement programs to reduce animal euthanasia. Each single person involved in animal euthanasia has to face moral concerns, guilt, and grief, from the person who is requesting euthanasia to the person performing the requested euthanasia. The number of animals being euthanized has been drastically reduced over the past decades. This is due to implementation of laws protecting animals, spay/neuter and adoption programs, and the enhanced societal value of animals, from seeing animals as mere property to recognizing that animals should have some welfare rights. The majority of states have enacted laws regulating the euthanasia of animals. Some state legislatures have enacted detailed provisions while others seem to provide the bare minimum. For the most part, there is scant data showing the exact numbers of animals euthanized privately at veterinary clinics or even at public animal shelters. Without exact numbers, it is difficult to implement methods and laws to reduce euthanasia of animals. Several states have implemented mandatory euthanasia record laws at public animal shelters to provided this needed transparency. However, those numbers derived from these laws will only disclose a small number of animals euthanized. While implementing more detailed laws, states should also be required to make

information related to euthanasia of animals publicly available and refer to such sources for the public to review. It is only with such support that society will be able to provide the “good death” to which the Greeks once referred, meeting the ethical responsibilities owed to companion animals.

Chapter 14 Horse slaughter bans

Introduction to horse slaughter bans California Alabama Snohomish County Washington An overview of actions related to horse slaughter Introduction to horse slaughter bans Horses are unique animals in the history and lore of the United States. To picture the American West is to imagine a horse and rider in a panoramic vista. Historically horses have been beasts of burden, transportation, as well as companions. Today, however, these animals are primarily companion animals. For all of these reasons, most people in the United States consider it taboo to eat horses. In the United States, it's not illegal to eat horses. However, what is illegal everywhere in the US is to eat horsemeat that has not been inspected by the United States government. Congress has not elected to pass a law making it illegal to eat horsemeat. However, what it has done is systematically removed funding for horsemeat inspectors in the United States. The removal of horse meat inspection funding has effectively shut down horse slaughter in the United States. What it hasn't done is stopped US horses from being transported to Mexico and Canada for slaughter.

Places like California, and Snohomish County Washington, have stepped in to stop the movement of US horses out of the US for slaughter. In Snohomish County Washington it's illegal to sell the horse to a buyer who will either transport the animal for slaughter or sell to someone else who will ultimately slaughter the horse. In California, it's illegal to export a horse with the intent to slaughter that horse. Laura Allen in "an overview of legal actions related to horse slaughter" describes horse slaughter bans. Allen also walks us through the unique statutory scheme of defunding horsemeat inspectors. California PART 1. OF CRIMES AND PUNISHMENTS [25 - 680] ( Part 1 enacted 1872. ) TITLE 14. MALICIOUS MISCHIEF [594 - 625c] ( Title 14 enacted 1872. ) 598c. (a) Notwithstanding any other provision of law, it is unlawful for any person to possess, to import into or export from the state, or to sell, buy, give away, hold, or accept any horse with the intent of killing, or having another kill, that horse, if that person knows or should have known that any part of that horse will be used for human consumption. (b) For purposes of this section, “horse” means any equine, including any horse, pony, burro, or mule. (c) Violation of this section is a felony punishable by imprisonment in the state prison for 16 months, or two or three years. (d) It is not the intent of this section to affect any commonly accepted commercial, noncommercial, recreational, or sporting activity that relates to horses. (e) It is not the intent of this section to affect any existing law that relates to horse taxation or zoning. (Amended (as amended by Stats. 2011, Ch. 15) by Stats. 2011, Ch. 39, Sec. 18. (AB 117) Effective June 30, 2011. Operative October 1, 2011, pursuant to Secs. 68 and 69 of Ch. 39. Note: This section was added on Nov. 3, 1998, by initiative Prop. 6.)

Alabama Acts 1969, No. 1049, p. 1939, § 12 (a) No person, firm or corporation shall sell, transport, offer for sale or transportation or receive for transportation in intrastate commerce any carcasses of horses, mules or other equines or parts of any such carcasses or the meat or meat food products thereof unless they are plainly and conspicuously marked or labeled or otherwise identified as required by regulations prescribed by the commissioner to show the kinds of animals from which they were derived. (b) With respect to establishments at which inspection is maintained under this chapter, such animals and their carcasses, parts thereof, meat and meat food products therefrom shall be prepared in facilities completely physically separated from those in which cattle, sheep, swine or goats are slaughtered or their carcasses, parts thereof, meats or meat food products therefrom are prepared. CREDIT(S) (Acts 1969, No. 1049, p. 1939, § 12.) Snohomish County Washington Snohomish County Washington Chapter 10.65 HORSE SLAUGHTER FOR HUMAN CONSUMPTION Sections: 10.65.010 Definitions. 10.65.020 Horse slaughter for human consumption unlawful. 10.65.010 Definitions. In this chapter, unless the context clearly requires otherwise: (1) "Horse" means any animal of the genus equus, including any horse, pony, donkey, or mule; (2) "Horse meat" means the flesh of any horse or other equine;

(3) "Person" has the meaning given in SCC 1.01.040; and

(4) "Slaughter" means to kill a horse or other equine. (Added by Amended Ord. 12-106, Dec. 19, 2012, Eff date Jan. 12, 2013). 10.65.020 Horse slaughter for human consumption unlawful. (1) It is unlawful for any person to slaughter a horse if that person has knowledge that any of the horse meat will be used for human consumption. (2) Violation of this section is a misdemeanor punishable by a fine of not more than $1,000 and/or by incarceration for not more than 90 days. (3) This section shall not apply to:

(a) Any noncommercial activity; or

(b) Any activity within an incorporated city or town; or

(c) Any person who sells a horse to a buyer who in turn either (i) himself slaughters the horse for human consumption, or (ii) resells the horse to another person who slaughters the horse for human consumption. (Added by Amended Ord. 12-106, Dec. 19, 2012, Eff date Jan. 12, 2013). An Overview of Legal Actions Related to Horse Slaughter Since 2012 An overview of legal actions related to horse slaughter since 2012 July 15, 2014Posted by Laura Allen under Horse Slaughter As part of their First Annual Equine Welfare Report, Equine Welfare Alliance and Animal Law Coalition included the following overview of recent legal and some legislative actions related to horse slaughter: Horse slaughterhouses attempt to return to US soil During the past year or more, the legal effort to stop the slaughter of American equines was largely concentrated in the courts and administrative agencies. On November 18, 2011, the enactment of the Consolidated and Further Continuing Appropriations Act, 2012, Pub. Law 112-55, restored funding for antemortem inspections, meaning it was legal once again for USDA/FSIS to provide inspections of horses at slaughter facilities before they are slaughtered for human consumption. These ante mortem inspections are required by the Federal Meat Inspection Act (“FMIA”), 21 U.S.C. §603(a), 21 U.S.C. §601(w)(1). Until that time since 2007 federal appropriations laws prohibited the USDA from using any funds to pay

the salaries or expenses of personnel to inspect horses sold for slaughter for human consumption. See, for example, Pub. L. 109-97, §§794, 119 Stat. 2120, 2164. The inspections were, in effect, defunded. Slaughter of equines for human consumption was as a result illegal in the U.S between 2007 and 2011. Despite the reinstatement of funding for ante mortem equine inspections in 2011, under FMIA, equine slaughter facilities cannot operate without a grant of inspection and continued inspection and oversight by USDA. 21 U.S.C. §603(a). In order to be eligible for federal inspection pursuant to the FMIA, an equine slaughter facility must apply to FSIS for inspection, and FSIS is required in assessing the application to review information regarding the premises, standard operating procedures, and management of waste-streams, including sewage and water. 9 C.F.R. §416.2. With the reinstatement of funding of ante mortem equine inspections, at least six facilities submitted applications to USDA to receive grants of inspection of horses for slaughter for human consumption: 1.Valley Meat Co. LLC (“Valley Meat”) located in Roswell, New Mexico (On June 28, 2013 FSIS issued a decisional memorandum granting the modified application.) 2.Responsible Transportation of Sigourney, Iowa (Application was granted on July 1, 2013) 3.Rains Natural Meats of Gallatin, Missouri 4.American Beef Company/Unified Equine, LLC (“Unified Equine”) of Rockville, Missouri 5.Trail South Meat Processing Co. (“Trail South”) of Woodbury, Tennessee 6.Oklahoma Meat Company of Washington, Oklahoma. Despite the fact that applications were submitted almost immediately after the FY 2012 Appropriations Act was signed into law on November 18, 2011, no grants of inspection were issued until June 28, 2013. Indeed, on October 12, 2012 Valley Meat filed suit in federal district court, claiming the USDA/FSIS was in violation of the Administrative Procedure Act, 5 U.S.C. §706 for failing to issue the grant of inspection. Valley Meat claimed it met all of the requirements for issuance of the grant of inspection, but in the “spring of 2012 USDA altered its stance on this issue due to political and special interest pressure, effectively allowing the issue to

become politicized. The[re was]… a marked change in cooperation of USDA with Plaintiff and sudden change in availability of USDA to be able to issue a Grant of Inspection”. Complaint, Valley Meat v. Vilsack, et al. The USDA told Valley Meat the “issue of drug residue testing has been referred back to the Congressional Affairs office of USDA in Washington, D.C. …that because horses had not been slaughtered for a number of years that FSIS would have to create new protocols for evaluating drug residue testing programs.” Complaint, Valley Meat v. Vilsack, et al. Valley Meat claimed it spent over $20,000 fitting its plan for horse slaughter and stopped slaughtering other animals in anticipation of the grant of inspection. Valley Meat claimed that as a result of the USDA’s failure to issue the grant of inspection, it has lost “over hundreds of thousands of dollars”. Id. Ultimately on September 9, 2013 the case was stayed pending the action discussed infra, that was filed on July 2, 2013 by the Humane Society of the United States, Front Range Equine Rescue and others. But though the Court did not find any wrongdoing by USDA/FSIS and never ordered the agency to issue any grant of inspection, during the pendency of the suit, the USDA did issue the conditional grants of inspections to Valley Meat, Responsible Transportation and later to Rains Natural Meats. The grants of inspection issued to Valley Meat and Responsible Transportation were conditional and depended on the companies validating their Hazard Analysis and Critical Control Point plans within 90 days. 9 C.F.R. §§304.3(b), 417.2, and 417.4 But once the plans were validated, the conditional grants would become permanent. At the same time also on June 28, 2013, FSIS issued Directive 6130.1 regarding “Ante-Mortem, Postmortem Inspection of Equines and Documentation of Inspection Tasks.” This directive provided instructions to inspection program personnel (IPP) on how to perform inspections. This directive also instructed FSIS Public Health Veterinarians (PHVs) making ante-mortem and postmortem dispositions of equines how to perform residue testing, verify humane handling, verify marking of inspected equine products, and document results.

In the Directive, FSIS “recognizes that most equines presented for slaughter will likely not have been raised for human consumption” and that, therefore, there are “concerns regarding the potential presence of chemical residues from drugs not previously approved for use in all food animals including equine.” In addition to following pre-existing residue testing policies, IPP are instructed to “conduct random residue testing of normal-appearing” horses at “at least the same rate as for show livestock.” IPP are to randomly select, on the slaughter floor from normal-appearing equine[s], “[a] minimum of 4 animals if there are more than 100 animals in the lot.” Also on June 28, 2013 FSIS denied a petition for rulemaking filed on April 6, 2012 by Front Range Equine Rescue and the Humane Society of the United States. In this petition, they asked that USDA certify former companion, working, competition and wild horses as “U.S. Condemned” and unfit for human consumption” unless the slaughterhouse (or its agent) receiving or buying the horse obtains (1) an accurate record of all of the horse’s prior owners, (2) a record of all drugs, treatments and substances administered to the horse since birth, and (3) verification that the horse has at no time been exposed to any substances prohibited for use in animals intended for use as food.” They requested that “for any horses that do satisfy those three criteria, the FSIS adopt rules and regulations that mandate the testing of the flesh and organs of all such horses going to slaughter. The petition listed more than 110 drugs and other substances commonly administered to horses that are or should be prohibited. The groups also “request[ed] that the FSIS engage in administrative rulemaking regarding horses intended for human consumption, in order to prevent against the risk that consumers of horse meat will have painful or prolonged adverse reactions or drug side effects, or contract serious, contagious, or fatal diseases, after they have eaten the meat of horses sent to slaughter, and to ensure that proper controls are in place to prevent horses whose meat would be adulterated from being slaughtered for food.” A similar petition was filed with the U.S. Food and Drug Administration (FDA), asking the agency to declare these horses and meat produced from them as “unqualified”.

Humane groups sue to stop plants under NEPA Just a few days later and only one day after the issuance of the grant of inspection to Responsible Transportation, on July 2, 2013 the Humane Society of the United States, Front Range Equine Rescue and other animal welfare organizations and individuals, later joined by Robert Redford and former New Mexico Gov. Bill Richardson’ new organization, Foundation to Protect New Mexico Wildlife, filed a Complaint for Declaratory and Injunctive Relief in federal district court. The New Mexico Attorney General later intervened in the action on behalf of the state as a plaintiff. The plaintiffs sought to enjoin USDA/FSIS from conducting ante mortem equine inspections for Valley Meat and Responsible Transportation. The plaintiffs argued the USDA granted inspections without first conducting an environmental impact study as required by National Environmental Policy Act (“NEPA”), 42 U.S.C. §4332(C) and the Administrative Procedure Act, 5 U.S.C. §§ 706(2)(A), (C), and (D). As the Complaint explained; “Defendants have violated NEPA by failing to prepare an environmental impact statement or an environmental assessment prior to granting inspection… Defendants’ challenged actions authorize the resumption of slaughter of American horses for human consumption after six years without domestic horse slaughter. Defendants have taken this action notwithstanding USDA’s obligations to comply with NEPA, and USDA’s actual knowledge that horse slaughter causes significant environmental harms related specifically to the means and methods of horse slaughter, the potentially toxic nature of the waste generated by this industry, and the fact that horse meat endangers consumers…. Additionally, Defendants have violated NEPA by failing to prepare an environmental impact statement or an environmental assessment prior to adopting and implementing a new residue testing plan applicable to all horse slaughter plants throughout the nation.” NEPA requires all federal agencies to prepare a “detailed statement” regarding all “major federal actions significantly affecting the quality of the human environment.” 42 U.S.C. §4332(C). This statement is referred to as the Environmental Impact Statement (“EIS”).

The Complaint explained that regulations implementing NEPA mandate that “[f]ederal agencies shall to the fullest extent possible . . . [u]se the NEPA process to identify and assess the reasonable alternatives to proposed actions that will avoid or minimize adverse effects . . . upon the quality of the human environment,” and “[u]se all practicable means . . . to restore and enhance the quality of the human environment and avoid or minimize any possible adverse effects of their actions upon the quality of the human environment.” 40 C.F.R. §§1500.2(a), (f). Regulations require the USDA to “integrate the NEPA process with other planning at the earliest possible time to insure that planning and decisions reflect environmental values, to avoid delays later in the process, and to head off potential conflicts.” 40 C.F.R. §1501.2. “Where an agency is invoking a new inspection mechanism, NEPA review is required before that mechanism can be invoked. ‘NEPA procedures must insure that environmental information is available to public officials and citizens before decisions are made and before actions are taken.’” 40 C.F.R. §1500.1(b). “In effect, USDA/FSIS proposed to grant inspections for commercial equine slaughter for the first time since 2007 without an environmental assessment of the significant impact on the environment and endangered species.” “By granting inspection to a horse slaughter plant and by adopting a new residue testing plan to apply to horse slaughter nationwide, USDA has substantively changed its operations by allocating its finite resources to authorize and oversee horse slaughter. This is a major change in policy and practice that has direct, indirect, and cumulative impacts on the environment. The grant of inspection to a horse slaughter facility creates a significant change in the status quo because without it, horse slaughterhouses could not legally operate… In addition to the domestic change in status quo from a practical prohibition on horse slaughter since 2006 to now USDA issuing a grant of inspection to domestic horse slaughterhouses, relevant international regulations of horse meat have also changed. The European Union (EU) adopted in 2009 new regulations that will require any imported horse meat to satisfy additional and higher export safety and inspection requirements… USDA has not incorporated any change in policy or inspection requirements to

address the adopted EU regulations. Horses slaughtered in the U.S. are exported to EU markets, and U.S. horse meat will have to satisfy these new EU regulations. …USDA needs to revise its inspection procedures to [comply with these new regulations.] This is an additional change in the status quo triggering the requirements of NEPA.” Also the Complaint pointed out that horse slaughtering produces the following danger to endangered species: “(1) manure, contents of rumen and intestines; (2) edible products, including offal and blood; (3) inedible products such as bones, and hair; (4) fat; and (5) large volumes of wastewater….Most slaughterhouse processes require the use of water, and the pollutants contained in wastewater can impact the environment when the wastewater runoff enters into groundwater, streams, and rivers. Horse slaughtering also requires large amounts of hot water and steam for sterilizing and cleaning. Generating the energy for heating water emits gasses, which contribute to air pollution…. Horse slaughter facilities, with their combination of contaminated by-products and excessive steam generation and the need to discharge massive amounts of wastewater, represent a threat to the environment as well as threatened and endangered species in the area.” On August 2, 2013 U.S. District Court Judge M. Christina Armijo issued a temporary restraining order enjoining USDA from providing the ante-mortem equine inspections or providing any inspection-related services related to horse slaughter to Valley Meat and Responsible Transportation. These companies were also enjoined from engaging in commercial horse slaughter. On September 20, 2013 upon learning a grant of inspection would be given to Rains Natural Meats, the Court amended the TRO to include that company as well. But on November 1, 2013 the Court dismissed the plaintiffs’ claims, thus dissolving the TRO. The plaintiffs appealed to the Tenth Circuit Court of Appeals, and on November 4, 2013 the Court granted a temporary stay and injunctive relief that basically continued the terms of the lower court’s TRO. On December 13, 2013, however, the Court vacated the stay and injunction. The plaintiffs’ claims remain pending. Other efforts to stop the plants There were other efforts to stop horse slaughter facilities from opening following the 2011 Act authorizing USDA/FSIS to resume providing ante

mortem inspections. In 2013 Front Range Equine Rescue and the Humane Society of the United States filed petitions with the Iowa Department of Inspection and Appeals and the Missouri Department of Health and Senior Services, asking each to declare horse meat “adulterated” and ban its sale within the state. They filed a petition before the New Mexico Environmental Improvement Board, requesting the agency to classify all horses under the New Mexico Food Act, 25-2-1 et seq. that were “formerly companion animals, wild horses, work or sport horses and any other horses without a proven lifetime medical history as unqualified for production of horse meat for human consumption”. They also requested rulemaking to prevent against risk that “consumers will have painful or prolonged adverse reactions or drug side effects or contract disease after eating meat of horses sent to slaughter and ensure that proper controls are in place to prevent horses whose meat would be adulterated from being slaughtered for food”. Included with the petition was a long list of drugs and other substances given to these horses during their lives. New Mexico Attorney General joins fight against plants On December 19, 2013 the New Mexico Attorney General Gary King filed suit on behalf of the state in Santa Fe County against Valley Meat to stop its proposed equine slaughter operations. The suit followed an opinion his office issued that declared horse meat fitting the legal definition of an adulterated food product under the state Food Act may not be manufactured, sold, or delivered anywhere in New Mexico, regardless of where the food is ultimately sold or consumed. The opinion states, “Based on our examination of the relevant constitutional, statutory and case law authorities, and the information available to us at this time, we conclude horse meat from U.S. horses would fit the legal definition of an adulterated food product under the NM Food Act if the meat came from horses that had been treated with chemical substances that the federal Food and Drug Administration (“FDA”) has deemed unfit for human consumption. We also conclude that if horse meat were an adulterated food product, the NM Food Act would prohibit its manufacture, sale or delivery.” In the state action King requested a temporary restraining order to stop the plant from opening. The Complaint cited the serious environmental, health and

consumer protection concerns from operation of a horse slaughter facility particularly by a company with a long history of violation of state laws. The Complaint alleged Valley Meat’s proposed horse slaughter facility would violate New Mexico’s Food Act, NMSA 1978 Sections 25-2-1 et seq.; the state Unfair Practices Act, NMSA 1978, Sections 57-12-1, et seq.; and Water Quality Act, NMSA 1978, Section 74-6-5(A) and accompanying regulations. The court granted the TRO on December 30, 2013 and then a preliminary injunction was issued on January 17, 2013 by District Court Judge Matthew Wilson. The preliminary injunction will remain in effect until the claims have been resolved. Wastewater discharge permits challenged Before any plant could open, it would likely be required to obtain a wastewater discharge permit under state or local law. There would also be a routine monitoring process after a permit was issued. Valley Meat requested a permit to operate a discharge lagoon using a plastic liner. On October 21st and 22nd of 2013, the New Mexico Department of the Environment held a hearing GWB 13-05 (P) in the matter of issuing a discharge permit to Valley Meat in the city of Roswell New Mexico, Chavez County. The GWQB (Ground Water Quality Bureau), VMC (Valley Meat Company), FRER (Front Range Equine Rescue), Ari Biernoff of the NM AG and John Holland of the Equine Welfare Alliance provided technical testimony. Testimony against the permit centered on the drugs and toxic substances present in horses and the extremely shallow depth of the water table (six to ten feet in many areas), as well as the past violations of both Valley Meats individually and the horse slaughter industry collectively. On January 7, 2014 hearing officer, Felicia L. Orth, recommended denial of a wastewater discharge permit to Valley Meat “[b]ased upon [its] history of willful disregard for environmental laws”. The officer noted that in just the period between June 3, 2000 and May 24, 2013 Valley Meat has “committed thousands of violations of New Mexico environmental laws”. The final order is still pending. The administration comes out against horse slaughter While the litigation and administrative agency actions to stop commercial horse slaughter proceeded, President Barack Obama’s administration

recommended in 2013 the defunding once again of ante mortem equine inspections in its USDA FY 2014 budget,p. 197, Sec. 725:None of the funds made available in this Act may be used to pay the salaries or expenses of personnel to —(1) inspect horses under section 3 of the Federal Meat Inspection Act (21 U.S.C. 603); (2) inspect horses under section 903 of the Federal Agriculture Improvement and Reform Act of 1996 (7 U.S.C. 1901 note; Public Law 104127); or (3) implement or enforce section 352.19 of title 9, Code of Federal Regulations. Rep. Jim Moran (D-VA) offered as an amendment to the House of Representatives’ Agriculture Appropriations bill the defunding provision recommended by the administration. Sen. Mary Landrieu (D-LA) offered the same amendment to the Senate version of the Agriculture Appropriations bill. Victoria McCullough, owner of Chesapeake Petroleum, had privately hired Florida State Senator Joseph Abruzzo as a registered lobbyist exclusively dedicated to equine welfare issues. This marked the first time there had been a lobbyist focused exclusively on these issues. In 2013 Secretary of Agriculture Vilsack and Vice President Joseph Biden both took an official position of being opposed to the return of horse slaughter to the US in keeping with the President’s position. Slaughter inspections again defunded through Omnibus bill Both the House of Representatives and the Senate approved the inspections defunding amendments that became part of H.R. 3547, the Consolidated Appropriations Act, 2014, Division A, Title VII, Sec. 746. The defunding provision is on p. 37 of the 639 page Consolidated Appropriations Act, 2014. The Act was signed into law by President Obama on January 17, 2014. Defunding has a ripple effect On January 23, 2014 the Missouri Department of Natural Resources denied Rains Natural Meats’ application to modify its state general wastewater operating permit to allow horse slaughter, citing to the newly enacted law once again defunding ante mortem inspections. DNR pointed out that “[b]ecause this federal action effectively prohibits the processing of horses, further evaluation of your application….is unwarranted”. Earlier a Missouri state judge, Daniel Green, issued a preliminary injunction to prevent DNR from issuing a permit to Rains Natural Meats in a lawsuit

brought by horse rescuers and local residents. Rains Natural Meat had failed to request a permit that would allow it to store and dispose of drugs given to equines that are banned in food producing animals and dangerous for human consumption. The plaintiffs produced evidence that these drugs do end up in wastewater. The drugs do not degrade in wastewater treatment facilities or on land. DNR issued Rains a permit that excluded horse slaughter activities, and Rains appealed. Rains then dismissed the appeal and instead filed the amended application that was ultimately denied on January 23, 2014. On May 22, 2014 the Senate Appropriations Committee approved by a vote of 18-12 an amendment offered by Sen. Mary Landrieu to continue the defunding of ante mortem equine inspections in the FY 2015 Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act, S. 2389, Title VII, Sec. 746. Also, on May 29, 2014 by a vote of 28-22 the House of Representatives Appropriations Committee approved a motion by Rep. Moran to add a provision to the Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act, to continue to defund ante mortem equine inspections. See p. 76 of the 109 page H. Rept. 113468 and H.R. 4800, Sec. 741. The House of Representatives and Senate have as of this writing yet to vote on these measures. The SAFE Act The latest federal legislative effort to ban not only horse slaughter in the U.S. but export of American equines for slaughter, the Safeguard American Food Exports Act, (“SAFE Act”), H.R. 1094/S.B. 541, introduced in 2013, remains stalled in committee. The bill would amend the federal Food, Drug and Cosmetic Act, 21 U.S.C. Section 331, by adding provisions declaring equine parts are unsafe as food and prohibiting the “knowing sale or transport of equines or equine parts in interstate or foreign commerce for purposes of human consumption”. Sens. Landrieu and Lindsay Graham (R-SC) are co-sponsors of the Senate version pending in the Committee on Health, Education, Labor, and Pensions. The House of Representative sponsor is Rep. Patrick Meehan (D-PA). The

House version remains in the Subcommittee on Livestock, Rural Development, and Credit. The text of the SAFE Act contains strong talking points: (1) horses and other equines are domestic animals that are used primarily for recreation, pleasure, and sport; (2) horses and other members of the equidae family are not raised for the purpose of human consumption; (3) equines raised in the United States are frequently treated with drugs, including phenylbutazone, acepromazine, boldenone undecylenate, omeprazole, ketoprofen, xylazine, hyaluronic acid, nitrofurazone, polysulfated glycosaminoglycan, clenbuterol, tolazoline, and ponazuril, which are not approved for use in horses intended for human consumption; (4) consuming parts of an equine raised in the United States likely poses a serious threat to human health and the public should be protected from these unsafe products; and (5) the sale and transport of equines for the purpose of processing for human consumption, and the sale and transport of equine parts for human consumption, are economic in nature and substantially affect interstate and foreign commerce. State legislative efforts to stop slaughter Equine slaughter for human consumption remains illegal in Texas, Agric. Code §149.001, et seq.; California, Pen Code §598c; Illinois, 225 ILCS 635; Mississippi, Code §75-33-3; and New Jersey, N.J. Stat. §4:22-25.5. In 2013 Oklahoma replaced its 50 year old ban on horse slaughter with a law that would allow horse slaughter in the state as long as the horse meat is then exported for sale elsewhere. 2 OKL. Stat. §6-192. In 2013-2014 more states considered equine slaughter bans – Iowa, SB 2178; New Mexico, NM HB 121; Maine, ME HB 913; New York, A 3905/S 4615, and Maryland, MD HB 1392.

Chapter 15 Ivory bans

Introduction to ivory bans New Jersey Hawaii New York International Illegal Trade in Wildlife: Threats and U.S. Policy Introduction to ivory bans We've all seen photos of elephants lying dead with their tusks cut off. The illegal trade in endangered species is a $10 billion criminal enterprise. The public outcry in the United States is so massive that states are enacting ivory bans that work in conjunction with Federal endangered species legislation. States like New York make it a state crime to sell ivory products. However, you will quickly see how complicated the ivory ban issue is when you read the Hawaii statute on trading in ivory. How do you handle the situation where a family bible has a small piece of ivory on the cover? How about a vintage shotgun that has a small ivory bead for a sight? The congressional research service has a detailed description of the ivory trade in their report to Congress titled "International illegal trade threats & US policy". The report describes just how sophisticated ivory traffickers are. They use night vision goggles, military firearms, and even helicopters in their poaching operations.

New Jersey New Jersey Statutes Title 23. Fish and Game, Wild Birds and Animals 23:2A-13.3 Additional prohibitions, penalties; exemptions. 3. a. In addition to the prohibitions established pursuant to, and the penalties imposed for violations of, R.S.23:4-27, "The Endangered and Nongame Species Conservation Act," P.L.1973, c.309 (C.23:2A-1 et seq.), and any other applicable law, it shall be unlawful for any person to import, sell, offer for sale, purchase, barter, or possess with intent to sell, any ivory, ivory product, rhinoceros horn, or rhinoceros horn product, except as provided pursuant to this section. b. It shall be presumptive evidence of possession with intent to sell when any ivory, ivory product, rhinoceros horn, or rhinoceros horn product is possessed in a retail or wholesale outlet commonly used for the buying or selling of similar products, provided, however, that nothing in this subsection shall preclude a finding of intent to sell based on any other evidence which may serve to independently establish such intent. The act of obtaining an appraisal of ivory, an ivory product, rhinoceros horn, or a rhinoceros horn product, alone shall not constitute possession with intent to sell. c. A person may convey ivory, an ivory product, rhinoceros horn, or a rhinoceros horn product to the legal beneficiary of the ivory, ivory product, rhinoceros horn, or rhinoceros horn product which is part of an estate or other items being conveyed to lawful beneficiaries upon the death of the owner of the ivory, ivory product, rhinoceros horn, or rhinoceros horn product or in anticipation of that death. d. None of the prohibitions set forth in this section shall apply to employees or agents of the federal or State government undertaking any law enforcement activities pursuant to federal or State law or any mandatory duties required by federal or State law. e. The prohibition on import set forth in subsection a. of this section shall not apply where the import is expressly authorized by federal license or permit. f. The Department of Environmental Protection may permit, under terms and conditions as the department may prescribe, the import, sale, offer for sale, purchase, barter, or possession with intent to sell, any ivory, ivory product,

rhinoceros horn, or rhinoceros horn product for bona fide educational or scientific purposes, unless this activity is prohibited by federal law. L.2014, c.22, s.3. Hawaii Hawaii SB 2647 A BILL FOR AN ACT RELATING TO NATURAL RESOURCES. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII: SECTION 1. The legislature finds that the trafficking of animals threatened with extinction continues to grow at an alarming pace, threatening an increasing variety of animal species. The threat of extinction is due in large part to the trafficking of animal parts and products. The National Strategy for Combating Wildlife Trafficking, released in February 2014, recognized the important role that states have in protecting species that are subject to illegal wildlife trade. Federal law regulates the transfer and importation of parts or products made from endangered and threatened animal species, but due to the increasing demand for these products around the world, it is important to align state authority with federal and international laws to appropriately regulate these markets on a local level. The legislature further finds that the most effective way to discourage illegal trafficking is to eliminate markets and profits. It is in the public interest to protect animal species threatened with extinction by prohibiting within the State, with certain limited exceptions, the sale, offer for sale, purchase, trade, possession with intent to sell, or barter for any part or product of any species of elephant (Elephantidae), mammoth (Mammuthus), rhinoceros (Rhinocerotidae), tiger (Panthera tigris), great ape (Hominoidea), shark and ray (Elasmobranchii), sea turtle (Chelonioidea), walrus (Odobenus rosmarus), narwhal (Monodon monoceros), whale (Cetacea), hippopotamus (Hippopotamus amphibius), monk seal (Neomonachus), lion (Panthera leo), pangolin (Manis), cheetah (Acinonyx jubatus), jaguar (Panthera onca), and leopard (Panthera pardus) identified as threatened with extinction by the Convention on International Trade in Endangered Species and the Endangered Species Act. These animals represent some of the most trafficked species

threatened with extinction according to illegal wildlife product seizure data gathered by the World Wildlife Fund-TRAFFIC, International Union for the Conservation of Nature, and other international conservation organizations. The legislature further finds that in September 2015, the United States and China announced a cooperative effort to take comprehensive action to curb wildlife trafficking, including significant restrictions on the import of ivory as hunting trophies and halting the domestic commercial trade of ivory. As the host of the upcoming International Union for the Conservation of Nature World Conservation Congress with the United States in September 2016, it is important to demonstrate Hawaii's continuing leadership in global conservation challenges such as international wildlife trafficking and endangered species protection. The purpose of this Act is to improve coordination between state and other government authorities as encouraged in section 183D-8, Hawaii Revised Statutes, and to remove any potential conflicts of law that unintentionally make Hawaii an attractive market for illegal wildlife trafficking as other countries and states pass legislation to protect global populations of endangered species. SECTION 2. Chapter 183D, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows: "§183D- Wildlife trafficking; prohibited. (a) No person shall sell, offer to sell, purchase, trade, possess with intent to sell, or barter for any part or product from the following animal family, genus, or species: elephant (Elephantidae), rhinoceros (Rhinocerotidae), tiger (Panthera tigris), great ape (Hominoidea), hippopotamus (Hippopotamus amphibius), lion (Panthera leo), pangolin (Manis), cheetah (Acinonyx jubatus), jaguar (Panthera onca), or leopard (Panthera pardus). (b) Unless otherwise authorized by federal law including the Marine Mammal Protection Act, 16 United States Code, chapter 31, no person shall sell, offer to sell, purchase, trade, possess with intent to sell, or barter for any part or product from the following marine family, genus, or species: sea turtle (Chelonioidea), monk seal (Neomonachus), narwhal (Monodon monoceros), whale (Cetacea), or walrus (Odobenus rosmarus) insofar as the species, subspecies, or distinct population segment is listed:

(1) On appendix I or II of the Convention on International Trade in Endangered Species; or (2) As endangered or threatened under the Endangered Species Act. (c) Unless otherwise authorized by federal law including the MagnusonStevens Fishery Conservation and Management Act (16 U.S.C. section 1851 et seq.) as amended, no person shall sell, offer to sell, purchase, trade, possess with intent to sell, or barter for any part or product from rays and sharks (Elasmobranchii) insofar as the species is listed: (1) On appendix I of the Convention on International Trade in Endangered Species; or (2) As endangered or threatened under the Endangered Species Act. (d) No person shall sell, offer to sell, purchase, trade, possess with intent to sell, or barter for any part or product from mammoth (Mammuthus), although the species is extinct. (e) To the extent permitted under federal law, none of the prohibitions set forth in this section shall apply if: (1) The covered animal species part or product is part of a bona fide antique; provided that: (A) The antique status of such a part or product is established by the owner or seller thereof with historical documentation showing the antique to be not less than one hundred years old; (B) The covered animal species part or product is less than twenty per cent by volume of such an antique; and (C) The covered animal species part or product is a fixed component or components of a larger manufactured item and is not, in its current form, the primary source of value of the item; (2) The distribution of the covered animal species part or product is: (A) For a bona fide educational or scientific purpose; or (B) To or from a museum; (3) The distribution of the covered animal species part or product is to a legal beneficiary of an estate, trust, or other inheritance; (4) The covered animal species part or product is less than twenty per cent by volume of a gun, knife, or musical instrument, including without limitation string instruments and bows, wind and percussion instruments, and pianos, if

the owner or seller provides historical documentation showing the item was manufactured no later than 1975 and the covered animal species part or product is a fixed component or components of a larger manufactured item and is not, in its current form, the primary source of value of the item; (5) The sale, offer for sale, purchase, trade, possess with intent to sell or barter of the covered animal species part or product is expressly authorized by federal law or permit; or (6) The activity is authorized under section 183D-6. (f) There is established a rebuttable presumption of possession with intent to sell a covered animal species part or product when the part or product is possessed by a retail or wholesale establishment or other forum engaged in the business of buying or selling similar items. This rebuttable presumption shall not preclude a finding of intent to sell based on any other evidence that may serve to independently establish such intent. (g) None of the prohibitions set forth in this section shall apply to traditional cultural practices expressly protected under article XII, section 7, of the state constitution. (h) For the purposes of this section, "covered animal species part or product" means any item that contains, or is wholly or partially made from, any covered animal species. (i) The department of land and natural resources may adopt rules pursuant to chapter 91, as needed, to further implement or enforce this section." SECTION 3. Section 183D-5, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows: "(b) Any person violating section 183D- , 183D-25.5, 183D-26, 183D-27, 183D-32, 183D-62, or 183D-64 shall be guilty of a misdemeanor, and upon conviction thereof, shall be punished as follows: (1) For a first conviction by a mandatory fine of not less than $200, or by imprisonment of not more than one year, or both; (2) For a second conviction within five years of a previous conviction, by a mandatory fine of not less than $1,000, or by imprisonment of not more than one year, or both, and all firearms, animal parts, products, or items containing prohibited animal parts or products used in the commission of the violations

shall be considered contraband to be forfeited to and disposed of by the State; and (3) For a third or subsequent conviction within five years of the first two or more convictions, by a mandatory fine of not less than $2,000, or by imprisonment of not more than one year, or both, and all firearms, animal parts, products, or items containing prohibited animal parts or products used in the commission of the violations shall be considered contraband to be forfeited to and disposed of by the State." SECTION 4. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date. SECTION 5. If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the invalidity does not affect other provisions or applications of the Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable. SECTION 6. New statutory material is underscored. SECTION 7. This Act shall take effect upon its approval; provided that there shall be no enforcement actions pursuant to this Act prior to June 30, 2017. Report Title: Wildlife; Species; Trafficking; Fines Description: Prohibits the sale, offer to sell, purchase, trade, possession with intent to sell, or barter of any part or product from various animal and marine species. Provides exceptions to this prohibition, including for traditional cultural practices protected under the State Constitution. Imposes penalties for violations of the prohibition on trafficking animal parts and products. (SB2647 HD2) New York The Laws Of New York Consolidated Laws Environmental Conservation Article 11: Fish And WildlifeTitle 5: Fish And Wildlife Management Practices Cooperative Program; Prohibitions; Taking Of Fish, Wildlife, Shellfish And Crustacea For Scientific Or Propagation Purposes; Destructive Wildlife; Rabies Control; Guides; Endangered Species

SECTION 11-0535 Endangered And Threatened Species, Species Of Special Concern SECTION 11-0536 Sale Of Certain Wild Animals Or Wild Animal Products Prohibited Section 11-0535-A Illegal ivory articles and rhinoceros horns Environmental Conservation (ENV) 1. As used in this section: a. "Distribute" means a transfer or change in possession with an accompanying change in legal ownership. b. "Ivory article" means any item containing worked or raw ivory from any species of elephant or mammoth. c. "Raw ivory" means any elephant or mammoth tusk, and any piece thereof, the surface of which, polished, or unpolished, is unaltered or minimally carved. d. "Worked ivory" means any elephant or mammoth tusk, and any piece thereof, which is not raw ivory. 2. Except as otherwise provided in subdivision three of this section, no person shall sell, offer for sale, purchase, trade, barter or distribute an ivory article or rhinoceros horn. 3. Unless such activity is prohibited by federal law, rule or regulation, the commissioner may issue licenses or permits for the sale, offering for sale, purchase, trading, bartering or distribution of ivory articles or rhinoceros horns, provided that: a. the ivory article or rhinoceros horn is part of a bona fide antique and is less than twenty percent by volume of such antique, and the antique status of such antique is established by the owner or seller thereof with historical documentation evidencing provenance and showing the antique to be not less then one hundred years old; b. the distribution or change of possession of the ivory article or rhinoceros horn is for bona fide educational or scientific purposes, or to a museum chartered by the board of regents pursuant to the education law or to a museum authorized by a special charter from the legislature of this state; or c. the distribution of the ivory article or rhinoceros horn is to a legal beneficiary of a trust or to an heir or distributee of an estate; or

d. the ivory article or rhinoceros horn is part of a musical instrument, including, without limitation, string and wind instruments and pianos, and the owner or seller provides historical documentation as the department may require, demonstrating provenance and showing the item was manufactured no later than nineteen hundred seventy-five. New Jersey New Jersey Statutes Title 23. Fish and Game, Wild Birds and Animals 23:2A-13.3 Additional prohibitions, penalties; exemptions. 3. a. In addition to the prohibitions established pursuant to, and the penalties imposed for violations of, R.S.23:4-27, "The Endangered and Nongame Species Conservation Act," P.L.1973, c.309 (C.23:2A-1 et seq.), and any other applicable law, it shall be unlawful for any person to import, sell, offer for sale, purchase, barter, or possess with intent to sell, any ivory, ivory product, rhinoceros horn, or rhinoceros horn product, except as provided pursuant to this section. b. It shall be presumptive evidence of possession with intent to sell when any ivory, ivory product, rhinoceros horn, or rhinoceros horn product is possessed in a retail or wholesale outlet commonly used for the buying or selling of similar products, provided, however, that nothing in this subsection shall preclude a finding of intent to sell based on any other evidence which may serve to independently establish such intent. The act of obtaining an appraisal of ivory, an ivory product, rhinoceros horn, or a rhinoceros horn product, alone shall not constitute possession with intent to sell. c. A person may convey ivory, an ivory product, rhinoceros horn, or a rhinoceros horn product to the legal beneficiary of the ivory, ivory product, rhinoceros horn, or rhinoceros horn product which is part of an estate or other items being conveyed to lawful beneficiaries upon the death of the owner of the ivory, ivory product, rhinoceros horn, or rhinoceros horn product or in anticipation of that death. d. None of the prohibitions set forth in this section shall apply to employees or agents of the federal or State government undertaking any law enforcement activities pursuant to federal or State law or any mandatory duties required by federal or State law. e. The prohibition on import set forth in subsection a. of this section shall not apply where the import is expressly authorized by federal license or permit.

f. The Department of Environmental Protection may permit, under terms and conditions as the department may prescribe, the import, sale, offer for sale, purchase, barter, or possession with intent to sell, any ivory, ivory product, rhinoceros horn, or rhinoceros horn product for bona fide educational or scientific purposes, unless this activity is prohibited by federal law. L.2014, c.22, s.3. International Illegal Trade in Wildlife: Threats and U.S. Policy Liana Sun Wyler Analyst in International Crime and Narcotics Pervaze A. Sheikh Specialist in Natural Resources Policy July 23, 2013 CRS Report for Congress Prepared for Members and Committees of Congress Congressional Research Service 7-5700 (URL removed for reprint) International Illegal Trade in Wildlife: Threats and U.S. Policy Summary Global trade in illegal wildlife is a potentially vast illicit economy, estimated to be worth billions of dollars each year. Some of the most lucrative illicit wildlife commodities include elephant ivory, rhino horn, sturgeon caviar, and so-called “bushmeat.” Wildlife smuggling may pose a transnational security threat as well as an environmental one. Numerous sources indicate that some organized criminal syndicates, insurgent groups, and foreign military units may be involved in various aspects of international wildlife trafficking. Limited anecdotal evidence also indicates that some terrorist groups may be engaged in wildlife crimes, particularly poaching, for monetary gain. Some observers claim that the participation of such actors in wildlife trafficking can therefore threaten the stability of countries, foster corruption, and encourage violence to protect the trade. Reports of escalating exploitation of protected wildlife, coupled with the emerging prominence of highly organized and well-equipped illicit actors in wildlife trafficking, suggests that policy challenges persist. Commonly cited challenges include legal loopholes that allow poachers and traffickers to

operate with impunity, gaps in foreign government capabilities to address smuggling problems, and persistent structural drivers such as lack of alternative livelihoods in source countries and consumer demand. To address the illicit trade in endangered wildlife, the international community has established, through the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), a global policy framework to regulate and sometimes ban exports of selected species. Domestic, bilateral, regional, and global efforts are intended to support international goals of sustainable conservation, effective resource management, and enforcement of relevant laws and regulations. Increased recognition of the potential consequences of wildlife trafficking has caused some observers and policymakers to question the efficacy of existing U.S. and international responses and consider new options for addressing the problem. In November 2012, for example, then- Secretary of State Hillary Clinton announced the beginning of a revitalized effort to combat international wildlife trafficking. In July 2013, President Barack Obama issued Executive Order 13648 on Combating Wildlife Trafficking. The Executive Order identified poaching of protected species and the illegal trade in wildlife and their derivative parts and products as an escalating international crisis that is in the national interest of the United States to combat. The U.S. Congress has played a role in responding to these ongoing challenges and evaluating U.S. policy to combat international wildlife trafficking. Over time, Congress has enacted a wide range of laws to authorize conservation programs, appropriate domestic and international funding for wildlife protection and natural resource capacity building, and target and dismantle wildlife trafficking operations. In recent years, Congress has also held hearings and events that have addressed the growing problem of wildlife crimes and raised key questions for next steps. Interest in wildlife crime may continue in the 113th Congress. Congressional activity may include evaluating the seriousness of the threat as a national security issue, as well as raising questions regarding the effectiveness of existing policies, ranging from biodiversity programs to anti-crime activities. Contents Introduction

Scope of Criminality Examples of Wildlife Crime African Elephant Ivory Rhino Horn Eurasian Caviar Bushmeat Challenges International Responses U.S. Responses Executive Order on Combating Wildlife Trafficking, 2013 U.S. Department of State’s Strategy on Wildlife Trafficking, 2012 Selected U.S. Agency Roles Department of Interior and Fish and Wildlife Service U.S. Department of State and Agency for International Development Issues for Congress Conclusion Contacts Author Contact Information Introduction Despite long-standing commitments to protect threatened species from overexploitation and to support natural resource management development, some argue that the scope and scale of illegal wildlife trade has risen to historic levels.1 According to U.S. government estimates, illegal trade in endangered wildlife products, including elephant ivory, rhino horns, and turtle shells, is worth at least an estimated $7 billion to $10 billion annually.2 This figure does not include illegal logging and illegal fishing, which can account, respectively, for roughly an additional $30 billion to $100 billion annually and $10 billion to $23 billion annually.3 Such figures may place illegal wildlife trafficking among the top 10 most lucrative criminal activities worldwide. The continued existence of black markets for wild plants and animals is widely considered to be driven by ongoing consumer demand as well as gaps in natural resource management, law enforcement, and trade controls. Wildlife trafficking appears disproportionately to impact parts of the developing world that possess valuable natural resources, but do not have the capacity or

political will to manage such resources transparently and effectively. Beyond its role in species extinction and endangerment, illegal wildlife trade has also been associated with the spread of disease and proliferation of invasive species. Moreover, high prices for illegal wildlife, combined with often lax law enforcement and security measures, have motivated the involvement of transnational organized crime syndicates, who view such trafficking as an opportunity for large profits with a low risk of detection.4 Even where heightened security measures to protect wildlife are implemented, they have not consistently had a deterrent effect. Instead, some wildlife trafficking operations have become more elaborate and, at times, more dangerous. Traffickers are known to employ sophisticated hardware for poaching operations, including night vision goggles, military-grade weapons, and helicopters. Park rangers have also been killed in the line of duty by poachers. Some shipments of the wildlife contraband and the illicit profits that result from such trafficking often involve circuitous routes, support from corrupt officials, a complex web of anonymous financial mechanisms, and broad networks of complicit middlemen, processers, exporters, and retailers along the transnational supply chain.5 Some suggest that armed groups in Africa and Asia, which happen to be located in biologically diverse areas, are using natural resources to finance violent and politically destabilizing activities.6 Various observers have alleged the involvement of non-state armed groups, including separatist and Islamist militant groups, in Africa and South Asia.7 Reports further suggest that military officers in some African countries may be involved or complicit in poaching operations.8 Well established Asian and Eurasian organized crime groups are further suspected of bankrolling poaching operations and facilitating the international movement of wildlife contraband. Increased recognition of the potential consequences of wildlife trafficking has caused many to question the efficacy of existing U.S. and international responses and consider new options for addressing the problem. In November 2012, for example, then-Secretary of State Hillary Clinton announced the beginning of a revitalized effort to combat international wildlife trafficking.9 Central to this renewed effort were enhanced diplomatic outreach; targeted public diplomacy campaigns; continued international training and technical

assistance, and cooperation to enhance natural resource governance and wildlife law enforcement capabilities; and expanded partnerships with nongovernmental organizations. The U.S. intelligence community has also begun to consider wildlife trafficking as a major transnational organized crime threat. In March 2013, the Director of National Intelligence (DNI) James R. Clapper testified before Congress on the U.S. intelligence community’s assessment of worldwide threats, stating that “illicit trade in wildlife, timber, and marine resources constitutes a multi-billion dollar industry annually, endangers the environment, and threatens to disrupt the rule of law in important countries around the world.”10 The U.S. intelligence community is also reportedly conducting further assessment of wildlife trafficking as a national security issue.11 In July 2013, President Barack Obama issued Executive Order 13648 on Combating Wildlife Trafficking.12 The Executive Order identified poaching of protected species and the illegal trade in wildlife and their derivative parts and products as an escalating international crisis that it is in the national interest of the United States to combat. It directed the Secretaries of State and Interior and the Attorney General to establish a Presidential Task Force on Wildlife Trafficking, develop and implement a National Strategy for Combating Wildlife Trafficking, and convene an Advisory Council on Wildlife Trafficking composed of non-governmental expert members. Congress has long held an interest in issues related to the status of endangered species in international trade and policy responses to stem poaching and illicit trafficking of wild animals and plants. The 113th Congress continues to be involved in addressing the illegal wildlife trade through oversight and proposed legislation. Issues for Congress have centered on the extent to which existing legal tools and authorities are over- or under-utilized to respond to wildlife trafficking, including U.S. military assistance, justice sector training and capacity building programs, tools to combat transnational organized crime, free trade agreements, anti-money laundering regulations, trade sanctions, and investigative rewards programs. Scope of Criminality

The cross-border and transnational export, import, sale, or purchase of wild animal and plant resources becomes illegal when it is conducted in contravention to international commitments or domestic laws. Such commitments and laws may variously prohibit outright taking, transporting, or hunting of selected species, as well as harvesting of certain species beyond an established quota or physical boundary. Laws and regulations also prohibit the export, import, sale, or purchase of certain species without appropriate permits, authorization, or documentation. Further, some laws regulate the processing of plant and wildlife products. Chief among international commitments pertaining to the protection of wild animals and plants, including their parts, products, and derivatives, is the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES; see text box). Illegal wildlife trade ranges in scale from single-item, local bartering to multiton, commercial- sized exports of animal and plant consignments. Wildlife contraband may include live pets, hunting trophies, fashion accessories, cultural artifacts, ingredients for traditional medicine, wild protein for human consumption (or bushmeat), and other products. Although there is no distinct criminal profile that describes wildlife poachers and traffickers, illicit wildlife trade networks often involve a combination of local hunters, regional middlemen, wildlife experts, criminal entities, global suppliers, front companies, online retailers, corrupt officials, and consumers willing to purchase such contraband. The primary motivation to engage in illegal wildlife trade appears to be economic gain, coupled with ongoing demand that exceeds what the market can legally supply in many parts of the world, including primarily China, where recent economic growth is driving the expansion of households with disposable income, as well as the United States, and Western Europe.13 Further depletions of already-rare wildlife populations often cause the perverse effect of driving up black market prices for endangered wildlife products—which reportedly have risen up to $90,000 for a live Lear Macaw, $50,000 for a kilogram of rhino horn, $8,000 for a luxury shahtoosh shawl, $1,200 for a kilogram of tiger bones or beluga caviar, and $1,000 for a kilogram of raw elephant ivory.14

Some point to the involvement of transnational criminal groups in illegal wildlife trade as a cause for concern. According to a series of U.N. studies on the illicit traffic of wildlife, experts claim that Chinese, Japanese, Italian, and Russian organized crime syndicates are “heavily involved in illegal wildlife trade.”15 While such claims do not suggest that organized crime syndicates are involved in all forms of wildlife trafficking, the U.N. reports suggest that syndicates are “strongly present” in some sectors and “significant and growing.”16 Anecdotal evidence indicates that both licit and illicit wildlife has been found comingled with shipments of other contraband goods, including drugs, weapons, stolen cars, and human beings.17 In one instance, customs officials recovered Colombian cocaine-filled condoms that had been inserted into a crate of snakes. Other mixes of narcotics and wildlife include cases involving elephant tusks stuffed with hashish and exotic parrots smuggled with methamphetamine pills. Valuable wildlife products can be used in lieu of cash as a means to launder money or exchange for other illicit commodities, such as drugs and weapons. In South Africa, for example, street gangs have reportedly provided highly prized, but illegal, catches of abalone to Asian crime syndicates in exchange for methamphetamine.18 In some cases, particularly those linked to ivory and rhino horn poaching in Africa and South Asia, anecdotal evidence points to the potential involvement of armed groups, including terrorists, warlords, and insurgents. Illegal Logging and Foreign Corruption Timber is a major global commodity that represents a significant portion of international wildlife trade.19 Illegal acts related to the timber trade commonly include unauthorized extractions (e.g., cutting protected species, cutting on protected lands, and logging beyond set limits in terms of timber volume or geographic area) as well as violations related to forged and misused logging permits, obtaining logging concessions through bribery, diversion of timber royalties by high level officials (i.e., grand corruption), and false declarations to customs regarding the value, type, or amount of timber to be exported.20 Although a few select species of rare hardwoods, such as Brazilian Rosewood (Dalbergia nigra), are subject to stringent international trade prohibitions through CITES, most species of timber are not subject to CITES trade

regulations.21 As a result, many illegal acts related to logging involve violations of domestic laws and regulations. The consequences of illegal logging, however, can have transnational ramifications, contributing not only to regional environmental degradation and deforestation, but also to political instability, economic losses for legal wood, corruption, and losses of state revenue in some cases. Investigative reports have repeatedly discovered that illegal logging in conflict zones in Southeast Asia, Sub-Saharan Africa, and South America provides armed groups with a source of illicit revenue and a means to finance arms purchases and generate hard currency.22 Some research suggests that the scale of illegal logging is such that it may depress global commodity prices by as much as 7%-16%, on average.23 Researchers indicate that the global volume of illegal logging appears to have fallen in recent years, due to a combination of invigorated law enforcement efforts, greater resources devoted to forest park security, the introduction of independent forestry monitoring systems, public awareness raising, and actions taken in key consumer countries.24 Despite such indicators, the United Nations and INTERPOL reported in 2012 that criminal patterns associated with the timber trade have “moved from direct illegal logging to more advanced methods of concealment and timber laundering.”25 This apparent shift in timber trafficking methods suggests that illegal logging may not only be continuing, but that organized criminal groups involved in timber trafficking have adapted and developed more sophisticated illicit methods to mask illegal logging and evade detection.26 Observers further fear that widespread collusive behavior among local officials and enforcement authorities provide illicit actors involved in timber trafficking with little incentive to improve.27 Examples of Wildlife Crime The following sections describe several illustrative forms of international illegal trade in wildlife, including trafficking in elephant ivory, rhino horn, caviar, and so-called bushmeat. African Elephant Ivory International trade in African elephants (Loxodonta africana) and their parts has been restricted under Appendix I since 1989, pursuant to CITES.28 The 1989 CITES decision followed a decade of rampant ivory poaching that is estimated to have cut the total African elephant population to less than half its

size in the late 1970s.29 In the immediate years after the 1989 decision took effect, poaching appeared to drop significantly and African elephant populations in many parts of Sub-Saharan Africa began to recover. Today, an estimated total of approximately 420,000 to 650,000 African elephants can be found in 37 countries in sub-Saharan Africa.30 Elephant population trends, however, vary significantly by region, and the majority of known African elephants appear to be concentrated in Southern and Eastern Africa. Vibrant population growth primarily in Southern Africa has offset potentially large declines of forest elephants in Central Africa.31 On the other hand, anecdotal indications of recent large-scale elephant killings suggest an uptick in poaching and a potential reversal of overall population trends.32 According to data compiled for the CITES-sponsored project Monitoring the Illegal Killing of Elephants (MIKE), poaching levels have increased since 2006. An estimated 17,000 elephants (range: 7,800 to 26,000) may have been illegally killed in 2011 at MIKE reporting sites in Africa—suggesting that the continental total of illegal killed elephants in 2011 was higher.33 Early estimates for 2012 suggest that poachers may have killed more than 30,000 African elephants.34 Several widely reported incidents indicate an escalation in the poaching tactics and methods used in Central Africa. Observers point to a series of elephant killings in Bouba N’djida National Park in northern Cameroon in recent years as indicative of a worrying pattern of commercial-scale poaching.35 Other reports have described poaching incidents in Garamba National Park in the Democratic Republic of Congo (DRC) and in Minkebe ́ ́ National Park in Gabon.36 Various reports further raise the possibility that poachers may include elements of some African militaries and several non-state armed groups, such as the Congolese, Ugandan, Sudanese, and Tanzanian militaries, Sudanese janjaweed, the Lord’s Resistance Army (LRA), and the Somali terrorist organization Al Shabaab.37 In the case of the LRA, many observers have speculated on the extent to which the group relies on ivory poaching for financing and resources. Although few consider the LRA to be deeply enmeshed in the transnational logistics of ivory trafficking, some reports suggest that the group may be bartering ivory—primarily poached in DRC’s Garamba National Park—for arms, supplies, and other military equipment from Sudanese military

personnel.38 Dozens of African wildlife rangers have been killed by suspected poachers in recent years, many in apparent reprisal attacks.39 Ivory seizure data collected by the Elephant Trade Information System (ETIS) reinforce claims that elephant poaching is increasing.40 According to recent ETIS data, both the volume of illegally traded ivory as well as the number of large-scale illegal consignments trafficking internationally may be increasing. The increase in large-scale seizures, defined as consignments containing 800 kilograms of elephant ivory or more, is of particular concern to law enforcement officials, who suspect that well-organized criminal syndicates are likely involved in such movements. According to TRAFFIC International, there were 13 large-scale seizures of African elephant ivory in 2011 alone, likely representing some 2,500 elephants.41 Driving contemporary poaching is surging demand for ivory products in East Asia, where, historically, elephant ivory has long been valued for its cultural significance, as a symbol of status of wealth, and as an ingredient in the traditional treatment of certain types of health ailments.42 China, in particular, has reportedly emerged as a major consumer of elephant ivory, driven in part by recent economic growth and the growing affluence of its citizens. Anecdotal reports suggest that Chinese expatriate communities working and living in Africa are playing a significant and perhaps growing role in elephant ivory smuggling. Asian criminal syndicates are reportedly involved in large-scale smuggling operations and may be collaborating with African criminal groups. Rhino Horn There are five living species of rhinoceros in the world, the survival of which are all threatened by over-hunting and habitat loss. Three species are native to Asia: the Sumatran rhino (Dicerorhinus sumatrensis), the Javan rhino (Rhinoceros sondaicus), and the Indian rhino (Rhinoceros unicornis). Two species are native to Africa: the Black rhino (Diceros bicornis) and the White rhino (Ceratotherium simum). All five species have been subject to CITES trade prohibitions since the mid-1970s.43 According to estimates by the International Union for the Conservation of Nature (IUCN) from 2012, there are approximately 140-210 Sumatran rhinos and 35-45 Javan rhinos remaining in the wild.44 The last of the Vietnamese subspecies of the Javan rhino was shot in 2010 for its horn.45

The Indian rhino, in contrast, is experiencing modest population growth, up to approximately 3,264 rhinos, due largely to strict protections by Indian, and more recently, Nepalese authorities. In the early 1900s, fewer than 200 Indian rhinos were believed to exist. Despite redoubled conservation efforts initiated in the 1990s, surging demand in recent years for illegal rhino horn, particularly in Asian countries such as Vietnam, along with the corresponding increase in the involvement of organized international criminal syndicates in rhino horn smuggling, may imperil population gains made by African rhino species.46 According to IUCN estimates from 2010, the African Black rhino population has increased to 4,880 since its nadir in 1995 of 2,410. The White rhino, whose population had been decimated to an estimated 20-50 surviving animals, has grown to approximately 20,165 in 2010. Much of these African conservation gains are the result of initiatives in South Africa—home to some 40% of African Black rhinos and 90% of White rhinos— which have combined private sector conservation incentives with strong wildlife management, monitoring, and law enforcement.47 Yet, 668 rhinos were illegally killed in 2012 in South Africa alone, a record since authorities first began tracking such information in 1990.48 As of July 18, 2013, a total of 488 additional rhinos were reported poached in South Africa.49 At this rate of killings, African rhino population growth is unlikely to be sustained. In other sub-regions of Africa, rhino conservation prospects are already dim. In 2011, the IUCN concluded that a subspecies of the Black rhino in West Africa went extinct and the number of Northern White rhinos (distinct from the South Africa-based species) has dwindled to single digits.50 Contemporary demand for rhino horn continues despite heighted rhino protection efforts, including GPS chipping and DNA tracking, as well as increased enforcement and penalties against perpetrators.51 This surging demand originates primarily among consumers in Asia, who have reportedly driven the retail price of ground rhino horn to a height of as much as $20,000 to $30,000 per kilogram.52 Such consumers seek rhino horn out as an ingredient in traditional remedies for fevers, headaches, and hangovers.53 More recently, claims that rhino horn can cure cancer have further fueled demand.54 Another

consumer base for rhino horn emerged in Yemen, where ornate rhino-horn dagger handles have long been coveted among the elite.55 In total, one estimate indicates that more than 4,000 African rhino horns have been illegally sold in Asia between January 2009 and September 2012, amounting to some 12.6 tons of rhino horn available for purchase on the black market.56 In contrast, some 3.1 tons of rhino horn were estimated to have been illegally sold between January 2006 and September 2009.57 Due in large part to its high black market prices, the illegal rhino horn trade has become one of the most structured wildlife crime activities, according to the CITES Secretariat. There are reportedly “clear indications” of highly organized, mobile, and well-financed criminal groups involved in both poaching and subsequent illegal trade of African rhino horn.58 Observers suggest that criminal actors use sophisticated tools to poach rhinos, including helicopters, night-vision goggles, tranquillizer darts, and silenced heavy-caliber guns.59 In addition to poaching, organized criminal groups have stolen rhino horns from government stocks, museums in Europe, private collections, antique dealers, auction houses, and taxidermists. Authorities in South Africa have documented evidence of suspected abuse of legal trophy hunting as a means to illicitly procure rhino horn for further black market sale. Eurasian Caviar Sturgeon (Acipenseriformes) has long been coveted as a culinary delicacy, both for its meat and roe. Particularly popular are the roe from Beluga (Huso huso), Russian (Acipenser gueldenstaedtii), Stellate (Acipenser stellatus), and Ship (Acipenser nudiventris) sturgeons that can be found in the Caspian and Black Sea basins and whose international trade is restricted under CITES.60 Due to years of overfishing, illegal fishing, and a decline in the number of spawning sites due to habitat loss and degradation, wild populations of most species of sturgeon are projected to continue to decrease, some potentially resulting in extinction. The continued rarity of the most prized species of sturgeon, despite recent developments to foster aquacultures and captive breeding, contributes to the extremely high prices for certain types of caviar, which may retail for as much as $2,000 per kilogram. These prices in turn have provided poachers, often

linked with organized criminal groups involved with the global caviar trade, with an incentive to continue overfishing and illegally fishing.61 According to the United Nations, “no sector of the illegal fauna or flora trade has been criminalized to the extent of that of sturgeon and caviar.”62 Major export countries have historically included Eurasian countries that border the Caspian and Black Seas, including Russia, Kazakhstan, Turkmenistan, Iran, Azerbaijan, Georgia, Turkey, Bulgaria, Romania, and Ukraine. Most of the caviar business is reportedly controlled by Russian organized crime, while demand is mostly driven by consumers in Western Europe, North America, and East Asia. In 1998, the U.S. Fish and Wildlife Service (FWS) reported that an estimated 50% of the international trade in caviar was illegal; other estimates suggest Russian criminal groups’ involvement in the caviar trade may have been higher.63 In the mid-2000s, FWS investigations into the U.S. caviar trade revealed that 7 of the 10 major importers on the East Coast had been illegally importing millions of dollars’ worth of caviar annually.64 According to reports, a combination of factors appeared to have led to the criminalization of the global caviar trade in the mid-1990s, including increased prices, a surging demand that exceeded legal quotas for sturgeon exports, and the disruption of Soviet-era fishing regulations that created a governance and regulatory environment permissive to exploitation.65 Soon after the fall of the Soviet Union, criminal networks surrounding the caviar trade emerged, composed of fishermen, local middlemen, regional suppliers, and international distributors. Criminals would also repackage and falsely label inferior varieties of caviar to sell at higher prices. Highlighting the lucrative nature of the trade, criminal territoriality, and protection of trafficking routes, criminal actors involved occasionally responded to seizures with displays of violence, reportedly bombing the homes of a local detachment of Russia border guards near the Caspian Sea in 1996 and attacking a Russian coast guard station in 2001 to illegally retrieve their confiscated fishing boats and nets.66 Declining sturgeon stocks combined with heightened levels of suspected sturgeon poaching inspired the international community in 1998 to regulate international trade of sturgeon and sturgeon products, including caviar, through CITES. Legal exports are still permissible for most species of sturgeon, but only when accompanied by appropriate CITES documentation. Some

countries have also since introduced unilateral fishing and import bans or stringent quotas on particularly prized species of sturgeon and sturgeon products. In the United States, for example, the FWS suspended in 2005 import of and foreign commerce in beluga sturgeon caviar and meat from the Black Sea basin. Shifts toward aquaculture and captive breeding programs have also alleviated some of the pressure on wild sturgeon. Bushmeat Bushmeat generally refers to the harvesting of wildlife for human consumption and its subsequent trafficking within or outside source countries. Bushmeat may include both common and internationally protected species, such as rodents, primates, antelopes, and pangolins. The hunting of such wildlife often takes place in contravention of domestic and international laws, including quarantine law and public health regulations. Many observers fear that the overhunting of such wildlife, particularly in parts of Africa, contributes to significant wildlife population declines, reductions in biodiversity, and dysfunctional ecosystems. According to FWS, unsustainable bushmeat hunting in Africa is considered the “single greatest threat to wildlife.”67 It is often further exacerbated by the construction of new roads related in particular to logging and mining operations, which provides poachers with easy access to previously remote and undisturbed forests.68 Although the global volume of bushmeat consumption is not known, it is generally associated with consumption habits in Central and West Africa, where some 1 million metric tons of bushmeat are reportedly consumed on an annual basis.69 Bushmeat is also commonplace in parts of Latin America and Southeast Asia. It is the primary source of protein in the diets of some 5 to 8 million people located in predominantly rural areas worldwide.70 Bushmeat has also become a status symbol in certain urban and international markets as a cultural delicacy.71 The globalization of trade and transnational movement of individuals are among frequently referenced factors that drive bushmeat smuggling. Expatriate immigrant populations originating from those regions are reportedly fueling international demand for bushmeat, which is thriving as a multi-million dollar illegal enterprise.72 Although field research has been limited, public health experts have identified international bushmeat smuggling as a potential vector for the

transmission of emerging infectious diseases, which has historically been linked to the intermingling of wildlife and humans.73 Some 75% of emerging infectious diseases in humans are reportedly of zoonotic origin, raising concerns that contact with and consumption of bushmeat could result in the transfer of potentially dangerous pathogens to humans.74 According to the results of a recent pilot project conducted at international airports in the United States from 2008 to 2010, confiscated bushmeat samples were found to contain pathogens including retroviruses (e.g., simian foamy virus) and herpesviruses (e.g., cytomegalovirus and lymphoncryptovirus).75 This study demonstrated for the first time that the illegal bushmeat trade may be a direct conduit for disease transmission to the United States. Challenges Despite ongoing international efforts to address illegal trade in wildlife, poaching of protected species and trafficking of their parts continues. Commonly cited challenges in responding to this persistent illicit activity include ongoing legal gaps, capacity and political will gaps, and continuing structural drivers. Legal gaps. Although CITES has been in effect for more than three decades, the implementation of CITES commitments by States Parties continues to be mixed. Moreover, substantial variations exist among countries regarding the regulation of domestic wildlife trade. This lack of consistency in the implementation of legal frameworks can be exploited by wildlife traffickers, who may actively seek out lax jurisdictions to traffic goods. Legal gaps may also indicate a lack of political will to correct and amend variations in the law. They may also highlight a lack of international policy consensus or prioritization on how, and how much, to curb wildlife trafficking.76 For example, there remains a lack of international consensus of approaches on how best to address elephant ivory trafficking. Ongoing debates have centered on whether to establish a universal trade ban against all ivory sales, including potentially domestic sales, and what to do with existing government-stored stocks, including the possibility of authorizing future CITES-led international sale to select countries in Asia. Capacity and political will gaps. Even in cases where there is political will to address the problem of wildlife trafficking, some governments suffer from

capability gaps, including insufficient personnel, expertise, training, funding, and equipment. Anecdotal reports indicate that in some cases, to poachers possess far greater resources, capabilities, and firepower than park rangers who protect wildlife, sometimes unarmed.77 As a cross-cutting issue, some contend that responses to wildlife crime may require not only effective natural resource management practices, but specialized law enforcement and justice sector expertise to successfully investigate and prosecute wildlife crime cases. Moreover, regulating international wildlife trade has reportedly become more complex and resource intensive as the number of protected species has increased and as the criteria for identifying species have become more scientific, requiring in turn more resources for data gathering and reporting.78 Structural drivers. To a large degree, the illegal wildlife trade continues to flourish due to complex socioeconomic and political conditions that are often beyond the scope of targeted international programs and agreements. Such structural conditions include conflict, corruption, poverty and the absence of livelihood alternatives, persistent demand for illicit wildlife products and a lack of public awareness of the consequences of such demand, as well as other environmental pressures that contribute to wildlife population losses (e.g., environmental degradation, habitat loss, and ecological fragmentation).79 International Responses To address illicit trade in endangered wildlife, the international community has established a global policy framework to regulate and sometimes ban exports of selected species. Domestic, bilateral, regional, and global efforts are intended to support international goals of sustainable conservation, effective resource management, and enforcement of relevant laws and regulations. The flagship international mechanism to control wildlife trade is the 1975 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).80 Through CITES, approximately 5,000 species of animals and 29,000 species of plants are subject to varying levels of trade restrictions, depending on the extent to which they are at risk of extinction. Among other activities, the Secretariat makes periodic recommendations that trade be suspended with certain countries found to be in violation of CITES commitments.81 A total of 178 governments have committed to CITES, including the United States.

Although the scope of international initiatives for environmental conservation is vast, there are several international or regional efforts that are specifically geared toward combating the criminal aspects of wildlife trafficking, sharing law enforcement information for the purpose of criminal investigations and prosecutions, and building capacity among wildlife enforcement officials to detect and prevent illegal trade in wildlife.82 Additionally, several high-level international statements have been adopted in recent years, including by the United Nations and Asia-Pacific Economic Cooperation (APEC), which identify the issue of wildlife trafficking as a key global concern.83 U.S. Responses The United States addresses the international illegal wildlife trade through domestic enforcement and laws, as well as through foreign policy. U.S. efforts to prohibit aspects of wildlife trade originated with the Lacey Act of 1900 and have been enhanced through provisions in the Lacey Act Amendments of 1981, the Endangered Species Act of 1973, and other laws. Recently, increased awareness of wildlife trafficking as a potential problem has caused some observers and policymakers to question the efficacy of existing U.S. and international responses and consider new options for responding to such illicit activity. Executive Order on Combating Wildlife Trafficking, 2013 On July 1, 2013, President Barack Obama issued Executive Order 13648 on Combating Wildlife Trafficking. It identified wildlife trafficking as an escalating “international crisis” that it is in the national interest of the United States to address because of its role in “contributing to the illegal economy, fueling instability, and undermining security.”84 The President outlined four core objectives in responding to wildlife trafficking: (1) when requested, assist foreign governments in anti-trafficking activities; (2) promote the development and enforcement of effective wildlife trafficking laws, including prosecuting traffickers; (3) collaborate with the international community and partner organizations; and (4) reduce demand for illegally traded wildlife, both domestically and overseas. The Executive Order also established a Presidential Task Force on Wildlife Trafficking, co- chaired by the Secretaries of State and Interior as well as the Attorney General. It directs the Task Force to meet within 60 days of the

Executive Order’s issuance and develop and implement a National Strategy for Combating Wildlife Trafficking within 180 days. The Executive Order further specifies that the Task Force should review and recommend whether wildlife trafficking should be included in the implementation of the Obama Administration’s 2011 Strategy to Combat Transnational Organized Crime. Also within 180 days of issuance, the Executive Order requires that an Advisory Council on Wildlife Trafficking be established, composed of eight nongovernmental members from the private and non-profit sectors. Coinciding with the Executive Order’s release, the Obama Administration announced that the State Department would provide $10 million in antipoaching training and technical assistance, including $3 million each to South Africa and Kenya, as well as $4 million for other countries in Sub-Saharan Africa. U.S. Department of State’s Strategy on Wildlife Trafficking, 2012 In November 2012, the State Department and U.S. Agency for International Development (USAID) announced a revitalized effort to combat international wildlife trafficking.85 Central to this renewed effort is a four-part strategy, unveiled by then-Secretary of State Hillary Clinton, to include: Enhanced diplomatic outreach to build foreign government support bilaterally and through multilateral mechanisms such as APEC, CITES, other UN bodies, INTERPOL, WCO, and the World Bank; Targeted public diplomacy campaigns to develop international awareness and, ultimately, reduce demand for illegal wildlife products; Continued international training, technical assistance, and cooperation to enhance wildlife law enforcement capabilities; and Expanded partnerships to connect governments, civil society, academia, and the private sector together in addressing wildlife crime issues. As part of the November 2012 strategy, Administration officials also announced that the U.S. intelligence community has been tasked with providing an intelligence assessment on the national security consequences of illegal wildlife crime. Under Secretary of State for Economic Growth, Energy, and the Environment Robert D. Hormats intimated that such an evaluation may help to clarify links between wildlife crime, political instability, drug trafficking, weapons smuggling, corruption, and illicit finance. An intelligence

assessment may also clarify the potential role that other agencies, including the Departments of Defense and the Treasury, could play in combating illegal wildlife crime. Selected U.S. Agency Roles Key implementing agencies for U.S. initiatives against wildlife trafficking include the Department of Interior’s Fish and Wildlife Service (FWS) as well as the State Department and USAID. FWS has multiple domestic and international responsibilities related to combating wildlife crime. The State Department and the U.S. Agency for International Development (USAID) lead a variety of intergovernmental and public diplomacy initiatives related to wildlife trafficking, including contributions to international organizations; bilateral foreign assistance for biodiversity, conservation, and law enforcement purposes; and various non-governmental partnerships. In addition to FWS, other agencies are involved in border enforcement and federal prosecutions of wildlife crimes. See text box below. Border Enforcement and Wildlife Trafficking Prosecutions Several agencies are responsible for law enforcement and trade inspection involving wildlife goods imported into the United States, including the Department of Homeland Security’s Customs and Border Protection (CBP) and the Department of Interior’s FWS. CBP maintains the primary authority to inspect goods imported into the United States and vessels carrying goods into U.S. ports of entry. If wildlife goods are declared, they are generally referred to FWS, which is the primary agency responsible for inspecting wildlife shipments. In FY2012, a total of 143 FWS inspectors were located at 38 ports of entry and other locations to review shipments. Other agencies participate in wildlife inspections, including the Department of Commerce’s National Oceanic and Atmospheric Administration, the Department of Agriculture’s Animal and Plant Health Inspection Service, and the Department of Health and Human Services’ Centers for Disease Control and Prevention. Investigations initiated by law enforcement agents from FWS, NOAA, and other agencies related to the illegal wildlife trade are referred to the Department of Justice’s Environment and Natural Resources Division, which may in turn prosecute individuals and organizations charged with violations related to wildlife trafficking. International traffickers may face charges from a wide range

of applicable U.S. laws, including the Endangered Species Act (16 U.S.C. 15311543), Lacey Act (18 U.S.C. 42, 16 U.S.C. 3371-3378), Bald and Golden Eagle Protection Act (16 U.S.C. 668-668C), Marine Mammal Protection Act (16 U.S.C. 1361-1407), African Elephant Conservation Act (16 U.S.C. 4201-4245), Wild Bird Conservation Act (16 U.S.C. 4901), Rhinoceros and Tiger Conservation Act (16 U.S.C. 5301-5306), and Antarctic Conservation Act (16 U.S.C. 2401). Traffickers may also be charged with criminal statutes that prohibit money laundering, smuggling, conspiracy, tax fraud, and false statements, as well as violations of state laws. Department of Interior and Fish and Wildlife Service The Department of Interior and its U.S. Fish and Wildlife Service (FWS) has multiple domestic and international responsibilities related to combating wildlife crime. Under the Endangered Species Act, FWS is the designated Scientific and Management Authority for implementing CITES provisions in the United States (16 U.S.C. 1537a). Its Division of Educational Outreach also conducts wildlife trade demand reduction and consumer awareness campaigns. Through its Office of Law Enforcement, FWS maintains a cadre of special agents and wildlife inspectors as well as a forensics laboratory to support state, federal, and international wildlife crime investigations. As part of its efforts to respond to international wildlife trafficking, FWS has sought approval and funding to permanently deploy special agents to U.S. State Department embassy missions overseas in Asia, Africa, and South America. To this end, FWS anticipates the first such deployment of a special agent to Thailand to begin in FY2014; President Obama also announced in July 2013 that he will detail a FWS official to Tanzania to address wildlife trafficking. FWS also provides international technical assistance and capacity building to foreign countries through its Wildlife Without Borders program and administers several species-specific grants programs, or conservation funds, which have been variously authorized by Congress through a series of acts, collectively referred to as the Multinational Species Conservation Acts.86 These programs require host nation- or other partner-leveraged contributions, including cash funds and in-kind support. Such programs focus on African and Asian elephants, rhino, tigers, great apes, marine turtles, and other critically endangered animals, including amphibians. FWS also conducts regional

initiatives focused on key regions or countries for environmental protection, including Africa, the Western Hemisphere, Mexico, Russia, and China. Although these Wildlife Without Borders initiatives are broadly aimed toward environmental conservation goals, many projects specifically address the issue of combating wildlife trafficking.87 For example, a Wildlife Without Borders project funded through the African Elephant Conservation Fund promotes cooperation between African and Southeast Asian wildlife and law enforcement agencies in order to detect and intercept illegally trafficked wildlife. Recent grants funded through the Asian Elephant Conservation Fund have supported, among other projects, law enforcement capacity building in Thailand and antipoaching support in Indonesia. Through the Great Ape Conservation Fund and the Rhinoceros and Tiger Conservation Fund, Wildlife Without Borders has supported projects in Asia and Africa to combat the poaching of various species, such as orangutans, gibbons, and rhinos. With donor funding from USAID, the State Department, and the Millennium Challenge Corporation, as well as international organizations, the Department of Interior implements the International Technical Assistance Program, which can be used for programming on endangered species conservation and wildlife law enforcement. Congress additionally authorizes FWS to receive directly certain amounts of aid funds for the Central Africa Regional Program for the Environment (CARPE), which addresses biodiversity and conservation goals in the Congo Basin; CARPE funds are also appropriated to USAID. Among other projects, CARPE funds have supported wildlife authorities in Central Africa to investigate and prosecute wildlife crimes. U.S. Department of State and Agency for International Development The State Department supports a variety of intergovernmental and public diplomacy initiatives related to wildlife trafficking, including contributions to international organizations, such as CITES, UNODC, and the World Bank. The State Department also spearheads the Coalition Against Wildlife Trafficking (CAWT), which was initiated in 2005. CAWT is a voluntary partnership among governments and non-governmental entities to address wildlife trafficking issues. Linked to its overseas public awareness campaigns, the State Department administers a series of international rewards programs through which the U.S. government may provide financial incentives for tips and

information that lead to the apprehension of major transnational criminal figures. Prior to 2013, this rewards program was limited to specific war criminals, narcotics kingpins, and terrorists. With the enactment of the Department of State Rewards Program Update and Technical Corrections Act of 2012 (P.L. 112-283), the program was expanded to include transnational criminal figures—including potentially those involved in wildlife trafficking.88 Bilateral foreign assistance for biodiversity, conservation, and law enforcement purposes is administered by both the State Department and USAID.89 Aid funds are primarily provided through State Foreign Operations appropriations, typically through the Development Assistance (DA) and Economic Support Fund (ESF) accounts. Some additional funding is provided through the State Department’s International Narcotics Control and Law Enforcement (INCLE) account for police training, especially through the State Department’s International Law Enforcement Academies (ILEAs) in Bangkok and Gabarone; in early 2013, U.S. officials reportedly doubled the frequency of training programs held on wildlife crime issues—from once a year to twice a year in ILEA Gabarone. Through USAID’s global health program subaccounts, some funding is also allocated for addressing the potential role of wildlife in the emergence and international spread of new pathogens. Significant aid initiatives have included USAID support to wildlife enforcement networks (WENs). Beginning in 2005, USAID’s Regional Development Mission for Asia (USAID/RDMA) has provided support for the ASEAN Wildlife Enforcement Network (ASEAN-WEN). As of 2011, however, its efforts with ASEAN-WEN were consolidated into a broader program called ARREST (Asia’s Regional Response to Endangered Species Trafficking). According to USAID, ARREST is intended to be a five-year, $8 million program that will continue its support for wildlife enforcement capacity building, while also seeking to reduce consumer demand and strengthen regional cooperation for anti-trafficking. U.S. aid funds have also supported wildlife conservation in Central America and the Dominican Republic, including funding for the Central American Wildlife Enforcement Network (CAWEN). As part of the State Department’s November 2012 announcement of an enhanced wildlife crime strategy, then-Secretary of State Hillary Clinton called for the creation of a global system of regional WENs and pledged $100,000 to initiate such efforts.90

Concurrent with the State Department’s 2012 wildlife crime strategy, USAID announced a new program focused on trans-regional wildlife trafficking called Wildlife Trafficking Response, Assessment, and Priority Setting (W-TRAPS). USAID also proposed the creation of a Technology Challenge on Wildlife Trafficking to engage scientists and entrepreneurs to develop novel technological solutions to combat wildlife trafficking. As part of USAID’s broader biodiversity and conservation goals in the Congo Basin through its Central Africa Regional Mission (USAID/CAR), USAID conducts programs that address, in part, anti-poaching and anti-bushmeat goals through Central Africa Regional Program for the Environment (CARPE), co- administered with FWS (see above). Issues for Congress The U.S. Congress has played a role in evaluating and shaping U.S. policy to combat international wildlife trafficking. Over time, Congress has enacted a wide range of laws to authorize conservation programs, appropriate domestic and international funding for wildlife protection and natural resource capacity building, and target and dismantle wildlife trafficking operations. In recent years, Congress has also held hearings and events that have addressed the growing problem of wildlife crimes and raised key questions for next steps.91 To this end, the 113th Congress is involved in addressing the illegal wildlife trade through oversight and proposed legislation. Briefly, selected issues for Congress may include the following: Wildlife Trafficking and U.S. National Security Some contend that the illegal wildlife trade could be considered a national security issue because of connections to militant organizations and terrorists, while others question the scope and extent of anecdotal allegations. In her capacity as Secretary of State, Hillary Clinton requested in 2012 that the U.S. intelligence community conduct a threat assessment that would determine whether wildlife trafficking constitutes a threat to U.S. national security interests. Such an evaluation could play a role in determining what level and types of resources are most appropriate in responding to wildlife crimes—and under what situations. Role of the U.S. Military in Anti-Poaching Responses

There are ongoing debates regarding the potential role of the U.S. military in combating wildlife crimes. Some have warned of inherent risks associated with militarizing conservation programs, while others are seeking new authorities for the U.S. military to support anti-poaching activities overseas. In June 2013, the issue was raised in the context of the National Defense Authorization Act for Fiscal Year 2014 (H.R. 1960).92 Some observers have additionally recommended that Congress withhold U.S. military aid to governments found to be actively directing, facilitating, or benefitting from wildlife trafficking. Penalties for Committing Wildlife Crimes In April 2013, the United States and Peru jointly introduced a resolution at the U.N. Commission on Crime Prevention and Criminal Justice (CCPCJ) to classify wildlife trafficking as a “serious crime,” pursuant to the U.N. Convention on Transnational Organized Crime’s (UNTOC’s) definition. The resolution was adopted by the CCPCJ—and may translate into facilitating improved mutual legal assistance, asset seizure and forfeiture, and extraditions in response to wildlife crimes. In practice, however, many observers question whether governments consider wildlife trafficking a serious crime, which is defined by UNTOC as “an offence punishable by a maximum deprivation of liberty of at least four years or a more serious penalty.” Both internationally and in the United States, wildlife trafficking convictions do not necessarily result in such penalties.93 Trade Sanctions and CITES Violations In the past, the 1971 Pelly Amendment to the Fishermen’s Protective Act of 1967 (22 U.S.C. 1978) has on occasion been used to identify and impose sanctions on countries directly or indirectly engaged in endangered species trade that undermines conservation goals.94 Some advocates have recently urged the U.S. government to designate Vietnam pursuant to the Pelly Amendment for trade in prohibited rhino products.95 The President, however, has imposed sanctions pursuant to the Pelly Amendment for egregious endangered species trade only once—in 1994 against Taiwan for trade in rhino horn and tiger parts and products—suggesting that the tool may be seen by some policymakers as too severe or otherwise impractical. Other observers, however, have urged for an expansion of punitive unilateral measures against

non-cooperative foreign governments, such as restrictions on U.S. foreign assistance.96 Environmental Provisions in Free Trade Agreements Although environmental issues have been considered in the context of major U.S. trade agreements since the early 1990s, the monitoring and enforcement of relevant environmental provisions has historically been limited. The Office of the U.S. Trade Representative has sought to address prior criticisms through such mechanisms as the 2007 Bipartisan Trade Deal and the inclusion of heightened environmental commitments, particularly against illegal logging, in the U.S.-Peru Trade Promotion Agreement (TPA).97 Members of Congress may continue to monitor future environmental provisions in free trade negotiations, such as those currently ongoing for the Trans-Pacific Partnership and potentially with Europe, for their environmental provisions.98 Tracking Illicit Poaching Assets Several financial policy tools are available to track stolen assets by foreign corrupt officials; freeze and block assets within U.S. jurisdiction of specially designated foreign nationals and entities; apply heightened regulatory measures to designated classes of international transactions, jurisdictions, or financial institutions; and take legal action to seize and forfeit criminal assets. Although several of these financial tools are specifically available to combat transnational organized crime (e.g., Executive Order 13581 and 31 U.S.C. 5318A), some observers indicate that they are rarely, if ever, used to combat wildlife trafficking.99 Use of Anti-Crime and Anti-Terrorism Rewards Programs The Departments of State, Justice, and Defense, as well as FWS, manage rewards programs that offer financial incentives for the public to share tips and information that leads to the apprehension of wanted criminals and terrorists. One such program is the FWS-managed Lacey Act Rewards Account (16 U.S.C. 3375(d)), which, among other purposes, can be used to provide rewards for information leading to Lacey Act convictions. The newest addition to the U.S. government’s rewards programs is the Transnational Organized Crime Rewards Program, which was created with the enactment of the Department of State Rewards Program Update and Technical Corrections Act of 2012 (P.L. 112-283). As reported out of the Senate Foreign Relations Committee, Senators

encouraged the State Department to apply the law to combat transnational criminal activities, including in particular to trafficking in illicit wildlife and wildlife parts.100 It is not clear, however, how extensively or effectively these programs have been used for convicting wildlife traffickers. U.S. Anti-Poaching Assistance and Effectiveness Wildlife crime-related initiatives are often reported to Congress as bundled with funding data on broader environmental conservation and biodiversity projects. As a result it is often difficult to determine the amount of resources currently devoted to the problem as well as evaluate whether existing resources are appropriate, insufficient, or exaggerated. This may impede interagency coordination, donor coordination, and congressional oversight efforts. Further, news reports suggest that budgetary constraints have reduced the extent to which U.S. agencies can respond to wildlife crime issues.101 FWS Representation at U.S. Embassies Overseas In its FY2014 congressional budget justification, FWS requested additional funding to hire five new senior special agent/attaché officer positions, to be located overseas at U.S. embassies. These new positions would coordinate complex investigations in range, transit, intermediary, and end- market countries as well as identify and address training deficiencies in wildlife crime enforcement through capacity building and advisory efforts. In the past, calls for posting FWS agents overseas have been challenged by a lack of priority, resources, as well as physical space at U.S. missions abroad.102 Early efforts in 2013 had been taken to post a FWS officer in Bangkok, Thailand, beginning in FY2014.103 When President Obama announced the July 2013 Executive Order on wildlife trafficking, he directed FWS to permanently station a representative in Tanzania. U.S. Enforcement of Wildlife Trafficking-Related Laws According to FWS, the number of CITES-protected species has increased by more than 75% in the last 20 years.104 Moreover, the 2008 Lacey Act amendments (16 U.S.C. 3372) exponentially expanded FWS mandate to cover not only CITES-protected plant species, but also any plant and plant products exported in violation of any foreign law. Some have questioned whether the increase in anti-trafficking laws and provisions, including in particular the

requirement to enforce violations of foreign law, may overburden inspectors and investigators to the point of rendering such laws unenforceable. Conclusion This report has explored the issue of international wildlife trafficking, including illustrative types of wildlife crime involving African elephants and rhinos, Eurasian sturgeon, and so-called bushmeat. It has also discussed a broad range of international and U.S. policy responses, including long-standing commitments through the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), as well as newer announcements, such as the Obama Administration’s July 2013 Executive Order on Combating Wildlife Trafficking. Reports of escalating exploitation of protected wildlife, coupled with the emerging prominence of highly organized and well-equipped illicit actors in wildlife trafficking, suggest that policy challenges persist. Continuing questions for policymakers include whether existing policy responses are achieving sufficient progress or no longer fit the problem; whether available legal tools and authorities are over- or under-utilized to respond to wildlife trafficking; and whether new programs, resources, and authorities are warranted or feasible.105 Author Contact Information Liana Sun Wyler Analyst in International Crime and Narcotics [email protected], 7-6177 Pervaze A. Sheikh Specialist in Natural Resources Policy [email protected], 7-6070 CITES In Brief CITES is an international agreement to regulate international trade in endangered species. A total of 178 governments have voluntarily agreed to adhere to the convention, which establishes a series of incrementally stringent restrictions on imports and exports of wildlife, depending on the sustainability of such trade. For example, species designated under “Appendix I” are considered threatened with extinction. As a result, trade in Appendix I species is most restricted and approved only under exceptional circumstances. Exports of species designated under “Appendix II” must be accompanied by appropriate CITES documentation. “Appendix III” species are subject to the

least stringent trade restrictions; they are, however, regulated if traded within the jurisdiction of at least one CITES state party. For more information, see CRS Report RL32751, The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES): Background and Issues, by Pervaze A. Sheikh and M. Lynne Corn 1 International Conservation Caucus Foundation (ICCF), “The African Poaching Crisis,” website, accessed Mar. 28, 2013, (URL removed for reprint) 2 State Department, “Secretary Clinton Hosts Wildlife Trafficking and Conservation,” media note, Nov. 8, 2012. According to the National Intelligence Council, environmental crime, defined to include illegal wildlife trade, logging, trade in CFCs, and toxic waste dumping, generates an estimated $20 billion to $40 billion per year for transnational organized crime. See Office of the Director of National Intelligence, Special Report: The Threat to U.S. National Security Posed by Transnational Organized Crime, 2011. 3 David J. Agnew et al., “Estimating the Worldwide Extent of Illegal Fishing,” PLoS ONE 4(2), Feb. 2009; Christian Nellemann, ed. (INTERPOL and United Nations Environment Programme (UNEP)), Green Carbon, Black Trade, 2012. 4 World Wide Fund for Nature (WWF) and Dalberg, Fighting Illicit Wildlife Trafficking, 2012. 5 Vanda Felbab-Brown (Brookings), The Disappearing Act, Jun. 2011; World Bank, Going, Going, Gone, Jul. 2005. 6 Margot Kiser, “The Economics of Extinction,” Newsweek, Jan. 25, 2013. 7 Sharon Begley et al., “Extinction Trade,” Newsweek, Mar. 10, 2008; Kasper Agger and Jonathan Hutson, Kony’s Ivory: How Elephant Poaching in Congo Helps Support the Lord’s Resistance Army, June 2013. 8 United Nations Office on Drugs and Crime (UNODC), Organized Crime and Instability in Central Africa, Oct. 2011. 9 State Department (Hillary Rodham Clinton), “Remarks at the Partnership Meeting on Wildlife Trafficking,” Nov. 8, 2012 10 James R. Clapper (Director of National Intelligence), “Worldwide Threat Assessment of the U.S. Intelligence Community,” Statement for the Record, Hearing, Senate Select Committee on Intelligence, March 12, 2013. 11 This assessment is reportedly being conducted at the request of thenSecretary of State Clinton; she publicized this in her Nov. 2012 speech. See State

Department (Hillary Rodham Clinton), “Remarks at the Partnership Meeting on Wildlife Trafficking,” Nov. 8, 2012. 12 White House (Obama Administration), “Combating Wildlife Trafficking,” Executive Order 13648 of July 1, 2013, Federal Register 78(129), July 5, 2013, pp. 40621-40623. 13 See World Bank and TRAFFIC, What’s Driving the Wildlife Trade? Oct. 2008. 14 Sharon Begley et al., “Extinction Trade,” Newsweek, Mar. 10, 2008; UNODC, “Environmental Crime,” fact sheet, 2012; Veronica Chambers, “Passion for Pashmina,” Newsweek, May 11, 1998. 15 United Nations Economic and Social Council (ECOSOC), reports of the Secretary-General, Progress Made in the Implementation of Economic and Social Council Resolution 2001/12 on Illicit Trafficking in Protected Species of Wild Flora and Fauna E/CN.15/2002/7, Feb. 26, 2002, Illicit Trafficking in Protected Species of Wild Flora and Illicit Access to Genetic Resources E/CN.15/2003/8, Mar. 4, 2003, Illicit Trafficking in Protected Species of Wild Flora and Fauna E/CN.15/2005/10, Mar. 17, 2005. 16 Ibid. See also Jonathan Katzmar, “The International Illegal Plant and Wildlife Trade,” U.C. Davis Journal of International Law and Policy 6 (105), winter 2000. 17 Vanda Felbab-Brown (Brookings), The Disappearing Act 6, Jun. 2011. 18 Mark Schoofs, “As Meth Trade Goes Global, South Africa Becomes a Hub,” Wall Street Journal, May 21, 2007. 19 Nellemann, ed., Green Carbon, Black Trade, 2012. 20 Ibid.; Duncan Brack, “Lessons from the Control of the Illegal Trade in Ozone-Depleting Substances, Timber and Fisheries,” ch. 16 in Sara Oldfield, ed., The Trade in Wildlife (Sterling, VA: Earthscan, 2003). 21 Trade in several other species of hardwoods may still be permissible, but require appropriate CITES documentation. Examples include Ramin (Gonystylus spp.), which is found in Southeast Asia and the Pacific; Mahogany (Swietenia spp.), which is found in the Caribbean, Central America, and tropical parts of South America; and African Teak (Pericosis elata), which is found in tropical parts of Central and West Africa.

22 Historical examples have included the exploitation of timber resources in Burma, Cambodia, Democratic Republic of Congo, Indonesia, and Liberia. See William M. Rhodes et al. (prepared for the National Institute of Justice), Illegal Logging, May 31, 2006; Global Witness, Logs of War, Mar. 2002. 23 Seneca Creek Associates and Wood Resources International (prepared for the American Forest and Paper Association), Illegal Logging and Global Wood Markets, Nov. 2004; Sara Oldfield, “Regulation of the Timber Trade,” ch. 12 in Sara Oldfield, ed., The Trade in Wildlife (Sterling, VA: Earthscan, 2003); William Magrath et al. (INTERPOL and the World Bank), Chainsaw Project: An INTERPOL Perspective on Law Enforcement in Illegal Logging, 2009. 24 Sam Lawson (Chatham House), Illegal Logging and Related Trade, briefing paper, July 2010; William Magrath et al. (INTERPOL and the World Bank), Chainsaw Project: An INTERPOL Perspective on Law Enforcement in Illegal Logging, 2009. 25 Nellemann, ed., Green Carbon, Black Trade, 2012. 26 Environmental Investigative Agency (EIA), Appetite for Destruction, Nov. 2012. 27 Marilyne Pereira Goncalves et al. (World Bank), Justice for Forests, 2012. 28 African elephants were first designated in 1977 under Appendix II and then elevated to Appendix I in 1989. Pursuant to CITES provisions, specified trade in some African elephant ivory has been authorized. With appropriate documentation, pre-ban stocks may continue to be sold. On two occasions since 1989, the CITES Secretariat has supervised the legal international sale of ivory: once in 1999 (50 tons of ivory from Botswana, Namibia, and Zimbabwe were sold to Japan) and once in 2008 (108 tons of ivory from Botswana, Namibia, South Africa, and Zimbabwe were sold to Japan and China). For the purposes of noncommercial export of personal sport-hunted trophies, elephants may be taken in Botswana, Namibia, South Africa, and Zimbabwe; at the 14th meeting of the CITES Conference of the Parties (CoP14) in 2007, African countries committed to a nine-year moratorium on proposals to authorize ivory exports from populations listed under Appendix II. Domestic sales of ivory are not subject to CITES regulation. 29 In addition to poaching, elephant populations have been threatened by habitat loss due to human population growth and agricultural expansion.

30 African Elephant Database, 2012 Continental Totals, 2013; International Union for Conservation of Nature (IUCN) Red List of Threatened Species, Loxodonta africana, Feb. 2012; and IUCN, African Elephant Status Report 33, 2007. 31 According to a scientific journal article published in March 2013, the Central African forest elephant population is estimated to have declined by 62% from 2002 to 2011, with particularly severe declines noted among elephant populations located in DRC. Fiona Maisels et al., “Devastating Decline of Forest Elephants in Central Africa,” PLoS ONE 8(3), Mar. 2013. 32 See also Margot Kiser, “The Economics of Extinction,” The Daily Beast, Jan.29, 2013; “Tanzanian Parliament Calls for Stricter Anti-Poaching Measures,” All Africa, Jan. 23, 2013; and Louis Kolumbia, “Bunge Team’s Fury over Rise in Poaching,” The Citizen (Tanzania), Jan. 22, 2013. “Brought to Tusk,” Economist, Nov. 3, 2012; UNODC, “Environmental Crime,” fact sheet, 2012, and Organized Crime and Instability in Central Africa, Oct. 2011. 33 CITES, Monitoring the Illegal Killing of Elephants, CoP16 Doc. 53.1, Nov. 30, 2012, and addendum, Feb. 19, 2013. For further discussion of the methodology, see Robert Burn et al., “Global Trends and Factors Associated with the Illegal Killing of Elephants,” PLoS ONE 6(9), Sep. 2011. 34 See for example Wildlife Conservation Society estimates at (URL removed for reprint). Another report estimates that as many as 50,000 elephants may be poached each year. See Navanti Group, Overview of Poaching and Armed Groups, Native Prospector (Central Bridge-LRA), DRC-04, Feb. 13, 2013 (UNCLASSIFIED//FOUO). 35 CITES, “CITES Secretary-General Expresses Grave Concern Over Reports of Mass Elephant Killings in Cameroon,” press release, Feb. 28, 2012; Bettina Wassener, “China’s Hunger for Ivory is Killing Cameroon’s Elephants,” New York Times (blog), Mar. 16, 2012; WWF, “Hundreds of Elephants Massacred and Hundreds More Still At Risk,” press release, Mar. 15, 2012. 36 According to the UNODC, the DRC appears to be among the countries most implicated as a source of illicit ivory, particularly large-scale consignments. UNODC, Organized Crime and Instability in Central Africa, Oct. 2011. See also Jonny Hogg and Ed Stoddard, “African Big Game Poaching

Surges on Asian Affluence,” Reuters, Apr. 24, 2012; UNEP et al., Elephants in the Dust, Mar. 2013. 37 UNEP et al., Elephants in the Dust, Mar. 2013; Open Source Center, “East Africa: Struggling to Curb Ivory Poaching, Illicit Trafficking,” analysis, Jun. 3, 2013 (UNCLASSIFIED//FOUO). 38 Overview of Poaching and Armed Groups, Native Prospector (Central Bridge-LRA), DRC-04, Feb. 13, 2013 (UNCLASSIFIED//FOUO). 39 See for example Jeffrey Gettleman, “Rangers in Isolated Central Africa Uncover Grim Cost of Protecting Wildlife,” New York Times, Dec. 31, 2012. 40 CITES, report of the Secretariat, Monitoring of Illegal Trade in Ivory and Other Elephant Specimens, CoP16 Doc. 53.2.1, Nov. 13, 2012, and ETIS Report of TRAFFIC, CoP16 Doc. 53.2.2 (Rev. 1), Feb. 8, 2013. 41 TRAFFIC, “2011: ‘Annus Horribilis’ for African Elephants, Says TRAFFIC,” press release, Dec. 29, 2011. 42 See for example Bryan Christy, “Ivory Worship,” National Geographic, Oct. 2012. 43 All rhino species are subject to the strictest bans on international trade (e.g., Appendix I), with the exception of White rhinos from South Africa and Swaziland, for which limited trade in live animals and export of hunting trophies is permitted pursuant to CITES. 44 CITES, report of the Secretariat, Rhinoceroses, CoP16 Doc. 54.2 (rev. 1), Jan. 10, 2013. 45 Sarah Brook et al. (WWF), Extinction of the Javan Rhinoceros (Rhinoceros sondaicus) from Vietnam, 2011. 46 CITES, report of the Secretariat, Rhinoceroses, CoP16 Doc. 54.2 (rev. 1), Jan. 10, 2013; Margot Kiser, “The Economics of Extinction” Newsweek, Jan. 25, 2013; “Poachers Prevail,” Economist, May 12, 2012. 47 Nigel Leader-Williams, “Regulation and Protection,” ch. 9 in Sara Oldfield, ed., The Trade in Wildlife (Sterling, VA: Earthscan, 2003); Tom Milliken and Jo Shaw (TRAFFIC), The South Africa—Viet Nam Rhino Horn Trade Nexus, executive summary, 2012. 48 South Africa Department of Environmental Affairs, “Minister Molewa Updates South Africans on the Rhino Situation and Measures to Thwart Poaching,” press release, Jan. 10, 2013; Tom Milliken and Jo Shaw (TRAFFIC),

The South Africa—Viet Nam Rhino Horn Trade Nexus, executive summary, 2012. 49 Government of South Africa, “Rhino Poaching Update,” press release, July 18, 2013. 50 Margot Kiser, “The Economics of Extinction” Newsweek, Jan. 25, 2013. 51 Mike Pflantz, “After Half-Century Absence, Black Rhinos Fly Home to Serengeti,” Christian Science Monitor, May 21, 2010; “Getting Horny— Zimbabwe,” Economist, Jul. 21, 2007. 52 UNODC, Environmental Crime, fact sheet, 2012. Other estimates suggest that rhino horn has retailed at $25,000 or $30,000 per pound. Another source reported that middlemen typically pay $3,500 per kilogram for rhino horn. See for example State Department (Hillary Rodham Clinton), “Remarks at the Partnership Meeting on Wildlife Trafficking,” Nov. 8, 2012; Sharon Begley et al., “Extinction Trade,” Newsweek, Mar. 10, 2008; Margot Kiser, “The Economics of Extinction,” Newsweek, Jan. 25, 2013. 53 Tom Milliken and Jo Shaw (TRAFFIC), The South Africa—Viet Nam Rhino Horn Trade Nexus, Executive Summary, 2012; Nigel Leader-Williams, “Regulation and Protection,” ch. 9 in Sara Oldfield, ed., The Trade in Wildlife (Sterling, VA: Earthscan, 2003); Geffrey Gettleman, “Coveting Horns, Ruthless Smugglers’ Rings Put Rhinos in the Cross Hairs,” New York Times, Jan. 1, 2013. 54 Kristin Nowell (TRAFFIC), report prepared for the CITES Secretariat, Assessment of Rhino Horn as a Traditional Medicine, SC62 Doc. 47.2 annex (rev.2), Apr. 2012. 55 “A Horny Headache,” Economist, Nov. 20, 2010. 56 CITES, report of the Secretariat, Rhinoceros, CoP16 Doc. 54.2 (rev. 1), Jan. 10, 2013. 57 CITES, African and Asian Rhinoceroses—Status, Conservation and Trade, CoP15 Doc. 45.1 (rev. 1), annex, Nov. 20, 2009. 58 CITES, report of the Secretariat, Rhinoceros, CoP16 Doc. 54.2 (rev. 1), Jan. 10, 2013; TRAFFIC, “Rhinos in Crisis,” press release, Jan. 15, 2013; Geffrey Gettleman, “Coveting Horns, Ruthless Smugglers’ Rings Put Rhinos in the Cross Hairs,” New York Times, Jan. 1, 2013. 59 “A Horny Headache,” Economist, Nov. 20, 2010.

60 Also threatened are species of sturgeon native to North America, which are protected both under CITES and domestic U.S. law. 61 TRAFFIC, “Black Gold,” fact sheet, 2009; Katalin Kecse-Nagy (TRAFFIC), Trade in Sturgeon Caviar in Bulgaria and Romania, May 2011. 62 UNECOSOC, reports of the Secretary-General, Illicit Trafficking in Protected Species of Wild Flora and Illicit Access to Genetic Resources, E/CN.15/2003/8, Mar. 4, 2003, and Progress Made in the Implementation of Economic and Social Council Resolution 2001/12 on Illicit Trafficking in Protected Species of Wild Flora and Fauna, E/CN.15/2002/7, Feb. 26, 2002. 63 U.S. Fish and Wildlife (FWS), “New Caviar Import Measures Protect Imperiled Sturgeon,” press release, Mar. 25, 1998; UNECOSOC, report of the Secretary-General, Progress Made in the Implementation of Economic and Social Council Resolution 2001/12 on Illicit Trafficking in Protected Species of Wild Flora and Fauna, E/CN.15/2002/7, Feb. 26, 2002. 64 FWS Office of Law Enforcement, Strategic Plan 2006-2010. 65 Lisa Speer et al. (Natural Resources Defense Council), Roe to Ruin, Dec. 2000; Maylynn Engler and Rob ParryJones (TRAFFIC), Opportunity or Threat, 2007. 66 Tamara Makarenko, “Caspian Countries Fall Prey to ‘Caviar Mafia’,” Jane’s Intelligence Review, Jun. 27, 2001; Gavin Hayman and Duncan Brack (Royal Institute of International Affairs), International Environmental Crime, 2002; Simon Saradzhyan, “’Caviar Mafia’ Invades Caspian Coast Guard Station,” St. Petersburg Times, Apr. 20, 2001; John M. Sellar, “International Illicit Trafficking in Wildlife,” Police Chief 74(6), Jun. 2007. 67 FWS, Bushmeat, website, accessed Mar. 28, 2013, (URL removed for reprint). 68 FWS, Bushmeat, website, accessed Mar. 28, 2013. 69 Elizabeth L. Bennet et al., “Hunting for Consensus: Reconciling Bushmeat Harvest, Conservation, and Development Policy in West and Central Africa,” Conservation Biology 21(3), 2006, 884-887; FWS, Bushmeat, website, accessed Mar. 28, 2013. 70 FWS, Bushmeat, website, accessed Mar. 28, 2013; Justin S. Brashares et al., “Economic and Geographic Drivers of Wildlife Consumption in Rural Africa,” PNAS Early Edition, Aug. 15, 2011, 1-6.

71 FWS, Bushmeat, website, accessed Mar. 28, 2013; Panthera et al., Illegal Hunting and the Bush-Meat Trade in Savanna Africa, 2012; Mike Pflanz, “Small Game, Big Problem As Poaching Grows in Kenya,” Christian Science Monitor, Jan. 31, 2005; Emmanuel De Merode and Guy Cowlishaw, “Species Protection, the Changing Informal Economy, and the Politics of Access to Bushmeat Trade in the Democratic Republic of Congo,” Conservation Biology 20(4), 2006, 12621271. 72 Evan Bowen-Jones, “Bushmeat: Traditional Regulation or Adaptation to Market Forces,” ch. 13 in Sara Oldfield, ed., The Trade in Wildlife (Sterling, VA: Earthscan, 2003); Sharon Begley et al., “Cry of the Wild,” Newsweek, Aug. 6, 2007. The total value of the bushmeat trade was reportedly more than $50 million globally, according to a congressional hearing held on July 11, 2002, by the House Committee on Resources, Subcommittee on Fisheries Conservation, Wildlife and Oceans, entitled “The Developing Crisis Facing Wildlife Species Due to Bushmeat Consumption” (Serial No. 107-137). 73 FWS, Bushmeat, website, accessed Mar. 28, 2013. 74 General Accounting Office, West Nile Virus Outbreak, Lessons for Public Health Preparedness, GAO/HEHS-00-180, Sep. 2000. 75 Kristine M. Smith et al., “Zoonotic Viruses Associated with Illegally Imported Wildlife Products,” PLoS ONE 7(1), Jan. 2012. 76 See also Government Accountability Office, International Convention and U.S. Laws Protect Wildlife Differently, GAO-04-964, September 15, 2004. 77 Elizabeth L. Bennett (opinion), “How to Stop Wildlife Poachers,” New York Times, May 25, 2012. 78 Ibid. 79 Jeffrey Gettleman, “In Gabon, Lure of Ivory is Hard for Many to Resist,” New York Times, Dec. 26, 2012; Open Source Center, “East Africa—Struggling to Curb Ivory Poaching, Illicit Trafficking,” analysis, June 3, 2013, UNCLASSIFIED//FOUO. 80 Other related international treaties that contribute to combating wildlife crime include the United Nations Convention on Transnational Organized Crime (UNTOC), which recognize serious and organized forms of wildlife and forest offenses as within its scope, the United Nations Convention Against

Corruption (UNCAC), as well as the United Nations Convention on Biological Diversity. 81 The CITES Secretariat also leads and supervises a variety of working groups and studies to understand illegal wildlife markets, including programs for Monitoring the Illegal Killing of Elephants, the Elephant Trade Information System, and the Ivory and Rhinoceros Enforcement Task Force. 82 Illustrative initiatives include: the International Consortium on Combating Wildlife Crime; INTERPOL’s Ecomessage system, Environmental Crime Committee, and the National Environmental Security Task Force; the World Customs Organization’s ENVIRONET system, Operation Cobra, Project Great Apes and Integrity, and the Green Customs Initiative; the World Bank’s regional Forest Law Enforcement and Governance programs, Global Tiger Initiative, and Global Partnership for Oceans; the EU’s Trade in Wildlife Information Exchange, Wildlife Trade Enforcement Group, Forest Law Enforcement, Governance, and Trade Action Plan, and bilateral Voluntary Partnership Agreements; as well as the Congo Basin Forest Partnership and the Asia Forest Partnership. See also Food and Agriculture Organization of the United Nations and International Tropical Timber Organization, Best Practices for Improving Law Compliance in the Forestry Sector 145, 2005. 83 United Nations Economic and Social Council, resolution 2011/36, Crime Preventing and Criminal Justice Responses Against Illicit Trafficking in Endangered Species of Wild Fauna and Flora, Jul. 28, 2011; United Nations Conference on Sustainable Development (Rio +20), The Future We Want, outcome document, 2012; Asia-Pacific Economic Cooperation (APEC), 2012 Leaders’ Declaration, Sep. 2012. 84 White House (Obama Administration), “Combating Wildlife Trafficking,” Executive Order 13648 of July 1, 2013, Federal Register 78(129), July 5, 2013, pp. 40621-40623. 85 State Department (Hillary Rodham Clinton), Remarks at the Partnership Meeting on Wildlife Trafficking, Nov. 8, 2012. The State Department’s 2012 initiative against wildlife crime has drawn parallels to the Initiative Against Illegal Logging that was spearheaded by the George W. Bush Administration in 2003. See White House (George W. Bush), “President Bush Discusses New Initiative to Stop Illegal Logging,” press release, July 28, 2003.

86 These include the African Elephant Conservation Act of 1988, the Rhino and Tiger Conservation Act of 1994, the Asian Elephant Conservation Act of 1997, the Great Ape Conservation Act of 2000, and the Marine Turtle Conservation Act of 2004. The Multinational Species Conservation Fund Semipostal Stamp Act of 2009 provides an additional fundraising mechanism for these FWS-administered conservation funds. 87 In Africa, FWS reports that it awarded 122 grants in support of antipoaching efforts from 2011 to 2012, totaling $10.3 million in FWS funds and matched by $14 million in additional leveraged funds. This total represents approximately 87% of total FWS support through the Multinational Species Conservation Funds and Wildlife Without Border—Africa. FWS response to CRS, March 22, 2013. 88 According to S.Rept. 112-232 (Nov. 13, 2012), as reported by the Senate Foreign Relations Committee “[a]reas of concern that would merit attention under the Rewards program would include transnational criminal activities such as violations of intellectual property rights, piracy, money laundering, trafficking in persons, arms trafficking, trafficking in illicit wildlife and wildlife parts, and cybercrime.” 89 Specific references to wildlife protection can also be found in the Foreign Assistance Act of 1961 (FAA; P.L. 87- 195, as amended). For example, Section 119 of the FAA authorizes the President to furnish assistance related to endangered species, notwithstanding Section 660 of the FAA (a foreign police training prohibition). Additionally, Congress enacted the Congo Basin Forest Partnership Act of 2004 (P.L. 108-200). 90 State Department (Hillary Rodham Clinton), Remarks at the Partnership Meeting on Wildlife Trafficking, Nov. 8, 2012. The first WEN was established in 2005 and implemented through the Association of Southeast Asian Nations (ASEAN), called ASEAN-WEN. Others include the North American Wildlife Enforcement Group, EU Wildlife Trade Enforcement Group, Lusaka Agreement on Cooperative Enforcement Operations Directed at Illegal Trade in Wild Fauna and Flora, Central American Wildlife Enforcement Network (CAWEN), and South Asia Wildlife Enforcement Network (SAWEN). In April 2012, the State Department, with funding from its Bureau for International Narcotics and Law Enforcement, organized a sub-regional workshop on “wildlife trafficking and

dismantling transnational illicit networks” in Central Africa. At the workshop, participants committed to establishing a regional wildlife enforcement network in Central Africa. 91 House Natural Resources Committee, Poaching American Security, hearing, Serial No. 110-62, Mar. 5, 2008; House Natural Resources Committee, Subcommittee on Fisheries, Wildlife, and Oceans, Impacts of U.S. Consumer Demand on the Illegal and Unsustainable Trade of Wildlife Products, hearing, Serial No. 110-84, Sep. 16, 2008; Senate Foreign Relations Committee, Ivory and Insecurity, hearing, May 24, 2012; Bicameral International Conservation Caucus, The Global Poaching Crisis, event, Nov. 15, 2012. 92 Rep. Garamendi offered an amendment to H.R. 1960, National Defense Authorization Act for Fiscal Year 2014, which sought to authorize the U.S. military to advise and assist anti-poaching authorities in Africa. Rep. Garamendi also offered directive report language requiring DOD to clarify whether its existing authorities pursuant to Section 1206 of the National Defense Authorization Act for Fiscal Year 2006 (P.L. 109-163), as amended; Section 1207 of the National Defense Authorization Act for Fiscal Year 2012 (P.L. 112-81); or any other DOD authority may be used to address wildlife trafficking in Africa. Both efforts ultimately failed to be incorporated into H.R. 1960. 93 See for example, David M. Halbfinger, “2 Manhattan Jewelers Admit Illegal Ivory Trading,” New York Times, July 12, 2012. 94 Nigel Leader-Williams, “Regulation and Protection: Successes and Failures in Rhinoceros Conservation,” ch. 9 in Sara Oldfield, ed., The Trade in Wildlife (Sterling, VA: Earthscan, 2003). 95 EIA, Vietnam’s Illegal Rhino Horn Trade, Feb. 2013. 96 David H. Barron (International Conservation Caucus Foundation), remarks before the Bicameral International Conservation Caucus, The Global Poaching Crisis, event, Nov. 15, 2012. 97 Office of the United States Trade Representative, Bipartisan Agreement on Trade Policy, May 2007. See also EIA, “U.S. Government Requested to Use Free Trade Agreement to Take Action on Illegal Timber Exports from Peru,” press release, Apr. 19, 2012.

98 See for example, “U.S., TPP Partners Working on Environmental Cooperation Language,” Inside U.S. Trade, Jan. 25, 2013. 99 David H. Barron (International Conservation Caucus Foundation), remarks before the Bicameral International Conservation Caucus, The Global Poaching Crisis, event, Nov. 15, 2012. In his remarks, Barron stated that “current U.S. laws and regulations fail to adequately address the problem of shell corporations, through which illicit organizations are able to launder money gained from transnational crimes, including poaching and wildlife trafficking.” See also “Treat Illegal Wildlife Trade As a Serious Crime: CITES,” Agence France Presse, Jan. 24, 2013; WWF and TRAFFIC, Rethinking Conventional Responses, wildlife crime workshop, Nov. 15, 2012. 100 S.Rept. 112-232 (Nov. 13, 2012). 101 Juliet Eilperin, “Obama to Launch Major Wildlife Trafficking Initiative in Africa,” Washington Post, Jul. 1, 2013; Kathleen Hennessey, “In Tanzania, Obama Focuses on Partnerships,” Los Angeles Times, Jul. 2, 2013. 102 See for example Steven R. Galster, testimony before the House Natural Resources Committee, Poaching American Security, hearing, Serial No. 110-62, Mar. 5, 2008. 103 FWS discussion with CRS, June 7, 2013. 104 FWS (Office of Law Enforcement), Strategic Plan 2011-2015, undated. 105 Sara Oldfield, ed., “Introduction,” The Trade in Wildlife (Sterling, VA: Earthscan, 2003); Barmey Dickson, “What is the Goal of Regulating Wildlife Trade? Is Regulation A Good Way to Achieve this Goal?” ch. 2 in Sara Oldfield, ed., The Trade in Wildlife (Sterling, VA: Earthscan, 2003); Robert D. Hormats (State Department), International Conservation Caucus Foundation, remarks, “U.S. International Conservation Caucus Hearing,” video, accessed Mar. 28, 2013,

Chapter 16 Mandatory spay neuter

Introduction to mandatory spay and neuter Oklahoma Los Angeles County Connecticut Rhode Island Five City Analyses of Mandatory Spay and Neuter Legislation Introduction mandatory spay neuter Every year animal shelters euthanize between three and four million dogs and cats. Many animal advocates look to mandatory spay-neuter programs as a way to reduce this number. The thought is that if dogs and cats in the community are spay or neuter, that there will be fewer litters. If there are fewer litters, then there will be fewer animals in animal shelters. So, then the logic goes that if there are fewer animals in the animal shelters, then there will be fewer euthanasias at those shelters. Of course, there are different ways to structure spay-neuter programs. In Oklahoma, all animals that leave shelters are required to be spay or neutered. There is an exception though. If the new adoptive parents agree that they will spay or neuter the animal, and make a proper deposit for spay neuter fees, the animal can go home without surgery. Los Angeles California takes an entirely

different tact. Los Angeles requires dogs over four months old be spay or neutered regardless of if they come from a shelter or come from someplace else. Molly Mednikow looked at five different cities who instituted mandatory spay-neuter programs. Mednikow then tracked the euthanasia rates in those cities to see if compulsory spay-neuter programs did, in fact, lower euthanasia rates. 2016 Oklahoma Statutes Title 4. Animals §4-499.2. Spaying or neutering as condition for release of certain animals. Universal Citation: 4 OK Stat § 4-499.2 (2016) No dog or cat may be released for adoption from a releasing agency unless said animal has been surgically spayed or neutered; or unless the adopting party signs an agreement to have the animal sterilized, and deposits funds with the releasing agency to ensure that the adopted animal will be spayed or neutered. The amount of the deposit required shall be determined by each individual releasing agency. In no event shall the required deposit be less than Ten Dollars ($10.00). Added by Laws 1986, c. 204, § 3, eff. Nov. 1, 1986. Los Angeles County § 10.20.350. Mandatory spaying, neutering of dogs A. No person may own, keep, or harbor a dog over the age of four months in violation of this section. An owner or custodian of an unaltered dog must have the dog spayed or neutered or obtain an unaltered dog license in accordance with Section 10.20.355. B. The owner or custodian of a dog which is unable to be spayed or neutered without a high likelihood of suffering serious bodily harm or death due to age or infirmity, must obtain written confirmation of that fact from a licensed veterinarian. The writing must also state the date by which the dog may be safely spayed or neutered. If the dog is unable to be spayed or neutered within 30 days, the owner or custodian must apply for an unaltered dog license. 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.) 2015 Rhode Island General Laws Title 4 - Animals and Animal Husbandry Chapter 4-19 - Animal Care Section 4-19-16 - Mandatory spaying and neutering of dogs and cats adopted from a licensed releasing agency. Universal Citation: RI Gen L § 4-19-16 (2015) § 4-19-16 Mandatory spaying and neutering of dogs and cats adopted from a licensed releasing agency. – (a)(1) No licensed releasing agency shall release, sell, trade, give away, exchange, adopt out, or otherwise transfer with or without a fee any dog or cat that has not been spayed or neutered unless the adopting party executes a written agreement with the licensed releasing agency to have the dog or cat spayed or neutered in accordance with subdivisions (2) and (3). (2) The licensed releasing agency is authorized to enter into a written adoption agreement with the adopting party provided that at the time of execution of the written agreement, the licensed releasing agency collect from the adopting party an amount equal to the cost to the licensed releasing agency for the spaying or neutering of the dog or cat to be adopted. The written agreement must include the dog or cat's age, sex, and general description; the date the adoption agreement was executed; the date by which the licensed releasing agency anticipates that the dog or cat will be spayed or neutered; the date by which the adoptive party shall claim the dog or cat; the adopting party's name, address, phone number, and signature; the licensed releasing agency's name, address, phone number, and the dollar amount remitted to the licensed releasing agency for the cost of spaying or neutering the dog or cat.

(3) After execution of the agreement, the licensed releasing agency shall cause the dog or cat to be spayed or neutered and, when medically fit, shall transfer custody of the dog or cat to the adopting party. Any dog or cat that is not claimed by the adoptive party within ten (10) days of the date enumerated in the written adoption agreement shall be considered unclaimed and may be offered for adoption to another party. (b) The following are exemptions from the provisions of subsection (a): (1) A licensed releasing agency returns a stray dog or cat to its owner. (2) A licensed releasing agency receives a written report from a licensed veterinarian stating that the life of the dog or cat would be jeopardized by the surgery and that this health condition is likely to be permanent. (3) A licensed releasing agency receives a written report from a licensed veterinarian stating that there is a temporary health condition, including sexual immaturity, which would make surgery life threatening to the dog or cat or impracticable, in which instance the licensed releasing agency shall enter into a written agreement for the spaying or neutering of the dog or cat upon resolution of the temporary health condition or the animal reaching maturity and shall collect from the adopting party an amount equal to the cost to the licensed releasing agency for the spaying or neutering of the dog or cat to be adopted. The licensed releasing agency may then allow the transfer of the dog or cat to the adopting party who shall return the dog or cat to the licensed releasing agency for spaying or neutering upon resolution of the temporary health condition or the animal reaching sexual maturity. The licensed releasing agency may grant the adopting party an appropriate extension of time in which to have the dog or cat spayed or neutered based on the veterinarian's report. (4) A licensed releasing agency transfers a dog or cat to another licensed releasing agency. (c) If requested to do so, a licensed releasing agency shall refund fees collected for the purpose of spaying or neutering the dog or cat to the adopting party upon reasonable proof being presented to the releasing agency by the adopting party that the dog or cat died before the spaying or neutering was required to be completed. (d) Any and all licensed releasing agencies:

(1) May enter into cooperative agreements with each other and with veterinarians in carrying out this section; and (2) Shall make a good faith effort to cause an adopting party to comply with this section. History of Section. (P.L. 1993, ch. 24, § 2; P.L. 1995, ch. 260, § 1; P.L. 2013, ch. 312, § 1; P.L. 2013, ch. 417, § 1.) 2013 Rhode Island General Laws Title 4 - Animals and Animal Husbandry Chapter 4-24 - Permit Program for Cats Section 4-24-3 - Spaying and neutering. Universal Citation: RI Gen L § 4-24-3 (2013) § 4-24-3 Spaying and neutering. – (a) No person, as defined by § 4-19-2, shall own or harbor, within the state, any cat over the age of six (6) months which has not been spayed or neutered, unless such person has adopted a cat from a licensed releasing agency as defined by § 4-19-2 and is subject to the spaying and neutering requirements of § 4-19-16 or holds either a license to keep an unaltered cat, or a license and permit for breeding cats issued by the animal control officer for the city or town in which they live, or unless the caretaker states that, due to age, health or illness it would be inappropriate to spay or neuter the cat and having in their possession a letter from a licensed veterinarian stating such, which shall be provided to the animal control officer. (b) An "intact" permit shall be issued for an unaltered cat if the owner signs a written statement that such animal will not be allowed to breed unless the owner has first obtained a breeding permit. An "intact" permit may be issued by the animal control officer to an individual who refuses to spay or neuter their cat. The fee for such a permit shall be one hundred dollars ($100) per year. All funds from "intact" permits shall be deposited in the city or town's spay/neuter account. (c) Any person providing care or sustenance for an uninterrupted period of sixty (60) days or longer shall be deemed the owner of such animal and shall adhere to the provisions of this chapter. Provided, further, that cities and towns may, by ordinance, require a permit of persons who provide care or sustenance for colony(s) of feral cats.

History of Section. (P.L. 2006, ch. 59, § 1; P.L. 2006, ch. 63, § 1.) FIVE CITY ANALYSES OF MANDATORY SPAY AND NEUTER LEGISLATION Abstract This article studies five cities that require the sterilizations of domestic pets, which, for the purposes of this article, is defined as dogs and cats. Most animal welfare advocates agree that the most effective animal control program is pet sterilization. The author examines statistical trends in animal shelter intake and euthanasia of dogs and cats prior to and after the enactment of the mandatory spay and neuter legislation. The article presents case studies of five cities which are: 1. Albuquerque, New Mexico; 2. Dallas, Texas; 3. Mesquite, Nevada; 4. Santa Cruz, California; and 5. Waco, Texas. These five cities are chosen for different reasons cited in the individual case studies. Multiple factors affect the success or failure of mandatory spay and neuter legislation. For the purposes of this article, “success” is measured by a decrease in intakes and euthanasias. A wide array of programs contributes to shelter outcomes, and there is difficulty in identifying one single factor that plays a role in these success rates. This article only addresses the possible effects of the mandatory spay and neuter laws. Molly Mednikow, Candidate for Juris Doctor Written under the supervision of Shared Earth Foundation Visiting Professor Russ Mead Lewis & Clark Law School Acknowledgments Professor Russ Mead oversaw this Capstone Paper. During which time he served as a professor, mentor, and friend. Russ counseled me in every possible capacity. This included legal research, writing, professionalism, and extended to lessons in the art of using Microsoft Excel. Thank you for your extreme patience and confidence in my abilities. Thank you more for your contributions

to the field of animal law, and your dedication to teaching future generations of animal lawyers. The concept for this article is a result of conversations with Ledy VanKavage, Esquire, Senior Legislative Attorney of Best Friends Animal Society, whose work and advocacy I have admired for more than a decade. Ledy graciously allowed me to work as a legal intern for Best Friends Animal Society while working on this paper. A.J. Albrecht, Esquire, a member of the Legislative Advocacy Team at Best Friends Animal Society provided invaluable feedback on the paper, and I am fortunate to work with and benefit from A.J.’s advice. I cannot thank these two talented advocates and mentors enough for the opportunity to work under their stewardship. This internship was made possible by Dean Libby Davis, who is a constant source of sound advice and inspiration. Pamela Frasch is Executive Director of the Center for Animal Law Studies at Lewis & Clark Law School, and she graciously stepped as the faculty supervisor for this project. Finally, I owe a debt of gratitude to James Ludwick of the Albuquerque Animal Care Center, Benjamin Winkleblack of Santa Cruz Animal Services, and Joe Maccias, of the City of Mesquite Animal Services. These public servants work on the front lines to save animal lives, yet they still found time to always take my phone calls and answer my emails promptly. Without them, this paper would not have been possible. Table of Contents Abstract INTRODUCTION LEGISLATIVE ANALYSIS METHODOLOGY Challenges to Statistical Analysis: Validity of Data STATISTICAL ANALYSIS FREQUENTLY USED TERMS CASE STUDY: Albuquerque, New Mexico Introduction Summary of the Law Penalties for Non-Compliance Intact Animal Permits

Resources for Low Income Residents Community Outreach Statistical Analysis Statistics Conclusion CASE STUDY: Dallas, Texas Introduction Summary of the Law Penalties for Non-Compliance Intact Animal Permits Spay and Neuter Resources Resources for Lower Income Resident Community Outreach Statistical Analysis Statistics Conclusion CASE STUDY: Mesquite, Nevada Introduction Summary of the Law Exceptions to the Law 2 Penalties for Non-Compliance Unaltered Animal Permits Spay and Neuter Resources Statistical Analysis Statistics Conclusion CASE STUDY: Santa Cruz County, California Introduction Summary of the Law Penalties for Non-Compliance Unaltered Animal Certificates Spay and Neuter Resources Resources for Lower Income Residents Santa Cruz County Animal Services Community Outreach

Statistics Conclusion CASE STUDY: Waco, Texas Introduction Summary of the Law Penalties for Non-Compliance Intact Animal Permits Penalties specific to Breeders Spay and Neuter Resource Resources for Lower Income Residents Community Outreach Statistical Analysis Statistics Conclusion CONCLUSION Abstract This article studies five cities that legally mandate the sterilization of domestic animals, which, for the purposes of this article, is defined as dogs and cats. Animal welfare advocates agree that the most effective animal control program is pet sterilization. This article examines statistical trends of the intake and euthanasia of domestic animals in each jurisdiction following the passage of the mandatory spay / neuter legislation. The five case studies are: 1.Albuquerque, New Mexico; 2.Dallas, Texas; 3.Mesquite, Nevada; 4.Santa Cruz, California; and 5.Waco, Texas. These five cities were narrowed down from a larger selection of cities, and each city is chosen for reasons cited in the individual case studies. An important factor in the selection of cities is the availability of data and information, and the willingness of the selected shelters to participate. In four out of five cases, shelter employees participated and provided needed

information. The author relied heavily on public records and the language of the animal ordinances. Each case study includes a summary of the law, including exceptions, penalties for non-compliance, spay and neuter resources available to residents, especially low-income residents, and additional programs implemented by each city to increase the shelter success rate. For the purposes of this article, “success” is measured by a decrease in intakes and euthanasias. The most important section of each case study is a statistical analysis of animal intake and euthanasia trends over time as compared to the base year, that is, the year prior to the mandatory spay / neuter legislation. This article addresses the possible effects of the mandatory spay and neuter laws, and does not measure the impact of supplemental programs in each jurisdiction. INTRODUCTION A growing number of animal welfare advocates are making their voice heard at every level of government. The emergence of animal rescue groups working independently of government animal shelters forces increased transparency and incentivizes elected officials and shelter management to improve conditions for shelter animals and reduce the quantity of healthy animals that are euthanized. This article addresses open-admission, government managed animal shelters, and does not discuss non-governmental programs and rescue groups. The work of small volunteer groups and large non-profit groups make important contributions to animal rescue and welfare. These organizations share similar goals to the municipal shelters that are included in this article, yet their work is beyond the scope of this article. Those interviewed acknowledge the vital role of these entities. LEGISLATIVE ANALYSIS Every case study contains a summary of the law, requirements for compliance, exceptions to the law, penalties for non-compliance, accessibility to services, low-cost services, and how a person qualifies for low-cost services. To a lesser extent, supplemental programs such as community outreach and feral cat programs are addressed where this information is available, and especially is these programs are included in the mandatory spay / neuter legislation.

The original municipal codes are included in the appendices of this article. METHODOLOGY The author posed the same questions to administrators of participating shelters, although not all participants responded to each question due to their knowledge or available information. As expected, some shelter employees are more forthcoming and cooperative than others. Challenges to Statistical Analysis: Validity of Data Accurate data collection enables a shelter to analyze, improve and develop programs that reduce the euthanasia and increase lifesaving efforts of domestic animals. Despite the need for this data, no government institution or animal organization is responsible for tabulating national statistics for the animal protection movement. Many organizations conduct studies with differing statistical estimates. The American Society for the Prevention of Animals (ASPCA) publishes national estimates, although the figures vary from state to state. The following statistics address shelters in the United States, and all numbers are approximate. 6.5 million companion animals enter every year: 3.3 million are dogs; 3.2 million are cats. Dogs and cats entering annually has declined from 7.2 million in 2011. The biggest decline was in dogs (from 3.9 million to 3.3 million). Each year, 1.5 million shelter animals are euthanized: 670,000 dogs; 860,000 cats. The number of dogs and cats euthanized has declined from 2.6 million in 2011. This decline can be partially explained by: Increase in the percentage of animals adopted, and; Increase in the number of stray animals successfully returned to their owners. 3.2 million shelter animals are adopted each year: 1.6 million dogs; 1.6 million cats. 710,000 animals who enter shelters as strays are returned to their owners: 620,000 are dogs;

90,000 are cats. Likewise, the author encountered problems with the statistical data provided by the cities in this article. The author has not yet encountered any shelter data that is not met with extreme, often emotional criticism. These critiques come in the form of official government audits and from Internet blogs and social media rants accusing shelters of corrupt management and practices. STATISTICAL ANALYSIS A significant stumbling block in measuring a shelter’s success is the lack of accurate data. This lack of reliable data presented a major stumbling block in research for this article. Over a period of months, the author worked to resolve statistical variances, anomalies, and changes in data collection. Ultimately, the only statistics that matter are the ones provided by the shelter, even when shelter employees are willing to admit that the data is inaccurate. Methods of data collection vary, and often these changes occur in the same shelter over time. Despite the original format of the provided statistical information, the author created excel spreadsheets permitting direct comparisons to the intake and euthanasia rates of domestic animals entering the shelter. The comparison of statistics in the same format increases the reliability of data analysis. The original data as provided by the shelters is included in the Appendices. The author utilizes a “Trend Analysis” model commonly utilized to measure economic trends. Annual intake and euthanasia data is divided by a “Base Year.” The base year is the year just prior to the effective date of the mandatory spay and neuter legislation. The resulting percentages demonstrate overall trends taking place in a shelter. Shelters most often present their data in a manner to demonstrate changes from the prior year. Here, the author examines trends over the years prior to the effective date of the mandatory spay and neuter legislation. In most cases, the shelter provides individual statistics for dogs and cats. If the shelter does not provide a third set of statistics aggregating the two species, the author aggregates the data using the statistics provided. When the shelter provides an aggregate total for dogs and cats, the author created a second set of statistics to reflect the total sums from the data sets provided for the dogs and cats. The author is not successful in explaining these data variances, nor were

the shelters. To maintain scientific integrity, the author chose to work exclusively with data provided by the shelters, even in cases where the shelter administrator acknowledged that the data was incorrect. FREQUENTLY USED TERMS Pets for Life program by the Humane Society of the United States The Pets for Life (PFL) program reaches out to people in underserved communities to extend free pet care resources, services, and information. The PFL model incorporates strategic door-to-door outreach, builds a consistent community presence, and uses an extensive follow-up process to build solid relationships and trust within a segment of the pet-owning population that has largely gone untouched by animal service providers. Trap-Neuter-Return Trap-neuter-return is a humane, non-lethal alternative to the trap-and-kill method of controlling cat populations. Trap-neuter-return (TNR) is a management technique in which homeless, free-roaming (community) cats are humanely trapped, evaluated and sterilized by a licensed veterinarian, vaccinated against rabies, and then returned to their original habitat. Spay / Neuter upon Adoption Spay / neuter surgery occur prior to adoption, and not upon intake. This is a common practice for animal shelters to conserve resources. . Some animals are humanely euthanized due to illness, behavioral problems, and for space. Animals deemed to be highly adoptable are often altered in advance, so that adoptees can take their pet home at the time of adoption. The Census Bureau poverty definition - Following the Office of Management and Budget's (OMB) Statistical Policy Directive 14, the Census Bureau uses a set of money income thresholds that vary by family size and composition to determine who is in poverty. If a family's total income is less than the family's threshold, then that family and every individual in it is considered in poverty. The official poverty thresholds do not vary geographically, but they are updated for inflation using Consumer Price Index (CPI-U). The official poverty definition uses money income before taxes and does not include capital gains or noncash benefits (such as public housing, Medicaid, and food stamps). CASE STUDY: Albuquerque, New Mexico Introduction

The City of Albuquerque, New Mexico passed the Humane and Ethical Animal Rules and Treatment (HEART) Ordinance to address irresponsible pet owners and reduce the large number of abandoned animals taken in by Albuquerque Animal Care Center. The ordinance took effect August 10, 2006, and pet owners had a six-month grace period to comply with the ordinance, making the law fully enforceable on February 10, 2007. According to the United States Census, the population of Albuquerque was 545,852 in 2010. The population estimate as of July 2016 is 1,197,816. This represents 2.4% growth. 19.2% of the population lives in poverty. Summary of the Law The HEART Ordinance requires all dog and cat owners to spay/ neuter their pet if the animal is capable of breeding. Written proof from a veterinarian provides a surgery exemption for animals that are too young, old, or infirm to withstand the risks of surgery. Penalties for Non-Compliance Those in violation of the law are subject to fines, and repeat offenders may be prevented from obtaining animal licenses or owning animals. Fines attach to real property, and are $100 for the first offense, $250 for the second offense, and $500 for subsequent offenses. Failure to pay or appear in court can result in further fines and the denial of future pet licenses. Intact Animal Permits Intact Animal Permits can be purchased for pet owners for $150 annually, and a $150 per litter permit is valid for six months. If the Albuquerque Animal Care Center takes in an unaltered animal, the owner cannot reclaim the animal intact unless the owner has an Intact Animal Permit that was obtained prior to the impoundment. If the same animal is picked up by the Albuquerque Animal Care Center a second time, the law requires that the animal be altered even if the owner has an Intact Animal Permit. Resources for Low Income Residents The City of Albuquerque provides free spay / neuter, and other veterinary services to low-income residents, such as those with Electronic Benefits Transfer (EBT) cards or a Medicaid health benefit card. A low-income resident is identified as having a median gross income that is 50% or less for the city. Medium income residents receive services at cost. A medium income resident’s

status is determined by a formula like the one used to define a low-income person. Community Outreach Animal service officers do not go door-to-door seeking out those in violation of the law. Rather, they work to educate the community and provide information on spay and neuter resources. Officers encourage the surrender of litters so that the animals can be sterilized. “Officers probably give out more information than anyone else about programs that are being offered…. They have been especially active in encouraging spay/neuter and distributing vouchers for spay/neuter services.” Albuquerque is the only city in the case study that specifically targets illegal breeding. Officers conduct undercover sting operations to shut down illegal breeders and puppy mills. Statistical Analysis Albuquerque Animal Care Center manages animals from Bernalillo County and other jurisdictions. This article analyzes the statistics pertaining only to the City of Albuquerque. The HEART Ordinance became fully mandatory in February 2007. The year 2006 is the baseline year as it is the first full year prior to the enforcement of the mandatory spay and neuter laws. Although the shelter takes in other animals, these statistics pertain to dogs and cats only. The shelter does not count “dead on arrival” animals in the intake or euthanasia statistics. Animals born in the shelter are included as intakes. Statistics Albuquerque Year Dog Intake Dog Euth. % Change Dog Intake % Change Dog Euth. 2006 12516 4529 0.00% 0.00% 2007 11649 3385 -6.93% -25.26% 2008 12216 3132 -2.40% -30.85% 2009 12350 2938 -1.33% -35.13% 2010 11669 2986 -6.77% -34.07% 2011 11867 2732 -5.19% -39.68% 2012 12299 2268 -1.73% -49.92% 2013 12178 1888 -2.70% -58.31%

2014 10157 1451 -18.85% -67.96% 2015 10367 1499 -17.17% -66.90% 2016 9935 1052 -20.62% -76.77%   Albuquerque Year Cat Intake Cat Euth. % Change Cat Intake % Change Cat Euth. 2006 10366 7323 0.00% 0.00% 2007 10597 6297 2.23% -14.01% 2008 9647 5814 -6.94% -20.61% 2009 9811 5355 -5.35% -26.87% 2010 8187 4114 -21.02% -43.82% 2011 8011 2759 -22.72% -62.32% 2012 6949 1130 -32.96% -84.57% 2013 6036 657 -41.77% -91.03% 2014 5000 436 -51.77% -94.05% 2015 4656 419 -55.08% -94.28% 2016 4616 328 -55.47% -95.52%   Albuquerque Year Overall Intake Overall Euthanasia % Change Overall Intake % Change Overall Euthanasia 2006 22882 11852 0.00% 0.00% 2007 22246 9682 -2.78% -18.31% 2008 21863 8946 -4.45% -24.52% 2009 22161 8293 -3.15% -30.03% 2010 19856 7100 -13.22% -40.09% 2011 19878 5491 -13.13% -53.67% 2012 19248 3398 -15.88% -71.33% 2013 18214 2545 -20.40% -78.53% 2014 15157 1887 -33.76% -84.08% 2015 15023 1918 -34.35% -83.82% 2016 14551 1380 -36.41% -88.36% Conclusion

From the time, the law took effect to the most current data available in 2016, canine intake dropped by nearly 80%, with the most significant change occurring in 2014, seven years after the law took effect. The change in canine euthanasia rates dropped steadily, and in 2016 the Albuquerque Animal Care Center obtained close to a 77% reduction in canine euthanasia. The cat statistics are more dramatic, which is attributable to an aggressive Trap – Neuter – Release program. The program benefited the shelter by freeing up resources to better care for dogs in the facility. Between 2006 – 2016 cat intakes dropped by more than half. Euthanasia rates fell to almost 50% by 2010, and by 2016 there is a 95.52% change in cat euthanasias prior to the mandatory spay / neuter legislation 2010 there is almost a 50% drop in feline euthanasia rates from the baseline year. Between 2006 and 2016 the euthanasia rate of cats dropped by 95.52%. The aggregate statistics of dogs and cats combined demonstrates an appreciable reduction in intakes and euthanasias since the mandatory spay and neuter laws took effect. Although intake rates did not see significant changes in the early years, the steady decline in euthanasia rates indicates the success mandatory spay / neuter legislation in Albuquerque. James Ludwick, Animal-Program Analyst, City of Albuquerque firmly believes that the mandatory spay / neuter laws are beneficial to the Albuquerque community. He pointed out that after the legislation passed, no animal left the shelter without being spayed / neutered. However, there is no hard evidence that intact animals were being adopted out prior to the mandate. However, Ludwick could not confirm the shelter spay / neuter adoption policy prior to the enactment of the mandatory spay / neuter legislation. The author attempted to obtain this information without success. Ludwick does not consider the laws to be discriminatory in nature, and states that if any pet owner wants to keep their family pet, but feels that surrender is the only option due to the cost of spay and neuter surgery, he will make sure that the individual receives the surgery under any circumstances. CASE STUDY: Dallas, Texas Introduction The author did not interview employees at Dallas Animal Services, despite multiple attempts to reach a shelter employee and obtain accurate information.

This is the only case study in this article derived solely from public records and news sources. Dallas Animal Services serves a community of 1,257,646 and an area of 342.5 square miles . According to the United States Census, the population of Dallas was 545,852 in 2010. The population estimate as of July 2016 is 1,317,929. This represents 10% growth. 24% of the population lives in poverty. Summary of the Law The City of Dallas, enacted mandatory spay /neuter laws that became effective on October 25, 2008. All dogs and cats over the age of six months must be spayed or neutered. A veterinarian may provide written proof to exempt animals that are too young, old, or infirm to withstand the risks of surgery. Police, government and trained service dogs are exempt, as are competition dogs and cats. Animals available for adoption at Dallas Animal Services, rescue groups, and licensed pet stores are exempt with the requirement that these animals be sterilized when adopted or purchased. Further explanation of this policy is provided in the Penalties for Non-Compliance If an unaltered animal is impounded at DAS, DAS will sterilize the animal for $60 when it is reclaimed. This is in addition to additional impoundment fees such as daily boarding, a rabies vaccination, etc. A person in violation of the law commits a separate offense for each day of the violation, making the costs to reclaim an unaltered pet the most punitive of all cities in this study. The first conviction costs $100. If there is a second conviction within a 24-month period, the minimum fine will be doubled, and third and subsequent conviction during that same 24-month period, invoke fees that are three times greater than the original conviction. In addition to fines, a person in violation of the law may be required to attend a responsible pet ownership program. The court may suspend the person’s right to own an animal for a specified period. Intact Animal Permits On June 14, 2017, the Dallas City Council made several changes to the animal ordinances. The changes relevant to this article are that “Intact Animal Permits” are now known as “Breeder Permits.” The cost of the permit remains $100 annually, but as of June 14, 2017, every breeding dog must have an individual

permit. The new law requires that a veterinarian approve the animal for breeding within 90 days of the application for the permit. These permits are only available to current members of a dog or cat purebred owner organization. Lawmakers are now making permits available to animals licensed by the Texas Occupational Code. Previously, permits were made available to those that completed the “Responsible Pet Ownership” course offered at Dallas Animal Services. This is no longer grounds for obtaining a breeding permit. As before, the permits are non-transferable and are invalid if the certificate owner relocates. The city carefully regulates the sale and transfer or ownership of puppies and kittens. Unaltered females are permitted to have only one litter per year. Additionally, licensing fees for unaltered animals are higher. If an unaltered animal with a permit is picked up by DAS, it will be altered after the third offense. Spay and Neuter Resources All animals adopted from Dallas Animal Shelters are spayed or neutered, the cost of which is included in the adoption fee. If the adopted pet is under six months of age, the adoption agreement requires the new owner to get the dog or cat sterilized and present a certificate of verification to the shelter. The website provides very little information, and links to information are likewise not useful or linked to invalid web pages. A discussion of Dallas Animal Services is incomplete without mention of the Dallas Companion Animal Project (DCAP), also known as Friends of Dallas Animal Services. As noted, this study purposely avoids programs of unrelated rescue groups. However, DCAP is very closely linked with Dallas Animal Services, and is charged with responsibilities in the animal ordinance. This volunteer organization provides resources for lower income residents, discussed below. Resources for Lower Income Residents According to the website of Dallas Animal Services, low-cost spay and neuter options are available when there is funding. The website is very well organized, yet basic information is difficult to locate. The author located a downloadable flyer on the Dallas Animal Services website with referrals to several resources.

The Dallas Companion Animal Project is a collaborative project with the city and Dallas Animal Services, thus deserving of space in this article. Dallas Companion Animal Services is included in the city ordinance. The Dallas Companion Animal Project website contains more comprehensive resource listings for free or low-cost vaccination clinics and spay/neuter resources. Their website contains some information for Spanish speakers. The Dallas Companion Animal Project manages two funds on behalf of the City of Dallas. The Dallas Animal Welfare Fund is part of the City Code, and many penalty and administrative fees from collected from Dallas Animal Services are deposited into this fund. At the request of the City of Dallas, Dallas Companion Animal Project also manages Dallas Pet Emergency Transition Services. The Dallas Companion Animal Project held a monthly Spay Day that utilized the Dallas Animal Services facility. The program abruptly ended in February 2017 due to contractual issues. Community Outreach The Dallas Animal Services website references a community outreach program in South Dallas. The Dallas Community Animal Resource Effort Program works to help families keep their pets. Volunteers provide education and information about available resources for animal care. Volunteers must attend a monthly orientation session prior to joining the Community Animal Resource Effort unit. The Director, Lily Yap, states the program is affiliated with the Spay Neuter Network and receives spay / neuter grants from the SPCA of Texas to provide certain zip codes with free spay/neuter surgery and related veterinary care. The volunteer group provides free vetting as well as transportation for the animals. Statistical Analysis Dallas Animal Services provides daily reports and monthly reports, including field officer reports. These reports are available on the Dallas Animal Services website. Daily and monthly reports are available through a Dallas open public records website. The open records website provides details on every animal in the shelter system on any given day. The author could not locate reports with separate data for dogs and cats in these daily reports. Annual reports are colorful, marketing style reports, that must be deciphered to obtain actual data.

The author extracted this data, which is provided below. The 2016 Annual Report has not yet been published, thus these numbers are missing. Currently Dallas Animal Services is undergoing severe internal problems and lacks a Director. It is possible that a 2016 Annual Report will never be published. Feral cats are not included in these statistics. The Dallas Animal Services website notes that they trapped and euthanized feral cats for many years, but learned that this technique is not a viable solution. Trap, Neuter, Release campaigns are now the norm, and community managers of feral cat organizations obtain approval from the Director of Dallas Animal Services to conduct the feral cat campaigns. The mandatory spay / neuter legislation passed in October 2008. The author is using 2008 as the baseline year, as the law was not in effect for most of 2008. Although the shelter takes in other animals, the author obtained data for cats and dogs. Owner requested euthanasias for unhealthy and untreatable animals are not included in the euthanasia stats. Dead on arrival animals are not included. Statistics Dallas Total Dog & Cat Intakes / Euthanasias Year Intake Euthanasia % Change Intake % Change Euthanasia 2008 34522 27578 0.00% 0.00% 2009 33276 26332 -3.61% -4.52% 2010 29338 21763 -15.02% -21.09% 2011 28565 20050 -17.26% -27.30% 2012 27375 16681 -20.70% -39.51% 2013 27416 15067 -20.58% -45.37% 2014 27012 13986 -21.75% -49.29% 2015 26407 11353 -23.51% -58.83% Conclusion Dallas Animal Services experienced declines in euthanasia and intakes of nearly 60%. The change in euthanasia rates dropped at a steadier pace. The most significant changes occurred in 2010, two years that the legislation took effect. This is an indicator of a very high rate of enforcement. Regrettably, the author did not speak with a representative of Dallas Animal Services directly. This lack of personal communication makes it difficult to

draw conclusions from the data. Based on the statistics alone, the mandatory spay / neuter laws are working in the city of Dallas. CASE STUDY: Mesquite, Nevada Introduction The author includes the city of Mesquite, Nevada because Mesquite is geographically isolated, with more than 350,000 acres of public land to the south of Mesquite, bordered by the Virgin River, mountains and the Colorado River. Land to the north and west of Mesquite is also unpopulated. Mesquite sits on the edge of the Nevada/Arizona border and is just a short drive from Utah and Las Vegas. According to the United States Census, the population of Mesquite was 15,276 in 2010. The population estimate as of July 2016 is 17,987. This represents 17.7% growth. 14.3% of the population lives in poverty. The city disagrees with the official census data, which does not account for the growing number of “seasonal” occupants with vacation properties in the city. “One often hears unquantified guesstimates that our “seasonal or part-time” residents make up as much as 30% of Mesquite’s population.” Summary of the Law The City of Mesquite passed Bill No. 433 on January 26, 2010 requiring all domestic pets to be spayed / neutered by the time the animal reaches six months of age. The law allowed for a 120-day grace period for residents of Mesquite to comply with the law. The law applies to all areas within the incorporated boundaries of Mesquite, Nevada. The cities of Las Vegas, North Las Vegas have similar measures. Exceptions to the Law The veterinary exemption is the strictest of the other cities in this study. Veterinary proof must be written under oath that the surgery could put an animal at risk of death. The certificate must describe the medical condition and the time at which the animal will be healthy enough to have the surgery. When that time comes, if the animal is still unable to undergo surgery, the veterinarian must issue a new certificate. Also exempt from the law are trained police and government service animals. Stray and feral animals, including those that receive limited care by residents are exempt.

Penalties for Non-Compliance All litters born to unaltered, non-exempt animals must be forfeited to the animal shelter. Those who violate the law are guilty of a misdemeanor and are subject to fines: a. First offense fine is $225; b. Second offense fine is $500; c. Third offense fine is $1000; d. The penalty is reduced by 80% if the pet owner provides proof that the animal is sterilized with thirty days of the violation. KLAS-TV, a CBS affiliate aired an alarmist story reporting that pet owners could face hefty fines and jail time if they did not spay or neuter their pets. In response to the KLAS-TV news story, Clark County Commissioner Chris Giunchigliani assured pet owners that officials would not be conducting doorto-door searches. Rather, officials are on the lookout for “strays and vicious animals." Officers also monitor public areas, such as parks. Unaltered Animal Permits The city of Mesquite refers to unaltered animal permits as “Dog and Cat Fancier Permits.” Permits are allowed for animals shown in in recognized shows, obedience, or field trials. Permits are available for those animals used for “improving the variety of breed for exhibition.” The permit cost is $25 per year and allows for a person to own up to six intact dogs or six intact cats. The same person may not possess a dog and a cat permit. These permits are granted at the discretion of the animal shelter and require permit holders to address health and safety concerns. The permits are site-specific and non-transferable. Spay and Neuter Resources The law requires that the City of Mesquite Animal Shelter, and all public shelters, private shelters, and rescue groups verify that domestic animals will undergo surgery prior to adoption. Spay / Neuter surgery, a rabies vaccination, and pet licensing fees are included in the $40-$60 adoption fee at the Mesquite Animal Shelter. If the animal is too young to be altered, adopters may take them home, and the shelter follows up to ensure that the animal underwent surgery. The Mesquite Animal Shelter website and social media pages do not provide evidence of spay and neuter resources for the community or for low-income

residents. The City has no feral cat program, but traps cats on request. The shelter also provides cat traps to residents on request. Statistical Analysis Due to the remoteness of the city, the author expected shelter data to include only animals from within the city limits. It is surprising to learn that the shelter assists animal control in Mohave County, a neighboring county located in Utah. Mesquite Animal Control occasionally picks up animals on behalf of Mohave County. These animals are retrieved by Mohave County and delivered to their nearest animal shelter in Utah, which is three hours away from the Nevada and Utah border. Mesquite maintains separate data for Mohave County. Mesquite performs similar services for areas of Clark County, Nevada that are not incorporated in the city of Mesquite. At times Mesquite Animal Services performs euthanasia at the request of these counties, and these statistics are maintained separately. The author subtracted all species of animals excluding dogs and cats, and excluded all animals from outside the city limits of Mesquite. 2009 is the baseline year as it is the first full year prior to the enforcement of the mandatory spay and neuter laws. Animals that arrive dead on arrival are not included as intakes, and puppies born in the shelter are counted as intakes. Statistics Mesquite Dog Intakes / Euthanasias Year Intake Euthanasia % Change Intake % Change Euthanasia 2009 343 63 0.00% 0.00% 2010 296 39 -13.70% -38.10% 2011 327 96 -4.66% 52.38% 2012 274 78 -20.12% 23.81% 2013 319 58 -7.00% -7.94% 2014 307 47 -10.50% -25.40% 2015 269 44 -21.57% -30.16% 2016 288 62 -16.03% -1.59% Mesquite Cat Intakes / Euthanasias Year Intake Euthanasia % Change Intake % Change Euthanasia 2009 452 236 0.00% 0.00% 2010 318 153 -29.65% -35.17%

2011 300 134 -33.63% -43.22% 2012 360 181 -20.35% -23.31% 2013 258 107 -42.92% -54.66% 2014 290 143 -35.84% -39.41% 2015 157 65 -65.27% -72.46% 2016 230 87 -49.12% -63.14%   Mesquite Total Dog & Cat Intakes / Euthanasias Year Intake Euthanasia % Change Intake % Change Euthanasia 2009 795 299 0.00% 0.00% 2010 614 192 -22.77% -35.79% 2011 627 230 -21.13% -23.08% 2012 634 259 -20.25% -13.38% 2013 577 165 -27.42% -44.82% 2014 597 190 -24.91% -36.45% 2015 426 109 -46.42% -63.55% 2016 518 149 -34.84% -50.17% Conclusion The intake and euthanasia rates do decrease, but the rates are not at a steady decline. Unlike other jurisdictions in this study, the city of Mesquite provides detailed statistics regarding the number of citations, warnings, and owner reclaims. Although not within the scope of this study, the data is nonetheless revealing, and may be an area worth studying in the future. CASE STUDY: Santa Cruz County, California Introduction According to the United States Census, the population of Santa Cruz County was 262,382 in 2010. The population estimate as of July 2016 is 274,673. This represents 4.7% growth. 15.4% of the population lives in poverty. In 1994, Santa Cruz County, California became the first United States jurisdiction to pass mandatory spay and neuter laws for pet owners. These laws are now a model for legislators throughout the United States. Santa Cruz County Animal Services has joint powers authority over Santa Cruz County and the City of Santa Cruz. During fiscal year 2014, neighboring county Watsonville

jointed the joint powers authority, and Santa Cruz County Animal Services assumed management of the Watsonville Animal Shelter. Summary of the Law The animal ordinances for Santa Cruz County and Santa Cruz City are not substantively different. All dog and cats must be spayed by six months of age. Pets are exempt is they are law enforcement dogs, service dogs, and herding dogs. Pets are exempt if they are endangered by the surgery, with proof in the form of a veterinarian’s letter. A person caring for feral cats must register with the Director of Animal Control Services and regularly and frequently trap the cats over the age of eight weeks and have them spayed / neutered Penalties for Non-Compliance Specific penalties for violation of the mandatory spay and neuter laws are not addressed in the code. The Santa Cruz County Animal Services website lists the following penalties for failure to comply: • First offense in one year $250

• Second offense in one year $500 • Third offense in one year $750

If an unaltered animal is impounded, the owner must pay fees associated with spaying / neutering the animal while in the custody of the shelter, as well as boarding fees during the time of impoundment. The surgical fees are the same as those at the Planned Pethood Clinics operated by the shelter. Unaltered Animal Certificates Unaltered Animal Certificates cost $250 per year, and must be renewed if the certificate owner relocates. Annual licensing fees are higher for unaltered animals. Obtaining a certificate requires a site inspection by animal control, annual veterinary exams for the unaltered animals including proof of preventive veterinary health care, and stringent requirements for humane living conditions. The female unaltered animal is permitted one litter per year, with limited exceptions. Regulations exist for the care and sale, barter, and / or trade of puppies and kitten Spay and Neuter Resources Santa Cruz County Animal Services boasts a “Planned Pethood” program that offers all residents, regardless of income, low cost spay / neuter services. Due to the high percentage of Pit Bulls and Chihuahuas entering the shelter,

these breeds receive significant discounts. Additional fees are charged for required rabies vaccines, microchips, animal licenses. In February of 2014, SCCAS in collaboration with Friends of Watsonville Animal Shelter, opened a new clinic to expand affordable and accessible services to the populations served by Santa Cruz County Animal Services. Resources for Lower Income Residents Santa Cruz County Animal Services provides greater community outreach than other jurisdictions included in this article. Recipients of government assistance obtain reduced cost services. A dog surgery that is normally $175 will cost a low-income resident $50. Cat surgeries are reduced from $25 to $10. Santa Cruz Connect is an annual event that provides multiple health and community services to the homeless. Santa Cruz County Animal Services takes part in the day-long event that offers food and a wide variety of services from massage and acupuncture to dental and medical care. Many homeless people are pet caregivers, and Santa Cruz County Animal Services offers free spay and neuter surgery that includes free animal transport. Very often the shelter will keep the pet overnight so that the pet remains immobile following the procedure. Santa Cruz County Animal Services participates in a twice-annual Connect event in Watsonville. Funding plays a role in the services provided at Project Connect events. “The veterinary services offered at Project Connect are different each year depending on local support and this year may be limited to our staff giving vaccines and microchips.” There is an animal transport team for clients that are not homeless, but nevertheless in need. This same team maintains a table at the soup kitchen every month giving out collars, leashes, tags, toys, food, treats, spay/ neuter information with vouchers. Santa Cruz County Animal Services works with the Health Department and the Mental Health Department to reach this hard-toreach demographic. These departments refer per owners with a desire to spay / neuter their pet, and these services are provided at no charge. Benjamin Winkelblack, Shelter Manager, states “I do not know of anyone that has come to the shelter wanting to have their animal spayed and neutered that has been turned away due to lack of funds.” Santa Cruz County Animal Services Community Outreach

In 2011, animal control officers began going door-to-door in underserved areas to provide provides free resources, services, and information about spay / neuter laws and resources. Rather than wear official uniforms, they don polo shirts to appear more approachable. The program is modeled after the Pets for Life program of the Humane Society of the United States. Field officer Kenny Lamberti states that the community-based approach is “a less punitive, more constructive, resource-driven approach.” has adopted a motto “Open Door, Open Heart: Serving Santa Cruz County’s Neediest Animals.” Statistics Santa Cruz Year Dog Intake Dog Euth. % Change Dog Intake % Change Dog Euth. 1994 3,309 1,002 0.00% 0.00% 1995 3,247 906 -1.87% -9.58% 1996 3,070 838 -7.22% -16.37% 1997 2,817 565 -14.87% -43.61% 1998 2,693 531 -18.62% -47.01% 1999 2,415 436 -27.02% -56.49% 2000 2,359 452 -28.71% -54.89% 2001 2,162 354 -34.66% -64.67% 2002 1,546 221 -53.28% -77.94% FY 2002 - 2003 2,130 507 -35.63% -49.40% FY 2003 - 2004 2,000 477 -39.56% -52.40% FY 2004 - 2005 2,153 520 -34.94% -48.10% FY 2005 - 2006 2,337 639 -29.37% -36.23% FY 2006 - 2007 2,278 612 -31.16% -38.92% FY 2007 - 2008 2,418 390 -26.93% -61.08% FY 2008 - 2009 2,421 444 -26.84% -55.69% FY 2009 - 2010 2,396 354 -27.59% -64.67% FY 2010 - 2011 2,425 488 -26.72% -51.30% FY 2011 - 2012 2,464 438 -25.54% -56.29% FY 2012 - 2013 2,469 442 -25.39% -55.89% FY 2013 - 2014 2,269 394 -31.43% -60.68% FY 2014 - 2015 2,361 429 -28.65% -57.19%

FY 2015 - 2016 2,407 444 -27.26% -55.69%

Santa Cruz Year Cat Intake Cat Euth. % Change Cat Intake % Change Cat Euth. 1994 5,016 3,006 0.00% 0.00% 1995 4,578 2,688 -8.73% -10.58% 1996 3,861 2,014 -23.03% -33.00% 1997 3,451 1,641 -31.20% -45.41% 1998 3,682 1,511 -26.59% -49.73% 1999 3,113 1,155 -37.94% -61.58% 2000 2,830 1,019 -43.58% -66.10% 2001 2,511 935 -49.94% -68.90% 2002 FY 2002 - 2003 2,825 1,237 -43.68% -58.85% FY 2003 - 2004 3,018 1,377 -39.83% -54.19% FY 2004 - 2005 3,194 1,685 -36.32% -43.95% FY 2005 - 2006 3,228 1,856 -35.65% -38.26% FY 2006 - 2007 2,838 1,553 -43.42% -48.34% FY 2007 - 2008 2,811 1,182 -43.96% -60.68% FY 2008 - 2009 2,804 1,070 -44.10% -64.40% FY 2009 - 2010 2,663 1,079 -46.91% -64.11% FY 2010 - 2011 2,669 906 -46.79% -69.86% FY 2010 - 2012 2,490 718 -50.36% -76.11% FY 2010 - 2013 2,747 680 -45.24% -77.38% FY 2010 - 2014 2,122 584 -57.70% -80.57% FY 2010 - 2015 2,491 721 -50.34% -76.01% FY 2010 - 2016 2,338 675 -53.39% -77.54%   Santa Cruz Year Total Intake Total Euthanasia % Change Intake % Change Euthanasia 1994 8,325 4,008 0.00% 0.00%

1995 7,825 3,594 -6.01% -10.33% 1996 6,931 2,852 -16.74% -28.84% 1997 6,268 2,206 -24.71% -44.96% 1998 6,375 2,361 -23.42% -41.09% 1999 5,528 1,889 -33.60% -52.87% 2000 5,189 1,471 -37.67% -63.30% 2001 4,673 1,289 -43.87% -67.84% 2002 FY 2002 - 2003 5,647 2,072 -32.17% -48.30% FY 2003 - 2004 5,560 2,055 -33.21% -48.73% FY 2004 - 2005 6,128 2,516 -26.39% -37.23% FY 2005 - 2006 6,605 2,978 -20.66% -25.70% FY 2006 - 2007 5,653 2,399 -32.10% -42.61% FY 2007 - 2008 6,292 1,624 -24.42% -59.48% 6,292 1,624 -24.42% -59.48% FY 2008 - 2009 6,292 1,624 -27.77% -61.18% FY 2009 - 2010 5,564 1,461 -33.17% -63.55% FY 2010 - 2011 5,763 1490 -30.77% -62.82% FY 2011 - 2012 5,556 1,270 -33.26% -68.31% FY 2012 - 2013 5,847 1,267 -29.77 -68.39% FY 2013 - 2014 5,355 1,252 -35.68% -68.76% FY 2014 - 2015 5,096 1,121 -38.79% -72.03% FY 2015 - 2016 5,421 1,206 -34.88% -69.91%   Conclusion The mandatory spay / neuter legislation passed in 1994 and took effect in 1995. Thus, the year 1994 is the baseline year as it is the first full year prior to the enforcement of the mandatory spay and neuter laws. Although the shelter takes in other animals, the statistics provided only include dogs and cats. The shelter does not count “dead on arrival” animals in the intake or euthanasia statistics. Puppies born in the shelter are counted as intakes. The year 2002 is not included in the statistical analysis. During 2002 there was not a physical location for the shelter. Statistics are considered highly unreliable by shelter employees. The fiscal year changed in 2002 to reflect new

management. Until that point the fiscal year matched the calendar year. The fiscal year beginning in 2002-2003 is July 1 – July 30. Despite data discrepancies, especially in 1998 and 1999, the author utilized shelter provided statistics. CASE STUDY: Waco, Texas Introduction According to the United States Census, the population of Waco was 124,805 in 2010. The population estimate as of July 2016 is 134,432. This represents 7.7% growth. 29% of the population lives in poverty. Although mandatory spay and neuter laws have not been in effect for many years in Waco, Texas, it is nevertheless an interesting addition to this article. Waco is the first city in Texas to pass mandatory spay and neuter laws. Due to the shelter’s success, it is now a nationally recognized model. Cities across the country are studying Waco’s example, and other Texas cities are considering similar legislation City of Waco Animal Shelter is an open-admission regional shelter serving approximately 260,000 people. In late 2012, the City took over kennel operations for the Humane Society of Central Texas. At the time the Humane Society of Central Texas became a center for adoptions only, and does not takein or euthanize animals. They provide adoption, rescue and foster opportunities for the homeless animals, as well as community education regarding responsible pet ownership. Summary of the Law All dogs and cats over four months of age must be spayed or neutered unless there is veterinary proof that the surgery poses a health risk to the animal, or that the animal is infertile. Unowned cats must be spayed or neutered. Police and government service animals are exempt. Rescue groups are exempt if they certify that the dog or cat will be sterilized prior to adoption. Penalties for Non-Compliance The City of Waco does not actively seek out owners in non-compliance. Rather, enforcement takes place at the shelter. All animals departing the shelter must be spayed or neutered. If a pet is impounded, the owner must pay a variety of fees, such as daily boarding fees, rabies testing and vaccination fees. The first time an animal is

impounded, there is no penalty fee if the animal is spayed or neutered. Thereafter, if an unaltered animal is impounded, the owner is charged with a Class C Misdemeanor and the municipal court imposes a fine of $261. Along with the City of Dallas, these fines are higher than other cities in the case study. Intact Animal Permits Breeders must purchase a special permit for $35 per year. The City requires biannual veterinary “Health Statements” which must contain the animal’s microchip number. Puppies and kittens must have a veterinary Health Certificate prior to the sale or transfer of ownership. Penalties specific to Breeders If a breeder animal is impounded and identified by microchip, the shelter will not alter the animal, but the breeder must pay a $125 penalty and any other impoundment fees. If the animal is picked up a second time, the animal will be spayed or neutered regardless of the intact animal permit. Spay and Neuter Resources The Animal Birth Control clinic opened in 1988 to offer a low-cost alternative for the entire community. Clients reside primarily in Waco and McLennan County, although the clinic is open to residents from surrounding counties. Approximately twenty volunteers operate the clinic, which has the capacity to perform approximately 265 surgeries per week. Prices at the Animal Birth Control Clinic are $25-$35 for cat surgeries and $55 for dog surgeries. Waco provides many resources and information to feral cat caregivers. Feral cats are spayed or neutered at no charge. Waco provides much funding for the free Trap-Neuter-Return program available at the Animal Birth Control Clinic. Any Waco resident with a water bill can take advantage of the program. Resources for Lower Income Residents In addition to the low-cost services provided at the Animal Birth Control Clinic, residents may qualify for free spay and neuter services based on income. Residents of certain geographic areas also qualify for free services. It is important to note that these free services are dependent on available funding. Community Outreach SpayStreet Waco, works in conjunction with Animal Services. They have twenty volunteers in a mobile unit. These volunteers visit lower income

neighborhoods to educate residents and inform them of free and low cost spay and neuter options. Statistical Analysis The benefit of an analysis over a very short time span is the ability to measure how quickly spay and neuter legislation can affect a community. The limited time span eliminates variables that affect the statistics from other jurisdictions, such as changes in staffing and data collection methods. The animal shelter provides aggregate data of dogs and cats intakes and euthanasias. Animals that arrive dead on arrival are not counted. Puppies born in the shelter are counted as intakes. As mentioned above, and the animal shelter does not euthanize feral cats. The years of 2014 – 2016 are compared to the base year of 2013, the year prior to the enactment of the legislation. The statistics provided by Waco, Texas are not separated by dog and cat intakes. Thus, the statistics reference the aggregate numbers of dogs and cats. Statistics Statistics for Waco, Texas Year Overall Intake Overall Euth. % Change Overall Intake % Change Overall Euth. 2013 7,740 2478 0.00% 100.00% 2014 6,754 1812 -12.74% -26.88% 2015 5,993 939 -22.57% -62.11% 2016 5,509 625 -28.82% -74.78% Conclusion Despite the very short time span since the mandatory spay / neuter laws took effect, there is a high success rate. It is important to note that Waco is a progressive shelter that was already working towards the goal of “no-kill” status. CONCLUSION This article examines statistical trends of the intake and euthanasia of domestic animals in five jurisdictions prior to and following the passage of mandatory spay and neuter legislation. A review of the aggregate totals of dogs and cats in each jurisdiction demonstrates consistent downward trends. In general, the greatest reduction takes place three years after the new legislation takes effect, although there is

not a consistent pattern in terms of percentile changes. The lowest change in the percentile rate of intake occurs in Albuquerque at 3.15%. The highest change is in Waco at 28.2%. In terms of changes in euthanasia rates three years after the passage of the mandatory spay / neuter laws, Albuquerque and Mesquite represent the highest and lowest rates of change. After three years Albuquerque has a 30.03% reduction in euthanasia rates. In contrast, Mesquite has a 13.38% reduction in euthanasia rates. The author recommends an examination of the individual case study of Mesquite, as the third year, 2012, is a statistical anomaly, and inconsistent with the changes in euthanasia rates in the second year and fourth year in Mesquite. The greatest amount of data is from Santa Cruz because they are the first city in the US to pass the mandatory spay and neuter laws. The author collected 22 years of statistics dating from the base year of 1994 to 2016. In the final year, that of fiscal year 2015-2016, the percentage change in intakes totaled 34.88% and the change in euthanasias totaled 66.91%. In summation, the three-year changes in shelter intake and euthanasia outcomes are: % decrease / change from passage of mandatory spay / neuter law Year Three City Intake Euthanasia Albuquerque 3.15 30.03 Dallas 17.26 27.30 Mesquite 20.25 13.38 Santa Cruz 24.71 44.96 Waco 28.82 74.78 Of these cities, there is no consistent trend after year one, with the change in intakes ranging from 2.78 to 22.77 and the changes in euthanasia ranging from 4.52 to 35.79. However, in every case, there is a reduction from the year prior to the passage of the mandatory spay / neuter law. Multiple factors affect these outcomes. The primary issues appear to be the validity of statistical data. Some of the things that may cause inaccuracies in data collection are inconsistent collection and reporting methods, the addition of feral cats into the data, the addition of intakes from new jurisdictions, and human error. Future studies should endeavor to increase the number of data

points by adding more cities that have passed this legislation. In addition, future researcheers should make every effort to obtain the most accurate data possible. The impact of feral cat Trap – Neuter – Release programs greatly impacts the number of intakes and euthanasias in a shelter. Cities that have enacted these programs report significant reductions in shelter cat populations. Unsterilized feral cat colonies continue to procreate, whereas removal of cats from a colony does not eliminate the colony as a whole. The impact of feral cat programs warrants a new study and the impact of these programs on cities with mandatory spay and neuter laws. Aside from the issues surrounding data collection methods, there are multiple factors that affect the intakes and euthanasias in each shelter. Cities with mandatory spay and neuter laws are implementing programs that make compliance with the law more convenient and less costly for the city’s residents. These programs include community outreach programs like the Pets for Life Program of the Humane Society of the United States. Surgeries and other veterinary costs are being offered for free or at very low costs. Shelters are focusing on owner-diversion programs to help families and pets stay together. This prevents these animals from ending up in the shelters to begin with. These shelters are becoming more committed to transparency and taking on “No-Kill” challenges and advocacy training offered by Best Friends Animal Society. A wide array of programs contributes to shelter outcomes, and there is difficulty in identifying one single factor that plays a role in these success rates. The unique demographics, community needs, and related legislation affect shelter outcomes. There is no “one size fits all” formula to improve shelter outcomes. Excluding other factors and programs, this author concludes that the enactment of mandatory spay / neuter legislation does have an appreciable effect in decreasing the intake and euthanasia rates in shelters. Editors note. Endnotes were removed for reprinting.

Chapter 17 Pet store bans

Introduction to pet store bans Bainbridge Island Washington California West Hollywood California Don’t buy that doggy in the window Introduction to pet store bans Companion animal rescuers hate to see dogs being killed in animal shelters every day while puppy mills keep churning out "purebred" puppies for pet stores. Animal rescuers know that every dog has its personality. Animal rescuers do not buy into the notion that by buying a particular purebred breed of dog you're buying a known quantity. Every dog has its personality. If you want a dog with a specific nature, then find an adult dog that has that personality. These rescuers know that it's a mistake to buy a puppy in a pet store because the salesperson says that all labradoodle puppies all grow up to be great with children. Rescue groups say that if you want a dog that's good with children, find a dog that is good with children. If you want a running companion, look only at dogs who like to run. Bainbridge Island Washington requires pet stores only sell dogs "from animal rescue groups or animal shelters. West Hollywood California requires dog breeders to sell their dogs directly from kennels, and not pet stores.

In don't buy the doggy in the window", Katherine Tusaus explains the history of puppy mills. After world war II farmers were looking for new sources of income. That puppy mills were not created out of demand for more dogs. Then Tasaus walks us through the horrors of a modern puppy mill. We thank Katherine for making their work available. Bainbridge Island Washington Section 1. A new Section 6.04.113 of the Animal Control Chapter of the Bainbridge Island Municipal Code is hereby adopted in its entirety to read as follows: 6.04.113 Selling Animals from Puppy or Kitten Mills Prohibited A. Definitions. To supplement the definitions found at Section 6.04.010, for the purposes of this Section the following words shall have the following meanings unless the context indicates otherwise. If there is a conflict between a definition in this Section and a definition in Section 6.04.010, the definition in this Section shall control for the purposes of this Section: 1. “Offer for sale” means to sell, offer for sale or adoption, advertise for the sale of, barter, auction, give away, or otherwise dispose of a dog or cat. 2. “Pet shop” means a retail establishment where dogs and cats are sold, exchanged, bartered, or offered for sale as pet animals to the general public at retail. Such definition shall not include an animal shelter or animal rescue league, as defined. B. Restrictions on the Sale of Animals. 1. A pet shop may offer for sale only those dogs and cats that the pet shop has obtained from or displays in cooperation with an animal shelter or an animal rescue league. 2. A pet shop shall not offer for sale a dog or cat that is younger than eight weeks old. C. Record Keeping and Disclosure. A pet shop shall maintain records stating the name and address of the animal shelter or animal rescue league that each cat or dog was obtained from for at least two years following the date of acquisition. Such records shall be made

available, immediately upon request, to the city or animal control authority. Each pet shop shall display on each cage a label stating the name and address of the animal shelter or animal rescue league of each animal kept in the cage. Section 2. Severability. If any section, subsection, paragraph, sentence, clause, or phrase of this ordinance shall be declared invalid for any reason whatsoever, such decision shall not affect the remaining portions of this ordinance, which shall continue in full force and effect, and to this end the provisions of this ordinance are hereby declared to be severable. Section 3. This ordinance shall take effect and be in force five (5) days from its passage and publication as required by law.” California Assembly Bill No. 485 CHAPTER 740 An act to amend Section 31753 of the Food and Agricultural Code, and to amend Section 122357 of, and to add Section 122354.5 to, the Health and Safety Code, relating to public health. [Approved by Governor October 13, 2017. Filed with Secretary of State October 13, 2017.] legislative counsel’s digest AB 485, O’Donnell. Pet store operators: dogs, cats, and rabbits. Existing law requires pet store operators, as defined, to comply with laws governing, among other things, the care of animals in pet stores. Existing law makes a pet store operator who violates these provisions guilty of a misdemeanor, under certain conditions. Existing law also regulates the retail sale of dogs and cats. Existing law requires an animal control officer, a humane officer, or a peace officer who detects any of certain violations of the laws governing pet store operators to issue a single notice to correct the violation, except as specified. Existing law makes a pet store operator who fails to comply with a notice to correct, or who violates the laws regulating pet store operators, as specified, guilty of a crime. This bill would prohibit, on and after January 1, 2019, a pet store operator from selling a live dog, cat, or rabbit in a pet store unless the dog, cat, or rabbit

was obtained from a public animal control agency or shelter, society for the prevention of cruelty to animals shelter, humane society shelter, or rescue group, as defined, that is in a cooperative agreement with at least one private or public shelter, as specified. The bill would require all sales of dogs and cats authorized by this provision to be in compliance with laws requiring the spaying or neutering of animals, as specified. The bill would require each pet store to maintain records sufficient to document the source of each dog, cat, or rabbit the pet store sells or provides space for, for at least one year, and to post, in a conspicuous location on the cage or enclosure of each animal, a sign listing the name of the entity from which each dog, cat, or rabbit was obtained, and would authorize public animal control agencies or shelters to periodically require pet stores engaged in sales of dogs, cats, or rabbits to provide access to those records. The bill would make a pet store operator who violates these provisions subject to a civil penalty of $500, as specified. The bill would also exempt a pet store operator who is subject to these provisions from certain requirements relating to the retail sale of dogs and cats, except as specified. 91 Ch. 740 — 2 — Existing law authorizes a public or private shelter to enter into cooperative agreements with animal rescue or adoption organizations regarding dogs and cats. This bill would authorize a public or private shelter to enter into cooperative agreements with animal rescue or adoption organizations regarding rabbits that are equivalent to the cooperative agreements authorized regarding dogs and cats described above. The people of the State of California do enact as follows: SECTION 1. Section 31753 of the Food and Agricultural Code is amended to read: 31753. A rabbit, guinea pig, hamster, potbellied pig, bird, lizard, snake, turtle, or tortoise that is legally allowed as personal property and that is impounded in a public or private shelter shall be held for the same period of time, under the same requirements of care, and with the same opportunities for redemption and adoption by new owners or nonprofit, as defined in Section 501(c)(3) of the Internal Revenue Code, animal rescue or adoption organizations as provided

for cats and dogs. The public or private shelter may enter into cooperative agreements with animal rescue or adoption organizations regarding rabbits that are equivalent to those cooperative agreements authorized in Section 31108 regarding dogs and Section 31752 regarding cats. Section 17006 shall also apply to these animals. In addition to any required spay or neuter deposit, the public or private shelter, at its discretion, may assess a fee, not to exceed the standard adoption fee, for animals adopted by new owners or released to nonprofit animal rescue or adoption organizations pursuant to this section. SEC. 2. Section 122354.5 is added to the Health and Safety Code, to read: 122354.5. (a) A pet store operator shall not sell a live dog, cat, or rabbit in a pet store unless the dog, cat, or rabbit was obtained from a public animal control agency or shelter, society for the prevention of cruelty to animals shelter, humane society shelter, or rescue group that is in a cooperative agreement with at least one private or public shelter pursuant to Section 31108, 31752, or 31753 of the Food and Agricultural Code. (b) All sales of dogs and cats authorized by this section shall be in compliance with paragraph (1) of subdivision (a) of Section 30503 of, subdivision (b) of Section 30520 of, paragraph (1) of subdivision (a) of Section 31751.3 of, and subdivision (b) of Section 31760 of, the Food and Agricultural Code. (c) Each pet store shall maintain records sufficient to document the source of each dog, cat, or rabbit the pet store sells or provides space for, for at least one year. Additionally, each pet store shall post, in a conspicuous location on the cage or enclosure of each animal, a sign listing the name of the public animal control agency or shelter, society for the prevention of cruelty to animals shelter, humane society shelter, or nonprofit from which each dog, cat, or rabbit was obtained. Public animal control agencies or shelters may periodically require pet stores engaged in sales of dogs, cats, or rabbits to provide access to these records. (d) A pet store operator who is subject to this section is exempt from the requirements set forth in Article 2 (commencing with Section 122125) of Chapter 5, except for the requirements set forth in Section 122135, paragraphs (3) and (4) of subdivision (a) of, and paragraphs (5) and (6) of subdivision (b) of, Section 122140, and Sections 122145 and 122155.

(e) A pet store operator who violates this section shall be subject to a civil penalty of five hundred dollars ($500). Each animal offered for sale in violation of this section shall constitute a separate violation. (f) For purposes of this section, a “rescue group” is an organization that is tax exempt under Section 501(c)(3) of the Internal Revenue Code, and that does not obtain animals from breeders or brokers for compensation. (g) This section does not prohibit a local governing body from adopting requirements that are more protective of animal welfare than those set forth in this section. (h) This section shall become operative on January 1, 2019. SEC. 3. Section 122357 of the Health and Safety Code is amended to read: 122357. A pet store operator who violates any provision of this chapter that is not specified in subdivision (a) of Section 122356 and is not proscribed by Section 122354.5 is guilty of a misdemeanor. West Hollywood California West Hollywood California. Chapter 9.50 Retail Sale of Dogs and Cats. 9.50.020 Retail Sale of Dogs and Cats . a. Definitions. For purposes of this chapter, the following definitions shall apply: 1. Animal shelter” means a municipal or related public animal shelter or duly incorporated nonprofit organization devoted to the rescue, care and adoption of stray, abandoned or surrendered animals, and which does not breed animals. 2. “Cat” means an animal of the Felidae family of the order Carnivora. 3. “Certificate of source” means a document declaring the source of the dog or cat sold or transferred by the pet store. The certificate shall include the name and address of the source of the dog or cat. 4. “Dog” means an animal of the Canidae family of the order Carnivora. 5. “Existing pet store” means any pet store or pet store operator that displayed, sold, delivered, offered for sale, offered for adoption, bartered, auctioned, gave away, or otherwise transferred cats or dogs in the City of West Hollywood on the effective date of this chapter, and complied with all applicable provisions of the West Hollywood Municipal Code.

6. “Pet store” means a retail establishment open to the public and engaging in the business of offering for sale and/or selling animals at retail. 7. “Pet store operator” means a person who owns or operates a pet store, or both. 8. “Retail sale” includes display, offer for sale, offer for adoption, barter, auction, give away, or other transfer any cat or dog. b. Prohibition. No pet store shall display, sell, deliver, offer for sale, barter, auction, give away, or otherwise transfer or dispose of dogs or cats in the City of West Hollywood on or after the effective date of the ordinance codified in this chapter.\ c. Existing Pet Stores. An existing pet store may continue to display, offer for sale, offer for adoption, barter, auction, give away, or otherwise transfer cats and dogs until September 17, 2010. d. Exemptions. This chapter does not apply to: 1. A person or establishment that sells, delivers, offers for sale, barters, auctions, gives away, or otherwise transfers or disposes of only animals that were bred and reared on the premises of the person or establishment; 2. A publicly operated animal control facility or animal shelter; 3. A private, charitable, nonprofit humane society or animal rescue organization; or 4. A publicly operated animal control agency, nonprofit humane society, or nonprofit animal rescue organization that operates out of or in connection with a pet store. e. Adoption of Shelter and Rescue Animals. Nothing in this chapter shall prevent a pet store or its owner, operator or employees from providing space and appropriate care for animals owned by a publicly operated animal control agency, nonprofit humane society, or nonprofit animal rescue agency and maintained at the pet store for the purpose of adopting those animals to the public. (Ord. 10-836 § 1, 2010) Don't Buy the Doggy in the Window: Ending the Cycle That Perpetuates Commercial Breeding With Regulation Of The Retail Pet Industry Author: Katherine C. Tushaus Place of Publication: Drake Journal of Agricultural Law

Publish Year: 2009 Primary Citation: 14 Drake J. Agric. L. 501 (2009) Summary: This Note discusses the problems with legislation and legal barriers created to battle the problems puppy mills pose to dogs bred in the United States. It then considers the applicability of legislation aimed at dealing with puppy mills at the retail level as a possible cure to the inadequacies of American regulation. This Note discusses the need for uniform regulation that goes to the heart of what sustains puppy mills, the supply and demand created by retail in the pet industry, using the model of legislation introduced in Australia, the NSW Animals (Regulation of Sale) Bill. Katherine C. Tushaus [FNa1] Copyright © 2009 by Drake Journal of Agricultural Law; Katherine C. Tushaus (reprinted with permission) “He who is cruel to animals becomes hard also in his dealings with men. We can judge the heart of a man by his treatment of animals.”--Immanuel Kant I. Introduction . . II. Puppy Mills: Why Are They a Problem? . . A. How Puppy Mills Came Into Existence . . of Commercial Breeding on Dogs . . III. United States Puppy Mill Regulations . . A. The USDA and the Animal Welfare Act . . 1. Plagued Enforcement of the Animal Welfare Act . . 2. A Proposed Amendment to the Animal Welfare Act: The Puppy Uniform Protection Statute . . B. State Laws Against Puppy Mills . . IV. Regulation of Puppy Mills Starting at the Root of the Problem: The Commercial Breeding of Dogs . . A. The NSW Animals (Regulation of Sale) Bill . . B. The Animals (Regulation of Sale) Bill as a Model for Effective Regulation of Commercial Breeding in the United States . . V. Conclusion . . I. Introduction

There are approximately seventy-five million dogs owned in the United States alone. [FN1] Thirty-nine percent of American households count at least one dog *502 as a family member. [FN2] After all, it is hard to resist the round eyes, floppy ears, huge paws, and wagging tail of a puppy in a pet store window. While the appeal of a sweet, happy, and well-adjusted puppy in a pet store window is exactly what sellers are going for, it is a far cry from the reality that the majority of the dogs sold in pet stores face. [FN3] As purebred dogs have become a sign of status, or even a fashion accessory, the production of dogs has become a part of the fanning industry itself, resulting in over-breeding and deplorable living conditions of the dogs being bred-- operations known as “puppy mills.” [FN4] While there are many reputable small breeders throughout the United States, the mass production of dogs by commercial breeders has a profoundly detrimental impact on the fate of the animals they produce. [FN5] Puppy mills have been created to meet the demand of the pet industry and have resulted in horrifying deviations from proper care and treatment of animals. [FN6] The puppy mill industry itself has become a concern of the animal rights community and has spurred a large amount of discussion and advocacy for legislation throughout the United States. [FN7] This Note will discuss the problems with legislation and legal barriers created to battle the problems puppy mills pose to dogs bred in the United States. It will then consider the applicability of legislation aimed at dealing with puppy mills at the retail level as a possible cure to the inadequacies of American regulation. This Note will discuss the need for uniform regulation that goes to the heart of what sustains puppy mills, the supply and demand created by retail in the pet industry, using the model of legislation *503 introduced in Australia, the NSW Animals (Regulation of Sale) Bill. [FN8] Before discussing legislation and its implementation for the puppy mill problem, we must first discuss what puppy mills are, how they developed, and what problems they pose. II. Puppy Mills: Why Are They a Problem ? Puppy mills are commercial breeders which mass-produce purebred puppies that receive pedigree papers from the American Kennel Club (AKC). [FN9] These animals are bred and raised in deplorable conditions, which can lead to health and behavioral problems for the pets. [FN10] Puppy mill dogs are

viewed as a crop to their breeders, arc bred as a means of profit, and are seen as “a commodity, no different than soybeans or metal widgets.” [FN11] Since commercial breeding supplies the pet industry, puppy mill breeders look to raise the most dogs they can for the lowest cost possible, “churning out massive numbers of puppies in a factory setting--in overcrowded and unsanitary conditions that can lead to genetic disorders, stress and disease.” [FN12] These animals suffer from inbreeding, minimal or no veterinary care, poor quality or scarce food, limited shelter, lack of human socialization, and overcrowded cages. [FN13] The mass production of dogs, in turn, puts reputable breeders at a significant disadvantage in the competitive economic market, since responsible breeding requires the economic investment in proper sanitation, housing, nourishment, and medical care of the animals. [FN14] As a result, reputable breeders simply cannot afford to sell their puppies in order to compete with the low prices for which pet stores sell purebred dogs. [FN15] A. How Puppy Mills Came Into Existence The first puppy mills were formed after World War II when farmers tried alternative means of farming to cope with the failure of conventional crops. [FN16] The United States Department of Agriculture (USDA) began to promote the practice of raising dogs as a crop, contributing to the rise of the commercial breeding of pets. [FN17] Because a supply of purebred dogs became readily available, more pet shops came into existence, feeding off of the commercially raised dogs and increasing the demand for pets. [FN18] Today, pet shops use retailers, acting as middlemen, to purchase the animals they sell. [FN19] Some pet shops either do not realize or fail to acknowledge that the main source retailers go to for pets are rural commercial breeders, mainly those that fall into the category of puppy mills. [FN20] Many puppy mills directly sell the dogs they breed to consumers through newspaper advertisements and the Internet, often posing as small, family breeders. [FN21] These commercial breeders will offer to ship the dog to its new owners. [FN22] They usually do not allow consumers to come to meet the dog and breeder at their home prior to adoption. [FN23] Other qualities common amongst commercial breeders include having or selling many different breeds of purebred dogs, not requiring an application process for people buying a puppy, and not providing return or contact information so that owners are

unable to return the dog to the breeder if at any time during the dog's life they cannot keep the dog. [FN24] B. The Consequences of Commercial Breeding on Dogs Puppy mill dogs are bred as a means of profit, often resulting in malnourished, poorly socialized, unhealthy pets that have developed undesirable behaviors as a result of their breeding and treatment by breeders. [FN25] This leads to *505 high incidents of abandonment, surrender, and expensive veterinary bills for those who purchase puppy mill dogs. [FN26] This contributes to the estimated six to eight million cats and dogs entering animal shelters each year, twenty-five percent of which are purebred dogs. [FN27] Roughly half of the cats and dogs in shelters are euthanized each year. [FN28] While the other half of the cats and dogs in shelters go to good homes, consumers continue to buy dogs from pet stores, thus supporting the cycle of dogs bred in puppy mills entering the marketplace. [FN29] As long as there is a demand for commercial breeding of animals, pet overpopulation will continue to be a problem and “puppy mills will keep breeding and overbreeding for profit.” [FN30] In many instances, operating a commercial breeding kennel, often in deplorable conditions, is not illegal. [FN31] Conditions of neglect have been left widely unnoticed by the general public, as puppy mill breeders are unlikely to allow customers a chance to see their property. [FN32] The resources available to implement rules in regard to commercial breeding are inadequate in achieving their purpose, which will be discussed further into this Note. [FN33] In addition, even those commercial breeders that try to provide clean and appropriate living conditions for their dogs practice inhumane breeding techniques, forcing female dogs to breed every time they come into heat in order to produce the maximum amount of litters. [FN34] On the other hand, reputable breeders protect the health of their dogs by breeding them only a limited number of times, and certainly not every year. [FN35] Puppy mill dogs are confined to cages throughout the entirety of their lives, with very little human socialization or opportunity to do anything more than produce more puppies, clearly a lifestyle no dog should be forced to endure. [FN36] III. United States Puppy Mill Regulations

In recent years, the movement against puppy mills throughout the United States has resulted in the creation of a significant amount of state legislation in addition to the federal Animal Welfare Act. The majority of these rules, however, deal with breeding standards and licensing requirements in general, as opposed to getting to the root of the puppy mill problem--the cycle between consumers, pet retailers, and commercial breeders that puppy mills create. [FN37] Puppy mills “wouldn't be there if it weren't for the public buying [dogs from] them. Puppy-buying dog lovers are a puppy mill's bread and butter.” [FN38] The USDA is responsible for regulation of commercial breeders on a federal level, through the Animal Welfare Act. [FN39] However, the USDA is only able to regulate “wholesale” breeding facilities that sell animals to businesses that turn around and sell them to the public, not those that sell exclusively to the public. [FN40] Because federal licensing is only required for breeders that participate in wholesale sale of dogs to retailers, it is predominantly up to the states to implement legislation to deal with the problem involving commercial breeders. In addition, the USDA's implementation of the Animal Welfare Act has been plagued by insufficient funding and inconsistency in the enforcement of federal laws regarding animal breeding. [FN41] Many states do not have legislation in place to deal with commercial breeding and much of the legislation that is in place does not deal with the retail industry, but instead contributes to the puppy mill problem. [FN42] State legislation varies greatly from state-to-state, making the laws and enforcement of them incredibly inconsistent throughout the nation. [FN43] A. The USDA and the Animal Welfare Act The Animal Welfare Act seeks to control people who possess and sell animals and the conditions in which they are kept. [FN44] It applies only to “wholesale” breeding facilities and is enforced by a subdivision of the USDA, Animal *507 Care. [FN45] The Act covers licensing, care standards, and punishment for those who sell and negotiate the sale of dogs, if they earn more than $500 a year from the enterprise. [FN46] This excludes retail pet shops and breeders that sell animals directly to the public. [FN47] The Animal Welfare Act also sets forth humane standards for animals, covering the handling, care, treatment, and transportation of animals by dealers. [FN48] This requires the USDA to create and effectuate minimum requirements for the handling, housing, feeding,

watering, sanitation, ventilation, shelter from extremes of weather, veterinary care, general care, treatment, and exercise for dogs. [FN49] While protection of animals and qualifications for valid certification upon the sale of pets are issued within the law, it is important to remember that the USDA's standards set forth minimum business requirements rather than high-quality condition requirements for the dogs being bred. [FN50] 1. Plagued Enforcement of the Animal Welfare Act Enforcement of the Animal Welfare Act is based upon access to the premises and records of the breeder, as well as the ability to actually inspect them. [FN51] Each facility is subject to inspection once a year, and if there are deviations from the USDA standards noted upon inspection, follow-up inspections are required until the problems are corrected. [FN52] Civil and criminal penalties may result from repeated deviations and vary depending on what the facility is willing to do to improve the way it cares for its animals. [FN53] The penalties afforded for facilities that offer to cooperate with the standards are more innovative, “allow[ing] individuals to invest part or all of their monetary sanctions in facility improvements” rather than paying fines directly to the USDA. [FN54] The USDA also avoids participating in prosecution and permits non-complying breeders an opportunity to settle as opposed to being officially charged for deviations from the standards. [FN55] While there are penalties put forth for not complying with the standards promulgated by the USDA, the largest penalties associated with the Act are not for violating *508 standards, but rather for interfering with inspections. [FN56] There are civil penalties, such as license suspension and fines up to $2,500, as well as criminal penalties of up $2,500 and/or up to one year in prison, that have some deterrent power. [FN57] However, the inconsistent application of penalties and the ability to avoid being officially charged with non-compliance make the rules set forth by the USDA less of a threat to breeders who refuse to follow the standards of the Animal Welfare Act. [FN58] The USDA has indicated its own ineffectiveness in enforcing of the Animal Welfare Act. [FN59] Reports from government studies and the USDA have indicated that the penalties relied upon to enforce the Act were “not aggressively collected and were often arbitrarily reduced.” [FN60] The reports found that penalties were “often so low that violators regarded them as a cost of

doing business” and that the agency “accommodated facilities that repeatedly refused access to inspectors rather than suspending their licenses.” [FN61] Enforcement is ineffectual without funding backing it, and the USDA has been granted additional appropriations by Congress to put towards enforcement of the Act. [FN62] Even with the additional funding for enforcement, however, the agency lacks a sufficient number of personnel to inspect the thousands of facilities scattered across the country that are covered by the Animal Welfare Act. [FN63] It is important to understand that the Animal Welfare Act encompasses a large range of facilities that deal with and house animals, most of which do not participate in commercial breeding practices. [FN64] As a result, the USDA lacks the funding, man-power, expertise, and consistent enforcement mechanisms to adequately control the puppy mills it encounters in enforcement of the Act. [FN65] 2. A Proposed Amendment to the Animal Welfare Act: The Puppy Uniform Protection Statute In the mid-September 2008, the Puppy Uniform Protection and Safety Act (PUPS) was introduced in both the House and Senate. [FN66] PUPS aims to amend the Animal Welfare Act to require commercial breeders who produce more than fifty dogs a year and sell directly to the public to be licensed and inspected by the USDA. [FN67] The bill also requires sixty minutes of daily exercise for all dogs living in commercial breeding facilities that fall under the Act. [FN68] This law, while still up for consideration, is supported by both the Humane Society of the United States and the American Kennel Club (AKC), two organizations usually pinned against one another in the creation of legislation attempting to regulate commercial breeders. [FN69] The AKC is responsible for the registration and licensing of purebred dogs throughout the country and has opposed legislation aimed at eradicating commercial breeding of dogs because of the money it earns from the registration of large numbers of dogs from puppy mills. [FN70] The AKC supports this bill because it creates standards for commercial breeders to follow “without infringing upon the rights of responsible dog breeders and responsible dog owners.” [FN71] The PUPS bill is a step towards strengthening the federal regulation of commercial breeders, but it fails to recognize the problems that the USDA has regarding enforcement of the Animal Welfare Act itself as well as the cycle that

is perpetuated by puppy mills. As explained earlier, even puppy mills that provide acceptable shelter, nourishment, and playtime for their dogs practice substandard and dangerous breeding practices, forcing female dogs to breed every time they come into heat. [FN72] The PUPS bill has also been referred to as “Baby's Bill,” named in honor of a dog rescued from a puppy mill the day before she was *510 scheduled to be killed. [FN73] While the bill itself marks improvements to the standards by which the commercial breeding industry is held, it does not consider the problems of over-breeding that Baby herself faced. [FN74] Baby was found with a number tattooed to her ear, known only as a number ninety-four, with her vocal cords cut out so that her captors could not hear her cries as she barked to get out of her cage. [FN75] She had her leg amputated after her rescue, partly because she had spent her life in a cage and partly because she had been bred every time she came into heat. [FN76] Because she was bred so often, she was forced to nurse new babies every year, twice a year. [FN77] This forced breeding severely depleted the calcium in her bones, leading to osteoporosis. [FN78] Had the PUPS bill been implemented and followed by her breeders before her rescue, Baby would have gotten only an hour of time out of her cage each day, and the excessive breeding she was subject to would not have changed at all. [FN79] While the PUPS bill and the AKC do not consider the damage that overbreeding does to the animals living in commercial breeding facilities and the cycle that consumers perpetuate, the bill does leave room open for state laws that have requirements greater than those in the Animal Welfare Act. [FN80] As such, state laws seem to be an effective way of adding to the restrictions on puppy mills that the PUPS bill has introduced. B. State Laws Against Puppy Mills States have, to a certain degree, recognized the existence of puppy mills and the serious problems posed to animals resulting from commercial breeding. However, the present legislation varies greatly from state-to-state in terms of the kind of laws set forth by state-created legislation. [FN81] This means that the rules that apply to breeders in one state will not necessarily apply to those in other states. [FN82] Twenty-one states introduced legislation aimed at dealing with the puppy mill *511 problem in 2008. [FN83] Each state approaches the situation from a different standpoint, making it hard to

categorize what each state is actually trying to do. [FN84] There is a range of different legislation coming from state-to-state, including pet shop lemon laws, state humane breeding standards, laws requiring pet shops to provide veterinary care for sick pets, restrictions on the number of litters to be sold by breeders, laws against excessive breeding, and mandatory lists of disclosures pet dealers must share upon the sale of dogs. [FN85] The most common kind of state regulations that have been successfully passed are animal licensing laws. [FN86] While these laws do seek to regulate actors in the puppy mill industry, the terminology and definition of the entity being regulated is unclear from state-to-state. [FN87] Some states refer to licensing for “kennels,” [FN88] “pet animal facilities,” [FN89] “pet shops,” [FN90] “commercial breeders,” [FN91] and “dealers,” [FN92] but each state has a different definition for what the varying terms relate to within their statutes and to what activities the licensing applies. As such, there is little uniformity amongst state laws that allows one to understand the actual definition of who is regulated without going to each state's law and sorting through legislation. [FN93] While any regulation is better than nothing, regulation that is inconsistent on a state-to-state basis allows commercial breeders to forum shop, enabling them to dodge states that have regulations which make their type of operation illegal. [FN94] It is important to note that while many states are considering any one of a variety of legislative cures for the puppy mill problem, proposed legislation is not passed at a consistent rate. [FN95] In addition, many of these state laws set forth standards of care, housing, sanitation, and food for animals, but, like the standards in *512 the Animal Welfare Act, they represent only minimum standards. [FN96] There is legislation being introduced in many states on a year-to-year basis, but a number of the proposed statutes are left pending until they die in committee. [FN97] Some of the legislation proposed during 2008 has become actual law, including a Maine law providing standards regarding care and shelter to be provided to animals, as well as a licensing procedure for commercial breeders. [FN98] Another notable state bill that was passed in 2008 took place in Virginia. [FN99] This legislation modified many of Virginia's preexisting animal welfare standards, including definitions of adequate shelter, food, water, and care. [FN100] While enactment of the Maine and Virginia

legislation provides hope that other states will also follow suit and seek to regulate commercial breeders in an effective manner, the laws enacted remain unique to the state they are in, and are only effective within state borders. Thus, with other states refusing to pass legislation regarding the issue, there remain plenty of other places for commercial breeders to operate within the United States. [FN101] Most of the regulation that is passed to deal with puppy mills within the states tries to implement regulation of the commercial breeding industry, but is unsuccessful for the same reasons as Animal Welfare Act. [FN102] It is very difficult to enforce laws against an industry that remains hidden from the public view by residing mainly in rural Midwestern and Great Plains communities, and the demand for mass-produced purebred animals is sustained so long as pet shops and consumers continue to purchase puppymill-pets without knowing they are doing *513 so. [FN103] These issues are complicated by the varying types and degrees of legislation from state-to-state, which have rendered the laws dealing with commercial breeding inconsistent throughout the United States. While many states do provide legislation dealing with puppy mills, they do not eradicate commercial breeding altogether and only put limits on what commercial breeders can do; this eliminates some of the problems but still allows the cycle of commercial breeding to continue, similar to the federal laws. [FN104] The states that do not have adequate legislation to limit commercial breeders to certain standards provide a place for even the most deplorable puppy mills to operate in a legal manner. [FN105] In fact, the states that fell into the bottom tier of the 2007 State Animal Protection Law Rankings did so for a number of reasons, including: a lack of statutory definitions of what constitutes cruelty or neglect; an inadequate range of definitions or prohibitions regarding standard care; no reporting mechanisms for instances of animal abuse; and a lack of penalties for offenders. [FN106] While there are states with some regulations on commercial breeders, there remain many states that do not have any regulation pertaining to puppy mills, and those that do regulate the industry do not have adequate legislation in place to effectuate their goals, leaving commercial breeders free to raise animals as they please. [FN107]

The reality is that for many farmers, dogs are their most valuable “crop,” meaning that the main problem surrounding puppy mill regulation is based on economics. [FN108] Commercial breeders, or “farmers,” seek to breed dogs at the lowest cost possible; it is costly for breeders to comply with rules regarding the care of the animals they produce, since spending more money for care of animals results *514 in a lower profit per animal once they are sold. [FN109] Regulation regarding the commercial breeding of dogs has been hard to pass in many states, and those states that have passed laws have not altogether eradicated commercial breeding, but only put restraints on it. In addition, state laws that do address commercial breeding are inconsistent in definition and enforcement from other states trying to do the same. Furthermore, the states that have lower degrees of regulation on commercial breeding provide a friendly home for puppy mill owners to operate their business without interference of the law. IV. Regulation of Puppy Mills Starting at the Root of the Problem: The Commercial Breeding of Dogs The main reason puppy mills continue to exist throughout the United States, despite their clear deviations from proper dog breeding principles, is ineffective regulation. [FN110] While the Animal Welfare Act and state regulations do continue to evolve in creating minimum living standards for animals and registration processes for breeders, they do not effectively eliminate the cycle that supports and perpetuates the existence of puppy mills. [FN111] This allows them to profit from inhumane treatment of animals as a means of everyday business. [FN112] Commercial breeders exist because there is a demand for their goods. The demand created by pet retailers that want to purchase dogs at the lowest possible cost encourages breeders to cut corners and ignore proper breeding procedures in raising animals, putting breeders who follow proper breeding procedures at a disadvantage. [FN113] As long as people continue to buy animals in pet shops, online, or through the newspaper without inquiring from where they come, commercial breeders will continue to benefit from the mass-production of dogs. [FN114] As we consider the problems that puppy mills pose as a whole, from how they came into existence to the state and federal regulations that try to deal with them, the cycle perpetuated by the demand of the pet industry is a

constant aspect of the commercial breeding business that has yet to be broken. So, how do we eliminate the inhumane practices of commercial breeding seen in puppy mills throughout the United States? We break the cycle by eradicating the demand. A. The NSW Animals (Regulation of Sale) Bill At the end of 2008, the Australian State of New South Wales (NSW) introduced legislation deemed the Animals (Regulation of Sale) Bill in the state parliament. [FN115] The legislation goes beyond regulation of breeders and gets to the root of the puppy mill problem--the sale of the dogs that are bred. [FN116] The main function of the legislation is to eliminate the sale of dogs and cats in pet shops and in markets throughout the state. [FN117] If passed, the bill will make it illegal for pet stores to sell animals in the store unless they are pets from pet shelters up for adoption. [FN118] Breeders recognized by the state will still be allowed to sell animals, but are subject to other requirements of the bill, including a mandatory explanation of the basic care that the pet being sold will require and the responsibilities the owner of the dog will need to fulfill throughout its lifetime. [FN119] The bill also requires that there be regulations setting forth the standards of breeding to become a breeder recognized by the state. [FN120] The legislation, as a whole, contains other requirements meant to reduce the number of pets that end up in pet shelters due to owners' inability to properly care for them and ensures the health and safety of animals being kept for sale as well as the end of pet overpopulation that has been perpetuated by the mass production of dogs. [FN121] B. The Animals (Regulation of Sale) Bill as a Model for Effective Regulation of Commercial Breeding in the United States The Animals (Regulation of Sale) Bill has the potential of providing Americans with a model of a new means of reforming American legislation to break the cycle that the supply and demand of the pet industry perpetuates. [FN122] By cutting out the pet industry that requires a constant supply of purebred puppies to keep their businesses profitable, breeders will no longer have to, nor have reason to, raise pets in sub-standard conditions. [FN123] In addition, this will force breeders who want to sell their animals to conform to state regulations on proper, humane *516 breeding. [FN124] Breeders that have always participated in proper breeding, care, and placement of their dogs will

be allowed to continue operation, and will no longer have to compete in a market that encourages the improper treatment of dogs as a means of making money. [FN125] Opposition to this kind of legislation in the United States is absolutely certain. The pet industry thrives off of the sale of animals from pet shop windows and the impulse-buyers who get dogs because they are available right then and there, and do not consider asking questions about the origins of the puppy or contemplate the responsibilities related to owning a dog. [FN126] In addition, major lobbying groups like the AKC are certain to dispute this sort of legislation, because the AKC makes a great deal of revenue from the purebred papers it generates for the massive amount of animals produced by commercial breeders each year. [FN127] There is no doubt that groups of commercial breeders, who maintain their livelihood based upon the sale of their “crop”-puppies--will be wholeheartedly opposed to such legislation. While there are major barriers to the passage of legislation that is reformative to the cruelty of the commercial breeding industry, these obstacles are not insurmountable: Those of us who champion animal-welfare reform have to be vigilant when it comes to those who lobby to maintain the status quo (the American Kennel Club among others). They claim to care for dogs and yet have opposed various animal-welfare reform legislation which would improve their condition. In the end we will prevail, because we have truth on our side, namely the horrible evidence of abuse and cruelty at many of the commercial dog-breeding facilities. [FN128] By allowing recognized breeders who adhere to standard, humane breeding practices to continue to operate pursuant to the mandates of the legislation the American standard of free market sale and enterprise can be maintained while allowing for more humane treatment of the animals produced for sale. Pet stores will not have to close down, but rather, concentrate solely upon selling supplies for cats and dogs rather than the animals themselves--a practice which many pet stores already employ. Breeders will not need to stop breeding, but simply adhere to the legislative requirements based upon proper and humane breeding practices. There are numerous benefits to this sort of legislation. By making the sale of animals in pet stores illegal: (1) breeders will need to adhere to proper breeding

standards in order to make a profit; (2) pet consumers will be required to seek out a breeder and consider adoption before “impulse-buying”; and (3) shelters will benefit from being able to place homeless animals in adoptive homes effectively, working with the pet industry. [FN129] Pet stores that want to have dogs in their stores will be able to work with local pet shelters and adoption agencies to provide for in-store adoption and home placement for homeless animals. While these adoptions will not bring in revenue for the store based on the actual sale of an animal, it will create patronage from customers who found the family pet in the store as well as provide a community service by helping reduce the number of homeless and unwanted pets crowding shelters. Eradicating inhumane commercial breeding practices with legislation similar to the Animals (Regulation of Sale) Bill is not without its limitations. In fact, it may be plagued with the many problems faced by current federal and state regulations on commercial breeding. Funding and the proper means of implementation are always key issues. Legislation that removes the sale of animals from pet shops may be more successful because it is a highly visible industry within communities. Thus, it will be evident if a pet store is selling animals that are not associated with pet-shelter adoption. By making it illegal to sell animals in pet stores, it will help effectuate regulation of the commercial breeding industry by exposing it to the community. Non-compliant pet stores that continue to sell animals will be visible to the public, making identification of non-compliant facilities a simple task. Regulation of recognized breeders, on the other hand, will require frequent inspection of breeding facilities and practices as well as an effective means of implementing the standards. To avoid problems similar to those associated with the Animal Welfare Act, punishment for not adhering to the breeding standards of the legislation for recognized breeders must be strictly and consistently enforced to be effective. Enforcement requires frequent and proper inspection practices that necessitate significant funding, which are the same problems that plague the Animal Welfare Act and need to be seriously considered in order to deal with the issues commercial breeding has created. [FN130] Finances are going to be a major roadblock in implementing regulation like the Animals (Regulation of Sale) Bill. While legislation is a key component of

fixing the problems of commercial breeding, it must be enforced. Enforcement *518 requires funding, and it is hard to get funding if the public is unwilling to support it. Thus, the success of this sort of legislation is highly dependant upon public awareness of puppy mills and the problems they pose, in addition to advocacy for effective regulatory legislation. At least some of the funding for continued regulation of the commercial breeding industry may be included in the legislation itself. The state may be able to address funding issues associated with the legislation by requiring a licensing fee for all pet stores and recognized breeders. This extra means of funding can be used to effectuate the legislation and could provide inspections of premises to ensure compliance with the regulatory laws. As a result, the mandatory licensing fee can alleviate at least some of the financial burden it creates. The consideration of legislation similar to the NSW Animals (Regulation of Sale) Bill also has the potential of stirring some waves, creating media response, and therefore further exposing the issue of puppy mills to the public eye. This exposure can activate a higher degree of public awareness in regard to the inhumanity of commercial breeding, which in turn can affect the amount of public support for expanded funding for the regulation of dog breeders. Educating more people about the existence of puppy mills through the introduction of legislation can help cut down on sales of puppy mill dogs without even passing legislation, thus lowering the demand for puppies that perpetuates the cycle of commercial breeding. [FN131] While public funding is necessary to adequately enforce any regulation of the commercial breeding industry, support for regulation can be fostered by making more of the public aware of the problems it poses. This is an important step in gaining critical support for legislation eradicating the commercial breeding industry. Although Americans may not be willing to undertake the financial burden legislation modeled after the Animals (Regulation of Sale) Bill, introducing it in state legislatures would not be futile. It can have the effect of opening up more dialogue regarding commercial breeding and, thus, set the stage for more public to support and even demand for legislation dealing with the industry as people become aware of the cruelty the sale of puppy mill dogs perpetuates.

V. Conclusion The inhumane treatment of dogs bred in puppy mills is an issue yet to be adequately tackled in the United States, and will continue to be a problem until the proper funding and public awareness of the cruelty of commercial breeding is *519 achieved. The NSW Animals (Regulation of Sale) Bill provides Americans with model legislation that goes at commercial breeding from what created it from the start--the pet industry demand for a large supply of puppies to sell to an animal-loving public. Pursuing legislation that attacks the cycle that perpetuates puppy mills requires the financial means and public dedication to attack commercial breeding head-on. However, for thirty-nine percent of Americans who own dogs and consider them a part of their family, the least we can do to ensure the humane treatment of man's best friend is to speak out, educate the public, and pursue legislation that adequately eradicates the existence of puppy mills. [FNa1] . J.D. Candidate, Drake University Law School, 2010. [FN1] . U.S. Pet Ownership Statistics, The Humane Soc'y of the U.S. (Mar. 17, 2008), (URL removed for reprint) (URL removed for reprint). [FN2] . Id. [FN3] . Puppy Mills: Dogs Abused for the Pet Trade, People for the Ethical Treatment of Animals, (URL removed for reprint) (last visited Oct. 19, 2009). [FN4] . See Presidential Purebred Pups Are a White House Tradition , Am. Kennel Club News , July 2, 2008, (URL removed for reprint) (describing the tradition of presidents and the purebred pets they have brought to the White House). [FN5] . Jana Kohl, A Rare Breed of Love 3-4 (2008); Joseph Lubinski, comment, The Cow Says Moo, the Duck Says Quack, and the Dog Says Vote! The Use of the Initiative to Promote Animal Protection , 74 U. Colo. L. Rev. 1109, 1149 (2003). [FN6] . See Kohl , supra note 5, at 57; Inhumane Conditions of Puppy Mills in National Spotlight , The Humane Soc'y of the U.S. , Aug. 22, 2006, (URL removed for reprint) [hereinafter Inhumane Conditions of Puppy Mills in National Spotlight ]; What's a Puppy Mill?, Best Friends Animal Soc'y, (URL removed for reprint) [hereinafter What's a Puppy Mill?].

[FN7] . See generally State Puppy Mill Laws, Humane Soc'y of the U.S., (URL removed for reprint) (last visited Oct. 19, 2009) [hereinafter State Puppy Mill Laws] (outlining puppy mill laws that have been enacted throughout the United States). [FN8] . See infra §§ II, IV. [FN9] . Lubinski, supra note 5, at 1149. [FN10] . Id. [FN11] . Kohl , supra note 5, at 3; 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, 260 (1999). [FN12] . Inhumane Conditions of Puppy Mills in National Spotlight, supra note 6. [FN13] . Puppy Mill Perils: 250 Dogs and Puppies Rescued from Filthy Kennel , The Humane Soc'y of the U.S. , Aug. 23, 2007 (URL removed for reprint) [FN14] . See Samantha Mortlock, Standing On New Ground: Underenforcement of Animal Protection Laws Causes Competitive Injury to Complying Entities , 32 Vt. L. Rev. 273, 274 (2007). [FN15] . Fumarola, supra note 11, at 263. [FN16] . Id. at 262. [FN17] . Id. [FN18] . Id. [FN19] . Id. [FN20] . See id. [FN21] . Puppy Buying Tips, Humane Soc'y of the U.S., Mar. 26, 2009, (URL removed for reprint) [FN22] . What's a Puppy Mill?, supra note 6. [FN23] . Id. [FN24] . Id. ; Robin Tierney, How Responsible Breeders Differ From Backyard Breeders and Pet Shops , The Partnership for Animal Welfare , Nov. 20, 2008, (URL removed for reprint) [FN25] . Fumarola, supra note 11, at 260; see also People for the Ethical Treatment of Animals, supra note 3. [FN26] . See Frequently Asked Questions, Humane Soc'y of the U.S., Mar. 26, 2009, (URL removed for reprint), Frequently Asked Questions] (explaining the

burden that dogs rescued from puppy mills put on animal shelters and veterinary costs to pet owners). [FN27] . Humane Soc'y of the U.S., HSUS Pet Overpopulation Estimates, July 7, 2008, (URL removed for reprint) [FN28] . See id. (indicating that each year 3-4 million cats and dogs in shelters are euthanized and that six to eight million are adopted). [FN29] . See Kohl , supra note 5, at 56. [FN30] . Tierney, supra note 24. [FN31] . Frequently Asked Questions, supra note 26. [FN32] . What's a Puppy Mill?, supra note 6. [FN33] . See infra § III. [FN34] . What's a Puppy Mill?, supra note 6. [FN35] . Tierney, supra note 24. [FN36] . What's a Puppy Mill?, supra note 6. [FN37] . See generally State Puppy Mill Laws, supra note 7; Inhumane Conditions of Puppy Mills in National Spotlight, supra note 6. [FN38] . Kohl , supra note 5, at 57. [FN39] . Frequently Asked Questions, supra note 26. [FN40] . Mariann Sullivan, The Animal Welfare Act--What's That? , 79 N.Y. St. B.J. 17, 18 (2007); Id. [FN41] . Sullivan, supra note 40, at 19. [FN42] . See generally State Puppy Mill Laws, supra note 7. [FN43] . See id. [FN44] . Animal Welfare Act, 7 U.S.C. § 2131 (2009). [FN45] . Sullivan, supra note 40 at 19. [FN46] . Animal Welfare Act, 7 U.S.C. § 2132(f). [FN47] . Sullivan, supra note 40, at 18; Companion Animals, U.S. Dep't of Agric., (URL removed for reprint) (last visited Oct. 19, 2009). [FN48] . Animal Welfare Act, 7 U.S.C. § 2143(a). [FN49] . Id. [FN50] . Tierney, supra note 24. [FN51] . Animal Welfare Act, 7 U.S.C. § 2146(a). [FN52] . Id. [FN53] . Sullivan, supra note 40, at 19.

[FN54] . Id. [FN55] . Id. at 19-20. [FN56] . Animal Welfare Act, 7 U.S.C. §§ 2146(b), 2149(b), 2149(d). [FN57] . Animal Welfare Act, 7 U.S.C. §§ 2149(b), 2149 (d). [FN58] . Report of the Committee on Legal Issues Pertaining to Animals of the Association of the Bar of the City of New York Regarding Its Recommendation to Amend the Animal Welfare Act , 9 Animal L. 345, 347 (2003) [hereinafter Legal Issues Pertaining to Animals ]; see also Sullivan, supra note 40, at 20-21. [FN59] . Legal Issues Pertaining to Animals, supra note 58, at 346-47. [FN60] . Id. at 347. [FN61] . Id. [FN62] . Id. at 348-49. [FN63] . Id. at 348. [FN64] . See id. [FN65] . See id. at 347-49. [FN66] . See H.R. 6949, 110th Cong. (2008); S. 3519, 110th Cong. (2008). [FN67] . See H.R. 6949, 110th Cong. § 2 (2008); S. 3519, 110th Cong. § 2 (2008); 7 U.S.C. § 2133 (2008). [FN68] . H.R. 6949, 110th Cong. § 2 (2008); S. 3519, 110th Cong. § 2 (2008). [FN69] . See Kohl , supra note 5, at 59 (indicating the AKC's usual opposition to puppy mill legislation); Federal Lawmakers Introduce Bill to Crack Down on Abusive Puppy Mills , The Humane Soc'y of the U.S. , Sept. 19, 2008, (URL removed for reprint) (URL removed for reprint); Puppy Uniform Protection Statute (PUPS) Legislation Introduced in US Congress , Am. Kennel Club News , Sept. 25, 2008, (URL removed for reprint) [hereinafter Am. Kennel Club News ]. [FN70] . See People for the Ethical Treatment of Animals, supra note 3 (explaining the millions of dollars the AKC receives each year from breeders who pay AKC licensing fees). [FN71] . Am. Kennel Club News , supra note 69. [FN72] . What's a Puppy Mill?, supra note 6. [FN73] . Kohl , supra note 5, at 7-8; Humane Soc'y of the U.S., Puppy Mill Survivor Inspires Mission, New Book , Aug. 11, 2008, (URL removed for reprint). [FN74] . See Kohl , supra note 5, at 7-8.

[FN75] . Id. at 9. [FN76] . Id. at 7-8. [FN77] . Id. [FN78] . Id. [FN79] . See id. at 59 (referring to the cycle of puppy mills and its perpetuation by buyers). See generally H.R. 6949, 110th Cong. (2008); S. 3519, 110th Cong. (2008). [FN80] . H.R. 6949, 110th Cong. § 3 (2008); S. 3519, 110th Cong. § 3 (2008). [FN81] . See generally State Puppy Mill Laws, supra note 7. [FN82] . See generally id. [FN83] . See Humane Soc'y Legislative Fund, 2008 State Legislation Pertaining to Puppy Mills, (URL removed for reprint) (last visited Oct. 19, 2009). [FN84] . See id. (providing a description of different puppy mill bills introduced in 2008). [FN85] . See id. [FN86] . See State Puppy Mill Laws, supra note 7. [FN87] . See id. [FN88] . Mass. Gen. Laws ch. 140 §§ 136(a), 137(a) (2008). [FN89] . Colo. Rev. Stat. §§ 35-80-102, 35-80-106 (2008). [FN90] . Va. Code Ann. §§ 3.1-796.66, 3.1-796.71 (2008). [FN91] . Iowa Code §§ 162.2, 162.8, 162.12 (2009). [FN92] . R.I. Gen. Laws § 4-19-2 (2008). [FN93] . See generally State Puppy Mill Laws, supra note 7. [FN94] . See Frequently Asked Questions, supra note 26 (indicating that, depending on where it is located, “operating a commercial breeding kennel may not be illegal”). [FN95] . See Humane Soc'y Legislative Fund, supra note 83 (many of the laws on this list have remained unenacted in committee or have been “killed” while sitting in committee). [FN96] . See generally Kohl , supra note 5, at 58 (explaining that the requirements of the Animal Welfare Act set forth only minimum standards of animal care); State Puppy Mill Laws, supra note 7. [FN97] . See, e.g. , S.F. 2293, 82d Gen. Assem., Reg. Sess. (Iowa 2008) (restricting the amount of litters a commercial breeder can produce); H.F. 2469,

85th Sess. (Minn. 2007) (proposing standards in care, licensing, and inspection of commercial dog and cat breeders, as well as penalties for and seizure of animals for not complying with regulation); H.B. 518, 2008 Reg. Sess. (Ky. 2008) (regulating the sale of animals in pet stores); H.B. 3192, 51st Leg., 2d Sess. (Okla. 2008) (providing for regulation of commercial breeders through licensing requirements and related enforcement mechanisms); H.B. 2914, 105th Gen. Assemb., Reg. Sess. (Tenn. 2008) (extending the licensing process for commercial breeders); S. 341, 2008 Gen. Assem. (Vt. 2008) (regulating dog breeders by imposing minimum requirements); H.B. 2511, 60th Leg., 2008 Reg. Sess. (Wash. 2008) (creating a list of information breeders must disclose upon the sale of a dog, as well as making it illegal to sell a dog with obvious sickness or disease). [FN98] . See An Act to Amend the Animal Welfare Laws, 2009 Me. Legis. Serv. Ch. 343 (West 2009). [FN99] . Va. Code Ann. §§ 3.1-796.66-3.1-796.72 (2008). [FN100] . Va. Code Ann. § 3.1-796.66 (2008). [FN101] . See Frequently Asked Questions, supra note 26. [FN102] . See supra § III (discussing problems with enforcing the Animal Welfare Act). [FN103] . See Int'l Soc'y for Animal Rights, Dog Overpopulation and Puppy Mills, (URL removed for reprint) (last visited Oct. 19, 2009) (indicating the large concentration of puppy mills throughout the Midwest and Great Plains regions of the United States); see also supra § III. [FN104] . See, e.g. , Iowa Code §§ 162.1-162.18 (2008) (requiring licensing for “commercial breeders” and creating minimum guidelines concerning the feeding, watering, cleaning, and shelter provided to animals at the facility); Pa. Stat. Ann. §§ 21.21-21.30 (West 2008) (enforcing licensing for breeders depending on the number of dogs and enforcing sanitary and humane conditions); W. Va. Code § 19-20-3 (2008) (requiring a registration fee for kennels; places “wherein dogs are bred, kept, boarded or sold as a commercial venture for profit” but providing no additional requirements for these facilities). [FN105] . See Frequently Asked Questions, supra note 26.

[FN106] . See Stephen K. Otto, Animal Legal Defense Fund, 2007 Animal Protection Laws Rankings 3 (2007), (URL removed for reprint) [FN107] . See Frequently Asked Questions, supra note 26. [FN108] . Puppies Are Biodegradable, Definition: What Is a Puppy Mill?, removed for reprint (last visited Oct 19, 2009). [FN109] . See Mortlock, supra note 14, at 274. [FN110] . See supra § III. [FN111] . See id. [FN112] . See id. [FN113] . See Kohl , supra note 5, at 57; Mortlock, supra note 14 at 274. [FN114] . See Kohl , supra note 5, at 57. [FN115] . Animals (Regulation of Sale) Bill 2008 (NSW). [FN116] . See generally id. [FN117] . Id. at pt. 2 div. 1. [FN118] . Id. at pt. 2 div. 2. [FN119] . Id. [FN120] . Id. at pt. 4. [FN121] . See Clover Moore, Lord Mayor of Sydney, Parliament of N.S.W., Legislative Assembly Minister's Agreement in Principle Speech: Animals (Regulation of Sale) Bill 2008 (Nov. 14, 2008). [FN122] . See id. [FN123] . See id. [FN124] . See id. [FN125] . See id. [FN126] . See id. [FN127] . See Kohl , supra note 5, at 64-65; People for the Ethical Treatment of Animals, supra note 3 (explaining the thousands of dogs the AKC registers each year from breeders who pay AKC licensing fees). [FN128] . Kohl , supra note 5, at 64-65. [FN129] . See Moore, supra note 121 (explaining “the aim . of puppy farms . is to mass-produce cute . puppies to get more impulse sales in pet shops”). [FN130] . See supra § III (referring to the difficulty in implementing state and federal laws dealing with commercial breeding because of lack of enforcement, funding, and personnel).

[FN131] . See Kohl , supra note 5, at 60 (discussing the use of public education as a means of decreasing the demand for commercially bred dogs).

Chapter 18 Pet trusts

Introduction to pet trusts Minnesota Alabama Oregon The perfect pet trust: saving your dog from the unexpected Introduction to pet trusts .We have all heard stories of eccentric rich people leaving vast sums to their pets. But how should ordinary people handle making sure their pets are well taken care of after the owner's death? One thing that doesn't work is leaving money to your animals in your will. A will needs to be probated, and probate takes time. In estate planning, you need a more immediate solution for your pets. The uniform probate code guides states in creating legislation that creates proper pet trusts. As a uniform code, many states have enacted some version of the model code. Looking at these code sections in your particular state is essential for any lawyer doing animal advocacy work. Lawyer advocates are

unlikely to want to pass changes to these laws. However, what lawyers will need to do is steer clients into pet trusts that work in their state. In "the perfect trust" written by Rachel Hirschfeld of New York, we read about the pitfalls of not creating a proper pet trust. Minnesota 2018 Minnesota Statutes Chapter 501C Section 501C.0408 2016 501C.0408 New 2016 c 135 art 1 s 3 501C.0408 TRUST FOR CARE OF ANIMAL. §Subdivision 1. Creation of an animal trust authorized; termination. A trust may be created to provide for the care of an animal alive during the settlor's lifetime. The trust terminates upon the death of the animal or, if the trust was created to provide for the care of more than one animal alive during the settlor's lifetime, upon the death of the last surviving animal. Notwithstanding the foregoing, the trust may not be enforced for more than 90 years. Subd. 2.Enforcement of trust. A trust authorized by this section may be enforced by a person appointed in the terms of the trust or, if no person is appointed, by a person appointed by a court. A person having an interest in the welfare of the animal may request the court to appoint a person to enforce the trust or to remove an appointed person. Subd. 3.Application of trust property. Property of a trust authorized by this section may be applied only to the trust's intended use, except to the extent a court determines that the value of the trust property exceeds the amount required for the intended use. Upon termination of the trust, or if the court determines the trust has excess funds, the trustee shall transfer the unexpended or excess trust property pursuant to the terms of the trust instrument or, if there is no provision in the trust instrument, then the trust passes to the settlor's heirs-at-law determined as if the settlor died intestate domiciled in this state at the time of distribution. Subd. 4.Public health programs and trusts. An irrevocable inter vivos trust created under this section is subject to section 501C.1206.

Alabama 2016 Code of Alabama Title 19 - FIDUCIARIES AND TRUSTS. Chapter 3B - ALABAMA UNIFORM TRUST CODE. Section 19-3B-408 - Trust for care of animal. Universal Citation: AL Code § 19-3B-408 (2016) Section 19-3B-408 Trust for care of animal. (a) A trust may be created to provide for the care of an animal alive during the settlor's lifetime. The trust terminates upon the death of the animal or, if the trust was created to provide for the care of more than one animal alive during the settlor's lifetime, upon the death of the last surviving animal. (b) A trust authorized by this section may be enforced by a person appointed in the terms of the trust or, if no person is so appointed, by a person appointed by the court. A person having an interest in the welfare of the animal may request the court to appoint a person to enforce the trust or to remove a person appointed. (c) Property of a trust authorized by this section may be applied only to its intended use, except to the extent the court determines that the value of the trust property exceeds the amount required for the intended use. Except as otherwise provided in the terms of the trust, property not required for the intended use must be distributed to the settlor, if then living, otherwise to the settlor's successors in interest. (Act 2006-216, p. 314, §1.) Oregon Oregon Revised Statutes Annotated. Title 13. Protective Proceedings; Powers of Attorney; Trusts. Chapter 130. Uniform Trust Code. Creation, Validity, Modification and Termination of Trust. 130.185. Pet trust. Primary Citation: O. R. S. § 130.185 (1) A trust may be created to provide for the care of one or more animals that are alive during the settlor's lifetime. The trust terminates upon the death of the animal or, if the trust was created to provide for the care of more than one animal, upon the death of the last surviving animal. An oral or written

declaration shall be liberally construed in favor of finding the creation of a trust under this section. There is a presumption against merely precatory or honorary disposition on behalf of an animal. (2) A trust authorized by this section may be enforced by a person appointed in the terms of the trust or, if a person is not appointed in the terms of the trust, by a person appointed by the court. A person having an interest in the welfare of the animal may request the court to appoint a person to enforce the trust or to remove a person appointed. Reasonable compensation for a person appointed by the court may be paid from the assets of the trust. (3) Property of a trust authorized by this section may be applied only to its intended use. Upon termination of the trust, property of the trust must be distributed to those persons designated in the trust. In the absence of a designation, the property shall be distributed to the settlor if the settlor is living when the distribution is made, or to the settlor's successors in interest if the settlor is not living when the distribution is made. (4) Except as ordered by a circuit court or required by the trust instrument, a trustee for a trust authorized under this section need not pay any fee or make any filing, report, registration, periodic accounting, separate maintenance of funds or appointment by reason of the existence of the fiduciary relationship of the trustee. A person appointed to enforce the trust may request a report under ORS 130.710 (3). Laws 2005, c. 348, § 28. THE PERFECT PET TRUST: SAVING YOUR DOG FROM THE UNEXPECTED Rachel Hirschfeld Founder and Co-Chair The New York County Lawyer’s Association Animal Law Committee INTRODUCTION I.THE STATUTORY PET TRUST: PET TRUST TRIGGERED BY A CLAUSE IN THE WILL A. Advantages of the Statutory Pet Trust B. Disadvantages of the Statutory Pet Trust Not Valid During Pet Owner’s Life Instructions Can Be Disregarded

Inconsistency Between States Expiration Dates Vary By States Court Appointed Pet Guardian Oblivious Pet Guardian Funds at the Discretion of the Court Funds are Disbursed in One Lump Sum C. An American Pet Trust Tragedy–the Leona Helmsley Case The Aftermath of the Helmsley Crisis Leona Helmsley’s Final Mission Statement: Implications of the Leona Helmsley Case II.THE STAND ALONE PET TRUSTS: THE FREESTANDING PET PROTECTION AGREEMENT® PET TRUST AND THE FREESTANDING PET TRUST A. The Pet Owner: “Who is the Pet Owner?” Joint ownership Factors Courts Use to Determine Ownership ... Additional Factor - Considering the Best Interest of the Animal B. The Pet Owner’s Mental Competency: “Are you currently of sound mind and free of mental illness?”. C. Never Use the Term “Incapacity”: Use “Unable to Care For” D. The Pet Guardian: “Who is the Pet Guardian?” Difficulty Choosing the Pet Guardian Separate Pet Trusts for Each Pet Guardian The Pet Guardian Can Be An Organization: “Is the Pet Guardian an individual or an organization?” Successor Pet Guardians: “Who will be the Successor Pet Guardian(s)?” E. Organization of Last Resort: “Who would you like to designate as the Organization of Last Resort?” F. The Pets Describe the Pet Physically Describe the Pet’s Personality Microchips and Other Identifiers G. Instructions for the Pet’s Care

H. Future Pets I. Funds: “Are you leaving any funds to cover the cost of care for your pets?” How Much is Enough? Leave as Much as You Want Compensation Emergency Funds J. Distribution Representative: “Would you like to appoint a Distribution Representative?” “Is the Distribution Representative an individual or organization?” Successor Distribution Representative: “Would you like to appoint someone as the successor Distribution Representative, who will serve in case your first choice is unable or unwilling?” “Is the Distribution Representative an individual or an organization?” K. Community of Care and Service People Veterinarian and Health L. End of Life Decisions: Hospice, Medical Efforts and Euthanasia M. Beneficiaries: “Who should get any remaining funds that are left after your pets have passed away?” N. Executing the Document O. Sharing the Document III. LIMITED HEALTH CARE PROXY AND LIMITED POWER OF ATTORNEY IV. SIMILARITIES OF BOTH THE FREESTANDING PET TRUST AND THE PET PROTECTION AGREEMENT PET TRUST DOCUMENTS V. FEATURES UNIQUE TO THE FREESTANDING PET TRUST A. Requires an Attorney B. Requires a Trustee C. The Trust Protector D. Requires Funds VI. FEATURES UNIQUE TO THE PET PROTECTION AGREEMENT® PET TRUST A. Elements of a Contract, Trust and Will Make Up the Pet Protection Agreement Pet Trust B. History of the Pet Protection Agreement Pet Trust

VII. ECONOMIC EUTHANASIA A. Continuity of Pet Insurance Coverage B. Offering a Pet Trust with Pet Insurance: Portability, Added Service, New Clients VIII. TAX IMPLICATIONS OF PET TRUSTS A. Gift and Estate Tax Gift and Estate Tax Exclusions Application to Pet Trusts What about Structuring a Pet Trust as a Charitable Remainder Trust? B. Income Tax CONCLUSION INTRODUCTION This article is about pet trusts, the legal documents that secure an animal’s uninterrupted care. The goal is to guide the reader through the process of writing a definitive pet trust, and to highlight the potential mistakes and pitfalls that could invalidate these documents. What is a pet trust? A pet trust allows an individual, the Pet Owner, to name a Pet Guardian and, if they wish, to leave funds providing for the continued maintenance of animals, in the event that the Pet Owner is unable to.1 The American Pet Products Association (“APPA”)2 estimates that about sixtytwo percent of U.S. households have pets, and an astounding $60.59 million dollars will be spent on pets in the United States in 2015.3 This is three times the amount of money that was spent on pets approximately twenty years ago.4 Clearly, times have changed and attitudes are evolving.5 An ever growing number of Americans consider their pets as more than just animals. According to The Harris Poll,6 there is a tendency for people to elevate their pets to the status equivalent to that of a family member.7 Just look at any Pet Owner’s smartphone and you will see photos of their pets, along with other family members.8 Because people are passionate about their pets, providing uninterrupted care for them is often a concern.9 When something happens to a Pet Owner, such as an accident, illness, or death, a pet trust becomes especially critical.10 Sadly, if there is no legal document or binding plan in place, the court may make decisions for what it terms the abandoned animal.11

According to The American Society for the Prevention of Cruelty to Animals (“ASPCA”),12 approximately 7.6 million companion animals enter animal shelters nationwide every year: 3.9 million are dogs and 3.4 million are cats.13 Of those, approximately 31 percent (2.7 million: 1.2 million dogs and 1.4 million cats) are euthanized.14 The concept of pet trusts is relatively new and it has received significant coverage in the press.15 This developing interest has been dominated by celebrity cases, such as those of Leona Helmsley,16 Oprah Winfrey and Joan Rivers, all of whom provided for the care of their animals.17 What is not as widely covered is the explosion of like-mindedness among Americans who are just as interested in providing care for their beloved pets through the available, legally enforceable, entities referred to as pet trusts.18 Pets are the ultimate equalizer; regardless of the kind of pet, the wealth of the pet’s owner or the city they live in, Pet Owners need to secure the legal protection they need for their pets.19 The large number of pet trusts created each year in lawyers’ offices around the country, as well as through online services such as LegalZoom.com that help individuals create their own legal documents, is further evidence of the developing interest in pet trusts.20 There are three kinds of legal documents referred to as pet trusts as shown in the following overview and comparison chart:21 Documents: Will Only Valid After Death Must be drafted by an attorney: no Funds must be used for pets: no Court may reduce funds: yes Must include funds: no Legal in all states: no Valid after Pet Owner’s Death: no Valid during Pet Owner’s Life and after Pet owner’s death: no Freestanding Pet Trust Freestanding Valid During Life and After Death Must be drafted by an attorney: yes

Funds must be used for pets: yes Court may reduce funds: most of the time Must include funds: yes Legal in all states: yes Valid after Pet Owner’s Death: yes Valid during Pet Owner’s Life and after Pet owner’s death: yes Pet Protection Agreement® Pet Trust Freestanding Valid During Life and After Death Must be drafted by an attorney: no Funds must be used for pets: yes Court may reduce funds: no Must include funds: no Legal in all states: yes Valid after Pet Owner’s Death: yes Valid during Pet Owner’s Life and after Pet owner’s death: yes When a Pet Owner seeks the assistance of a professional, it is imperative that the advice provided regarding the choice of pet trust secures the pet’s future.22 Attorneys need to keep up withlegal developments in state statutes, legislation, and other laws pertaining to animals.23 Lives are at stake. My wish is to ensure that every animal is guaranteed a secure future. Everything you need to know about the three kinds of pet trusts can be found herein. I. THE STATUTORY PET TRUST: PET TRUST TRIGGERED BY A CLAUSE IN THE WILL Most Pet Owners would proudly state, “I took care of my pets— they are in my will!” In the words of the Honorable Anthony A. Scarpino, Jr., Westchester County Surrogate, New York: “Leaving a pet in a will is a death warrant.”24 Every will has to go through the probate process and a will does not take effect until this is done.25 This time consuming process places pets in danger, because animals, unlike real property, need immediate attention.26 Documenting care instructions facilitates a smooth transition to the new caretaker.27 While a pet trust triggered by a will may include instructions, these instructions can be ignored during the probate process, if the pet trust is not a Freestanding pet

trust or a Pet Protection Agreement pet trust.28 Since the court can modify almost any instruction mentioned in a will pertaining to animals, there is added risk if, for example, medical and food instructions are not followed.29 The judge has the last word.30 A Freestanding pet trust and the Pet Protection Agreement® pet trust do not have these problems. Historically, the legal system thwarted Pet Owners’ attempts to leave funds and instructions concerning the continued care of their pets, and courts generally ruled that efforts to provide for companion animals were unenforceable.31 Today, the legal system has begun to recognize, at least in some form, Pet Owners’ efforts to secure their pets’ future.32 This transformation began in 1990 when a major breakthrough occurred.33 The Uniform Probate Code34 (“UPC”), which covers inheritance in the United States, allowed the establishment of Statutory pet trusts in wills for “the care of a designated domestic or pet animal”35 but only after the Pet Owner’s death.36 Ten years later, the Uniform Trust Code37 (UTC), authorized the creation of pet trusts to provide for the care of an animal during the Pet Owner’s lifetime as well as after the Pet Owner’s death.38 In 2008, forty-two states and the District of Columbia had passed statutes permitting pet trust clauses in wills.39 By 2016, forty-nine states and the District of Columbia had enacted specific pet trust statutes based on the above Codes.40 Nearly every state has written its own statute; consequently there are countless variables from state to state.41 The extent to which each statute varies from one state to the next serves as a disadvantage for the pet trusts which are enacted by mention in a will.42 As of now, Minnesota is the only state that does not have a Statutory pet trust.43 However, there have been considerable efforts to change this. The Louisiana legislature passed a pet trust statute that became effective as recently as August of 201544 and there is a bill in the Senate in Minnesota to enact a pet trust triggered by the will.45 A will distributes property, but cannot give directions on how to use or care for it.46 Animals, even companion pets, are property in the eyes of the law, and are treated as such by the courts.47 Yes, they breathe and eat, love you back and need walks, but the law treats them the same way they treat a car or couch: they

are goods.48 This principle is deeply rooted in the law.49 In fact, the seminal case50 that set the standard for treating all types of animals as the property of whoever is in control of them, dates back to 1805.51 This pure property approach is still the law.52 There are two kinds of pet trusts that are enacted by mention in a will.53 One is a simple sentence that triggers the state’s pet trust statute: the Statutory pet trust.54 The other is a pet trust written by an attorney, also referred to as a pet trust (this is not a Freestanding pet trust) and because it is mentioned in and generated by the will, the court has the obligation to review it and the right to revise it.55 A. Advantages of the Statutory Pet Trust Securing the future of an animal through the use of a Statutory pet trust has some desirable advantages.56 First of all, it is easy to implement and secondly, it can be quite cost effective; all that is needed is a sentence in a will, and a Statutory pet trust will be triggered in those states that have passed statutes.57 This is a basic plan that does not require the Pet Owner to make many choices.58 A sentence, such as some examples listed below, when included in a will, can prompt a Statutory pet trust to be enacted after probating the Pet Owner’s will: “I leave $10,000 in trust for my dog, Swizzle” “I bequeath my horse and bird to Jan Williams, and I leave 10% from the sale of my home for the care of my pets.” “I leave my pet to my spouse” B. Disadvantages of the Statutory Pet Trust Not Valid During Pet Owner’s Life A Statutory pet trust has some significant disadvantages, foremost of which is that it is only effective after the death of the Pet Owner.59 The pet trust initiated by a will falls short when the Pet Owner is alive and unable to care for the pets and needs the Pet Guardian to step in.60 Instructions Can Be Disregarded Another disadvantage of a Statutory pet trust is that instructions contained in a will can be ignored by the court – they might as well be written in invisible ink.61 Even the Pet Guardian is not legally obligated to follow any pet care instructions that are provided in a will.62 A Pet Owner may direct that all

animals be kept together, but there would be no guarantee that this request would be adhered to.63 Inconsistency Between States What happens if a Pet Owner lives in a state that authorizes a Statutory pet trust and inserts the necessary clauses into a valid will, but moves to a state that does not authorize one or to a state whose statute varies such that the intended outcome is obliterated? A Pet Owner’s domicile can invalidate this document.64 For example, if a will was written in a state authorized to trigger a Statutory pet trust, this part of the will may become ineffective if the domicile of the Pet Owner at the time of his or her death is one of the states with no such statute.65 “To guarantee that the pet’s future care is secured would require the Pet Owner to predict the state of their domicile at [their] death.”66 A Pet Owner’s domicile does not invalidate a Freestanding pet trust or Pet Protection Agreement pet trust.67 Most people move between states without thought to whether the new state will honor the Statutory pet trust provision in their will; they believe their will continues to secure the future of their pets.68 Take for instance someone who moved from New York to Oklahoma before Oklahoma passed the Statutory pet trust (Oklahoma passed a pet trust statute in August 2010). The Law Firm of Lee M. Holmes, Mark L. Holmes, and Tracy Speck Neisent, in Oklahoma City provided the following response: If the issue narrowly posed is ‘Would the State of Oklahoma apply the New York Pet Trust Statute if a New York resident signs a Will stating “I give $10,000 and my dog, Fido, to John Doe’ and then dies a domiciled resident of Oklahoma?’ the answer is no. Title 84 O.S. §20 states: “Except as otherwise provided, the validity and interpretation of wills is governed, . . . when relating to personal property, by the law of the testator’s domicile.’ While Oklahoma would not directly apply the New York Statute, it is possible an Oklahoma Court would create an honorary trust by inferring the testator’s intent that the New York Statute would have created a Pet Trust had they retained New York as their domicile.69

“If the testator may be moving to Oklahoma it would be advisable to make reference to the actual New York Pet Trust Statute and wiser still to create an actual [Freestanding Pet Protection Agreement Pet] trust.” 70 So, for example, a Pet Owner may write a valid will in New York but die in Minnesota. New York has a pet trust statute71 but Minnesota does not.72 If the Pet Owner is a domiciliary of New York at the date of death (in other words, New York remains the Pet Owner’s true, fixed, principal, and permanent home) New York’s Statutory pet trust will apply73; if the Pet Owner is a domiciliary of Minnesota, then since there is no statute, it’s only a hope and a prayer that the pet’s care is secure.74 The Pet Protection Agreement pet trust and a Freestanding pet trust, discussed in the following section, are free from this problem.75 Expiration Dates Vary By States The Statutory pet trust becomes inoperative at different times, depending on state law.76 In some states, a Statutory pet trust ends at the death of the last surviving animal alive during the Pet Owner’s lifetime.77 In other states, the pet trust ends after the animals’ last offspring dies. Yet other states provide that a Statutory pet trust ends when the animal turns 21, which could be devastating for long-living animals such as parrots, who have been known to live more than 80 years and some lucky horses.78 Court Appointed Pet Guardian When a will does not identify a Pet Guardian, the outcome depends on whether the Pet Owner’s state of domiciliary recognizes Statutory pet trusts.79 If the Pet Owner was domiciled in a state that recognizes Statutory pet trusts, a Pet Guardian will be appointed by the court.80 On the other hand, a Pet Guardian will not be appointed by the court if the Pet Owner was domiciled in a state that does not recognize a Statutory pet trust, leaving the animals abandoned and often headed to a pound.81 Oblivious Pet Guardian Only the Pet Owner signs his or her will. The Pet Guardian does not sign the will, and accordingly may not be aware of his or her responsibilities or worse, may not want the pets, this can end up devastating for a pet’s secure future. 82 Funds at the Discretion of the Court

Everything pertaining to funds can be changed by the court; the amount and where it goes.83 Statutory pet trusts have often referred to these as “excess funds” permits the court to correct (change) the amount set aside in the will.84 The court has gone so far as to award funds to disinherited persons even when the will contained a clause forbidding those particular persons from inheriting.85 Also, instructions leaving funds to a particular animal organization can be disregarded in favor of other organizations.86 As unfathomable as this may seem, these two situations turned out to be the case for Leona Helmsley.87 Funds are Disbursed in One Lump Sum Another drawback to a Statutory pet trust is that the funds left for a pet’s care are distributed in one lump sum.88 When a will is the document that enacts the statutory pet trust those distributions are generally distributed at once. If however, a separate pet trust is pointed to which was written in another document then, yes, there can be varied distributions. There is no way to ensure that if this sum is gone, that there will be any outlet for the ongoing needs of the animals as documented in the instructions for care.89 C. An American Pet Trust Tragedy – the Leona Helmsley Case If ever there was a will that could reflect everything that could go wrong, and every fear a Pet Owner might imagine, it is Leona Helmsley’s will.90 Her power, intellect, and almost infinite wealth were remarkable, yet they were not enough to spare her from having her directions overturned.91 Throughout her lifetime Leona was a meticulous, brilliant businesswoman.92 She and her constant companion, a pampered Maltese named Trouble, became the trademark of one of the biggest real estate empires and hotel chains in New York City.93 She oversaw every detail of the operation, and spared no expense to keep it first class.94 Here are the directions contained in Leona Helmsley’s will; two clauses pertaining to the funds for the ongoing care of her dog, and the disbursement of the remainder after her dog’s death: F. I leave the sum of Twelve Million Dollars ($12,000,000) to the Trustees of the LEONA HELMSLEY JULY 2005 TRUST, established under an instrument dated on or about the date of this Will, to be disposed of in accordance with the provisions of that Trust agreement. I leave my dog, Trouble, if she survives me,

to my brother, ALVIN ROSENTHAL, if he survives me, or if he does not survive me, to my grandson DAVID PANZIRER. I direct that when my dog, Trouble, dies, her remains shall be buried next to my remains in the Helmsley Mausoleum at Woodlawn Cemetery, Bronx, New York, or in such other mausoleum as I may be interred pursuant to this will.95 G. I have not made any provisions in this Will for my grandson CRAIG PANZIRER or my granddaughter MEEGAN PANZIRER for reasons which are known to them. In sum, Leona instructed her attorney to legally document the care of her dog.96 Her attorney chose a pet trust funded through, and triggered by, her will.97 It stated, in part, that her properties should be sold upon her death, and that $12 million be set aside for the care of her dog, Trouble, and that any funds remaining after Trouble’s death be directed to the animal charities.98 Note that Leona’s estate was worth $5-8 billion so $12 million was a small percent of that.99 She requested that Trouble be buried in the same mausoleum as she would be; and that two of her four grandchildren were to be excluded from her will.100 As noted above, in a will, when a Pet Guardian is appointed there is no requirement to accept the relationship, acknowledge it, or be aware of its existence.101 Both people Helmsley appointed as Pet Guardian and Successor Pet Guardian refused to care for her dog.102 A Pet Owner’s nightmare is that when the time comes for the Pet Guardian to assume care of the beloved pet, the reaction would be: “What dog, she had a dog?” In her [W]ill, Helmsley asked that her brother, Alvin Rosenthal, take care of the dog, but a source said he ‘doesn’t want it.’ Renowned for ruling her hotel empire with an iron fist while she was alive, Helmsley has had a hard time calling the shots from beyond the grave.103 Even if there was a handshake and a promise it was certainly not enough.104 Both could justifiably claim to be surprised and freely decline the appointment without guilt and did.105 Leona believed they would take care of Trouble, but she was wrong.106 If Leona had either the Pet Protection Agreement pet trust or a Freestanding pet trust, that require the Pet Guardian to sign,107 she would have addressed this issue by asking the proposed Pet Guardians if they wanted this position.108

In addition, she could have appointed a series of Successor Pet Guardians and included an Organization of Last Resort, thus assuring that Trouble would have a better chance of having a Pet Guardian of Leona’s choosing.109 Helmsley employees and friends got fed up with Trouble and she reportedly wound up being taken away from the ailing Helmsley as Leona became too physically and mentally sick to dispute this decision.110 Ms. Sfara [Leona Helmsley’s private housekeeper] told the press: [S]he did not think Trouble could survive long without her companion. ‘They were too close,’ she said. When Mrs. Helmsley would leave her penthouse at the hotel and head down to the restaurant, Trouble would patiently wait. Leona would be out for three hours,’ Ms. Sfara said. ‘The dog would stay by the door, lying on the floor for three hours, waiting for her to come. It never moved.’111 Many people rely on their pets and their pets rely on their Pet Owners for companionship.112 They profit from mutual comfort, loyalty, and dependence as they age together; today this is widely understood and the term used is therapy dog or service dog.113 Undoubtedly, Helmsley would have preferred the company of her beloved Maltese.114 Sadly they were separated just when Leona needed her most, when Leona began showing signs of senility.115 If the pet trust had not been triggered by the will, and if it had directed that they must be kept together, this situation would have been avoided.116 We do not know where Trouble went during this time, but we know she was not with Leona.117 That is too bad, since Leona may very well have benefitted from Trouble’s presence, as people’s health is noticeably buoyed by pets.118 In June of 2008, a deal was struck between the Manhattan Surrogate Court, the New York State Attorney General’s Office, the Trustees of Leona’s $5-8 billion estate, the Executors of her will, and the disinherited grandchildren.119 This deal resulted in funds for Trouble being reduced from $12 million to $2 million and the grandchildren Helmsley specifically cut out of her will receiving $6 million each.120 This was accomplished by alleging that Helmsley was not mentally competent when she signed her will in 2005.121 The Aftermath of the Helmsley Crisis What did Leona intend with the remainder of the $12 million she left for Trouble’s care? Despite how the remainder of the $12 million was distributed, a

quick read of her mission statement reveals her intentions for the remainder of the money she left for her pet’s care.122 Leona Helmsley’s Final Mission Statement: “[t]he trustees are to make grants for ‘1) purposes related to the provision of care for dogs: and (2) such other charitable activities as the Trustees shall determine.’” 123 Surrogate Troy K. Webber of New York County Surrogate’s Court ruled that, according to the terms of the trust, the Trustees are not limited by the Mission Statement but may “apply trust funds for such charitable purposes and in such amounts as they may, in their sole discretion, determine.”124 As a result of the Surrogate’s ruling, of the $5-8 billion in her estate, only $1 million went to animal charities.125 Leona Helmsley wrote a few details in her will relating to her burial and orders: “that when my dog, Trouble, dies, her remains shall be buried next to my remains in the Helmsley mausoleum.”126 In 2007 Leona Helmsley died at the age of 82 and was buried at Sleepy Hollow.127 She wished to be interred with her husband Harry, her son Jay, and her dog Trouble.128 Harry had previously been moved to Sleepy Hollow at the prompting of her attorney and at considerable expense ($3 million) as the original resting place of Harry did not allow pets to be buried with their owners.129 What was not considered by the attorney was that New York State Law does not permit animals to be buried in any human cemeteries consequently moving Harry was a complete waste of time and money.130 ‘Absolutely not, there’s no question about it,’ said the official, who asked not to be identified. ‘A dog would not be allowed to be buried or interred in a cemetery. It’s for human beings.’ . . . In fact, the administrator at the state Division of Cemeteries was surprised that no one had called to question Leona’s plans for Trouble to join her in eternal marbled peace. ‘Maybe her lawyer didn’t reach out to the relevant people,’ the official said.131 This left two options; they could all be cremated and buried in a pet cemetery, or they could all be buried together in a family plot on private land.132 It is well within the means of the Helmsley fortune to move Harry, Leona, Jay, and Trouble to private land.133 It could be done, in fact, with the

$12 million that Leona left for Trouble’s care: Leona was never one to spare any expense or energy to make her vision come alive. This last wish was never respected.134 Implications of the Leona Helmsley Case Leona Helmsley’s love for her dog, Trouble, and the incredible media frenzy that her generosity stirred up, not only raised awareness of pet trusts, but also of the unfortunate implications of creating a pet trust via a will.135 The death of Leona Helmsley presents an object lesson in the truism that money does not buy control.136 “She wouldn’t settle for skimpy towels, the ads proclaimed—’Why should you?”137 Although Helmsley specified every detail in her will, the outcome of its execution strayed from her instructions and intentions.138 The Statutory pet trust, triggered by mention in a will, is a great step forward, but leaves problems in the areas of both domicile and funding.139 Funds will always have to be taken into consideration as a possible issue, because the court has the right to determine whether, in its opinion, they are “excessive.”140 For instance, courts can rule that five thousand dollars is unwarranted, and in another case that two million dollars is acceptable.141 If a Statutory pet trust leaves funds for the pet’s care, it may help if the Pet Owner’s intentions are clear and the reasoning behind the funding explained.142 Domicile will continue to be an issue until all 50 states have authorized pet trust statutes because the law of the state where a person is domiciled when he dies governs as opposed to the state where he lived when he wrote the will.143 The story of Leona Helmsley and her dog, Trouble, highlights some important things to note.144 First, in a will, instructions given for a pets care can be disregarded or adjusted by the court.145 Second, the pet must wait for the probate process to be completed, and until then, must rely on luck and determination to survive, and a judge that cares for animals – some do not.146 Sadly, once a Pet Owner uses the will to trigger a pet trust no amount of planning can avoid a court’s wishes.147 This holds true whether the pet trust is written by an attorney or simply includes a phrase that prompts the states’ trusts for pets – if it is activated by the will, it is subject to the wishes of the court.148 The following section of this article covers the Freestanding Pet Protection Agreement pet trust and the Freestanding pet trust, both of them

overcome the disadvantages of Statutory pet trusts enacted by mention in a will.149 II. THE STAND ALONE PET TRUSTS: THE FREESTANDING PET PROTECTION AGREEMENT® PET TRUST AND THE FREESTANDING PET TRUST As previously noted, there are three kinds of pet trusts.150 This section covers the two are not enacted by mention in a will, but that stand alone; the Pet Protection Agreement pet trust and the Freestanding pet trust.151 They are valid in all fifty states.152 Both are legally enforceable when signed by, at least, two individuals or entities—the Pet Owner and the Pet Guardian (which may be an organization).153 All of the animals a Pet Owner has at the time of the writing, as well as in the future are protected by these documents, and they are valid during the Pet Owner’s lifetime, during any disability, and after the Pet Owner’s death.154 A Freestanding pet trust and the Pet Protection Agreement pet trust become operative whenever the Pet Owner cannot care for the pet, whether that condition is temporary or permanent.155 The arthritic owner of a greyhound may want the Pet Guardian to begin acting, in a partial role, when he can no longer adequately exercise the dog. Another Pet Owner may want the Pet Guardian to act because she has difficulty remembering whether or not she fed her cat. It could be as simple as that the Pet Owner is in the hospital and temporarily cannot care for their pet snake. These documents have the distinct ability to become a manual of care.156 Freestanding pet trusts are not limited to any type of animal and can include household pets, livestock, zoo animals, those in sanctuaries, shelters, and rescues.157 There is nothing that precludes any animal from being included in and protected by a Freestanding or Pet Protection Agreement pet trust.158 Answering the following questions, in the order listed, is the way to ensure that one correctly prepares a Stand Alone pet trust.159 A. The Pet Owner: “Who is the Pet Owner?” One of the great things that the Freestanding pet trust does establish is ownership.160 Even though many pets are considered family members, they are still considered property in the eyes of the law.161 This is why the term Pet

Owner is used.162 Just as a deed proves ownership of a house, it is important to establish and document pet ownership.163 Joint ownership Joint pet ownership, naming more than one owner to a single pet, is strongly discouraged.164 It is recommended that a single Pet Owner be named in a Freestanding pet trust.165 While it may seem like a practical idea to designate more than one individual as the Pet Owner, doing this often leads to court battles when relationships dissolve or one party dies.166 If there is a contest, the pet trust could end up in court to determine ownership of the pet.167 Choosing a single Pet Owner ensures that this problem is avoided.168 An alternative to including other individuals as owners is to appoint them as the Pet Guardian and Successive Pet Guardians.169 In a recent New Jersey case, a couple spent over $40,000 in legal bills battling for custody of their pug, Dexter.170 In this landmark decision, the court ruled that although the pet was property, it had “unique value” and there would be shared custody, with each party having the dog for alternate five week periods.171 This three-year battle could have been avoided.172 Factors Courts Use to Determine Ownership Designating the Pet Owner in a Freestanding or Pet Protection Agreement pet trust avoids the issue of the court determining ownership.173 If a Pet Owner has not been established, or if the pet is jointly owned, the court takes certain factors into consideration when determining ownership of an animal under a “pure property” analysis.174 Some of these factors include; Who owned the pet before the relationship, Whose name is on the purchase agreement or adoption contract, Who the animal is registered to in local records, whose name is on the animal’s tag and microchip registration, and Who paid for pet-related expenses such as food, veterinarian bills, grooming, and dog walking.175 Receipts can play an important role in helping the court make this determination.176 Likewise, In determining who should be awarded custody, the court may want to consider which party has paid attention to the animal’s basic daily needs (food,

shelter, physical care, exercise, grooming, flea control); who takes the animal to the veterinarian; who provides for social interactions (in the case of dogs) with other dogs and/or with people; [who exercises the pet]; [and] who maintains appropriate supervision to assure that state and local regulations are complied with.177 Additionally, financial and other resources may play a key role.178 The court may review which party has the most secure financial situation or most animalfriendly living environment.179 This may include looking into who has the time and space to properly care for the pet (if, for example, a dog, weighing 200 pounds who has thrived in the country, would now be confined to a studio apartment in a big city, that dog may not thrive in an urban setting). The court may keep in mind that proper care includes not only basics (such as feeding, grooming and health care) but also play and exercise at levels that are appropriate for the pet. In this regard, a pet owner’s habits and inclinations (in addition to available time) also play a role. Finally, the pet’s age and health are relevant as well.180 Additional Factor - Considering the Best Interest of the Animal Several courts have looked to the pet’s best interest when resolving custody disputes.181 Parties can also examine the issues a court would weigh when taking into account the pet’s “best interest.”182 These factors include; consistency, which is very important to most animals.183 “Pets like routine and predictability. Going back and forth between two people is very stressful and may cause behavioral problems.”184 Another factor is emotional bonding.185 If the pet has bonded with one person more than the other, it is typically better if that person becomes the Pet Owner. Who will the pet run to when called? Litigants have sometimes hired veterinarians who specialize in animal psychology to testify as expert witnesses to persuade a judge that one spouse has a closer bond with the pet and should, therefore, be awarded custody.186 An early example of this is the case of two roommates (Gregory and Zovko) who lived with a pet cat named Grady. Although Gregory owned Grady before he moved in with Zovko, while they were roommates, Zovko was the one who cared for the cat. When the two decided that they would no longer be roommates, Zovko sued for custody of Grady. In awarding Grady to Zovko, the

court said that it was deciding ‘what is in the best interest of Grady.’ Clearly, for this judge, the pet’s happiness and well-being took priority over property rights. Another case involving two former roommates led to a similar result. In Raymond v. Lachmann, a 1999 New York case, Raymond brought her cat, Lovey, into the shared housing situation, but later moved out, leaving the cat behind. When Raymond subsequently sought to regain possession of Lovey and bring Lovey to her new home, the court used a strict ownership of property analysis and awarded custody to Raymond. The appellate court, taking into consideration the best interest of the elderly cat, held that: ‘Cognizant of the cherished status accorded to pets in our society, the strong emotions engendered by disputes of this nature, and the limited ability of the courts to resolve them satisfactorily, on the record presented, we think it best for all concerned that, given his limited life expectancy, Lovey, who is now almost ten years old, remain where he has lived, prospered, loved and been loved for the past four years.’ Although this does not often happen, in this case, the New York court considered the animal’s age and where it would be happiest.187 B. The Pet Owner’s Mental Competency: “Are you currently of sound mind and free of mental illness?” Mental competency is variable.188 A Pet Owner is competent to make a pet trust if he or she is sufficiently able to understand the document, understand its effects, the nature and extent of the property involved, and the relationships with the people named in the pet trust and those who would normally inherit, such as children and a spouse.189 If there is any question as to the mental competency of the Pet Owner, an expert in this area should be called in; a video of the Pet Owner can be helpful.190 C. Never Use the Term “Incapacity”: Use “Unable to Care For” “Incapacity” is a legal term that defines a condition that allows others to make financial and personal decisions for the Pet Owner including moving the Pet Owner to a hospital, nursing home or other care facility.191 This can be accomplished without considering whether the pet will be able to travel with their Pet Owner.192 If capacity becomes an issue, any document prepared by the Pet Owner can be reevaluated.193 In completing the section on mental competency, it is vital to avoid using the word “incapacity” as this will most

probably invite the court to intercede.194 While Pet Owners, advisors, and attorneys may recognize, understand, and comfortably use this word, they may not be aware of the unfortunate consequences that often arise when the term “incapacity” is used in a pet trust.195 This word gives access to the court, so that a judge can appoint a guardian for the Pet Owner, different from, and perhaps in addition to, appointing a Pet Guardian for the pet. The courts choice is just that – their choice.196 This court-appointed guardian has the right to change every decision the Pet Owner has devised.197 Avoiding this word may be the difference between an expensive, prolonged court battle, and the uninterrupted care of a pet.198 “Unable to care for” is more accurate and less explosive.199 If the term “incapacity” is used in the documents to describe the owner’s possible mental state, it may trigger, or be used as evidence in a guardianship proceeding for the Pet Owner, which in turn may impact the pets, their care and the amount of funds which may be used for the animals, where they come from, and who they go to – funds and animals.200 D. The Pet Guardian: “Who is the Pet Guardian?” Another crucial piece of information both documents require is the identification of a Pet Guardian.201 The document must give authority to an appointed agent to act.202 This agent is the Pet Guardian who becomes the new Pet Owner upon any event which renders the original Pet Owner unable to continue care of his pets.203 Finally, both documents should include the contact information of everyone that is listed.204 Identifying these individuals is especially important because they need to be found.205 While it may be unusual to provide contact information, along with names, these documents are different from the usual contract, trust or will.206 Difficulty Choosing the Pet Guardian More often than not, the most difficult decision a Pet Owner has to face is choosing the Pet Guardian.207 After all, most Pet Owners think “no one is going to treat my pets like I do.”208 But since a handshake is insufficient and unreliable, even if the choice is less than ideal, it is better than the alternative option, which is for the court to make this decision.209

In most families, the pet is a valued member of the household, and the Pet Owner expects that their children or some other relative or friend will care for the pet.210 However, although well-meaning family members and friends can be a source of tremendous support in times of need, they may not be able to follow through on informal commitments they have made, due to reasons beyond their control, such as allergies, difficult work schedules, lease restrictions, family responsibilities, or a personality conflict between their own pet and the Pet Owner’s pet. They may forget their promise or may have misunderstood the responsibility the agreement entails.211 In other cases, there may be no family members left or no one who wants to be bothered caring for the pet. 212 “Even when a friend or family member offers to care for a pet in the event of the owner’s disability or death, the pet’s ownership is better secured with a legally [binding] document.”213 It is a tough choice to make and many do not have anyone who would take on the role.214 This is one reason why an organization should be considered. Separate Pet Trusts for Each Pet Guardian While it is true that pets that are raised in each other’s company are often happier when kept together, sometimes this will not be the best option. Two pets owned by the same individual may need to be separated. A Pet Owner with more than one pet should make it clear whether keeping the pets together is optional or mandatory.215 When it is a requirement, the Pet Owner should find a Pet Guardian who will care for multiple pets.216 This section does not refer to Successor Pet Guardians within one document. Freestanding and Pet Protection Agreement pet trusts can pass pets to separate Pet Guardians with individualized instructions.217 If several Pet Guardians are required, unconnected Freestanding pet trusts or Pet Protection Agreement pet trusts should be drafted for each Pet Guardian to sign.218 Because rules, regulations, bills, and statutes can change, the Pet Guardian should be empowered to write and make changes to the pet trust document as long as these changes are consistent with the intent of those in place.219 The Pet Guardian Can Be An Organization: “Is the Pet Guardian an individual or an organization?”

If an organization is appointed, one should inquire about any applicable fees.220 Various organizations will provide care for animals on a temporary or permanent basis.221 Additionally, they can advocate for the pets.222 Successor Pet Guardians: “Who will be the Successor Pet Guardian(s)?” Naming successor Pet Guardians is optional.223 However, it is prudent to name successor Pet Guardians in the event that the Pet Guardian is unable or unwilling to care for the pets.224 The Successor Pet Guardians can be a person or an organization.225 To adequately prepare for unforeseen events, a Second Successor Pet Guardian could be identified.226 To ensure that the pet is neither neglected nor at the mercy of the court, the Pet Owner may select many Successor Pet Guardians.227 If one is unable or unwilling to care for the pet, a successor may wind up with the job, especially in the case of pets with a long life expectancy.228 E. Organization of Last Resort: “Who would you like to designate as the Organization of Last Resort?” An Organization of Last Resort is a Pet Guardian that is usually in the business of animals.229 Pet Owners are urged to name organizations such as shelters, sanctuaries, or breed rescues as a retirement home to care for their pets in the event that the Pet Guardian and Successors are unable to fulfill that role.230 These shelters, sanctuaries, and breed rescues offer a number of advantages.231 First, pets are never left without a Pet Guardian because an organization can act as a temporary or permanent Pet Guardian, and they are usually longer lasting than an individual.232 Second, they have standing in court because of mention in the pet trust.233 Finally, the organization can assist in finding a new family home for the pet.234 The Organization of Last Resort can be the final Successor Pet Guardian.235 It is important to note that acceptance of a pet is at the discretion of the designated animal organization and subject to its policies.236 Also, animal organizations sometimes recommend that a donation be made to the Organization of Last Resort to offset the cost of temporary or permanent care and re-homing of each pet.237 F. The Pets

In this section, the Pet Owner can describe all current pets, and should include a clause stating that those in gestation, and all future owned pets, should be protected as well.238 Although the Pet Owner may have a horse, reptile, pig and dog now, in the future they may have a cat and bird—but the level of care can be the standard exhibited in the present document.239 They do not end until the last pet has passed away, unless otherwise stated.240 Describe the Pet Physically Whether through fraud or misidentification, there could be a mix-up.241 Carefully documenting the pet’s characteristics will help avoid this possibility.242 These descriptions could include physical attributes such as color, size, shape, breed (or mix thereof), age, markings, sex, spayed/neutered, and any other physical characteristics (such as eye color, six toes on left back paw).243 There should also include descriptions of the pet that are not readily visible to the naked eye; such as the pet’s name, microchip ID number and DNA profile.244 Describe the Pet’s Personality In some cases, merely recognizing the pet by unique physical attributes is sufficient.245 In other cases, the pet may not be easily distinguishable from other animals of the same species.246 If there are any unique personality traits or behaviors that could help distinguish the intended pet from similar animals, including these details could go a long way toward making the identification easier.247 Identifying the pet also serves as a precaution that can help prevent the Pet Guardian from fraudulently replacing the original pet with a new one in order to extend rights to benefits.248 Pets can be lost and proof of ownership can be crucial.249 The aftermath of Hurricane Katrina in New Orleans, provides an example of this problem.250 Some Katrina victims who lost their pets in the nation’s biggest natural disaster are still fighting – after all these years – about Pet Ownership.251 Veterinarians’ offices, animal shelters and other such places were under water and ownership records were unavailable to prove who owned a pet.252 Due to the lack of proof of ownership, many displaced “Katrina pets” were adopted out.253 If Pet Owners had a Freestanding pet trust or Pet Protection Agreement and had

provided copies to everyone who might have a role in the pet’s life, documentation might have been available to help unite animals with their rightful owners.254 Consider an alternative scenario: Jasmine, a Katrina victim, is separated from her beloved dog, Sundance. Sundance is later picked up swimming in the streets. In the immediate aftermath of the storm, Jasmine moves to Philadelphia, while Sundance’s rescuers ship him to a rescue group in New York. Everyone who sees Sundance wants to adopt her, but because Jasmine has either the Pet Protection Agreement pet trust or Freestanding pet trust, she can prove that she owns Sundance and thus, Jasmine is reunited with Sundance in Philadelphia. Microchips and Other Identifiers Microchips—devices about the size of a grain of rice—are still not uniform.255 There is a universal technology for the chip itself, but neither the scanning device, nor the placement on the pet’s body has been regulated, and thus, is often difficult to find.256 It is crucial, therefore, that the brand of the product be included as part of the pet’s description to specify which scanner to use.257 The recovery rate for lost pets with microchips though surprisingly low, is certainly higher than zero.258 G. Instructions for the Pet’s Care The Freestanding pet trust and the Pet Protection Agreement pet trust provides unlimited space for instructions regarding the pet’s care.259 Much as a parent leaving for a trip would provide to a babysitter. These instructions could cover such topics as food preferences (including the brands, amounts, and feeding times), housing, grooming, toys, and boarding.260 Additional details may include daily routines (including walks, other exercise periods and socialization).261 Thoroughness will ease the transition for the pet to the Pet Guardian.262 Pets love routine.263 Details will help the Pet Guardian keep the pet as happy as possible.264 If something is left unsaid, the Pet Guardian will have to either know what to do or guess.265 If there is something that should not be left to chance, it should be included in the instructions.266 H. Future Pets

It is important to use the term “all my pets” in a Freestanding pet trust. This term is included in the Pet Protection Agreement pet trust.267 This ensures all pets owned will be covered even if they are acquired or born after the document was written.268 Also, including “future pets” in the terms saves the effort of having to change the documents or create new ones whenever a new pet enters or one leaves the picture.269 I. Funds: “Are you leaving any funds to cover the cost of care for your pets?” Surprisingly, funding is an optional element in the Freestanding pet trust and the Pet Protection Agreement pet trust.270 If you are going to fund, then consider the cost of caring for the pets.271 There are various ways to make funds available for the Pet Guardian.272 They can be as simple as a percentage of an insurance policy, bank account, retirement fund, IRA, brokerage account, or even a portion of the sale of a home.273 How Much is Enough? A wide variety of factors and considerations come into play.274 What to take into consideration: How much will it take to care for the pet? Does the Pet Guardian need it? Expect it? Think about the following when determining how much money or property to set aside: type of animal; age and life expectancy (important for pets with long lives such as turtles and parrots); number of pets; veterinary care; daily routines and socialization; service providers (such as sitters, boarding, groomers, and walkers); food and diet; toys and accessories; lifestyle—the standard of living one wishes to provide the pet; cost of living and inflation; compensation for people involved in caring for the pets; travel; burial or cremation and memorial; beneficiaries and charities.275

Leave as Much as You Want The Pet Owner may leave any amount desired.276 Neither the Freestanding nor the Pet Protection Agreement pet trust is probated or subject to court review.277 Providing reasons as to why some provisions are included, however, may help those left out of the process.278 A Pet Owner may detail how the funds must be spent and list expenses279 such as: A house for the Pet Guardian and my pets to live in; Open heart surgery if needed; A fence for the entirety of Jane’s backyard; Mary should buy a van to drive my horse, Jake, around the country, so he does not stay on the farm when she travels; Upon Jake’s death, the van and remainder of all funds shall be equally donated to the Helen Woodward Animal Center and the ASPCA The management and disbursement of funds throughout the pet’s life may be made in varying amounts and stages.280 Distributions can be structured in a number of different ways.281 One suggested way is to provide that an amount be paid on a periodic basis with additional funds as needed.282 Compensation “Would you like to compensate your Pet Guardian or Distribution Representatives?” If so, “How much would you like to compensate them?” A Pet Owner can compensate the Pet Guardians and Distribution Representatives or Trustee and anyone else.283 Emergency Funds Consider a small joint bank account in the names of the Pet Owner and Pet Guardian, to give the Pet Guardian instant access to funds, in case of an emergency.284 Assuming the duties of Pet Guardianship may require the outlay of some personal money.285 Some immediate funds may be welcomed.286 J. Distribution Representative: “Would you like to appoint a Distribution Representative?” “Is the Distribution Representative an individual or organization?” The Distribution Representative is optional for the Pet Protection Agreement pet trust, but required for the Freestanding pet trust where he or she is known as the trustee; both handle the funds and give them to the Pet Guardian, as instructed.287

In the Pet Protection Agreement pet trust, if no Distribution Representative is named, the Pet Guardian will be charged with managing the funds for the pet’s care.288 If the Pet Guardian does not want to handle the funds or would be a poor choice, it may be wise to appoint a Distribution Representative.289 Successor Distribution Representative: “Would you like to appoint someone as the successor Distribution Representative, who will serve in case your first choice is unable or unwilling?” “Is the Distribution Representative an individual or an organization?” As in the case of appointing successor Pet Guardians, a successor Distribution Representative could also be appointed.290 K. Community of Care and Service People Pets have a relationship with the people who care for them.291 This is their community of care. The Freestanding pet trust can name its members and their roles292 and also those who care about the pets, even if they have no named role in the document.293 The following list is not comprehensive, and can be included if appropriate: veterinarian, walker, groomer, sitter, day care, family, friends, or neighbors. Veterinarian and Health The Pet Owner may also want to establish specific standards for the pet’s medical care, such as how often the pet is to receive veterinary check-ups and who is to receive reports of those visits. The veterinarian is one of the focal points in the pet’s community.294 A Pet Owner should give a copy of the Freestanding or Pet Protection Agreement pet trust to the veterinarian.295 Generally, the veterinarian has the Pet Owner’s contact information, but in the event that the Pet Owner is unavailable, a veterinarian with proper documentation will have within his or her possession all the necessary contact information, and will know who to contact.296 If the Pet Owner specified that he wants the most care possible, the veterinarian will be confident in following the Pet Owner’s wishes.297 L. End of Life Decisions: Hospice, Medical Efforts and Euthanasia “Do you support euthanasia for your pets if events warrant?”

When considering how to answer this question and how much detailed explanations may be included, most people only authorize euthanasia for their animals in the case of a pet’s poor quality of health or the inability to rehabilitate the pet’s aggressive behavior.298 The Pet Owner’s directions, about whether ordinary, extraordinary or heroic medical efforts are to be made, should be clear.299 The answer will make it easier for the Pet Guardian to make a decision about euthanasia. There is no right or wrong provision.300 The terms of a Freestanding or Pet Protection Agreement pet trust may expressly include provisions regarding the disposition of the pet’s remains after its death (i.e., cremation versus burial; even the use of a particular pet cemetery).301 Pets may not be buried in human cemeteries, but there are cemeteries for pets and some of these will permit the Pet’s Owner to be buried with them.302 M. Beneficiaries: “Who should get any remaining funds that are left after your pets have passed away?” A Pet Owner who leaves funds or property should leave a beneficiary or beneficiaries to take any remaining property upon the death of all pets so as to avoid the possibility of the court having to determine disbursement of any leftover assets.303 This is typically costly and time-consuming.304 That is why all beneficiaries should be left by percentage interest and can be designated as follows: “10% of my insurance policy to Jane” or “5% from the sale of the house to the ASPCA.” The percentage must add up to 100% in order to avoid court intervention.305 If there are multiple beneficiaries, they should be specified by name and by percentage interest.306 It is recommended that the remainder beneficiaries include one or more charities that benefit animals.307 Presumably, such organizations will carry on the Pet Owner’s wishes and advocate on the Pet’s behalf.308 However, the Pet Owner could provide a mechanism to designate remainder beneficiaries or class of beneficiaries309—such as animal shelters or cancer research. Remainder Beneficiaries can be anyone310: family members, friends, charities, or even strangers.

N. Executing the Document The pet owner and the Pet Guardian must both sign the [Freestanding] pet trust . . . in front of witnesses and a notary. If a Distribution Representative [or] trustee . . . [is] appointed [the individual] should sign the document in front of witnesses and a notary. . . . This document can be passed from person to person and state to state until it is finally signed by everyone and returned to the Pet Owner (in the case of the Pet Protection Agreement [pet trust]) or the attorney (in the case of the pet trust).311 A signature confirms awareness and responsibility of the identified parties.312 O. Sharing the Document Once all the signatures have been gathered, copies should be sent to those mentioned in the document. Friends, family members, neighbors, police, fire department and other service providers, whether or not they have signed it, can be given copies – this way they will know who to call if something happens to the Pet Owner.313 The questions described above provide valuable insight into how to prepare a Freestanding or Pet Protection Agreement pet trust. III. LIMITED HEALTH CARE PROXY AND LIMITED POWER OF ATTORNEY Ask the question, “Would you like to allow the Pet Guardian and any Distribution Representative to access the funds you set aside to take care of your pets in case you are in the hospital or have some other condition that prevents you from caring for your pet?” The Pet Protection Agreement pet trust includes a limited Durable Power of Attorney and limited Health Care Proxy whose terms are restricted to helping the Pet Guardian confirm that the Pet Owner is unable to care for the animals and to access funds included in the pet trust.314 These documents are triggered by any event that prevents the Pet Owner from caring for the pets: an accident, hospitalization, physical disability and the like.315 The documents remain in effect until the Pet Owner can resume care of the pets.316 The attorney who writes the Freestanding pet trust should include these as well. IV. SIMILARITIES OF BOTH THE FREESTANDING PET TRUST AND THE PET PROTECTION AGREEMENT PET TRUST DOCUMENTS

Although the Freestanding pet trust and the Pet Protection Agreement pet trust are almost identical, they also have some individual features. Both the Freestanding pet trust and the Pet Protection Agreement pet trust identify the Pet Owner and appoint a Pet Guardian and a Distribution Representative or Trustee. Also, with both documents, the Pet Owner and Pet Guardian must agree to the terms and sign in the manner of a will. The pet care instructions in these documents are enforceable and they establish a community of care. If funds are included, both pet trusts ensure that those funds are available immediately, ongoing, and include checks and balances. A noteworthy benefit of establishing Freestanding pet trusts is that the funds will not be considered when a court determines probate fees; thus, funds for the pet’s care will not be subjected to delay. Also, both documents provide for the allocation of whatever funds are left after all the pets have died. Finally, all terms of these pet trusts remain private. V. FEATURES UNIQUE TO THE FREESTANDING PET TRUST A. Requires an Attorney A Freestanding pet trust requires the services of an attorney who would do well to discuss this topic with clients at the same time the discussion of other property arises. After all, trusted advisors should ask about all property.317 Fortunately, it is becoming more commonplace to remember the onceforgotten beloved pet and ask the first question in a Freestanding or Pet Protection Agreement pet trust, “Who owns the pet?”318 B. Requires a Trustee A Freestanding pet trust must have a Trustee.319 In his or her fiduciary capacity, the trustee has an obligation to carry out the terms of the [Freestanding] pet trust. Unlike the Pet Guardian in the Pet Protection Agreement [pet trust], who takes ownership of the pet and is responsible for the care of the pet, the trustee, [who may never have contact with the pet,] is the one who oversees the trust assets (including the pet) and disburses them to the Pet Guardian according to the Pet Owner’s instructions.320 The Trustee is responsible to keep trust funds in a separate account that is designated for the trust.321 These funds are generally protected from the trustee’s personal creditors.322

C. The Trust Protector The Trust Protector is an optional role whose key function is to manage and invests the funds.323 “For larger trusts, it is recommended that a Trust Protector be nominated to provide both specialized investment skills and an added layer of oversight over the trust funds. The Trust Protector will pass the funds to the trustee, who in turn, gives them to the Pet Guardian.”324 D. Requires Funds The Freestanding pet trust must include funds or property.325 Funds can be provided to the pet trust by wiring funds to the trust’s bank account or by writing a check to the Trustee.326 If real estate is transferred into the trust, it must be retitled into the name of the pet trust.327 Funds titled to a Freestanding pet trust are not subject to probate, and disbursement of those funds for the pet’s care will not be on hold.328 VI. FEATURES UNIQUE TO THE PET PROTECTION AGREEMENT® PET TRUST A. Elements of a Contract, Trust and Will Make Up the Pet Protection Agreement Pet Trust The Pet Protection Agreement pet trust329 is designed to incorporate the best features of a trust, a contract, and a will, without their disadvantages.330 It is based on a combination of the laws governing these documents.331 It can be completed on-line on [Legal Zooms site}. ((URL removed for reprint).) 332 Those in the business of animals can complete it at [pet protection agreement’s site.] (URL removed for reprint) Professional advisors are welcome to use this valuable tool as an added service.333 Like a trust: it remains freestanding at all times and is valid during the Pet Owner’s life and after death.334 If funds are left, they will pass outside of probate, can be disbursed during life and after death, and may be released incrementally and for specific purpose.335 In addition, the parties have a legal obligation to comply with instructions.336 Like a contract: it includes consideration and acceptance and survives legislative edict.337 Included property can become a debt of the estate and the promise to perform is passed from one Pet Guardian to a series of Successor Pet Guardians.338

Like a will: it disburses property upon the death of the Pet Owner.339 The process of finalizing a Pet Protection Agreement is the same process that is required for a will, with witnesses and notarized signatures.340 B. History of the Pet Protection Agreement Pet Trust I was in law school and had every intention of becoming an entertainment lawyer when I graduated. After all, I love theatre, movies, and books. My cell phone rang as I walked in to take my first exam in May 2000. It was my mom’s driver, calling to tell me she had been moved into an assisted living facility. Her life was taken from her. She was moved out of her lavish 5th Avenue apartment with concierge, doormen, private restaurant, and staff, and now my very private mom had a shared bath. So, I asked the dean of my law school, “What kind of law permits that?” He told me trusts and estate law. That summer, I took a trusts and estates class. For homework, each student had to write a will. The will I wrote contained [three] pages dividing my assets among my children, grandchildren, and charities and [thirty] pages of instructions for the care of my shelter/rescue dog, Soupbone, who needed very special attention to maintain his in remission status for cancer, kidney failure, and heart ailments. It had taken [five] years to devise a delicate balance of nutrients and doctors. Thanks to these efforts, Soupbone enjoyed a carefree life, but what if something happened to me? Those 30 pages were about his continued care and the assurance that his life would be the same with or without me. Although I got an A+ on the project, the professor told me that all the instructions about Soupbone’s care were unenforceable. “Outrageous!” I thought. That’s when I wrote a pet trust for Soupbone that the ASPCA refers to as “the ultimate critical care pet trust.” At the time, pet trusts were new law and cutting edge. They still are . . . . As the years passed, I graduated law school and gained a clientele. Because many clients couldn’t afford the time or cost of a pet trust, I started doing them pro bono . . . . Clearly, the needs of many pets for continuing care were not going to be met, and that needed to be changed! This experience led me to create the Pet Protection Agreement® [pet trust], a unique document that incorporates the best qualities of a will, a trust, and a contract. 341

All the work I do on behalf of people and their pets is inspired by Soupbone, my rescue dog whose spirit guides me still. VII. ECONOMIC EUTHANASIA Pet trusts and pet health insurance are the perfect confluence of pet care because they provide a pet who has lost its parent with daily care and where needed with a continuity of medical attention without the worry of pre-existing conditions. A. Continuity of Pet Insurance Coverage We need to stop economic euthanasia. Economic euthanasia is the result of a medical decision not to treat an animal, whether they are family pets or orphaned animals, who can be saved, based on cost.342 Pet insurance is one solution343 but it stops short when the Pet Owner cannot care for his animals. Pet insurance recently became a contender in the business of animals, and is taking a big share of the billions being made today.344 This industry is appealing to the Pet Owner’s fear of unexpected costly medical occurrences which they are assured can be diminished if one pays into the insurance company on a regular basis starting now.345 I have pet insurance for all of mine, I just want to see this industry show concern for these animals when a Pet Owner dies or is no longer able to care for the pets and include an option for the next Pet Owner in line to continue uninterrupted coverage. Perhaps the reason they don’t do this is because they make less money on old dogs. More than ever, pets are considered a part of the family. Along with that, the share of the family budget allotted to pet related spending continues to grow at a healthy rate.346 But what happens if the Pet Owner doesn’t pay the monthly insurance fee while ownership is in transition? The scenario could go like this: Mary, the Pet Owner, dies. Soupbone, her 10 year old dog is now orphaned. He is healthy, had insurance, and ends up in a shelter. Without a pet trust who is to know all this? A kind person adopts Soupbone. If a pet trust and pet insurance were in place and if the pet insurance company asked the Pet Owner “Is it OK for the Pet Guardian to continue paying for this policy?” then it would still be affordable.

However, if the new owners were to get new insurance, it would be outrageously expensive347 and thus when Soupbone has an unexpected medical need we can pretty much expect medical euthanasia. 348 My goal is to inspire pet insurance companies such that there is no interruption in medical care and no hike in premium costs as a result of the change in ownership.349 The pet insurance companies should offer a pet trust that demands that the new Pet Owner continues pet insurance if in place. I suggest a system where, with just one click online, or just this question asked; “Do you want a pet trust for your pets?” YES or NO, the Pet Guardian can be named as the successor payee. Goal reached! No interruption in medical care. B. Offering a Pet Trust with Pet Insurance: Portability, Added Service, New Clients Many Pet Guardians probably have their own pets. This could be good for the pet insurance business because the Pet Guardians may purchase pet insurance for their own animals. Most importantly, the pet insurance companies, by offering this new service with each purchase of the insurance contract will help to eradicate medical euthanasia.350 If pet insurance is in place, then the pet trust, written properly, can ensure portability resulting in no interruption in medical care as it remains in place through the change in pet ownership. VIII. TAX IMPLICATIONS OF PET TRUSTS A. Gift and Estate Tax “When a pet owner funds a pet trust, there may be both federal gift and estate tax implications. The brief discussion below will help explain why that is.”351 Under the current estate and gift tax system, the top federal gift and estate tax rate is 40% 352; it is imposed on lifetime transfers or transfers at death to the extent they exceed $5.43 million (in 2015).353 However, every individual is permitted to make certain tax-free transfers because of various gift and estate exclusions.354 Gift and Estate Tax Exclusions

Everyone has a $5.43 million lifetime gift tax exclusion.355 This means every individual can transfer up to $5.43 million of cash or property gift tax-free ($10.86 million if he is married and his spouse consents to split the gift).356 In addition, everyone can make annual tax-free, non-reportable gifts of up $14,000 to an unlimited number of individuals and certain appropriately structured trusts ($28,000 if they are married and their spouse consents to split the gift).357 This amount, referred to as the annual gift tax exclusion, is indexed for inflation.358 Furthermore, at death, everyone has a $5.43 million estate tax exclusion, which can shelter $5.43 million in cash or property from estate tax (in 2015).359 To the extent an individual uses any of his $5.43 million gift tax exclusion, however, his estate tax exclusion will be reduced.360 This means that if an individual uses all of his $5.43 million gift tax exclusion, he will have no further estate tax exclusions at his death.361 Having said this, the gift and estate tax exclusions are indexed upward for inflation every year so future opportunities for gift and estate tax savings may be available.362 Application to Pet Trusts How does the above discussion apply to pet trusts? It is simply this: a Pet Owner can make tax-free gifts up to $5.43 million to a pet trust to the extent he has not used any of his $5.43 million gift tax exclusion ($10.86 million if he is married).363 In addition, the Pet Owner can structure the pet trust so that he can make annual tax-free gifts of up to $14,000 to it ($28,000 if he is married).364 The “beneficiary” of the pet trust is the Pet Guardian selected to watch after the pet.365 Thus, generally, for gifts to the pet trust to qualify for the annual gift tax exclusion, the Pet Guardian must be notified of the gifts and be permitted to withdraw them for a limited period of time.366 Since Statutory pet trusts – i.e., those triggered by a will and permitted under state law – cannot be funded until the Pet Owner’s death, these gift tax rules are only applicable to Freestanding pet trusts that are created while the Pet Owner is alive.367 Note that if the Pet Owner can revoke the trust, his lifetime transfers to it will not be subject to federal gift tax; the trust will be includible in the Pet Owner’s estate when he dies; however, and potentially subject to estate tax.368 (If the Pet Owner can’t revoke the trust, he generally will be considered to have made a “completed” gift and the trust will likely not be includible in his estate.)369

Finally, if a Pet Owner funds a pet trust at his death, those funds will be taxable for federal estate tax purposes unless his taxable estate is less than the $5.43 million estate tax exclusion (the Pet Owner’s available estate tax exclusion will be less if he used any of his gift tax exclusion; note also, that his state’s threshold for imposing estate tax may be significantly lower than $5.43 million).370 What about Structuring a Pet Trust as a Charitable Remainder Trust371? Such a trust pays a fixed or variable amount of the trust property at least annually to one or more beneficiaries for life or a term of years, with any remaining property going to charity.372 When this type of trust is funded at death, a portion of the bequest—the present value of the charity’s remainder interest—is not subject to estate tax.373 By setting up this type of trust for a pet, a Pet Owner could reduce the estate tax cost of providing for his pet.374 Unfortunately, the IRS has ruled in Rev. Rul. 78-105 that this won’t work for pet trusts.375 This is because a Statutory pet trust – where the trust beneficiary is a pet – does not fit within the definition of a charitable remainder trust because the trust’s required annual payments must be payable to or for the use of a “person,”376 which generally means an individual (not a pet). On the other hand, it is unclear whether a Freestanding pet trust that has a human beneficiary (i.e., the pet’s Pet Guardian) and is structured as a charitable remainder trust would be eligible for the charitable estate tax deduction.377 The Service’s ruling appears to preclude such eligibility by providing that a trust is for the lifetime benefit of a pet (rather than the pet’s Pet Guardian) if the trust funds are used for the care of a pet.378 B. Income Tax In general, when a Pet Owner transfers funds and other property to the pet trust – including the pet itself – by gift, bequest, devise, or inheritance, these receipts are not treated as taxable income,379 although they may be subject to gift or estate tax as previously discussed. This means that when the Pet Owner gives the pet or funds to the pet trust, they will not be taxable.380 However, interest, dividends and other income generated by trust investments are subject to income tax.381

The pet trust’s income generally is taxable either to the Pet Owner, or to the trust, in the case of a Freestanding pet trust that a Pet Owner creates during his life.382 If the Pet Owner can revoke the trust or is otherwise deemed to own the trust for income tax purposes, all of the trust’s items of income, loss, deduction and credit will be reportable on his income tax return, rather than trust’s return.383 This type of trust is referred to as a grantor trust and, in effect, allows the Pet Owner to make tax-free gifts to the trust by paying its income tax; this way, the trust funds can grow tax-free without being depleted by income tax.384 Nevertheless, if the pet trust is not a grantor trust or ceases to be one when the Pet Owner dies, it will be a separate taxable entity and will pay tax on its own income.385 Generally, the trust income tax rates are imposed at graduated rates that mirror those of individuals.386 However, unlike individual taxpayers who typically do not pay income tax at the highest marginal rate until their income exceeds $413,200,387 trust income is subject to income tax at the highest marginal rate when it exceeds $12,300388; this is a clear disadvantage to holding funds in trust, and illustrates why a grantor trust may be attractive if the Pet Owner is not in the top federal income tax bracket.389 “Some commentators believe that a pet trust is subject to a more favorable tax rate (i.e., married filing separately), but based upon this author’s analysis of Rev. Rul. 76-486, it appears that pet trusts are subject to the same income tax rates applicable to all other trusts.”390 Nevertheless, a pet trust is not taxable on trust income (other than capital gain) to the extent it is distributed to the pet’s Pet Guardian in the case of a Freestanding pet trust; instead, the distribution is deductible by the trust and taxable to the Pet Guardian.391 When all is said and done, either the trustee or the pet guardian pays the income tax on [the trust’s] income depending on whether trust income is accumulated or distributed each year. If the pet owner [intends to compensate the pet guardian] for any [income] tax liability associated with trust distributions, this needs to be taken into account when distributions are made. What if the pet, rather than a pet guardian, is the trust beneficiary,[such as with a Statutory pet trust]? [Because] [t]he IRS does not recognize a pet as a trust beneficiary . . . [the] pet cannot be taxable on trust distributions that it

receives. In addition, the [pet’s Pet Guardian] cannot be charged with the tax liability because the [pet] guardian serves only as an agent of the [pet] and does not consume the distributions for his own benefit (similar to a court- appointed guardian of a minor or incapacitated person). This could have created a lucrative tax loophole [because] no one (neither the pet nor its pet guardian) would have been subject to income tax on the trust income paid to or for the benefit of the pet. The IRS quickly recognized the problem, and in [Rev. Rul. 76486,] held that an enforceable pet trust established under a state statute is taxable on all of its income, regardless of whether any distributions are made for the benefit of the pet beneficiary.392 What are the ramifications if the pet is considered an asset of a Freestanding pet trust rather than a trust beneficiary indirectly through the Pet Guardian? In this case, perhaps an argument could be made that expenditures for the pet’s care are deductible as trust administration expenses because they are incurred in the “normal” business of administering a trust designed to take care of a pet.393 After all, trustee fees and professional fees – including those for attorneys, accountants, and tax return preparers – incurred in administering the trust are deductible.394 However, when a pet is not an income-producing asset and the expenditures incurred for the pet’s care are not inextricably related to the normal business of administering a trust (not just a pet trust), they should not be deductible.395 Sometimes, a pet is an income- producing asset and in that case, the expenditures incurred for the pet’s care are inextricably related to the normal business of administering a trust (not just a pet trust), and then they could be deductible.396 CONCLUSION This is not about you. It is about them. It is not about whether you are in the hospital it is about whether they need a vet. It is not about a will. That is about you being dead. It is about them being alive. It is about them. They cannot prepare their own protection plan for ongoing care. That is about you loving them, caring about them, doing all you can for them.

That is about you. So what can you do? Do a pet trust. Pet trust law is a relatively new field.397 It is changing and growing rapidly, making it imperative that lawyers stay abreast of recent developments including states statutes that are being passed and the legislation that is being enacted.398 “As of January 2016, 49 states plus the District of Columbia have enacted pet trust laws that pertain only to the pet trusts which are included or otherwise mentioned in a will.”399 The state that has not passed a pet trust law is Minnesota. There is a bill in the Senate in Minnesota.400 When a pet trust is included in a will, some states impose funding limits that permit the court during probate to reduce and/or redirect trust property determined to be in excess of the intended use set forth in the trust instrument. This law does not pertain to the other two kinds of pet trusts, the Pet Protection Agreement® pet trust and the Freestanding pet trust, because neither of these go through probate. “Approximately 7.6 million companion animals enter animal shelters nationwide every year. Of those, approximately 3.9 million are dogs and 3.4 million are cats. Each year, approximately 2.7 million animals are euthanized (1.2 million dogs and 1.4 million cats).”401 Of the dogs entering shelters, around 31% are euthanized.402 Of the cats entering shelters, roughly 41% are euthanized.403 Many who own pets consider them to be family members, making a Freestanding pet trust or Pet Protection Agreement pet trust a logical imperative.404 No one likes to see their pets consigned to shelters when the owner can no longer care for them.405 As painful as it is to think of leaving animals behind, there is a great sense of security knowing that they have been provided for, whether they are twolegged, four-legged, or feathered.406 Their devotion is unconditional, and should be reciprocated. “[Many] have forgotten this truth . . . [b]ut you must not forget it. You become responsible, forever, for what you have tamed.”407 “People live longer, have more pets and treat them more like

family than ever before. . . . Pets are a central and vital part of their owner’s lives.”408 Despite an increase in pet ownership, the growing importance of pets in their owners’ lives, and a surge in spending on pets, many attorneys and Pet Owners are still not aware that they can legally protect pets continuing care.409 Until recently, Pet Owners encountered many barriers when attempting to legally transfer their pets to another person or organization and to document binding instructions for the care of those pets.410 With the advent of recent laws and statutory developments legally recognized and enforceable instruments that provide care for a pets care in the event of the Pet Owner’s inability and or death can now be created.411 When a Pet Owner is asked whether any provisions have been made to ensure the continued care of their pets if something were to happen to that Pet Owner, what often comes to mind is the need to create a will.412 However, as extensively discussed in this article, adopting this method is a gamble.413 While it is important for each individual to create a will, there are difficulties in the use of a will as the exclusive method of providing for the ongoing car of ones beloved pets because a will provides no guarantees.414 Though both the Freestanding pet trust and the Pet Protection Agreement pet trust can be mentioned as existing in the will, they must be valid on their own, and should not be triggered by the will, or they will be subject to the court’s discretion.415 Because a will must be read and approved by the court, a pet trust that is created by a will inevitably ends up probated.416 It is the Pet Owner’s right to make decisions in life and for the time thereafter to ensure that Love Continues™. This is why it is important to know how to create an iron clad pet trust. The Pet Protection Agreement pet trust and the Freestanding pet trust are the perfect instruments to ensure legal protection for an animal’s continued well-being and quality of life. RACHEL HIRSCHFELD PO Box 1196 Asbury Park, NJ 07712 (877) 7 PETTRUST [email protected] (URL removed for reprint)

Rachel Hirschfeld is a nationally renowned expert in estate planning and a passionate legal advocate for animals. She is one of the first attorneys in the country to focus on what is now known as animal law. PETRIARCH: The Complete Guide to Financial and Legal Planning for a Pet’s Continued Care, a book authored by Rachel Hirschfeld and published by the American Institute of Certified Accountants (AICPA), provides the information needed to protect the welfare and security of all animals, especially family pets. Through her law practice and the devastating illness of her beloved shelter dog Soupbone - the missing link that set her on the path of her life’s most important work - she created the Pet Protection Agreement® pet trust and The Hirschfeld Pet Trust™. Both offer the necessary legal protection in all fifty states for a pet’s continued care. Ms. Hirschfeld’s Pet Protection Agreement pet trust, which continues to save millions of pets each year, is available through the online document service, [ Legal zoom and pet protection agreement’s sites] (URL removed for reprint) Ms. Hirschfeld is the founder of, and co-chairs, the New York County Lawyers Association’s Animal Law Committee. She works closely with animal organizations throughout the world. An honors graduate of Yeshiva University’s Benjamin N. Cardozo School of Law, Ms. Hirschfeld has interned in U.S. Attorney General Janet Reno’s office, in the Department of Justice. She has also served on the Advanced Programming and Education committees of the National Academy of Elder Law Attorneys, on the Trusts and Estates and Animal Law committees of the American, New York State and New York City Bar Associations; and co-developed a program and the associated legal forms providing for pets during a patient’s stay in the hospital. Ms. Hirschfeld is an author and lecturer, who is often quoted in newspapers, legal journals and other media outlets including: Forbes, ABC Nightline, CBS Early Show, The Wall Street Journal, CNN, The Today Show, The New Yorker, Newsweek, Dow Jones, Newsday, The New York Sun, Bottom Line Retirement, The National Academy of Elder Law Attorney’s Journal, Consumer Digest, and Fox News. Her lectures in continuing legal education have been selected for live web casting by Thomson Reuters’ publishing house. “Her mission is to ensure that every animal is guaranteed a secure future.”

She lives with her rescues; Soupbone, Swizzle, Adam, Robbie, Sundance, Topper, and Tamma. 1 Rachel Hirschfeld, Frequently Asked Questions, PETTRUSTLAWYER.COM, (URL removed for reprint)) [hereinafter “Hirschfeld, FAQ”]. 2 Pet Industry Market Size & Ownership Statistics: U.S. Pet Industry Spending Figures & Future Outlook, AMERICAN PET PRODUCTS ASS’N, (URL removed for reprint) 3 Id. 4 Id. 5 See id. 6 Regina A. Corso, Pets Really Are Members of the Family, THE HARRIS POLL (June 10, 2011), (URL removed for reprint). 7 Id. 8 Stephanie Sindicich, 14 Signs You Are Obsessed With Your Dog (In a Good Way!), ONE GREEN PLANET,. (URL removed for reprint) 9 Hirschfeld, FAQ, supra note 1 10 Id. 11 Sharon L. Peters, Pet Talk: For Pets’ Sake, Include them in your Estate Planning, SPECIAL FOR USA TODAY (Dec. 17, 2010, 6:11PM), (URL removed for reprint) 12 Pet Statistics: How many pets are in the United States? How many animals are in shelters?, THE AMERICAN SOC’Y FOR THE PREVENTION OF CRUELTY TO ANIMALS (URL removed for reprint) 13 Id. 14 Id. 15 Rachel Hirschfeld, Estate Planning Issues Involving Pets, GPSOLO (2009), (URL removed for reprint) 16 Cara Buckley, Cosseted Life and Secret End of a Millionaire Maltese, N.Y. TIMES, June 10, 2011, at A20. 17 Joan Rivers’ Estate is a Prime Example of Proper Pet Planning, INSIGHT LAW (Oct. 8, 2014), (URL removed for reprint) Scott C. Soady, Share Your Pet Trust Wishes With Family, SAN DIEGO ESTATE PLANNING LAWYER BLOG (Feb. 9, 2013), (URL removed for reprint) 18 Hirschfeld, GPSOLO, supra note 15. 19 Id.

20 See Suzanna de Baca, Pet Trusts: Should You Leave Money to the Family Dog?, HUFFINGTON POST (June 4, 2013), (URL removed for reprint) 21 Hirschfeld, GPSOLO, supra note 15; Why Do Pets Need a Pet Protection Agreement, PETPROTECTIONAGREEMENT.ORG, (URL removed for reprint) What’s The Difference Between a Pet Protection Agreement® and a Pet Trust?, LEGALZOOM, (URL removed for reprint). Protection Agreements PETTRUSTLAWYER.COM, (URL removed for reprint) [hereinafter Hirschfeld, Protect Your Pet’s Future: Pet Trusts and Pet Protection Agreements]. 22 See Rachel Hirschfeld, Protect Your Pet’s Future: Pet Trusts and Pet 23 Id. (for legal developments the author, an attorney, is following). 24 Rachel Hirschfeld, Putting a Pet in a Will is a Dangerous Gamble, PETTRUST LAWYER COM, (URL removed for reprint) [hereinafter “Hirschfeld, Putting a Pet in a Will is a Dangerous Gamble”]. 25 Brette Sember, Do All Wills Need to Go Through Probate?, LEGALZOOM (Aug. 2014), (URL removed for reprint) 26 Hirschfeld, Protect Your Pet’s Future: Pet Trusts and Pet Protection Agreements, supra note 22 (describing emergency situations). 27 See id. 28 Sean Hanley, PET TRUSTS: Enforcement and Other Issues, AVVO COM (July 28, 2011), (URL removed for reprint) 29 See David Taylor, Animal Lovers, RIGHT SIZE LAW PLLC, (URL removed for reprint). 30 See Mary Randolph, Settling an Estate: Does The Will Appear Valid?, NOLO, (URL removed for reprint). 31 Gerry W. Breyer, Pet Animals: What Happens When Their Humans Die?, 40 SANTA CLARA L. REV. 617, 620 (2000). 32 Id. 33 Id. 34 UNIF. PROBATE CODE § 2-907 (2013). 35 UNIF. PROBATE CODE § 2-907(b). 36 UNIF. PROBATE CODE § 2-907(c). 37 UNIF. TRUST CODE § 408 (2010). 38 UNIF. TRUST CODE § 408 (a).

39 Breahn Vokolek, America Gets What it Wants: Pet Trusts and a Future for its Companion Animals, 76 UMKC L. REV. 1109, 1126 (2008). 40 Rachel Hirschfeld, Pet Trust Laws, PETTRUSTLAWYER.COM, (URL removed for reprint) [hereinafter Hirschfeld, Pet Trust Laws]. 41 See id. 42 See Frequently Asked Questions, UNIF. LAW COMM’N, uniformlaws.org/ narrative.aspx?title=Frequently Asked Questions (last visited Oct. 2015). 43 Hirschfeld, Pet Trust Laws, supra note 40. 44 H.R. 439, 2015 Leg. Reg. Sess. (La. 2015), (URL removed for reprint), (URL removed for reprint) (2010). 47 See 4 AM. JUR. 2D Animals §3 (2015). 48 See 4 Am. JUR. 2D Animals §4; Digestive System of the Dog, WASH. STATE UNIV. COLL. OF VETERINARY MED., (URL removed for reprint); Dog Exercise Needs, DOGTIME (July 14, 2011), (URL removed for reprint)., (URL removed for reprint); Yuri Maltsev, Dogs Really Do Love Us: Study Finds First Evidence of Inter- Species Hormone Exchange, RT NEWS, (URL removed for reprint). 49 See Pierson v. Post, 3 Cai. 175, 177 (N.Y. Sup. Ct. 1805). 50 Id. 51 See id. at 177–78. 52 See 4 AM. JUR. 2D Animals §3. 53 Hirschfeld, FAQ, supra note 1. 54 Id. 55 See id. 56 Hirschfeld, Protect Your Pet’s Future: Pet Trusts and Pet Protection Agreements, supra note 22, at 13. 57 Id. at 13–14. 58 Id. 59 See Rachel Hirschfeld, Make Sure Your Pet is Taken Care of, PETTRUSTLAWYER.COM, (URL removed for reprint)) [hereinafter “Hirschfeld, Make Sure Your Pet is Taken Care of”]. 60 See id. 61 Id. 62 See id. (provisions of a Statutory pet trust are requests and the court has no power to enforce the pet owner’s wishes).

63 See id. (provisions of Statutory pet trust are treated as requests by the court). 64 RACHEL HIRSCHFELD, PETRIARCH: THE COMPLETE GUIDE TO FINANCIAL AND LEGAL PLANNING FOR A PET’S CONTINUED CARE 78 (2010) [hereinafter HIRSCHFELD, PETRIARCH]. 65 Id. at 78–79. 66 Id. 67 See id. at 78. 68 Id. 69 Id. at 78–79. 70 Id. at 79. 71 See N. Y. EST. POWERS & TRUSTS LAW §3-5.1(b)(2) (McKinney 1966) (“Subject to the other provisions of this section . . . [t]he intrinsic validity, effect, revocation or alteration of a testamentary disposition of personal property, and the manner in which such property devolves when not disposed of by will, are determined by the law of the jurisdiction in which the decedent was domiciled at death.”); EST. POWERS & TRUSTS LAW §3-5.1(d) (“A testamentary disposition of personal property intrinsically valid under the law of the jurisdiction in which the testator was domiciled at the time the will was executed shall not be affected by a subsequent change in the domicile of the testator to a jurisdiction by the law of which the disposition is intrinsically invalid.”); see also Practice Commentaries, N. Y. EST. POWERS & TRUSTS LAW §3-5.1 (McKinney 1998) (“Under subparagraph (d), if a disposition is valid in the testator’s domicile when he writes it, it does not become invalid because he dies domiciled in a jurisdiction where such a provision is invalid. This provision . . . is used only to validate, not to invalidate, will provisions.”). The result reached under New York law follows the general rule, as expressed in Section 269 of the Restatement (Second) of Conflict of Laws: § 269. Validity Of Trust Of Movables Created By Will The validity of a trust of interests in movables created by Will is determined . . . (b) as to matters that affect only the validity of the trust provisions, except when the provision is invalid under the strong public policy of the state of the testator’s domicil at death,

(i) by the local law of the state designated by the testator to govern the validity of the trust, provided that this state has a substantial relation to the trust, or (ii) if there is no such effective designation, by the local law of the state of the testator’s domicil at death, except that the local law of the state where the trust is to be administered will be applied if application of this law is necessary to sustain the validity of the trust. RESTATEMENT (SECOND) OF CONFLICTS OF LAWS § 269 (1971). Comment (g) to that section states: g. When law not designated by the testator to govern validity of the trust. When the testator does not designate a state whose local law is to govern the validity of the trust, or when the designation will not be given effect . . . the trust will be upheld if it is valid under either the local law of the state of the testator’s domicil at death or the local law of the state where the trust is to be administered, provided that this would not be contrary to the strong public policy of the state of the testator’s domicil at death . . . . RESTATEMENT (SECOND) OF CONFLICTS OF LAWS § 269 cmt. g (1971). The Reporter’s Note further explains that “[t]he validity of a provision in a will pouring over property into another trust is determined by the law that would be applied by the courts of the state of the testator’s domicil at death.” RESTATEMENT (SECOND) OF CONFLICTS OF LAWS § 269 Reporter’s Note (1971); see also In re Estate of Rougeron, 17 N.Y.2d 264, 272 (1966) (stating that, under New York law, “as to personal property legal domicile at death determines what law is to be applied and what court has jurisdiction.”). 72 See Pet Trusts: Caring For a Pet That Outlives Its Owner, AM. VETERINARY78 Id. MED. ASS’N, (URL removed for reprint). 73 EST. POWERS & TRUSTS LAW §3-5.1 (b)(2), (d). 74 See Pet Trusts, supra note 72. 75 See infra notes 152–365. 76 See Kim Bressant-Kibew, Pet Trust Primer, ASPCA.ORG, (URL removed for reprint). 77 Id. 79 See HIRSCHFELD, PETRIARCH, supra note 64, at 76.

80 Id. 81 Id. at 77. 82 See id. at 46. 83 See Hirschfeld, Putting a Pet in a Will is a Dangerous Gamble, supra note 24. 84 See HIRSCHFELD, PETRIARCH, supra note 64, at 77; The Estate Planning and Elder Law Firm P.C., Pet Trusts, ELDERLAW NEWS (2006) (URL removed for reprint) 85 Martha Neil, Judge Cuts $10M from Leona Helmsley’s $12M Bequest to Dog, ABA JOURNAL (June 16, 2008, 5:43 PM), (URL removed for reprint); Dareh Gregorian, Screw the Pooch, N.Y. POST (June 16, 2008, 7:18 AM), (URL removed for reprint) 86 Martha Neil, Does Helmsley Fortune Go to the Dogs? Trustees Will Decide, N.Y. Judge Says, ABA JOURNAL (Feb. 26, 2009, 1:14 AM), (URL removed for reprint). 87 Id.; Gregorian, supra note 85. 88 When a will is the document that enacts the Statutory pet trust those distributions are distributed at once. If, however, a separate trust is pointed to which was written in another document then yes, there can be varied distributions. See Whitney C. Harris, Our Guide to Estate Planning for Dogs, PET TRUSTLAWYER COM (June 16, 2015), (URL removed for reprint) 89 See generally Frances Carlisle, Helmsley’s Pet Trust Raises Issues For Owners of All Income Levels, 241 N.Y. L.J. at 4 (May 28, 2009) (discussing how trusts can run out of funds, though pet owners are warned to include extra in order to prevent this from occurring). 90 Gregorian, supra note 85. 91 See Sewell Chan, Leona Helmsley’s Unusual Last Will, N.Y. TIMES CITY ROOM BLOG, (URL removed for reprint); ‘Queen of Mean’ Billionaire Hoteltier Leona Helmsley Dies at 87, DAILY MAIL (Aug. 21, 2007, 1:02 AM) (URL removed for reprint) 92 ‘Queen of Mean’ Billionaire Hoteltier Leona Helmsley Dies at 87, supra note 91. 93 Dareh Gregorian, Heir of the Dog: Leona Wills $12M to a Pooch, N.Y. POST (Aug. 29, 2007, 9:00 AM), (URL removed for reprint) .

94 See Gregorian, supra note 93 (given that the name bears such a reputation it is implied every detail was made flawless). 95 Last Will and Testament of Leona M. Helmsley: Article One Bequests at 3, (URL removed for reprint) (last visited Mar. 5, 2016) [hereinafter Will]. 96 Carlisle, supra note 89; Gregorian, supra note 85. 97 Carlisle, supra note 89. 98 Will, supra note 95, at 1; Helmsley’s Dog Money Can Go To Other Charities: NY Court, YAHOO FINANCE (last updated May 25, 2011, 1:05 PM), (URL removed for reprint); see also Cara Buckley, Helmsley’s Millionaire Maltese, Trouble, Dies at 12, N.Y. TIMES CITY ROOM BLOG (June 9, 2011, 12:09 PM), (URL removed for reprint) at A1, (URL removed for reprint) 100 Jose Martinez, Leona’s Dog Gets Her Paws on $12M in Will, N.Y. DAILY NEWS (Aug. 29, 2007, 4:00 AM), (URL removed for reprint) (discussing the inability to legally enforce various types of pet arrangements). 102 Buckley, supra note 16; Jeffrey Toobin, Rich Bitch: The Legal Battle Over Trust Funds for Pets, THE NEW YORKER: ANIMALS OF LAW (Sept. 29, 2008), (URL removed for reprint). 103 Dareh Gregorian, More ‘Trouble’ Than She is Worth, N.Y. POST (Sept. 4, 2007, 9:00 AM), (URL removed for reprint) 104 Melanie Young, Feathers Ruffled. Fur Flies. Lessons Learned From Ebola, PET TRUST LAWYER (Oct. 27, 2014), (URL removed for reprint) 105 See id. 106 See Gregorian, supra note 103. 107 Barbara Nefer, Setting Up Pet Trusts, ANIMAL WELLNESS, (URL removed for reprint) 109 Hirschfeld, GPSOLO, supra note 15. 110 Gregorian, supra note 103; Manny Fernandez, Multimillionaire Dog Can’t Buy Herself a Friend, N.Y. TIMES, Sept. 3, 2007, at B3. 111 Id. 112 The Health Benefits of Pets: How Caring for Animals can Make You Happier and Healthier, HELPGUIDE.ORG, (URL removed for reprint). 113 Id. 114 See id. (discussing the health benefits of dog companionship).

115 Dareh Gregorian, Leona Pal Pet Peeved, NEW YORK POST (Sept. 7, 2007), (URL removed for reprint) 116 See id. 117 Id. 118 See The Health Benefits of Pets, supra note 112; Gregorian, supra note 115. 108 See id. 119 Strom, supra note 99; Gregorian, supra note 85. 120 Id. 121 Id. 122 Strom, supra note 99. 123 Matter of Helmsley, 31 Misc. 3d 1233(A), (N.Y. Sur. Ct. 2009). 124 Stephanie Strom, Not All of Helmsley’s Trust Has to Go to Dogs, N.Y. TIMES, Feb. 26, 2009, at A28, (URL removed for reprint) 125 Part of Helmsley’s trust going to the dogs, REUTERS U.K. (Apr. 22, 2009, 2:22 PM), (URL removed for reprint) 126 Sean Alfano, Leona Helmsley Leaves $12M to Her Dog, CBS NEWS (Aug. 29, 2007, 8:27 AM), (URL removed for reprint) 127 Chan, supra note 91. 128 Alfano, supra note 126; Toobin, supra note 102; Braden Keil, Trouble in Paradise, N.Y. POST (Aug. 31, 2007, 9:00 AM), (URL removed for reprint) 129 Toobin, supra note 102. 130 Keil, supra note 128; Toobin, supra note 102. 131 Keil, supra note 128. 132 See id. 133 Toobin, supra note 102. 134 Strom, supra note 124; Keil, supra note 128. 135 See Toobin, supra note 102; Sue Manning, Pet Estate Planning: Not just for Leona Helmsley Anymore, TODAY (Jun. 22, 2011, 8:55 PM), (URL removed for reprint). 136 See Strom, supra note 124 (explaining how the Surrogate Court Judge did not uphold Leona Helmsley’s last wishes as to Trouble’s trust money and burial instructions). 137 Toobin, supra note 102. 138 Strom, supra note 124; Hirschfeld, GPSOLO, supra note 15.

139 See Statutory Pet Trusts in D.C., Maryland, and Virginia, LIPPMAN, SEMSKER & SALB, LLC, (URL removed for reprint) (discussing benefits of Statutory pet trusts); Hirschfeld, GPSOLO, supra note 15. 140 See Statutory Pet Trusts in D.C., Maryland, and Virginia, supra note 139. 141 See generally id. (describing court discretion in determining what is excessive). 142 See generally id. (describing importance of providing express directions). Hirschfeld, GPSOLO, supra note 15. 143 See 1 IRA MARK BLOOM & WILLIAM P. LAPIANA, DRAFTING NEW YORK WILLS AND RELATED DOCUMENTS §1.07 (4th ed. Matthew Bender 2015); Hirschfeld, FAQ, supra note 1. 144 Hirschfeld, GPSOLO, supra note 15. See generally Strom, supra note 124 (describing various issues with Helmsley’s will). 145 Hirschfeld, GPSOLO, supra note 15; Strom, supra note 124. 146 See Pet Trusts, KRASA LAW, INC., (URL removed for reprint); Hirschfeld, GPSOLO, supra note 15. 147 Hirschfeld, GPSOLO, supra note 15. See generally Pet Trusts, KRASA LAW, INC., supra note 146 (describing Statutory pet trust’s vulnerability to court determinations such as reasonableness). 148 Hirschfeld, GPSOLO, supra note 15 (explaining inadequacies of wills, and the court’s discretion in enforcing them). 149 See id. (explaining benefits of pet trusts and pet protection agreements). 150 Id. 151 Why Do Pets Need a Pet Protection Agreement, supra note 21; Hirschfeld, GPSOLO, supra note 15. 152 Hirschfeld, FAQ, supra note 1. 153 Id. 154 Id. 155 Id.; Rachel Hirschfeld, What is a Pet Trust?, PET TRUST LAWYER. (URL removed for reprint) [hereinafter What is a Pet Trust?]. 156 What is a Pet Trust?, supra note 155. 157 See generally id. (discussing how a pet trust establishing continuing care for all animals). 158 See generally id. (discussing application to all pets).

159 See generally Legalzoom™ Pet Protection Agreement Questionnaire, LEGALZOOM, (URL removed for reprint) (discussing how the pet protection agreement provides the list of questions necessary to prepare a free-standing trust). 160 Id. 161 Rachel Hirschfeld, The Law Treats Pets Same as Your Old Couch!, PET TRUST LAWYER(URL removed for reprint) (hereinafter “The Law Treats Pets Same as Your Old Couch!”); Hirschfeld, GPSOLO, supra note 15. 162 See Hirschfeld, GPSOLO, supra note 15. 163 See The Law Treats Pets Same as Your Old Couch!, supra note 161; see Hirschfeld, GPSOLO, supra note 15 (discussing how establishing documents for pet ownership is relatively new). 164 See Rachel Hirschfeld, Fido, Stay! With Me! Pet Trusts and Pet Protection Documents, GPSOLO, (URL removed for reprint) [hereinafter Fido, Stay! With Me!]. 165 Hirschfeld, GPSOLO, supra note 15; Fido, Stay! With Me!, supra note 164. 166 Fido, Stay! With Me!, supra note 164. 167 Id. 168 Id. 169 Id.; Hirschfeld, Protect Your Pet’s Future: Pet Trusts and Pet Protection Agreements, supra note 22. 170 Couple Who Split up Must Share Dexter the Pug, TODAY.COM, (URL removed for reprint) (last updated Aug. 2, 2009, 11:42 AM). 171 Houseman v. Dare, 966 A.2d 24, 25, 27–29 (N.J. Super. Ct. App. Div. 2009); Couple Who Split up Must Share Dexter the Pug, supra note 170. 172 Mary Pat Gallagher, Judge Awards Splitting Couple Joint Possession of Pet Pug, N.J. L. J. (Sept. 22, 2009), (URL removed for reprint); see Fido, Stay! With Me!, supra note 164; Couple Who Split up Must Share Dexter the Pug, supra note 170. 173 Fido, Stay! With Me!, supra note 164. 174 See id.; Tabby T. McLain, Detailed Discussion: Knick-Knack, PaddyWhack, Give the Dog a Home? Custody Determination of Companion Animals Upon Guardian Divorce, MICH. STATE U. ANIMAL LEGAL & HISTORICAL CTR. (2009), (URL removed for reprint)

175 McLain, supra note 174; Monique Balas, Pet Talk: Pet Custody Battles Illustrate Need for Legal Clarity Regarding Pets, OREGONIAN/OREGONLIVE BLOG (Sept. 7, 2012, 6:00 PM), (URL removed for reprint) (discussing microchip use). 176 McLain, supra note 174. 177 Id. 178 Id. 179 Id. 180 HIRSCHFELD, PETRIARCH, supra note 64, at 10–11. 181 Id.; Andrea F. Siegel, Split Custody of Dog Recognizes Changing Role of Family Pets: Pets Differ from Other Property, THE BALTIMORE SUN (July 18, 2010) (URL removed for reprint) 182 HIRSCHFELD, PETRIARCH, supra note 64, at 10. 183 Id. 184 Id. 185 Id.; Siegel, supra note 181. 186 HIRSCHFELD, PETRIARCH, supra note 64, at 10. 187 HIRSCHFELD, PETRIARCH, supra note 64, at 11–12; see Zovko v. Gregory, No. CH 97-544 (Va. Cir. 1997) (order that cat in dispute, “Grady,” be returned to Mr. Zovko); Raymond v. Lachmann, 264 A.D.2d 340, 340–341 (N.Y. App. Div. 1999). 188 See Hirschfeld, Protect Your Pet’s Future: Pet Trusts and Pet Protection Agreements, supra note 22. 189 See HIRSCHFELD, PETRIARCH, supra note 64, at 40. 190 Id. 191 Id. at 57. 192 Id. at 57, 83. 193 See generally Shidon Aflatooni, The Statutory Pet Trust: Recommendations For A New Uniform Law Based On The Past Twenty-One Years, 18 ANIMAL L. 1, 33–35 (2011) (explaining the requirements for the creation of a trust and how pet trusts can be treated as traditional trusts, and what can cause a reevaluation, such as a finding of incapacity at time of creation).

194 See id. at 34–35 (creating a trust requires that an individual be competent at that time, if incapacity is found at the time of creation it can result in invalidation of the document); Hirschfeld, Protect Your Pet’s Future: Pet Trusts and Pet Protection Agreements, supra note 22. 195 See generally id. at 34–35 (using incapacity as the reason for creation of a trust could imply overall incapacity to create a trust); Matter of Daniel TT., 39 A.D.3d 94, 97 (3d Dep’t 2007) (if incapacity is questionable at time of creation of documents, all relevant documents could be affected). 196 See Matter of Daniel TT., 39 A.D.3d at 97 (incapacity allows for a court to appoint a guardian). 197 Id. at 97 (any decisions or documents that were made at the time of incapacity are subject to review and possible revocation). 198 See generally Hirschfeld, GPSOLO, supra note 15 (creating a valid trust ensures that your pets care transitions smoothly); Matter of Rita R., 26 A.D.3d 502, 503 (2d Dep’t 2006) (incapacity at time of creation can result litigation to revoke legal documents). 199 See Aflatooni, supra note 193, at 35 (finding of error would result in court fixing the trust to reflect settlor’s intent, incapacity opens the door for total revocation) (if a person is unable to care for their pet at the time of drafting, that statement would be less likely to result in cancellation of legal documents than a proclamation of incapacity); de Baca, supra note 20. 200 See Matter of Daniel TT., 39 A.D.3d at 97 (incapacity can result in the alteration of documents or revocation of a will or trust). See generally Aflatooni, supra note 193, at 34–35 (if incapacity were used as a descriptor during drafting, that would imply the pet owner lacked testamentary capacity and would nullify the document). 201 See Hirschfeld, GPSOLO, supra note 15. 202 Id. 203 Id.; Hirschfeld, FAQ, supra note 1. 204 See generally Hirschfeld, GPSOLO, supra note 15 (legal documents signed by both parties generally contain contact information, and should be included). 205 Id.

206 Id. at 19–20 (listing the requirements to create the legal documents for pets). See generally Hirschfeld, FAQ, supra note 1 (differs from a regular contract given the lack of a traditional bargained for exchange). 207 See HIRSCHFELD, PETRIARCH, supra note 64, at 46. 208 Id. 209 Id. 210 See J. Alan Jenson, Tax and Estate Planning Involving Pets: Stupid Pet Tricks for the IRS and FIDO, HOLLAND & KNIGHT (Aug. 1, 2000), (URL removed for reprint) 211 HIRSCHFELD, PETRIARCH, supra note 64, at 47. 212 See Jenson, supra note 210. 213 HIRSCHFELD, PETRIARCH, supra note 64, at 47. 214 See id. at 48. 215 Id. at 47. 216 Id. 217 Id. at 48. 218 Id. 219 HIRSCHFELD, PETRIARCH, supra note 64, at 58. 220 Hirschfeld, GPSOLO, supra note 15. 221 Hirschfeld, Protect Your Pet’s Future: Pet Trusts and Pet Protection Agreements, supra note 22. 222 Hirschfeld, GPSOLO, supra note 15. 223 Id. 224 Id. 225 See id. 226 Hirschfeld, Protect Your Pet’s Future: Pet Trusts and Pet Protection Agreements, supra note 22. 227 Id. 228 Linda Sommers Green, How to Choose a Pet Guardian, THE VIRGINIA MARYLAND WASHINGTON DC DOG (April 5, 2010), (URL removed for reprint) 229 Hirschfeld, FAQ, supra note 1. 230 Hirschfeld, Protect Your Pet’s Future: Pet Trusts and Pet Protection Agreements, supra note 22. 231 Id.

232 Id. 233 Id. 234 See About Us, SATCHEL’S LAST RESORT, satchelslastresort.org/aboutus/ (last visited Nov. 2, 2015) (an example of an Organization of Last Resort). 235 See Hirschfeld, GPSOLO, supra note 15. 236 See Application, ANIMAL WELFARE LEAGUE,. (URL removed for reprint) Position Statement on Responsibilities of Animal Shelters, ASPCA, (URL removed for reprint) 237 See Pet Trusts, MCKERRIHAN LAW (Nov. 17, 2014), (URL removed for reprint) 238 Hirschfeld, Protect Your Pet’s Future: Pet Trusts and Pet Protection Agreements, supra note 22. 239 See id. 240 See id. 241 See id. 242 Id. 243 Id. 244 See Hirschfeld, Protect Your Pet’s Future: Pet Trusts and Pet Protection Agreements, supra note 22. 245 Id. 246 Id. 247 See id. 248 Id. 249 Hirschfeld, The Law Treats Pets Same as Your Old Couch!, supra note 161. 250 Stanley Coren, The Dogs of Hurricane Katrina: Medicine for the Mind, MODERNDOG, (URL removed for reprint) (describing the importance of guidelines in keeping your pet safe in an emergency situation, of which the victims of Katrina learned the hard way). 251 See, e.g., Kevin Caruso, Hurricane Katrina Pet Rescue, HURRICANE KATRINA.COM (URL removed for reprint) (listing other links to organizations that assist in locating lost animals from Hurricane Katrina to this very day). 252 Remembering Hurricane Katrina, LSU SCH. OF VETERINARY MED., (URL removed for reprint). 253 See, e.g., Patrik Jonsson, Lost In Katrina and In New Homes – Whose Pet Now?, THE CHRISTIAN SCI. MONITOR (July 21, 2006), (URL removed for

reprint) (telling the story of Army Lt. Jay Johnson’s journey of losing his dog “Missy” in the Hurricane while he was deployed in Iraq). 254 See Hirschfeld, Protect Your Pet’s Future: Pet Trusts and Pet Protection Agreements, supra note 22. 255 Microchipping of Animals FAQ, AVMA, (URL removed for reprint) 256 Id.; see AAHA Universal Microchip Lookup Tool, AAHA, (URL removed for reprint); Microchip Implants: Questions and Answers, NOBLE-LEON, (URL removed for reprint) 257 Microchipping of Animals FAQ, supra note 255. 258 See, e.g., Lost Pet Statistics: Survey Looks At Likelihood Of Finding A Missing Dog Or Cat, HUFFINGTON POST (June 11, 2012, 3:09 PM), (URL removed for reprint). The ASPCA conducted a survey of 1,015 pet households; discovering that “15 percent of dogs were found because they were sporting identification tags or microchips.” Id. 259 Rachel Hirschfeld, SWIZZLE, STAY! WITH ME, PETTRUSTLAWYER.COM, (URL removed for reprint) 260 Id. 261 Id. 262 Id. 263 Elizabeth Grace Saunders, Pet Time: Dog Routines, HUFFINGTON POST (Aug. 12, 2013, 6:27 PM), (URL removed for reprint) 264 Danny Meek, Give Your Pet Caregiver Some Guidance, PET TRUST LAW BLOG (Jan. 14, 2009), (URL removed for reprint) 265 See, e.g., Beyer, supra note 31, at 634, 663. 266 See What is a Pet Trust?, supra note 155. 267 Hirschfeld, GPSOLO, supra note 15. 268 Id. 269 Hirschfeld, Protect Your Pet’s Future: Pet Trusts and Pet Protection Agreements, supra note 22. 270 Hirschfeld, FAQ, supra note 1. 271 Id. 272 Id. 273 See Danny Meek, Life Insurance Can Fund Your Pet Trust, PET TRUST LAW BLOG (July 19, 2010), (URL removed for reprint)

274 Hirschfeld, Protect Your Pet’s Future: Pet Trusts and Pet Protection Agreements, supra note 22. 275 Id. 276 See Hirschfeld, FAQ, supra note 1. 277 Id. 278 See Hirschfeld, Fido, Stay! With Me!, supra note 164 (using example of funds). 279 Rachel Hirschfeld, Estate Planning for People Who Have Pets: Wills, Pet Trusts and Pet Protection Agreements, PETTRUSTLAWYER.COM, (URL removed for reprint) [hereinafter Hirschfeld, Estate Planning for People Who Have Pets]. 280 Hirschfeld, Protect Your Pet’s Future: Pet Trusts and Pet Protection Agreements, supra note 22. 281 Id. 282 Id. 283 See Hirschfeld, GPSOLO, supra note 15; Hirschfeld, Estate Planning for People Who Have Pets, supra note 279. 284 Hirschfeld, Estate Planning for People Who Have Pets, supra note 279. 285 Mary Randolph, Strategies for Taking Care of Pets, NOLO, (URL removed for reprint). 286 Id. 287 Hirschfeld, FAQ, supra note 1. 288 Id. 289 Id. 290 See Hirschfeld, Protect Your Pet’s Future: Pet Trusts and Pet Protection Agreements, supra note 22 (compared to successor trustees). 291 Rachel Hirschfeld, If You Love Your Pet, You Must Read This, BOTTOM LINE. PUBLICATIONS (Oct. 15, 2012), (URL removed for reprint) [hereinafter If You Love Your Pet, You Must Read This]. 292 Id. 293 HIRSCHFELD, PETRIARCH, supra note 64, at 56–57; If You Love Your Pet, You Must Read This, supra note 291. 294 HIRSCHFELD, PETRIARCH, supra note 64, at 55. 295 Id. at 56; If You Love Your Pet, You Must Read This, supra note 291.

296 HIRSCHFELD, PETRIARCH, supra note 64, at 56. 297 Id. 298 Id. 299 Id. 300 Id. 301 Id. 302 HIRSCHFELD, PETRIARCH, supra note 64, at 87; Karen Becker, For Owners Who Desire a Forever-Bond with Their Beloved Pet, HEALTHY PETS (Aug. 28, 2014), (URL removed for reprint). 303 See Beyer, supra note 31, at 670–71; Hirschfeld, GPSOLO, supra note 15. 304 See Beyer, supra note 31, at 670–71; Hirschfeld, GPSOLO, supra note 15. 305 See Beyer, supra note 31, at 671; Hirschfeld, GPSOLO, supra note 15; Hirschfeld, Estate Planning for People Who Have Pets, supra note 279. 306 Hirschfeld, Estate Planning for People Who Have Pets, supra note 279. 307 See Beyer, supra note 31, at 671; Hirschfeld, Estate Planning for People Who Have Pets, supra note 279; Rachel Hirschfeld, Ensure Your Pet’s Future: Estate Planning for Owners and Their Animal Companions, 9 MARQ. ELDER’S ADVISOR 155, 180 (2007), (URL removed for reprint); Hirschfeld, Protect Your Pet’s Future: Pet Trusts and Pet Protection Agreements, supra note 22. 308 Hirschfeld, Estate Planning for People Who Have Pets, supra note 279; Hirschfeld, Ensure Your Pet’s Future, supra note 307; Hirschfeld, Protect Your Pet’s Future: Pet Trusts and Pet Protection Agreements, supra note 22. 309 Hirschfeld, Protect Your Pet’s Future: Pet Trusts and Pet Protection Agreements, supra note 22. 310 Hirschfeld, Estate Planning for People Who Have Pets, supra note 279 311 HIRSCHFELD, PETRIARCH, supra note 64, at 58. 312 Id. at 58. 313 Id. 314 Hirschfeld, Protect Your Pet’s Future: Pet Trusts and Pet Protection Agreements, supra note 22. 315 Id. 319 Id. at 40. 320 Id. 321 HIRSCHFELD, PETRIARCH, supra note 64, at 40–41.

322 Id. at 41. 323 Id. 324 Id. 325 Id. at 51; see Hirschfeld, Protect Your Pet’s Future: Pet Trusts and Pet Protection Agreements, supra note 22. 326 HIRSCHFELD, PETRIARCH, supra note 64, at 51. 327 Id. 328 Hirschfeld, Protect Your Pet’s Future: Pet Trusts and Pet Protection Agreements, supra note 22. 316 Id. 317 HIRSCHFELD, PETRIARCH, supra note 64, at 40, 45. 318 Id. at 45. Agreements, supra note 22. 329 Pet Protection Agreement, LEGALZOOM, (URL removed for reprint) 330 HIRSCHFELD, PETRIARCH, supra note 64, at 39. 331 See id. 332 Pet Protection Agreement, supra note 329. 333 HIRSCHFELD, PETRIARCH , SUPRA NOTE 64, AT 39. 334 See Hirschfeld, FAQ, supra note 1. 335 HIRSCHFELD, PETRIARCH, supra note 64, at 39, 53. 336 See HIRSCHFELD, Protect Your Pet’s Future: Pet Trusts and Pet Protection 337 HIRSCHFELD, PETRIARCH, supra note 64, at 39. 338 Id. at 39. 339 Id. 340 Id. 341 Id. at 44 342 See Barry Kipperman, Economic Euthanasia: A Disease In Need of Prevention, SAINT SETON’S ORPHANED ANIMALS (Aug. 10, 2010), (URL removed for reprint) 343 See id. 344 See generally 10 Best Pet Insurance, CONSUMERS ADVOCATE, (URL removed for reprint). 345 See, e.g., Dog Insurance Plans, NATIONWIDE, (URL removed for reprint) (noting different rates and levels of coverage for dogs).

346 See Pet Statistics, INSURANCE INFORMATION INSTITUTE, (URL removed for reprint) 347 See generally Dog Insurance Cost, TRUPANION, (URL removed for reprint) (noting that a dog’s age will factor into the cost of insurance); Pet Insurance: Rarely Worth the Price, In Our Analysis, CONSUMER REPORTS, Aug. 2011 , (URL removed for reprint) 348 See Kipperman, supra note 342 (noting that often pet owners who have difficulty paying for treatment opt for euthanasia). 349 See generally id. (noting that access to pet insurance can prevent economic euthanasia). 350 See id. 351 HIRSCHFELD, PETRIARCH, supra note 64, at 89. 352 Rande Spiegelman, The Estate Tax and Lifetime Gifting, INSIGHTS (Jan. 28, 2015), (URL removed for reprint) 353 The Gift Tax Made Simple, TURBO TAX, (URL removed for reprint) 354 Id. 355 See id.; Spiegelman, supra note 352. 356 Ashlea Ebeling, IRA Announces 2015 Estate And Gift Tax Limits, FORBES/TAXES (Oct. 20, 2014, 5:49 PM), (URL removed for reprint) 357 Id. 358 HIRSCHFELD, PETRIARCH, supra note 64, at 90. 359 Spiegelman, supra note 352. 360 Id. 361 See id. (discussing an example of how gift taxes work when an individual uses part of his gift tax exclusion). 362 See id. 363 See Spiegelman, supra note 352; Wealth Transfer and Gifting Strategies, MERRILL LYNCH 4, 6 (2015), (URL removed for reprint) 364 See id. 365 Help For Pet Owners, 2ND CHANCE 4 PETS (2015), (URL removed for reprint) 366 See, e.g., Crummey v. Commissioner, 397 F.2d 82, 88 (9th Cir. 1968) (discussing a case where children beneficiaries did not know about the trust, creating a series of legal problems). See generally Spiegelman, supra note 352 (discussing gift tax). 367 See All About Pet Trusts, CA. PET LAWYER, (URL removed for reprint) (discussing how one drawback to a statutory trust is that it cannot be funded

until a will is probated); Hirschfeld, Estate Planning for People Who Have Pets, supra note 279. 368 See Hirschfeld, Pet Trust Laws, supra note 40. 369 See Marsha A. Goetting & Joel Schumacher, Gifting: A Property Transfer Tool of Estate Planning, MONT. STATE UNIV. EXTENSION 2 (revised Jan. 2016), (URL removed for reprint) (discussing an example where a person creates a revocable trust to his spouse, and therefore the gift is not marked as being completed). 370 See generally Denis Clifford, Estate Tax: Will Your Estate Have to Pay?, NOLO, (URL removed for reprint) (last visited Nov. 12, 2015) (discussing the personal estate tax exemption that explains that if the estate is worth less than $5.43 million, gift funds will have an exemption). 371 See Charitable Remainder Trusts, I.R.C. § 664. 372 See Charitable Remainder Trusts, I.R.C. § 664. 373 See Susan Albert, PET TRUSTS: The Uniform Trust Code Gives Enforceability a New Bite, N. H. BAR ASSOC., (URL removed for reprint) 374 See id. 375 See id. 376 See id.; see also Rev. Rul. 78-105, 1978-1 C.B. 295, 1978 WL 42044 at *2, 3 (1978). 377 See generally id. (the IRS does not specify whether a pet trust with a human beneficiary would or would not be eligible for the charitable estate tax deduction). 378 See generally Rev. Rul. 78-105, supra note 376 (the IRS ruling explains if the trust is for the care of a pet animal, then no deduction is allowed). 379 I.R.C. § 102. 380 See I.R.C. § 102. 381 See Questions and Answers on the Net Investment Income Tax, INTERNAL REVENUE SERVICE, (URL removed for reprint) 382 See Rachel Hirschfeld, Estate Planning Strategies for People Who Have Pets, HUGHES ESTATE GROUP, (URL removed for reprint) 383 See Income Taxation of Trusts and Estates, HERITAGE WEALTH MANAGERS, (URL removed for reprint). 384 See id.

385 See Titling Property in a Living Trust, LIVING TRUST NETWORK, (URL removed for reprint) (explaining non-grantor trust status as a separate taxable entity). 386 Hirschfeld, Protect Your Pet’s Future: Pet Trusts and Pet Protection Agreements, supra note 22. 387 This threshold, which is inflation adjusted, applies to individual taxpayers filing in 2015. Rev. Proc. 2014-61, 2014-2 C.B. 860. 388 This threshold, which is inflation adjusted, applies to trusts filing in 2015. Rev. Proc. 2014-61, 2014-2 C.B. 860; see WILLIAM H. HOFFMAN, JR. ET AL., CORPORATIONS, PARTNERSHIPS, ESTATES & TRUSTS 19-7 (2010 ed. 2010). 389 Hirschfeld, Protect Your Pet’s Future: Pet Trusts and Pet Protection Agreements, supra note 22. See WILLIAM H. HOFFMAN, JR. ET AL., supra note 388. 390 Hirschfeld, Protect Your Pet’s Future: Pet Trusts and Pet Protection Agreements, supra note 22. See Rev. Rul. 76-486, 1976-2 C.B. 192, 1976 I.R.B Lexis 230 (LexisNexis 1976); see also I.R.C. §1(d). Commentators appear to believe this because Rev. Rul. 76-486 provides that a pet trust is subject to the tax rates imposed by IRC §1(d) which are the tax rates for married individuals filing separately. At the time of the Ruling, IRC §641, which specifies the tax rates applicable to estate and trusts, referenced IRC §1(d). As a result, the tax rates for married individuals filing separately, applied to all estates and trusts, not just pet trusts. However, IRC § 641 was subsequently amended for tax years beginning after December 31, 1976 by replacing the reference to IRC §1(d) with §1(e), with the effect that estates and trusts (including pet trusts) are no longer subject to the more favorable rates applicable to married individuals filing separately but are now subject their own more compressed tax rates. Hirschfeld, Protect Your Pet’s Future: Pet Trusts and Pet Protection Agreements, supra note 22; see I.R.C. § 641 (2012) (amendment history). 391 Hirschfeld, Protect Your Pet’s Future: Pet Trusts and Pet Protection Agreements, supra note 22. 392 See Rev. Rul. 76-486, 1976-2 C.B. 192, 1976 I.R.B Lexis 230; Hirschfeld, Protect Your Pet’s Future: Pet Trusts and Pet Protection Agreements, supra note 22.

393 Hirschfeld, Protect Your Pet’s Future: Pet Trusts and Pet Protection Agreements, supra note 22. 394 Id. 395 I.R.C. §212 (2012) allows “a deduction [for] . . . ordinary and necessary expenses . . . incurred . . .: (1) for the production of income; (2) for the management, conservation, or maintenance of property held for the production of income; or (3) in connection with the determination, collection, or refund of any tax.” I.R.C. §212. The accompanying regulations also state that a trustee may deduct expenses incurred “in connection with the performance of the duties of administration.” 26 C.F.R. § 1.212-1(i)(2015). 396 I.R.C. §212. 397 See Hirschfeld, Protect Your Pet’s Future: Pet Trusts and Pet Protection Agreements, supra note 22. 398 See id. (for examples of developments in the law). 399 Hirschfeld, Pet Trust Laws, supra note 40. 400 S.F. 1196, 89th Leg., Reg. Sess. (Minn. 2015), (URL removed for reprint) 401 Pet Statistics, ASPCA, (URL removed for reprint). 402 Id. 403 Id.; see also United States Facts and Figures, OXFORD-LAFAYETTE HUMANE SOC’Y, (URL removed for reprint) (noting additional statistics regarding pet adoption and euthanasia rates in the United States); Puerto Rico, HELEN WOODWARD ANIMAL CTR., (URL removed for reprint) (noting adoption and euthanasia rates in Puerto Rico). 404 Hirschfeld, Protect Your Pet’s Future: Pet Trusts and Pet Protection Agreements, supra note 22. 405 Id. 406 D. Craig Godfrey, Pet Trusts Unleashed, GREATER LANSING BUS. MONTHLY, (URL removed for reprint) (last visited Nov. 10, 2015). 407 ANTOINE DE SAINT EXUPERY, THE LITTLE PRINCE 48 (Katherine Woods trans. 1943). 408 Hirschfeld, Protect Your Pet’s Future: Pet Trusts and Pet Protection Agreements, supra note 22. 409 See id. 410 Id.

411 Id. 412 See id. 413 Id. 414 Hirschfeld, Protect Your Pet’s Future: Pet Trusts and Pet Protection Agreements, supra note 22. 415 See UNIF. TRUST CODE §401 (2010); September, supra note 25. 416 See Surrogate’s Court, NYCOURTS.GOV, (URL removed for reprint).

Chapter 19 Egg laying hen confinement

Introduction to egg laying hen confinement California Rhode Island Washington Table egg production and hen welfare, CRS Introduction to egg laying hen confinement We've seen the pictures. Egg laying hens stacked on top of each other in cages so small that the hens can't turn around or spread their wings. This is the commercial egg industry in the United States. Some states are doing something to help these trapped birds. These states are giving hens enough space to stand up, spread their wings and turn around This is often done as a ballot initiative, or as a result of collecting signatures as a result of a ballot initiative. The Congressional Research Service, the investigative arm of the US Congress gives us a description of the battle for more space for these animals.

We read in their report that US factory farmers keep 98 % of all egg-laying hens in these battery cages with no room to move. California HEALTH AND SAFETY CODE - HSC DIVISION 20. MISCELLANEOUS HEALTH AND SAFETY PROVISIONS [24000 - 26217] ( Division 20 enacted by Stats. 1939, Ch. 60. ) CHAPTER 14. Shelled Eggs [25995 - 25996.3] ( Chapter 14 added by Stats. 2010, Ch. 51, Sec. 1. ) 25995. The Legislature finds and declares all of the following: (a) According to the Pew Commission on Industrial Farm Production, food animals that are treated well and provided with at least minimum accommodation of their natural behaviors and physical needs are healthier and safer for human consumption. (b) A key finding from the World Health Organization and Food and Agricultural Organization of the United Nations Salmonella Risk Assessment was that reducing flock prevalence results in a directly proportional reduction in human health risk. (c) Egg-laying hens subjected to stress are more likely to have higher levels of pathogens in their intestines and the conditions increase the likelihood that consumers will be exposed to higher levels of food-borne pathogens. (d) Salmonella is the most commonly diagnosed food-borne illness in the United States. (e) It is the intent of the Legislature to protect California consumers from the deleterious, health, safety, and welfare effects of the sale and consumption of eggs derived from egg-laying hens that are exposed to significant stress and may result in increased exposure to disease pathogens including salmonella. (Added by Stats. 2010, Ch. 51, Sec. 1. (AB 1437) Effective January 1, 2011.) 25996. Commencing January 1, 2015, a shelled egg shall not be sold or contracted for sale for human consumption in California if the seller knows or should have known that the egg is the product of an egg-laying hen that was confined on a

farm or place that is not in compliance with animal care standards set forth in Chapter 13.8 (commencing with Section 25990). (Amended by Stats. 2013, Ch. 625, Sec. 1. (SB 667) Effective January 1, 2014.) 25996.1. A person who violates this chapter is guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine not to exceed one thousand dollars ($1,000) or by imprisonment in the county jail for a period not to exceed 180 days or by both that fine and imprisonment. (Added by renumbering Section 25997 (as added by Stats. 2010, Ch. 51, Sec. 1) by Stats. 2015, Ch. 303, Sec. 317. (AB 731) Effective January 1, 2016.) 25996.3. The provisions of this chapter are in addition to, and not in lieu of, any other laws protecting animal welfare, including the Penal Code. This chapter shall not be construed to limit any state law or regulation protecting the welfare of animals, nor shall anything in this chapter prevent a local governing body from adopting and enforcing its own animal welfare laws and regulations. (Added by renumbering Section 25997.1 by Stats. 2015, Ch. 303, Sec. 318. (AB 731) Effective January 1, 2016.) Rhode Island STATE OF RHODE ISLAND IN GENERAL ASSEMBLY JANUARY SESSION, A.D. 2018 AN ACT RELATING TO ANIMALS AND ANIMAL HUSBANDRY UNLAWFUL CONFINEMENT OF A COVERED ANIMAL Introduced By: Representatives Serpa, Shanley, Solomon, McKiernan, and O'Brien Date Introduced: February 07, 2018 Referred To: House Environment and Natural Resources 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 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. (3)(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 2018 -- H 7456 SUBSTITUTE A food or fiber; and does not include live animal markets. (4)(6) "Farm owner or operator" means any person who owns or controls the operation of a farm, and does not include any non-management employee, contractor, or consultant. (5)(7) "Fully extending the animal's limbs" means fully extending all limbs without touching the side of an enclosure. In the case of egg-laying hens, "fully extending the animal's limbs" means fully spreading both wings without touching the side of an enclosure or other egg- laying hens and having access to the amount of usable floor space per hen that complies with the 2016 Edition of the United Egg Producers Animal Husbandry Guidelines for U.S. Egg Laying Flocks "Guidelines for Cage-Free Egg Production." (6)(8) "Person" means any individual, firm, partnership, joint venture, association, limited liability company, corporation, estate, trust, receiver, or syndicate. (7)(9) "Sow during gestation" means a pregnant pig of the porcine species kept for the purpose of breeding.

(8)(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 provisions of chapter 4-17, and other applicable laws and regulations. (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 minimum space required for the housing of egg-laying hens. SECTION 2. This act shall take effect on July 1, 2026. EXPLANATION BY THE LEGISLATIVE COUNCIL OF AN ACT RELATING TO ANIMALS AND ANIMAL HUSBANDRY -- UNLAWFUL CONFINEMENT OF A COVERED ANIMAL This act would make changes in the definitions of what constitutes unlawful confinement of any sow during gestation, calf raised for veal or egg-laying hen kept on a farm, and would apply them throughout the chapter accordingly. This act would take effect on July 1, 2026. Washington Title 69 > Chapter 69.25 > Section 69.25.065 69.25.060 > 69.25.070 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. Table egg production and hen welfare, CRS Table Egg Production and Hen Welfare: Agreement and Legislative Proposals Joel L. Greene Analyst in Agricultural Policy Tadlock Cowan Analyst in Natural Resources and Rural Development February 14, 2014 R42534 Summary The United Egg Producers (UEP), the largest group representing egg producers, and the Humane Society of the United States (HSUS), the largest animal protection group, have been adversaries for many years over the use of

conventional cages in table egg production. In July 2011, the animal agriculture community was stunned when the UEP and HSUS announced that they had agreed to work together to push for federal legislation to regulate how U.S. table eggs are produced. The agreement between UEP and HSUS called for federal legislation that would set cage sizes, establish labeling requirements, and regulate other production practices. As part of the agreement, HSUS agreed to immediately suspend state-level ballot initiative efforts in Oregon and Washington. On April 25, 2013, the Egg Products Inspection Act Amendments of 2013 (S. 820 and H.R. 1731) were introduced in the 113th Congress. The bills are nearly identical to the legislation that was introduced during the 112th Congress (S. 3239 and H.R. 3798). The provisions in S. 820 and H.R. 1731 reflect the 2011 agreement between UEP and HSUS to establish uniform, national cage size requirements for table egg-laying hens. The bills would codify national standards for laying-hen housing over a 15- to 16-year phase-in period, including labeling requirements to disclose how eggs are produced, and set air quality, molting, and euthanasia standards for laying hens. Compared with the bills from the 112th Congress, S. 820 and H.R. 1731 add provisions specific to California that establish deadlines based on whether or not cages are new or existing, and add a four-step phase-in period for California producers. The legislation also requires that any eggs bought or sold in California meet the California requirements in the legislation, no matter where the eggs are produced. The agreement and legislation were a marked shift in direction for both UEP and HSUS. UEP views the legislation as being in the long-term survival interest of American egg farmers. It says that egg producers would benefit from national egg standards that halt costly state-by-state battles over caged eggs that result in a variety of laws across the country. For HSUS, which has actively campaigned for cage-free egg production, accepting enriched cages was a compromise, but one that could result in significant federal farm animal welfare legislation. Egg legislation has been endorsed by a wide range of agricultural, veterinary, consumer, and animal protection groups. Farm group opponents have criticized egg legislation for several reasons. First, they are concerned that the bills federally mandate management

practices for farm animals, something that has not been done in the past. These groups argue that the bills could set a precedent, paving the way for future legislation on animal welfare for other livestock and poultry industries. Opponents hold the view that the cage requirements are not science-based, and undermine long-standing views that animal husbandry practices should be based on the best available science. They also argue that codifying cage standards today ignores innovations that could appear in the future. Additionally, opponents are concerned that the capital cost of transitioning to enriched cages would be high, and could be prohibitive for small producers. UEP and HSUS and other supporters favor moving egg legislation forward through the farm bill process, but other livestock groups strongly oppose this legislative route. Reportedly, S. 820 was considered for inclusion in the Senate Agriculture Committee 2013 farm bill draft, but it was not included. Senator Feinstein’s submitted egg bill amendment (S.Amdt. 1057) was not considered during the Senate farm bill (S. 954) floor debate. The House-passed farm bill (H.R. 2642) included Section 12312, known as the King amendment, which would have prohibited states from imposing standards on agricultural products produced in other states. The final Agricultural Act of 2014 (P.L. 113-79) did not include the amendment. Contents Introduction Legislative Activity 113th Congress 112th Congress King Amendment Egg Industry Overview Table Egg Production Production Systems UEP-HSUS Agreement United Egg Producers (UEP) The Humane Society of the United States (HSUS) The Agreement Pending Table Egg Legislation Housing Requirements

Environmental Enrichments Minimum Floor Space Other Requirements Phase-In Conversion Requirements Labeling Exemptions Support and Opposition Issues Raised by Laying-Egg Hen Legislation Mandating Farm Animal Husbandry Practices Effect on Other Animal Agriculture Sectors Basis in Science High Transition Costs Expected Animal Welfare Issues Egg Production Systems and Hen Welfare U.S. Animal Welfare Legislation Other Legislation Covering Hen Welfare California Proposition 2 Court Challenges Missouri Lawsuit Michigan Animal Welfare Law Europe’s Ban on Battery Cages Figures Figure 1. U.S. Egg-Laying Hen Inventory Tables Table 2. Floor Space Requirements for New Cage Systems Contacts Author Contact Information. Acknowledgments 27 Introduction The relationship between the livestock and poultry industries and animal protection groups is an antagonistic one, at best. The table egg industry, led in the United States by the United Egg Producers (UEP), has been widely criticized for decades for raising laying hens in cages. Many have argued that conventional cage systems widely used in the United States and elsewhere

provide little or no welfare for laying hens because hens are not able to express natural behaviors. The Humane Society of the United States (HSUS) is one of many animal protection organizations that have led campaigns advocating cage-free egg production and the elimination of all cages. Given the history between the egg industry and animal protection groups, UEP stunned the animal agriculture community in July 2011 with an announcement that it would work jointly with HSUS to push for federal legislation to regulate how U.S. table eggs are produced. The agreement between UEP and HSUS was signed July 7, 2011, and called for legislation that would set cage sizes, establish labeling requirements, and regulate other production practices. The goal of the agreement is to have federal legislation in place by June 30, 2012. As part of the agreement, HSUS agreed to immediately suspend state-level ballot initiative efforts in Oregon and Washington to end the use of conventional cages. Legislation—the Egg Products Inspection Act Amendments of 2012—was introduced in both the Senate and House during the 112th Congress to address the UEP and HSUS agreement and goal to establish federal table-egg cage standards. No action was taken on these measures. Almost identical bills—the Egg Products Inspection Act Amendments of 2013 (S. 820 and H.R. 1731)— were introduced in the 113th Congress on April 25, 2013. These bills also reflect the 2011 agreement between UEP and HSUS and would establish uniform, national cage size requirements for table egg-laying hen housing over a 15- to 16-year phase-in period. The bills also include labeling requirements to disclose how eggs are produced, and air quality, molting, and euthanasia standards for laying hens. UEP views the bills as being in the long-term survival interest of American egg farmers, and a wide range of groups have expressed support for the legislation. However, some agricultural and livestock producers, including some egg farmers, strongly oppose the bills, viewing them as an intrusion into their farming practices. Some animal protection groups have also opposed the bills. This report provides an overview of the U.S. egg industry, the UEP-HSUS agreement, and the provisions of S. 820 and H.R. 1731 introduced in the 113th

Congress. The report also discusses supporting and opposing views of the bills, and some animal welfare issues for laying hens. Legislative Activity 113th Congress On April 25, 2013, the Egg Products Inspection Act Amendments of 2013 were introduced in the Senate (S. 820) and House (H.R. 1731). The two bills are identical and reflect the 2011 agreement between UEP and HSUS (see “UEPHSUS Agreement,” below) that would establish uniform, national cage size requirements for table egg-laying hen housing over a 15- to 16-year phase-in period. The bills also include labeling requirements to disclose how eggs are produced, and air quality, molting, and euthanasia standards for laying hens. The two bills are nearly identical to those introduced in the 112th Congress, with the exception of language specific to egg production in California, exceptions for temporary excess ammonia levels, and exemptions for research institutes, single cages, and other livestock and poultry. (See “Pending Table Egg Legislation,” below, for more information on the bills.) As in 2012, industry views on the egg legislation are divided. UEP supports Congress addressing egg legislation in the farm bill, while other livestock groups continue to strongly oppose it.1 Reportedly, Senate Agriculture Committee Chairwoman Stabenow considered including the egg bill in the committee draft of the 2013 omnibus farm bill.2 Senator Johanns expressed the view that the inclusion of egg legislation in the farm bill “will bring the farm bill down,” and that egg regulations should be left up to the states.3 The egg legislation was not included in the committee draft, nor was it considered during the May 14, 2013, Senate Agriculture Committee markup of the 2013 farm bill. During the floor debate on the Senate farm bill (S. 954), Senator Feinstein submitted the egg bill as S.Amdt. 1057, but it was not considered by the Senate. During the House Agriculture Committee markup of the 2013 farm bill (H.R. 1497) on May 15, 2013, no egg bill amendment was offered, but Representative King’s (IA) amendment—the Protect Interstate Commerce Act (PICA)—was offered and agreed to on a voice vote.4 PICA, often referred to as the King amendment (see “King Amendment”), which was included in the 2012 House reported farm bill, H.R. 6083, would have prohibited states from setting

standards or conditions for the production or manufacture of agricultural products that are produced in other states and sold in interstate commerce, if the standard or condition exceeded federal and state laws that apply where the agricultural product is produced or manufactured. The amendment would have curtailed state laws that could interfere with interstate commerce, such as California’s ban on the sale of eggs that are produced in cages, no matter where produced, after January 1, 2015. PICA covered agricultural products as defined in Section 207 of the Agricultural Marketing Act of 1946 (7 U.S.C. 1626).5 During markup, Representative Denham offered a second-degree amendment that would have exempted some states and state standards from the King amendment.6 The Denham amendment failed on a committee roll call vote (13 yeas to 33 nays). During the June 17, 2013, Rules Committee hearing on H.R. 1947, Representative Denham offered an amendment to replace Section 12314 of H.R. 1947 with the text of the egg bill, H.R. 1731.7 The Rules Committee rejected the Denham amendment.8 After the House failed to pass H.R. 1497, the King amendment was included in the new House version of the farm bill, H.R. 2642, which the House passed on July 11, 2013.9 The Senate farm bill, S. 954, had no similar provision. The farm bill conference committee, which commenced October 30, 2013, considered the King amendment, but the conference report (H.Rept. 113-333) to H.R. 2642, released January 27, 2014, did not include it. 112th Congress On January 23, 2012, H.R. 3798—Egg Products Inspection Act Amendments of 2012—was introduced in the House by Representative Schrader of Oregon. The bill was referred to the House Committee on Agriculture and then to the Subcommittee on Livestock, Dairy, and Poultry. There was no further action on H.R. 3798. On May 24, 2012, a companion bill, S. 3239, was introduced by Senator Feinstein of California. The bill was referred to the Senate Committee on Agriculture, Nutrition, and Forestry. During the 112th Congress, 153 cosponsors signed on to H.R. 3798, and 19 Senate cosponsors signed on to S. 3239. Prior to the Senate floor debate on the omnibus 2012 farm bill (S. 3240), Senator Feinstein offered S.Amdt. 2252, which would have inserted the language from S. 3239 into the Senate farm bill. However, the amendment was

not one of the 77 amendments considered during the Senate farm bill floor debate of June 19-21. Reportedly, the amendment was withdrawn with the understanding that the Senate Agriculture Committee would address S. 3239 and the issues confronting egg producers.10 On July 26, 2012, the Senate Agriculture Committee held a hearing on S. 3239 with testimony from Senator Feinstein and four egg producers. Three producers testified in favor of S. 3239 and one opposed the legislation.11 During the House Agriculture Committee markup of the 2012 farm bill on July 11, 2012, no amendment was offered to include the language of H.R. 3798 in the House farm bill (H.R. 6083). However, Representative King (IA) offered the Protect Interstate Commerce Act (PICA),12 an amendment designed to protect the U.S. Constitution’s commerce clause (see “113th Congress” and “King Amendment”). The House Agriculture Committee adopted the amendment by voice vote. King Amendment According to Representative King (IA), the Protect Interstate Commerce Act (PICA) is necessary because of the 2010 California law that requires all eggs brought into or sold in the state to be produced in the manner required in California. King views California’s 2010 egg law as protectionism and constitutional overreach, with one state attempting to impose its standards at the national level, when only the federal government can regulate interstate trade.13 The King amendment garnered support from livestock groups such as the National Cattlemen’s Beef Association and the National Pork Producers Council. Supporters believed the amendment would have prevented a patchwork of states laws from setting agricultural production standards and protected free interstate movement of agricultural products.14 Opponents of the King amendment argued that it undercut state voters’ rights to determine their state laws.15 In addition, opponents contended that the definitions of agricultural products and production and manufacturing are broad and would preempt hundreds of state laws and regulations.16 Opponents pointed to a compiled list of 150 state laws, covering such areas as animal welfare, environment, public health, and labor, that they argued would have been affected by the King amendment. In addition, in a letter to Ranking Member Peterson, 151 Members of Congress expressed their opposition to the

King amendment.17 Some analyses of the amendment concluded that the actual affect was subject to interpretation and uncertainty, with courts making the final decision on the effects.18 The King amendment was not included in the Agricultural Act of 2014 (P.L. 113-79), and the challenge to the California egg law has shifted to the courts. On February 3, 2014, Missouri filed a lawsuit in the U.S. District Court in California to challenge the legality of the egg law (see “Missouri Lawsuit”). Other states that are large producers of eggs and ship eggs to California would be expected join Missouri in challenging the California egg law. Egg Industry Overview Table Egg Production In 2011, U.S. egg farmers produced 79 billion table eggs from a laying flock of 282 million birds. The vast majority of U.S. table egg production is concentrated in a few flocks. In 2011, more than 98% of the laying hens (277 million birds) were in flocks of 30,000 birds or larger.19 From 2001 to 2010, table egg production averaged 76 billion eggs, and the laying flock averaged nearly 283 million birds. Table egg productivity has improved over the past 10 years, as egg output has increased an average of about 1% each year while the laying flock has remained relatively flat. Figure 1. U.S. Egg-Laying Hen Inventory Source: National Agricultural Statistics Service, USDA. Notes: Includes laying hens for table and hatching egg production. 19 National Agricultural Statistics Service, USDA, Chickens and Eggs 2011 Summary, February 2012, (URL removed for reprint) Egg production is reported for the period December of the previous year through November of the following year; i.e., 2011 production is the sum of December 2010 through November 2011. Average bird numbers are for the same period. In 2011, each hen averaged nearly 281 eggs, compared to 264 eggs 10 years earlier. In 2011, total egg production (including 13 billion hatching eggs) was valued at $7.4 billion.20 Geographically, U.S. table egg production is concentrated in the Midwest, with pockets of production in Pennsylvania, California, and Texas (see Figure 1). Iowa produces nearly twice as many table eggs as any other state. In 2011, Iowa’s table-egg- laying flock totaled 52.2 million hens and produced more

than 14.3 billion eggs (Table 1). Ohio follows, with a flock of 27.2 million birds, and Pennsylvania and Indiana have flocks of over 20 million birds. The midsize producing states of California, Texas, and Michigan have flocks ranging from 10 million to 19 million, and the bottom of the top 10, Minnesota, Florida, and Nebraska, have flocks from 9 million to nearly 10 million birds. The top 10 eggproducing states account for 70% of the total table-egg-laying flock. A complete breakdown of table egg production is not available because table egg production for 4 of the top 10 states is not disclosed by USDA due to reporting confidentiality rules. But the proportion of table-egg-laying hens to total hens indicates that the large majority of the four-state egg production is table eggs. Table 1.Top 10 Egg-Producing States in 2011 Laying Hens (millions), Egg Production (billions) Iowa 52.2 , 14.3 Ohio 27.2, 7.6 Pennsylvania 23.9 7.1 Indiana 22.5, 6.3 California 18.9, 5.3 Texas 13.9, 4.9 Michigan 10.2 , 3.0 Minnesota 9.8, 2.7 Florida 9.2 , 2.7 Nebraska 9.1 ,2.7 Other States 84.6, 32.7 United States 281.5,79.0 Source: National Agricultural Statistics Service, USDA. Notes: Total includes table and hatching eggs. * Data not disclosed for confidentiality reasons. Georgia (16.7 million), North Carolina (13.1 million), and Arkansas (12.2 million) have laying hen flock numbers that rank in the top 10 of total laying hens. However, the majority of hens in these three states provide eggs for the broiler sector. Production Systems An estimated 95% of all eggs in the United States are produced in conventional cage systems, sometimes called battery cages. Generally,

conventional cages are wire cages that may hold 6-10 laying hens, and usually have automated feeding, watering, and egg collecting systems. According to UEP, conventional cage systems typically provide each laying hen an average of 67 square inches of floor space. In some egg operations, hens have less space. Egg producers started adopting conventional cage systems in the 1950s because they reduced disease and provided cleaner eggs compared with traditional barnyard production. Egg farmers also found that cage systems proved to be more economically efficient as systems were automated and more laying hens could be managed in less space.21 Over time, conventional cage systems have been heavily criticized for providing poor welfare for laying hens, especially in Europe (see “Europe’s Ban on Battery Cages,” below). The other 5% of eggs are produced in either cage-free or free-range systems. There are two principal types of cage-free systems—floor and aviary. In both of these cage-free systems, laying hens have access to the barn or housing floor, usually covered with litter, and nesting boxes for egg laying. Aviaries provide several levels of perches that allow laying hens to be off the floor. In cage-free systems, laying hens are kept indoors. The free-range system is similar to the cage-free system, but laying hens have access to the outdoors. The relatively new enriched cage systems—also called furnished, modified, or enriched colony cages—were developed in the 1980s in Europe in response to criticisms of conventional cages and legislation on cages.22 Enriched cages are larger and include perches, scratching pads, and nesting boxes designed to allow laying hens to express natural behaviors (see “Egg Production Systems and Hen Welfare,” below). UEP-HSUS Agreement United Egg Producers (UEP) United Egg Producers (UEP) is the largest U.S. egg producer group in the United States. UEP is a Capper-Volstead cooperative23 of egg farmers that raise about 90% to 95% of all egg-laying hens in the United States. UEP members produce eggs in conventional cage, enriched cage, cage-free, free-range, and organic systems and also produce processed egg products. According to UEP, it provides leadership in legislative and regulatory affairs for its membership.24

UEP has taken the lead in setting laying-hen welfare standards for the egg industry through its UEP Certified program, established in April 2002. UEP Certified was the result of the work of an independent Scientific Advisory Committee for Animal Welfare, formed in 1999, that presented recommendations to UEP on animal husbandry for laying hens raised in conventional cages.25 Egg producers who want to market eggs as UEP Certified have to provide laying hens with 67-86 square inches of floor space for optimal welfare. In addition, producers have to follow guidelines on such flock management practices as beak trimming, molting, handling, catching, and transporting laying hens. Guidelines also cover euthanasia, bio-security, and keeping public trust. UEP Certified egg producers are to be annually audited to assure that UEP Certified guidelines are being followed.26 The Humane Society of the United States (HSUS) The Humane Society of the United States (HSUS), established in 1954, is the largest animal protection organization, with a reported membership of 11 million in the United States. The HSUS states its mission as “Celebrating Animals, Confronting Cruelty,” and part of that mission is to fight animal cruelty, exploitation, and neglect.27 Besides conducting well-known animal advocacy campaigns against cruelty in dog fighting or cockfighting, puppy mills, and wildlife protection, HSUS has conducted campaigns covering farm animals, particularly against animal confinement such as egg-laying hen cages and sow and veal crates. In January 2005, HSUS launched its “No Battery Eggs” campaign to persuade food companies, retailers, restaurants, and other food providers to switch to eggs from cage-free production systems. HSUS has characterized laying hens as the “most abused animals in agribusiness” because of their cage conditions.28 HSUS has worked with state legislatures, local governments, corporations, and universities to change laws and egg buying practices. Most recently, HSUS trumpeted Burger King’s announcement on April 25, 2012, that it would switch to cage-free eggs in its restaurants by 2017.29 Burger King began working with HSUS in 2007 to start phasing out the use of eggs from conventional cages. HSUS has pursued ballot initiatives in states with that option30 to add farm animal welfare provisions on laying hens, sows, and calves to state laws.31 HSUS was most successful in the2008 California ballot initiative, where voters

chose to ban the use of cages after January 1, 2015 (see “California Proposition 2,” below). HSUS also has waged campaigns in other states that have resulted in laws on laying-hen cages. In October 2009, Michigan enacted a law to phase out cages by 2019, and in June 2010, Ohio agreed to place a moratorium on the construction of new conventional cages as part of an agreement to stop a ballot initiative. The Agreement On July 7, 2011, UEP and HSUS announced that they had reached an “unprecedented agreement” to jointly work together to enact federal legislation that would greatly alter production conditions for egg-laying hens in the United States. The agreement included seven key provisions pertaining to the production of shell eggs and egg products that would:32 • require, over a phase-in period, that conventional cage systems be replaced

with enriched cage systems that double the amount of floor space per laying hen;

• require that the new enriched cage systems provide perches, nesting boxes,

and scratching areas so that laying hens can express natural behaviors;

• mandate labeling on all egg cartons nationwide to inform consumers of the

housing method used to produce the eggs;

• prohibit withholding of feed or water to force molting to extend the laying

cycle;

• require standards approved by the American Veterinary Medical

Association for euthanasia for egg-laying hens;

• prohibit excessive ammonia levels in henhouses; and

• prohibit the buying and selling of eggs and egg products that do not meet

the standards.

UEP and HSUS have been adversaries for many years over the use of conventional cages in table egg production, and the agreement is a marked shift in direction for both organizations. UEP approached its position on conventional cage production based on what the available science indicated provided welfare for laying hens. That was the basis for more than a decade of work through its Scientific Advisory Committee and the UEP Certified program. Prior to this agreement, the HSUS position was firmly held that only cage-free

systems provided adequate welfare for laying hens (see “Egg Production Systems and Hen Welfare,” below). Under the agreement, all U.S. egg producers would have to end the use of conventional cages by the end of the phase-in period and meet production standards defined in law. For its part, in addition to reversing its cage-free stance, the HSUS agreed (1) to suspend its ballot initiatives in Oregon and Washington; (2) to not initiate, fund, or support other state ballot initiatives or legislation; (3) to not initiate, fund, or support litigation or investigations of UEP or its members; and (4) to not fund or support other organizations’ efforts that would undermine the agreement.33 For HSUS, the agreement to work with a major livestock group could result in significant federal farm animal welfare legislation. The agreement was the result of negotiations that became possible when UEP learned that HSUS might be open to discussing enriched cages for the U.S. egg industry in lieu of cage-free standards. According to Wayne Pacelle, HSUS president and CEO, visits to EU egg farms that were implementing enriched cage systems led to consideration of such systems in the United States. Both UEP and HSUS have indicated that it was in the interest of both sides to halt costly state-by-state battles over caged eggs that result in a variety of laws across the country. The decision by UEP to enter into the agreement with HSUS was made through several votes by UEP’s executive committee; the votes were not unanimous.34 The agreement was not put to vote of UEP’s general membership, and reportedly the board members who voted for the agreement represented 45% of the egg industry.35 Pending Table Egg Legislation On April 25, 2013, the Egg Products Inspection Act Amendments of 2013 (S. 820 and H.R. 1731) were introduced in the Senate and House.36 Both of the bills would amend the Egg Products Inspection Act (see box below) by adding cage size and production requirements for shell eggs. The bills are the result of the negotiations between UEP and HSUS and reflect their agreement of July 7, 2011, to establish uniform national cage size requirements for table-egg-laying hens.37 The bills also include labeling

requirements, and air quality and treatment standards for egg-laying hens. The bills are similar to S. 3239 and H.R. 3798, introduced in the 112th Congress. The main differences between the bills introduced in the 113th Congress and those from the 112th Congress are the more detailed provisions for California egg producers. For California, S. 820 and H.R. 1731 set deadlines for adding enrichments and expanding floor space requirements based on whether cages are new or existing (see “Housing Requirements,” below). In addition, the legislation includes a four-step phase-in period for California (see “Phase-In Conversion Requirements,” below). The legislation also requires that any eggs bought or sold in California meet the California requirements in the legislation, no matter where the eggs are produced. Because California law bans the use of conventional cages after January 1, 2015 (see “California Proposition 2” below), this provision could protect California egg producers from a flood of eggs from egg producers in other states who have not yet converted operations to the new national requirements. Besides the California differences, S. 820 and H.R. 1731 include a new provision that allows for excess ammonia levels because of special circumstances. Also, three exemptions are added to the legislation. Educational and research institutes and cages with one egg-laying hen are exempt, and the legislation explicitly states that the provisions apply only to commercial egg production, and exempt other livestock and poultry production. Housing Requirements S. 820 and H.R. 1731 would prohibit the commercial buying and selling of shell eggs and egg products from laying hens that are not raised according to the new housing requirements. For California, the bills contained different standards during the phase-in period in recognition that California state law, adopted through the ballot initiative process in 2008, has laying hen requirements that are scheduled to go into force on January 1, 2015 (see “California Proposition 2,” below). Environmental Enrichments The bills would require that cages used to house egg-laying hens include environmental enrichments, such as perch spaces, dusting or scratching areas, and nesting areas. The Secretary of Agriculture is to define these enrichments

based on the best available science at the time the regulations are written. Environmental enrichments for new cages would need to be in place within 9 years of the enactment of the legislation, and for existing cages (cages in use prior to December 31, 2011) would need to be in place within 15 years of enactment. For California, environmental enrichments for new cages would need to be in place three months after enactment, and enrichments for existing cages must be in place by January 1, 2024. Minimum Floor Space S. 820 and H.R. 1731 would set minimum floor space requirements for existing and new cages. For existing conventional cages in use on or before December 31, 2011, egg farmers would have four years from the date of enactment of the legislation to provide each white laying hen a minimum of 67 square inches of floor space, and each brown laying hen 76 square inches.38 Fifteen years after enactment, laying hens would need to have 124 and 144 square inches. For new cage systems, the floor requirements for laying hens would have been phased in during the 15 years following the enactment of the legislation. Table 2 lists the floor space requirements that would have been phased in over 15 years, culminating in cages of 124 and 144 square inches. Table 2. Floor Space Requirements for New Cage Systems (in square inches) Phase-in Period, from Enactment of Bill White hens Brown hens Beginning 3 years after, until 6 years after 78 90 Beginning 6 years after, until 9 years after 90 102 Beginning 9 years after, until 12 years after 101 116 Beginning 12 years after, until 15 years after 113 130 Beginning 15 years after 124 144 Source: S. 820 and H.R. 1731. For California, S. 820 and H.R. 1731 would require that cages have 116 square inches for white hens and 134 square inches for brown hens from January 1, 2015, through December 31, 2023. Beginning January 1, 2024, California cages would need to be 124 and 144 square inches, the standard for all laying hen cages, but California would reach the national standard about four years earlier than other states.

Other Requirements In addition to environmental enrichments and floor space measures, the egg legislation would require that within two years of enactment of the legislation egg producers (1) keep ammonia levels in the air in egg-laying houses to less than 25 parts per million, except for temporary periods due to extraordinary weather or unusual circumstances; (2) not withhold feed or water to force laying hens to molt (lose their feathers to rejuvenate egg laying); and (3) follow the guidelines set out by the American Veterinary Medical Association (AVMA) for euthanasia. Current law also gives USDA the authority to inspect egg imports.39 Egg and egg product imports, like meat and poultry, are allowed into the United States under equivalency agreements. This means that imported products are produced and inspected in foreign countries in a manner that provides equivalent food safety as in U.S. domestic production. S. 820 and H.R. 1731 would amend import provisions to require that imported eggs and egg products be produced according to the standards of the EPIA.40 This import aspect potentially could become a trade issue in the future if foreign egg and egg product imports were required to meet U.S. production standards. However, U.S. egg imports are relatively small and from few countries, and this likely would not arise as a trade issue until the U.S. egg industry has fully transitioned to enriched cages in the future. Also, the legislation would prohibit the introduction of new conventional cages that have less than 67 and 76 square inches for white and brown laying hens, and to which environment enrichments could not be added. Phase-In Conversion Requirements S. 820 and H.R. 1731 would establish several benchmarks for the egg-laying industry to meet as it transitions to new enriched cage systems. The goal is to have at least 25% of the commercial egg-laying hens in cages that afford 90 and 102 square inches for white and brown laying-hens six years after enactment of the legislation. In the period 12 years after enactment, the target is for 55% of commercial egg-laying hens to have 113 and 130 square inches of floor space. Then in the final phase, all egg-laying hens would have to have a minimum of 124 and 144 square inches and environmental enrichments as of December 31, 2029.

The phase-in periods would be different for California. The first phase-in period would be 2½ years after enactment of the legislation and would require that 25% of cages provide 116 and 134 square inches for white and brown laying hens. Five years after enactment, 50% of cages would have to meet the first phase-in period space requirement, and after 7½ years, 75% would have to meet the space requirement. Finally, 10 years after enactment, all California cages would have to provide 124 and 144 square inches of floor space. At the end of the six-year phase-in period, the Secretary of Agriculture would use data from an independent national survey of the industry to determine if the phase-in targets have been met. If the targets have not been achieved, then existing conventional cage systems that had been in operation prior to January 1, 1995, would have to meet the 90 and 102 square inch requirement beginning January 1, 2020. If California has not met its requirement, then one year after the Secretary’s finding, all cages would be required to provide 124 and 144 square inches for white and brown laying hens. The legislation also would require the Secretary of Agriculture to submit compliance reports to the House and Senate Agriculture Committees after the 12-year mark and after December 31, 2029. Labeling The legislation would amend the EPIA to require housing labels on shell eggs and egg products that are legible markings on the side or top of packages. The four label options are: Eggs from free-range hens—eggs or egg products from laying hens not housed in cages and provided with outdoor access; Eggs from cage-free hens—eggs or egg products from laying hens not housed in cages; Eggs from enriched cages—eggs or egg products from laying hens housed in cages with adequate environmental enrichments and a minimum of 101 and 116 square inches of individual floor space per white and brown hens; and Eggs from caged hens—eggs or egg products from laying hens housed in cages without adequate environmental enrichments and less than the minimum of 101 and 116 square inches of individual floor space per white and brown hens.

The responsibility for ensuring that shell eggs and egg products were properly labeled with the method of housing would fall to USDA. The housing label requirement would go into force one year after the enactment of the bill. Exemptions S. 820 and H.R. 1731 would provide six exemptions to the new requirements: (1) egg farmers who installed new cages between January 1, 2008, and December 31, 2011, would have until December 31, 2029, to meet the floor space requirements; (2) laying-hen flocks that are in production when the bill was enacted would be exempt from the provisions until the flocks are removed from production; (3) small egg producers—defined as those with less than 3,000 laying hens—would be exempt from the requirements; (4) the provisions do not apply to educational and research institutions; (5) the enrichment provisions do not apply to cages with one egg-laying hen; and (6) the provisions of the legislation do not apply to production of pork, beef, turkey, dairy, broiler chicken, veal, or other livestock or poultry. Support and Opposition The provisions of H.R. 3798 and S. 3239 were endorsed by agricultural, veterinary, consumer, and animal protection groups. Egg farmers and other family farms in more than 30 states also endorsed the bills.41 In what some supporters of H.R. 3798 and S. 3239 considered significant backing for the bill, the executive board of the American Veterinary Medical Association (AVMA) voted to support H.R. 3798 in March 2012. AVMA explained, “The decision was not made lightly. There was extensive deliberation, and the board reasoned that the standards are consistent with AVMA policy, as well as industry long-term expectations about changes in egg- production practices.’’42 Supporters of H.R. 3798 and S. 3239 also pointed to consumer support for changes in egg cages. In a two-part survey commissioned by UEP, survey respondents indicated by a 4-to-1 margin that they would support legislation transitioning from conventional cages to enriched cages. In the second part of the survey, respondents indicated support for federal legislation by a 2-to-1 margin.43 According to Dr. Jeffrey Armstrong, who has been a member of UEP’s Scientific Advisory Committee from its beginnings, public perception is turning against conventional cages, and the UEP-HSUS agreement affords egg producers the chance to regain public trust.44

Other groups representing agriculture and livestock producers, such as the American Farm Bureau Federation (AFBF), the National Cattlemen’s Beef Association (NCBA), and the National Pork Producers Council (NPPC), said that they vigorously opposed H.R. 3798 and S. 3239. After the UEP-HSUS agreement was announced, NCBA stated, “Cattlemen are rightfully concerned with the recent UEP-HSUS agreement to seek unprecedented federal legislation to mandate on- farm production standards.”45 In its statement, the NPPC called such legislation on egg cages a “dangerous precedent,” and was “gravely concerned that such a one-size-fits-all approach will take away producers’ freedom to operate in a way that’s best for their animals.”46 In a December 6, 2011, letter to the House Agriculture Committee, eight farm groups expressed their opposition to any proposed legislation resulting from the USP-HSUS agreement.47 Although some animal welfare groups signed on with HSUS in endorsing the shift to enriched cages, other related groups remained strongly opposed to H.R. 3798 and S. 3239 because of their view that an enriched cage is still a cage that harms laying-hen welfare. The Humane Farming Association (HFA) is leading a campaign to “Stop the Rotten Egg Bill” emphasizing that H.R. 3798 and S. 3239 could nullify already enacted state law, take away citizens’ right to vote on cages, and prevent state legislatures from passing laws to protect laying hens.48 Issues Raised by Laying-Egg Hen Legislation UEP and supporters of the egg legislation argue that this legislation is the best path for the egg industry in order to avoid constant fights and growing costs to defend current production methods. According to Gene Gregory, president of UEP: Egg farmers believe a single national standard is the only way to shape their own future as sustainable, family-owned businesses. It is the only way to have some control over their own destiny and avoid a bleak future of overlapping, inconsistent, unworkable, state-based animal welfare standards that will result from ballot initiatives our industry cannot win even if we raise millions of dollars to try to educate the public, as we did in California in 2008.49 Opponents argue that pursuing legislation at the federal level had consequences that could impact all livestock and poultry producers. In

addition, the costs are likely to be high and especially costly for small egg farmers. Several issues are highlighted below. Mandating Farm Animal Husbandry Practices UEP recognizes that federally mandated production methods would be a significant change, but one that is necessary to keep the egg industry from confronting a variety of inconsistent state standards. UEP believes that the egg market would function more efficiently if there were a single national standard. California and Michigan—two large egg-producing states—have enacted legislation that will require egg producers to abandon cage production by 2015 and 2019, potentially putting them at a cost disadvantage to caged production. It also is costly for the egg industry to challenge state ballot initiatives or proposed legislation on a state-by-state basis. Opponents argue mandatory standards are being driven “largely on the political goals of an animal rights group that seeks to eventually shut down animal agriculture by government mandate.”50 Current animal welfare law, the Animal Welfare Act (7 U.S.C. §§2131-2159), does not apply to farm animals. Other federal laws and regulations cover areas such as animal health and food safety, but do not prescribe how U.S. farmers raise their animals. Most livestock and poultry groups have developed voluntary guidelines on “best practices” for animal welfare that most producers follow. Opponents of H.R. 3798 and S. 3239 wanted producers to maintain control of production methods. According to Gene Gregory, UEP president, UEP forwent negotiating voluntary guidelines, similar to the UEP Certified program, which would have encouraged egg farmers to transition to enriched cages because of unresolved antitrust lawsuits that have been brought against UEP and some egg producers.51 UEP has been accused of using the UEP Certified welfare standards that increase cage space per laying hen to reduce egg production and drive up prices, as well as encouraging egg producers to cull flocks when feed prices climbed in 2008.52 Effect on Other Animal Agriculture Sectors In order to avoid affecting the production practices of other livestock sectors in the legislation, UEP and HSUS pushed their proposed legislation through an amendment to the EPIA, which only addresses the egg industry and not the

livestock or poultry sectors. Both UEP and HSUS pointed out that the egg legislation could succeed in Congress only if the industry was in agreement. Similar legislation for other livestock or poultry industries seemed unlikely. Reportedly, UEP and HSUS agreed that if any similar legislation or amendments were proposed that involved other livestock or poultry sectors, the two groups would abandon their support for the bills. Although cage requirements would have been embedded in law that applied only to eggs and egg products, opposition groups believed that successful enactment of H.R. 3798 and S. 3239 would have encouraged future federal legislation mandating other animal husbandry practices. This view probably was held most strongly by many hog producers, whose use of sow gestation crates (small confined crates where sows birth their piglets) has been under attack for several years. The use of gestation crates is already being phased out by some state laws, and is banned in the EU in 2013. Basis in Science One of the main criticisms of the egg legislation is that cage requirements are not based on specific scientific research that says the requirements are optimal for laying-hen welfare. But as the AVMA pointed out when evaluating its position on H.R. 3798, the available science suggests that the proposed standards of H.R. 3798 would likely still improve the lives of egg-laying hens.53 The AVMA also recognized opposition to the agreement among egg producers, and stated that it would work to make sure the legislation results in welfare improvements with minimal impacts on producers, associated industries, and consumers.54 Opponents were also concerned that the egg legislation would be a move away from the long established position shared among animal agriculture groups that animal husbandry decisions affecting welfare should be based on the best available science. Opponents argued that U.S. producers already raise and manage their animals with practices that are science-based and overseen by veterinarians, and that animal welfare is a priority for livestock and poultry producers. Most livestock and poultry groups have established voluntary programs, such as the pork producers’ Pork Quality Assurance (PQA) and the cattlemen’s Beef Quality Assurance (BQA), that include animal welfare guidance.55 Furthermore, opponents of the egg legislation argue that if

standards were codified into law, then future science-based innovations in animal management and/or welfare could be limited, and that Congress would end up regularly amending federal standards as the science changed. High Transition Costs Expected Transition and production costs were a major concern for egg producers, especially small producers, because of the substantial investment required to convert from conventional cages to enriched cages. Estimated egg industry costs of H.R. 3798 and S. 3239 varied greatly. The July 2011 UEP-HSUS agreement announcement included an estimate of $4 billion over the transition period. Opponents of the bill said that the cost to the egg industry was much higher, at $8 billion$10 billion. Most likely the cost would vary across egg farms, because some operations would have to invest in more than just new enriched cages, as some new housing structures would have to be built to accommodate enriched cages. Houses with enriched cages could also require more heating as there would be less natural heating as birds are spaced further apart. This could be a comparative advantage for house expansion in the South as compared to the colder Midwest.56 The lead group on the December 2011 letter to the House Agriculture Committee opposing federal legislation was the Egg Farmers of America, a group composed of small egg producers. Egg Farmers of America was formed to oppose the UEP-HSUS agreement and H.R. 3798 and S. 3239. According to one of its members, the per-hen cost to convert to enriched cages is $25-$30, nearly four times the cost of conventional cages. The member estimated that converting his 300,000 laying-hen flock would cost about $8 million-$9 million.57 In addition, conventional cages have a useful life of 25-30 years, which means that some farms could have to convert when their conventional cages were still useful. Obtaining bank loans when credit is tight could be difficult, especially if there was still a useful life for a farmer’s conventional cages. The shift to enriched cages could also lead to an acceleration of consolidation in the egg industry as the largest egg farms continue to expand, and capital costs squeeze small egg producers. An analyst at the Egg Industry

Center at Iowa State University noted that medium egg farms (under 1 million laying hens) might try to expand or just exit the business, while the very small egg farms could produce eggs for niche markets such as cage-free or organic.58 Besides the large capital investment required to transition to enriched cages, questions have arisen about what future egg production operating costs would be compared with the current model using conventional cages. One study indicated that eggs produced in cage-free systems would cost 25% more than those produced in conventional cages.59 However, enriched cage production would not be exactly comparable to cage-free production. In a limited sample, JS West and Companies, a commercial egg producer in California, built an enriched cage house in 2010 and in January 2012 released results comparing production in its enriched cage (116 square inches) and conventional cage (67 square inches) systems.60 According to JS West: the hen mortality rate in the enriched cages was less than in conventional cages, 4.22% vs. 7.61%; egg output per hen was higher in the enriched cages by 22 eggs, 421 vs. 399 eggs; the average weight of a case of eggs was higher from the enriched cages, 49.4 pounds compared to 47.93 pounds; feed use per 100 hens was 22.60 pounds in the enriched cages and 20.45 pounds in the conventional cages; and feed use per dozen eggs was 3.19 pounds for the enriched cages vs. 3.00 pounds for the conventional cages. These limited data suggest that feed costs may be somewhat higher in an enriched cage system because of increased feed use, but there appear to be offsetting productivity gains that could make up for higher feed costs. On June 1, 2012, UEP released a new study of the economic impacts of converting to enriched cages.61 The report estimated a baseline for capital investment, production costs, and consumer prices that will occur over the next 18 years under current table egg production methods. The study also estimated this for production under the provisions of the bills. In summary, the study found that production under enriched cages would require an additional $2.6 billion in capital investment ($3.1 billion v. $5.7 billion). The production costs for eggs from enriched cages are estimated to be about $0.06 (+8%) per dozen higher in 2030, the end of the phase-in period, than under current production methods. For retail eggs, the per-dozen price in 2030 is also estimated $0.06

higher, but would be a 3% increase over expected prices from current production methods. It should be noted that this study examines the table egg industry in aggregate. Egg farmers could face different costs depending on individual circumstances. Animal Welfare Issues Animal welfare has become an increasingly salient public issue over the past decade. More recently, social media publication of graphic videos of the treatment of laboratory animals (e.g., apes, cats, dogs), commercial pet breeding operations (e.g., “puppy mills”), and farm animals (e.g., slaughter houses, swine and poultry farms) has contributed to rising public awareness of how humans use animals, and how these animals are treated. Some of this awareness has been expressed in appeals for more vigorous enforcement of state and local animal abuse and cruelty laws. Other individuals and groups, citing animal welfare issues, environmental issues, and/or social justice issues, have called for significantly reducing or even ending the consumption of meat and animal products. As the UEP-HSUS agreement and H.R. 3798 and S. 3239 suggest, animal agricultural producers likely will face more animal welfare campaigns and growing public interest in farm animal welfare. The following sections discuss recent animal welfare issues as they pertain to hens. Egg Production Systems and Hen Welfare Approximately 95% of laying hens in the United States are confined in conventional battery cages. The use of conventional battery cages accompanied the increasing concentration of the egg production sector. Producers found that the cages reduced their production costs (e.g., feed costs). There is little controversy over the idea that conventional battery cages cause many hen welfare problems. Battery cages are cramped structures that prevent hens from engaging in their most basic natural behaviors, such as fully turning their heads, stretching their wings, roosting, nesting, and standing upright.62 Battery cages typically have slanted wire mesh flooring and may be stacked several tiers high. Thousands of hens may be housed in a single laying house. Other housing systems, however, may create other types of hen welfare concerns. Hen welfare is determined by, among other factors, genetics, disease, pest and parasite loads, stress, nutrition, and the birds’ natural behaviors. Research

on the influence of these factors on hen welfare is still in the early stages. Different housing systems have different effects on hen welfare. One housing system can improve hen welfare in some respects, while exacerbating other welfare issues. To better understand the relationship of housing and hen welfare, the Poultry Science Association convened an international symposium on the Social Sustainability of Egg Production in 2010. At this symposium, 11 animal scientists from U.S. and European universities and research laboratories presented a review of 202 research articles on hen behavior and housing systems published over the past three decades.63 This review outlined the welfare impacts attendant on four different housing systems: (1) conventional cages, (2) enriched cages, (3) cage- free systems, and (4) free-range outdoor systems. Two central findings from the review of the research on housing and hen welfare are that “assessing hen health and welfare is difficult and multifactorial” and that “no single housing system is ideal from a hen welfare perspective.”64 Characteristics of the various housing systems and their potential effects on hen behavior and welfare examined in the review are discussed briefly below. Nesting behavior is a behavioral priority, and conventional cages lack materials for nest building. The absence of nest building material is thought to reduce hen welfare given that hens seem to prefer depositing eggs in molded nests rather than slanted wire floors. Enriched cages (furnished cages or enriched colonies) were developed in response to the criticisms about conventional cages. Enriched cages typically have a nesting box, perches, and a dustbathing area. The review noted that these features permit hens more behavioral freedom than found with conventional cages. However, enriched cages have limited space per hen thus limiting their ability to run or flap their wings. Exercise is significantly restricted. Nesting and perching may also be restricted. Litter inside the cages may be quickly depleted and cause stress to the hens who are excluded from dustbathing by more dominant hens. While some regard enriched cages as an improvement over conventional battery cages, others see little improvement in this housing system.66 Cage-free systems provide “sufficient space for performance of a full repertoire of locomotory and body-maintenance behaviors.”67 With larger

flock sizes (>1,000), the review noted that cannibalism and feather pecking can increase, although beak trimming can lessen these behaviors, as can reducing flock size. Stocking densities in cage-free systems can have a bearing on hen behavior, with low densities possibly triggering aggressive defense behavior around certain resources in the cage-free housing. Cage-free systems may have all slatted floors or all litter floors, or a combination of the two. The opportunity to forage in litter is important for hen welfare. Foraging in litter can reduce the incidence of cannibalism and feather pecking. Accessibility to litter, quality of the litter, and experience with litter during rearing appear to be critical variables affecting behavior in cage-free systems. The research review also noted that perches appear to reduce aggression in hens, although in the United States, cage-free systems generally do not provide adequate perch space for all hens to perch at night. Some cage-free systems do not provide perches. Free-range (outdoor) systems permit hens to spread out when foraging and, in general, increase the hens’ behavioral options. Outdoor systems permit the hens to eat preferred foods such as grass seeds, earthworms, and flying insects. They also can sun themselves and dust bathe. Cannibalism, feather pecking, and piling, however, can increase in larger free-range flocks. While the greater environmental complexity of free-range systems increases behavioral opportunity for hens, according to the research review, this complexity can also introduce difficulties in managing disease and parasites. Indoor barn systems, while not permitting access to the outdoors, may offer some compromise between cage and non-cage systems. along certain dimensions of hen welfare can be compromised by poor management. The authors conclude that the “right combination of housing design, breed, rearing conditions, and management is essential to optimize hen welfare and productivity.”68 U.S. Animal Welfare Legislation The Animal Welfare Act (AWA, P.L. 91-579, 7 U.S.C. §§2131-2159) is the primary United States statute governing the treatment of animals, including marine mammals, and animals used in research.69 The AWA is administered by USDA’s Animal and Plant Health Inspection Service.

Animal health standards (e.g., medical treatment, feeding, watering, sanitation, enclosures, handling), transportation standards (e.g., carriers, primary means of conveyance, care in transit), animal exhibitions (e.g., zoos, carnivals, circuses), and animal fighting are major areas regulated under the AWA.70 However, the AWA explicitly excludes farm animals from its regulatory oversight.71 While most states have laws related to animal cruelty or animal welfare, most of these statutes also exclude farm animals from coverage. Farm animal welfare is, then, largely a matter of the actions of individual producers. Producer organizations (e.g., NCBA, NPPC, and UEP) may develop bestpractice standards of animal care for their members, but these standards are voluntary and do not carry the force of law. Legislation has been introduced in the past several congresses to address farm animal welfare. In the 110th Congress, the Farm Animal Stewardship Purchasing Act (H.R. 1726) would have required that government purchases of animal products be restricted to livestock products from animals raised under specific welfare conditions. The Farm Animals Anti-Cruelty Act (H.R. 6202) would have promoted farm animal well-being by imposing fines on producers who abuse animals in food production. In the 111th Congress, the Prevention of Farm Animal Cruelty Act (H.R. 4733) would, like H.R. 1726, have required that government purchases of animal products be restricted to livestock products from animals raised under specific welfare conditions. None of these bills were enacted. With the exception of H.R. 3798 and S. 3239, no other bills addressing farm animal welfare have been introduced in the 112th Congress. Other Legislation Covering Hen Welfare California Proposition 2 Proposition 2, or the Standards for Confining Farm Animals, was a 2008 ballot initiative in California. The proposition, sponsored by HSUS, was approved by nearly 64% of the voters.72 Proposition 2 requires that all farm animals, “for all or the majority of any day,” not be confined or tethered in a manner that prevents them from lying or sitting down, standing up, turning around or fully extending their limbs without touching another animal or an enclosure such as a cage or stall.73 The law will go into effect on January 1, 2015.

In July 2010, California bill A.B. 1437 was enacted, requiring that all shelled (whole) eggs sold in California come from cage-free hens. The intent of the law is to “protect California consumers from the deleterious health, safety, and welfare effects of the sale and consumption of eggs derived from egg-laying hens that are exposed to significant stress and may result in increased exposure to disease pathogens including salmonella.”74 This law will also go into effect on January 1, 2015. While Proposition 2 applies only to laying hens in California, the effect of the 2010 law will require that egg farms in other states abide by California’s law regarding layers if they wish to sell eggs in the state. On May 6, 2013, the California Office of Administrative Law approved California Department of Food and Agriculture regulations setting standards for cage sizes. Under the approved regulation, enclosures with nine or more table-egg-laying hens must have a minimum of 116 square inches of floor space per bird. The regulation also includes a formula for calculating floor space requirements for enclosures with fewer than nine laying hens.75 Court Challenges Proposition 2 has been challenged in state courts by California egg producers three times since the law was enacted, primarily due to the vagueness of the law. These lawsuits were dismissed. Challenges to California’s shell egg laws moved to federal court in February 2014 when Missouri challenged the 2010 law in U.S. District Court. In December 2010, a commercial egg producer in California, JS West and Companies, filed suit against HSUS and the state of California to clarify what type of housing for hens was acceptable under Proposition 2, claiming that the statute did not define how much space is required for the specified animal behaviors. The egg company opened an “enriched colony” system in 2010 that provided 116 square inches of space per hen, significantly larger than the egg industry standard of 67-87 inches.76 The HSUS, in response, stated that Proposition 2 requires “cage-free environments.” While Proposition 2 does not specifically state cage sizes, the living conditions required by Proposition 2 would effectively require cage-free environments. The Association of California Egg Farmers (ACEF), representing 70% of California’s egg farmers, joined the suit in March 2011. In July 2011, the California Superior Court ruled that JS West

could not challenge California at the time because the state had not yet established a position on what types of housing would meet Proposition 2 requirements.77 (California Superior Court 2011). In April 2012, William Cramer, a California egg farmer in Riverside County, filed suit in the U.S. District Court, Central District of California, claiming that Proposition 2 is unconstitutionally vague and violates the U.S. Constitution’s commerce clause.78 According to Cramer’s complaint, California egg farmers cannot know if they are violating the law because of the vagueness of Proposition 2, and farmers will exit the egg business because it creates an uncertain investment environment. In addition, Cramer stated that California consumers will be harmed because egg prices will rise. The lawsuit also contended that the California law on egg production violates the commerce clause because it will interfere with the interstate sales of eggs. In September 2012, the District Court rejected Cramer’s claims that Proposition 2 is vague and violated the commerce clause.79 In November 2012, the ACEF filed another suit asking the Fresno County Superior Court to find that the language of Proposition 2 was unconstitutionally vague according to California’s constitution. The ACEF claimed that the lack of size and density requirements in Proposition 2 make it impossible for California egg producers to alter cage sizes to comply with the January 1, 2015, deadline.80 On August 22, 2013, the court ruled against the plaintiffs, stating that “[t]he fact that the statute defines confinement limitations in terms of animal behaviors rather than in square inches or other precise measurements does not render the statute facially vague.”81 Missouri Lawsuit On February 3, 2014, the Missouri Attorney General filed a lawsuit in the U.S. District Court in Fresno, CA, to challenge the 2010 California egg law. Missouri claims that California’s law violates the interstate commerce clause of the U.S. Constitution by imposing production requirements on out-of-state egg farmers. According to the lawsuit, Missouri ships about one- third of its 1.7 billion annual egg production to California, and Missouri egg producers would have to spend $120 million to meet the California cage requirements.82 Michigan Animal Welfare Law

In September 2009, Michigan became the second state to enact legislation (HB 1527) to restrict the use of conventional cages for laying hens. Similar to the California law, the Michigan law prohibits gestating sows, calves raised for veal, and egg-laying hens from being confined in a manner that prevents them from lying down, standing up, fully extending limbs, and turning around freely.83 The provisions of the Michigan legislation were the result of negotiations between the Michigan Pork Producers Association, the Michigan Allied Poultry Industries, the Michigan Agri-Business Association, and the HSUS.84 The legislation stopped the HSUS from pursuing a ballot initiative campaign in Michigan on animal confinement during 2010. The Michigan provisions for egg-laying hens go into force in 2019. Europe’s Ban on Battery Cages Article 13 of the Treaty on the Functioning of the European Union recognizes animals as sentient beings and requires that full regard be given to the welfare of animals when formulating and implementing EU policy. A 1964 book— Animal Machines—significantly increased awareness of animal welfare in the EU, particularly the welfare of farm animals.85 The book also helped create public pressure in the EU to end the use of battery cages, the production method most in use in OECD countries. Subsequent research on non-cage systems led to an EU Directive that first specified a minimum size for battery cages in 1986.86 The Farm Animal Welfare Council, established by the UK government in 1979, issued an analysis of hen welfare and egg production systems in 1986, followed by two additional reports in 1991 and 1997 on the welfare of laying hens.87 On June 17, 1999, the European Union announced passage of a new directive that would, over 13 years, phase out the use of battery cages for laying hens.88 The ban, effective January 1, 2012, and relying on advice from the EU’s Scientific Veterinary Committee, prohibits the use of conventional battery cages for hens. Egg production in the EU now allows only enriched caging systems or non-cage systems.89 Enriched cages (sometimes referred to as colony cages) have a small perch, a litter area for scratching, and a nesting box. The enriched cage is somewhat higher than the conventional battery cage and has slightly more space per hen.

The European Commission announced plans in January 2012 to take legal action against 13 member states who are in breach of the new rules—Belgium, Bulgaria, Cyprus, Greece, Hungary, Italy, Latvia, the Netherlands, Poland, Portugal, Romania, Slovakia, and Spain.90 The EU Commission sent formal notices asking each of the 13 noncompliant member states for information about how it would correct deficiencies in implementing the ban on battery cages.91 The EU Commission noted that noncompliance had animal welfare consequences, and also distorted the egg market. By November 2012, only Cyprus, Greece, and Italy were not in compliance with the EU hen cage rules.92 Some EU countries transitioned to enriched cages ahead of the 2012 deadline for compliance. Sweden banned the use of conventional cages by the end of 2002; Austria banned their use by the end of 2008; and Germany followed by the end of 2009. Austria and Belgium also plan to ban enriched cages by 2020 and 2024, respectively.93 Outside the EU, Switzerland banned battery cages in 1992. Battery cages are still legal in non-EU countries, and there is no current ban on the import into the EU of eggs produced in non-EU countries in battery cages. Such eggs will require a country-of-origin label and must indicate that the farming method used to produce the eggs is “non-EC standard.”94 Implementation of the ban has imposed increased costs for eggs in the EU. According to the EU Commission, egg supplies fell and egg prices “surged considerably” in the weeks following the implementation of the January 2012 ban. Data released by the Commission showed that table egg prices increased 44% by March 2012 from the end of 2011. Prices for eggs used by the food industry—normally as much as 50% less expensive than supermarket eggs— also increased 10%- 20% in price.95 The EU wholesale prices for whole pasteurized liquid egg increased 102% year- over-year.96 Based on the experience of Germany, which banned conventional cages in 2007, the Commission noted that they expected egg prices to stabilize by early May, even as they expect total egg production to fall by 2.5% in 2012. Indeed, EU egg prices peaked in March, remained relatively high in April, but moved lower throughout the rest of the year. Although 2012 EU egg prices were higher than a year earlier because of high input costs, the November 2012 price was 16% lower than the March peak.97

On February 15, 2012, the European Commission issued its general strategy for the protection and welfare of animals.98 The EU already had directives on various aspects of animal welfare including transportation; slaughtering; and specific requirements for housing calves, pigs, laying, hens, and broilers. EU rules on organic production also include high animal welfare standards for cattle, pig, and poultry production. The new EU strategy will consider introducing a simplified legislative framework with animal welfare principles for all animals. This framework would use science-based animal welfare indicators to simplify the legal framework, provide more information to consumers on animal welfare, create a common set of requirements for personnel handling animals, and establish a EU network of animal welfare centers. Author Contact Information Joel L. Greene Analyst in Agricultural Policy [email protected], 7-9877 Tadlock Cowan Analyst in Natural Resources and Rural Development [email protected], 7-7600 Acknowledgments Daniel T. Shedd, Legislative Attorney, provided input and review on the King amendment. 1 Tom Steever, “Egg producer favors proposed farm bill measure,” Brownfield, May 1, 2013, “Nebraska Farm Bureau: Keep egg measure out of the farm bill,” Brownfield, May 2, 2013, 2 “Animal rights legislation further complicates farm bill debate,” Agri-Pulse, May 1, 2013, p. 2. 3 Senator Johanns interview on Agri-Talk with Mike Adams, May 3, 2013, (URL removed for reprint). 4 §12314 of House reported H.R. 1947. 5 The definition is comprehensive in 7 U.S.C. 1626: “the term ‘agricultural products’ includes agricultural, horticultural, viticultural, and dairy products, livestock and poultry, bees, forest products, fish and shellfish, and any products thereof, including processed and manufactured products, and any and all products raised or produced on farms and any processed or manufactured product.”

6 Text of Denham amendment available at (URL removed for reprint) 7 Text of Denham amendment available at (URL removed for reprint) 8 H.Rept. 113-117, p. 2. 9 §11312 of House-passed H.R. 2642. The section was designated as §12312 when H.Res. 361 amended the text of H.R. 2642 to include H.R. 3102 as Title IV, Nutrition, on September 28, 2013. 10 “Senate pushes toward final farm bill vote this week,” Agri-Pulse, June 20, 2012, p. 1. 11 U.S. Congress, Senate Committee on Agriculture, Nutrition, and Forestry, “Egg Products Inspection Act Amendments of 2012” - Impact on Egg Producers, hearing on S. 3239, 112th Cong., 2nd sess., July 26, 2012. Testimonies available at (URL removed for reprint) 12 §12308 of H.R. 6083. 13 Representative Steve King, “The Fight Continues,” Beltway Beef, October 24, 2013, p. 3 (URL removed for reprint). CMDocs/BeefUSA/Media/Beltway %20Beef/BeltwayBeef102413.pdf. 14 Scott George, “NCBA Op-Ed: Protect interstate commerce, protect animal ag,” Drovers CattleNetwork, November 15, 2013, (URL removed for reprint) National Pork Producers Council, “Call to Action: Support the King Amendment,” Capital Update, November 22, 2013, (URL removed for reprint) 15 Kim Geiger, “House agriculture panel threatens California animal safety laws,” L.A. Times, July 13, 2012, (URL removed for reprint).story, and Letter from National Conference of State Legislatures, to Chairman Stabenow, Senator Cochran, Chairman Lucas and Rep. Peterson, August 5, 2013, (URL removed for reprint) 16 Letter from Karen Steuer, Director, Government Affairs, Pew Environment Group, to Members of Congress, July 17, 2012, (URL removed for reprint) 17July2012.pdf, and Letter from a Coalition of 80 organizations, to Members of Congress, November 7, 2013, (URL removed for reprint) 17 Letter from Members of Congress to Ranking Member Peterson, August 2, (URL removed for reprint) 18 “Scope and Effect of Representative Steve King’s Amendment to the Farm Bill,” Congressionally Distributed Memorandum, CRS, August 1, 2012, and

Letter from 14 professors of law, to Farm Bill Conference Leadership, December 6, 2013, (URL removed for reprint) 20 National Agricultural Statistical Service, USDA, Poultry Production and Value, April 26, 2012(URL removed for reprint). 21 J. A. Mench, D. A. Sumner, and J. T. Rosen-Molina, “Sustainability of egg production the United States—The policy and market context,” Poultry Science, vol. 90, no. 1 (January 2011), p. 230. 22 Mench, pp. 231-232. 23 The Cooperative Marketing Associations Act (7 U.S.C. §§291, 292), also called the Capper-Volstead Act (P.L. 67- 146), was enacted February 18, 1922, in response to challenges made against cooperatives using the Sherman Act (15 U.S.C. §1 et seq.), the Clayton Antitrust Act (15 U.S.C. §12 et seq.), and the Federal Trade Commission Act (15 U.S.C. §41 et seq.). The act gave “associations” of persons producing agricultural products certain exemptions from antitrust laws. The law carries the names of its sponsors, Senator Arthur Capper of Kansas and Representative Andrew Volstead of Minnesota. 24 For information on UEP, see “About Us,” removed for reprint. 25 UEP, Animal Husbandry Guidelines for U.S. Egg Laying Flocks, 2010 edition, pp. 3-4, (URL removed for reprint) The Scientific Advisory Committee (SAC) continues to meet regularly and advise the UEP Producer Committee on welfare issues. The SAC developed guidelines for cage-free hens in 2006. 26 Ibid., pp. 8-15, 18-21. 27 For information on the HSUS, see “About Us: Overview,” at (URL removed for reprint) 28 HSUS, Progress for Egg-Laying Hens, July 7, 2011, (URL removed for reprint) 29 HSUS, “Burger King Announces Industry-Leading Animal Welfare Reforms,” press release, April 25, 2012, (URL removed for reprint) Burger King also announced it would not buy pork produced from sows that were farrowed in sow gestation crates.

30 Twenty-four states and the District of Columbia have ballot initiative options: AK, AR, AZ, CA, CO, FL, ID, IL, MA, ME, MI, MO, MS, MT, ND, NE, NV, OH, OK, OR, SD, UT, WA, and WY.39 EPIA §1046. 31 See the National Agricultural Law Center, at (URL removed for reprint), for information on animal welfare provisions by state. 32 UEP and HSUS, “Historic Agreement Hatched to Set National Standard for Nation’s Egg Industry,” press release, July 7, 2011, (URL removed for reprint) 33 Terrence O'Keefe, “Egg producers hear case for laying hen welfare agreement,” Egg Industry, October 2011, p. 6. 34 Ibid., pp. 4-5. 35 Sara Wyant, “Do you want new federal standards for animal care?,” High Plains/Midwest Ag Journal, March 12, 2012, (URL removed for reprint) 36 S. 820 is sponsored by Senator Feinstein, and cosponsored by Senators Stabenow and Collins. H.R. 1731 is sponsored by Representative Schrader, and cosponsored by Representatives Denham, Farr, Fitzpatrick, Campbell, and Huffman. 37 Representative Kurt Schrader, “Congressman Schrader Introduces Bill To Improve Housing For Egg-Laying Hens and Provide Stable Future For Egg Farmers,” press release, January 23, 2012, (URL removed for reprint). 38 Brown hens are larger than white hens. H.R. 3798 and S. 3239 established minimum floor space requirements for each type of laying hen. 40 EPIA §1046(a)(2). 41 List of groups endorsing H.R. 3798 provided by UEP, updated March 10, 2012. 42 AVMA, “AVMA Board Supports Enriched Hen-Housing Legislation,” March 27, 2012, (URL removed for reprint) (...continued) 2012/03/27/avma-board-supports-enriched-hen-housing-legislation/. AVMA’s policy on laying hen housing systems states, “Laying hen housing systems must provide feed, water, light, air quality, space and sanitation that promote good health and welfare for the hens. Housing systems should provide for expression of important natural behaviors, protect the hens from disease, injury and predation, and promote food safety. Participation in a nationally recognized, third- party audited welfare program is strongly advised,” Available at (URL removed for reprint)

43 UEP Certified, “Consumers Overwhelmingly Support National Legislation Sought by Egg Farmers,” news release, January 30, 2012, (URL removed for reprint). Michael Fielding, “Survey says: Consumers support “enriched cage bill,” Meatingplace, January 31, 2012. 44 Terrence O'Keefe, “Making the case for enriched colony housing for layers,” Egg Industry, December 2011, pp. 6-7. 45 NCBA, “NCBA Statement on United Egg Producers-Humane Society of the United States Agreement,” press release, July 12, 2011, (URL removed for reprint) 46 NPPC, “Statement of National Pork Producers Council,” press release, July 7, 2011, (URL removed for reprint) 47 Letter from Egg Farmers of America, NCBA, and NPPC et al. to Frank Lucas, Chairman House Committee on Agriculture and Collin Peterson, Ranking Member, December 6, 2011. (URL removed for reprint). In addition to the three cited organizations, the other signees were the American Farm Bureau Federation, American Sheep Industry Association, the National Farmers Union, The National Turkey Federation, and the National Milk Producers Federation. 48 HFA, “Egg Industry Bill Would Keep Hens in Cages Forever,” Stop the Rotten Egg Bill, (URL removed for reprint)49 Gene Gregory, “UEP justifies deal with HSUS (commentary),” Feedstuffs, January 23, 2012. 50 AFBF, “Egg Legislation Replaces Science with Politics,” press release, January 24, 2012, (URL removed for reprint) 51 Terrence O'Keefe, “United Egg Producers president explains welfare agreement,” Egg Industry, September 2011, p. 10. 52 Matthew Enis, “Egg Suits Could Set Precedents,” Supermarket News, January 10, 2011, (URL removed for reprint) 53 R. Scott Nolen, “Congress considers US egg production standards,” JAVMANews, March 15, 2012(URL removed for reprint) 54 Ibid. 55 For information on PQA and BQA, see (URL removed for reprint) 56 Terrence O'Keefe, “Social, economic forces will cause more changes in egg industry,” WATTAgNet.com, January 6, 2012, (URL removed for reprint)

57 Estimate by Minnesota egg producer Amon Baer, member of Egg Farmers of America and UEP. Email to CRS from representatives of Egg Farmers of America, April 30, 2012. 58 Terrence O’Keefe, op. cit., January 6, 2012. 59 Promar International, Impacts of Banning Cage Egg Production in the United States, Prepared for United Egg Producers, August 2009, p. 3, (URL removed for reprint). 60 “First egg colony data finds improved performance,” Feedstuffs, January 19, 2012. 61 Agralytica Consulting, Economic Impacts of Converting US Egg Production to Enriched Cage Systems, A Report for United Egg Producers, June 1, 2012, (URL removed for reprint) 62 Battery cages compromise what the United Kingdom’s Farm Animal Welfare Council (FAWC), a government organization, has identified as the “five freedoms” the council believes should be considered in policy discussion of animal welfare: freedom from hunger and thirst; freedom from discomfort; freedom from pain, injury, and disease; freedom to express normal behavior; and freedom from fear and distress. FAWC considers these freedoms as ideal states rather than standards for policy prescriptions. The “five freedoms” were originally articulated in the Brambell Report, a 1965 report to the U.K. government (Command Paper 2836). 63 D.C. Lay, Jr. et al., Hen welfare in different housing systems. Poultry Science Association, Emerging Issues: Social Sustainability of Egg Production Symposium, Denver, Colorado, July 11-15, 2010, (URL removed for reprint) 64 Ibid. 65 Ibid. 66 See Welfare Issues with Furnished Cages for Egg-Laying Hens. The Humane Society of the United States. 2010, (URL removed for reprint) 67 D.C. Lay et al., op. cit. 68 Ibid. 69 Birds, rats, and mice bred for research are excluded from AWA coverage. 70 AWA regulations are at 9 C.F.R. §1.1 et seq. 71 AWA, §2132(g).

72 California Secretary of State, November 4, 2008 General ElectionStatement of Vote, (URL removed for reprint) 73 California Health and Safety Code, Div. 20, Ch. 13.8, Secs. 25990-25994. For background on Proposition 2 see (URL removed for reprint). 74 California Health and Safety Code, Div. 20, Ch. 14, Secs. 25995-25997.1. 75 Text of regulation available at (URL removed for reprint) 76 The variance in cage size is determined by the variety of hen: white breeds of layers require less space than brown breeds. The J.S. West and Companies “enriched colony” system has 60 hens housed in 4 foot by 12 foot off-ground enclosures. This enclosure meets the EU standards. 77 JS West Milling Company, Inc. v. State of California, et al., Tentative Rulings for July 7, 2011, 78 William Cramer v. Edmund G. Brown, Jr., et al., April 10, 2012 (United States District Court, Central District of California, Eastern Division 2012). 79 Dani Friedland, “Court rejects challenge to Calif. confinement measure,” Meatingplace, September 13, 2012, (URL removed for reprint) 80 Terrence O'Keefe, “California egg farmers challenge Proposition 2 in state court,” Egg Industry, January 2013, pp. 14-15. 81 Rita Jane Gabbett, “California court upholds Proposition 2,” Meatingplace, August 30, 2013, (URL removed for reprint) 82 “Missouri attorney general challenges California egg law,” WATT Poultry Update, February 5, 2014(URL removed for reprint). 83 Michigan Compiled Laws, §287.746(2)(a)(b), (URL removed for reprint)84 Shannon Linderoth, “Michigan House passes animal care legislation,” Drovers, September 22, 2009. 85 Ruth Harrison, Animal Machines (London: Stuart, 1964). 86 Council for the European Communities, Laying down minimum standards for the protection of laying hens kept in battery cages, Council Directive, March 25, 1986, (URL removed for reprint) 87 Farm Animal Welfare Council (FAWC), An Assessment of Egg Production Systems, Tolworth, England, September 1986; FAWC, Report on the Welfare of Laying Hens in Colony Systems, December 1991; FAWC, Report on the Welfare of Laying Hens, 1997. Reports available at (URL removed for reprint)

88 Council Directive 1999/74/EC, Article 5(2). Ban on Barren Battery Cages. The ban is consistent with the Article 13 of the Treaty on the Functioning of the European Union, which recognized animals as sentient beings and requires that full regard be given to the welfare requirements of animals while formulating and enforcing various EU policies. 89 Non-cage systems are either free-range or barn systems. Enriched cages are regarded by some as offering greater improvements in bird welfare than free-range systems. Virtually all non-cage systems create their own significant welfare problem: If the hens do not have their beaks trimmed, cannibalism is a likely result. Yet, beak trimming itself is painful, and it also removes the touchsensitive beak tip, which is an important sense organ for birds. 90 James Andrews, “European Union Bans Battery Cages for Egg-Laying Hens,” Food Safety News, January 19, 2012, (URL removed for reprint) 91 European Commission, “Animal Welfare: Commission urges 13 Member States to implement ban on laying hen cages,” press release, January 26, 2012, (URL removed for reprint) 92 “Despite Difficulties, the European egg market remains well supplied,” WattAgNet, November 13, 2012, (URL removed for reprint) 93 “Upgrading Hen Housing: Latest Development in Europe,” The Poultry Site, October 23, 2009, (URL removed for reprint). 94 (RRL Removed for reprint) . The European Commission in 2007 issued marketing rules for eggs. Paragraph 33 notes that battery cages are prohibited for Member states beginning in 2012, and the Commission “.. should therefore evaluate the application of the voluntary labelling provisions foreseen with regard to enriched cages before that date in order to examine the need of rendering this labelling compulsory.” Commission Regulation No. 557/2007: Laying down detailed rules for implementing Council Regulation No. 1028/2006 on marketing standards for eggs, May 23, 2007, available at (URL removed for reprint) 95 “Europe short on eggs as battery cage ban bites,” Deutsche Welle, March 22, 2012, (URL removed for reprint) 96 Julia Glotz and Richard Ford, “Egg prices up after scramble to meet EU battery cage ban,” The Grocer, January 7, 2012, (URL removed for reprint)

97 European Commission, “Monthly Market Prices for Eggs in the E.U.”, December 20, 2012, (URL removed for reprint)

Chapter 20 Tail docking bans

Introduction to tail docking bans Rhode Island Pennsylvania New Hampshire Cropping and Docking: A Discussion of the Controversy Introduction to tail docking bans Many animal advocates oppose tail docking. The advocates can object to tail docking because animals owners often cut off these tails without anesthetic. Other advocates recognize that having a tail and using a tale, is beneficial to those animals who are born with tails. Other advocates opposed to most any cosmetic surgery performed on animals. We have assembled an exciting collection of tail docking statutes. The New Hampshire law deals with horses. The Pennsylvania statute regulates tail docking of dogs. The Rhode Island statute regulates tail docking of cows. Amy Broughton of the animal legal & historical center gives us the article "cropping and docking, a discussion of the controversy and the role of law in preventing unnecessary cosmetic surgery on dogs." This article shares some

fascinating history regarding tail docking of dogs. For example, ancient Romans thought tail docking of dogs prevented rabies. Rhode Island § 4-1-6.1. Operating upon tails of bovines prohibited (a) Any person who intentionally cuts or alters the bone, tissues, muscles or tendons of the tail of any bovine or otherwise operates upon it in any manner for the purpose or with the effect of docking, setting, or otherwise altering the natural carriage of the tail, or who knowingly permits the same to be done upon the premises of which he or she is the owner, lessee, proprietor or user, or who assists in or is voluntarily present at such cutting or alteration, is guilty of a misdemeanor, punishable by imprisonment for not more than one year, or by a fine of not more than five hundred dollars ($500), or both. If any bovine is found with the bone, tissues, muscles or tendons of its tail cut or altered as aforesaid upon the premises or in the charge and custody of any person, and the wound resulting therefrom is unhealed, such fact may be evidence of a violation of this section by the owner or user of such premises, or the person having such charge or custody. (b) The provisions of subsection (a) of this section shall not apply to tail docking performed by a veterinarian for veterinary purposes, provided that the procedure is performed under the following conditions: (1) The animal has been adequately anesthetized to minimize the animal's pain and suffering during the treatment or operation. (2) The procedure is done in a way that minimizes the long-term pain and suffering resulting from the procedure. (3) The veterinarian uses suitable instruments. (4) The procedure is done under hygienic conditions. (c) The owner of any bovine with a docked tail who purchased the bovine in a state where tail docking is legal shall be exempt from prosecution under this section. CREDIT(S) P.L. 2012, ch. 353, § 1, eff. June 20, 2012. Pennsylvania

(c) Docking of tail.--The following apply: (1) A person commits an offense under section 5533 if the person docks, cuts off, causes or procures the docking or cutting off of the tail of a dog over five days old. (2) The provisions of this subchapter shall not prevent a licensed doctor of veterinary medicine from docking, cutting off or cropping the whole or part of the tail of a dog when the dog is at least 12 weeks of age and the procedure is performed using general anesthesia and shall not prevent a person from causing or procuring the cutting off or docking of a tail of a dog by a licensed doctor of veterinary medicine as provided in this subsection. (3) The provisions of this subchapter shall not prevent a licensed doctor of veterinary medicine from surgically removing, docking, cutting off or cropping the tail of a dog between five days and 12 weeks of age if, in the licensed doctor of veterinary medicine's professional judgment, the procedure is medically necessary for the health and welfare of the dog. If the procedure is performed, it shall be done in accordance with generally accepted standards of veterinary practice. (4) The possession by a person of a dog with a tail cut off or docked and with the wound or incision site resulting therefrom unhealed, or any such dog being found in the charge or custody of any person or confined upon the premises owned by or under the control of any person, shall be prima facie evidence of a violation by the person, except as provided in this subsection. (5) A person who procures the cutting off or docking of a tail of a dog shall record the procedure. The record shall include the name of the attending licensed doctor of veterinary medicine and the date and location at which the procedure was performed. The record shall be kept as long as the wound or incision site is unhealed and shall be transferred with the dog during that period of time. New Hampshire 644:8-b Docking Tail of Horse. If any person shall cut the bone of the tail of a horse for the purpose of docking the tail, or shall cause or knowingly permit the same to be done upon the premises of which he is in control, or shall assist in or be present at such

cutting, he shall be guilty of a misdemeanor. Written permission from the state veterinarian shall be obtained by a licensed veterinarian to perform surgical operations pursuant to this section. The state veterinarian shall promulgate rules relative to granting authorization for such operation. HISTORY Source. 1979, 263:1, eff. Aug. 20, 1979. Cropping and Docking: A Discussion of the Controversy and the Role of Law in Preventing Unnecessary Cosmetic Surgery on Dogs Share| Author: Amy L. Broughton Place of Publication: Michigan State University College of Law Publish Year: 2003 Primary Citation: Animal Legal & Historical Center Summary: This article describes the procedures of tail docking and ear cropping, the history of the procedures, their place in modern veterinary care, and discuss the positions of advocates both for, and against these procedures. Additionally, this article explains the ways in which the law is being used internationally in preventing these unnecessary procedures, and the ways that current and future American anti-cruelty laws can be used to put a stop to this epidemic. I. Introduction Canine cosmetic surgery has reached epidemic proportions. Over 130,000 puppies undergo an unnecessary cosmetic surgery in the United States each year. This article will describe the procedures of tail docking and ear cropping, the history of the procedures, their place in modern veterinary care, and discuss the positions of advocates both for, and against these procedures. Additionally, this article will explain the ways in which the law is being used internationally in preventing these unnecessary procedures, and the ways that current and future American anti-cruelty laws can be used to put a stop to this epidemic. II. The Procedures A. Docking Tail docking refers to the amputation of all, or part of an animal's tail, using a cutting or crushing instrument. Although a variety of animals including cows,

piglets, and sheep are subject to this procedure, this discussion will focus on the amputation of dogs' tails (vertebral column) for cosmetic purposes. 1 Approximately seventy breeds of dog are subject to tail docking. 2 In the United States, depending upon the jurisdiction, a veterinarian may not be required to dock a dog's tail; as such, dog breeders and dog owners without veterinary training often undertake this procedure. 3 Tails are usually docked when a puppy is two to five days old, and an anesthetic is not generally administered. 4 Two methods are generally used: a) "the tail is clamped a short distance from the body and the portion of the tail outside the clamp is cut or torn away," 5 or b) a small rubber band is placed on the tail at the desired length preventing the flow of blood to the remainder of the tail which falls off after approximately three days. A dog's tail is comprised of muscles, tendons, nerves, cartilage, and bone - all of which are severed during a docking procedure. 6 The segment of the tail removed may comprise one-quarter to one-third of the total length of the dog. 7 B. Cropping Ear cropping refers to the practice of reshaping a dog's ears by surgically removing the pinna, or "floppy part" of the ear. Generally, approximately onehalf of the ear is removed. Ears are cropped when a puppy is between nine and twelve weeks old. Because ear cropping is a surgery and a general anesthetic is required, the procedure is generally performed by a veterinarian, although breeders and dog owners often undertake amateur attempts of the ear cropping procedure. Once the pinna is removed, the veterinarian then tapes the ears in an erect position to a splint or bracket. Post-operative pain medication is rarely provided, though the ears have blood flow and are comprised of cartilage and nerves. 8 A series of follow-up visits are conducted during which the ears are handled, stretched along the edges, and re-taped. 9 No scientific studies have been conducted to establish whether docking and cropping and docking have any medical value. 10 III. History Tail docking and ear cropping date to the early Romans, who believed that the practices prevented rabies. 11 During the European Middle Ages, through the end of the 18th century, Lamarck's theory of acquired characteristics 12 was

widely accepted. As such, people believed that by docking the tails of the parents, "the new born puppies would look like their parents" and also exhibit short tails. 13 In addition, long-tailed or floppy-eared dogs used for hunting, fighting, or watching flocks were at a greater risk of injury associated with those activities. As such, tails were docked and ears cropped to reduce the number of places another dog or other animal could grab. The owners of working dogs often believed that tail docking reduced a dog's maneuverability, thereby discouraging the dog from chasing game, 14 while the other dog owners often believed that tail docking resulted in a stronger back and increased speed. 15 Finally, various tax schemes may have accounted for the proliferation of tail docking. In some areas, dogs used for work were not taxed, so the owners of such dogs would dock the tails to indicate that the dog was used for work and not subject to tax. 16 In other areas, farmers were taxed according to the length of their dogs' tails, so docking was used to reduce the tax liability. 17 Moreover, sport hunting was considered to be reserved for the wealthy nobility, and it was believed that only long-tailed dogs were suitable for hunting. As such, the owners of long-tailed dogs were required to pay a high tax and tail docking became a practice of the commoners. 18 IV. The Modern Controversy On July 9, 1999, the American Veterinary Medical Association released the following: Ear cropping and tail docking in dogs for cosmetic purposes are not medically indicated nor of benefit to the patient. These procedures can cause pain and distress, and as with all surgical procedures, are accompanied by inherent risks of anesthesia, blood loss, and infection. Therefore, veterinarians should counsel dog owners about these matters before agreeing to perform these surgeries. 19 The statement was a lukewarm response to an increasingly heated debate between pro-cosmetic procedures groups and anti-cosmetic procedures groups. Although the United States has largely remained silent, the issue is gaining worldwide prominence. Groups such as the Council for Docked Breeds and the Society for the Promotion of Undocked Dogs, or Vets for Docking and Vets Against Docking are unable to compromise. The issue is largely centered on whether docking and cropping constitute "cruelty." If an activity is deemed

"cruel" by the populous, then it will likely be outlawed. Similarly, a society's position on whether docking and cropping are cruel will shape the way the procedures will be dealt with legally. Advocates for docking and cropping compare the procedures to neutering or spaying, and surmise that tail docking and ear cropping are simply practical animal management techniques that should remain available to owners, breeders, and veterinarians. Anti-docking and cropping groups compare the procedures to the amputation of a healthy human finger, noting that the procedures are painful, unnecessary, and often lead to medical problems later in life. There are several key points of contention: 1. Tail Damage. Advocates of docking and cropping state that both procedures enhance a dog's safety; hunting dogs that work in "thick vegetation and brambles" have a very high risk of injury to their tails. 20 Similarly, some breeds that must work in confined spaces are subject to similar types of tail injuries. 21 These injuries are very painful and difficult to treat. Supporters of tail docking point to the fact that in Sweden, the number of tail injuries amongst previously docked breeds rose from 38% to 51% since docking was banned in 1989. 22 Conversely, anti-docking advocates note that the most popular breeds for hunting are Labs, Kelpies, Border Collies, and Cattle dogs - none of which traditionally have docked tails. The majority of dogs in docked breeds are kept only as pets, are not used for hunting or working, and are therefore, not at a great risk for tail injuries. 23 In addition, statistics concerning tail injuries are often misleading, as not all tail injuries require a full amputation. Many injuries require only a cleaning and natural healing. In his report 'Cosmetic Tail Docking of Dog Tails," veterinarian Robert Wansborough notes that a sevenyear survey in Edinburgh, which controverted the Sweden study, revealed "insufficient evidence of statistical significance to suggest that there is a possible association between tail injuries and an undocked tail . . .." Similarly, he notes that of 2350 veterinary consultations between December 1991 and September 1992 at the North West Animal Emergency Clinic in Sydney, only three involved tail injuries, and all three of those cases involved tail docking. 24 2. Hygiene . Tail docking advocates surmise that long-haired breeds are docked to prevent the hair around the base of the tail from collecting feces

which, in addition to being generally unpleasant, can lead to flies, maggots, or other hygienic problems. 25 Similarly, proponents of ear cropping argue that cropping reduces the likelihood that a dog will contract ear infections, as a cropped is exposed to light and increased airflow. 26 A serious veterinary study, however, has never been conducted to prove this theory. 27 Anti-docking supporters again, cite an inconsistency: breeds with the potential for similar hygienic problems, such as Collies or Afghans, are generally not cropped or docked, and regular grooming or clipping of potential problem areas can prevent problems. 28 Similarly, breeds such as rottweilers and boxers, which are docked, have very short hair, so the potential for hygiene problems is very minimal. Cropping and docking are effectively proactive efforts to excuse a dog owner from conducting routine care of the animal. 3. Breed Standards. The Council of Docked Breeds states that breeds that have been docked over many generations were selected for specific qualities, none of which includes the tail. As a result, if left undocked, these breeds would not have "good tails" and breeders would be left with a diminished number of sires and dams to choose from, thereby causing a genetic bottleneck and possibly causing the complete extinction of some breeds. 29 Anti-docking supporters do not specifically address the potential for extinction of certain breeds if tails are not docked, but this theory lacks a sound scientific basis. First, this theory exhibits a very weak understanding of evolution, and seems to echo the wholly discounted theory of acquired characteristics. Second, if breeders found the pool of sires and dams to be "diminished," then it would, again, be the result of their human desire to determine what the breed should look like, as opposed to what the breed actually looks like. In actuality, breeders' choices would be no more reduced than they had been prior to a tail-docking ban. To this end, veterinarian John Baxter states, [p]edigree dogs are man-made. People have decided which dog will mate which. There's nothing wrong with this, as long as you realise your responsibility and don't just breed for the characteristics you want . . . [w]e have to have responsibility and vision in breeding animals - a wee bit of humility wouldn't go amiss. 30

4. The Importance of Having a Tail. Advocates of docking such as Vets for Docking, quite simply state that the tail serves no actual function in locomotion or communication. 31 Specifically, they note that communication in dogs is conducted primarily by smell or facial expressions, and to a lesser degree vocalizations. 32 J.L. Holmes, author of the "Vets for Docking Submission" states that a "a dog's tail is not an essential part (for it is patently obvious that a dog can live quite happily without a tail, both physically and emotionally.)" While it may be true that amputees can live full and happy lives, there is substantial disagreement about a dog's need for a tail. Robert Wansborough notes, "the tail is not merely an inconsequential appendage. It is an anatomically and physiologically significant structure which has many biological functions that should not be underestimated." 33 For example, "the tail acts as a counterbalance when the dog is leaping, walking along narrow structures, or climbing." 34 Wansborough also notes that the tail plays an important role in defecating, and that the muscles used to wag the tail may also strengthen the perineal area and prevent perineal hernias. 35 In addition, the dog uses the tail to signal many emotions and intentions. As a result, tail docking can adversely affect the interaction of a dog with other dogs or with humans. Furthermore, the tail enhances human-dog interactions, as the tail is the most obvious means of communication between human and dog. 36 Finally, the absence of a tail may cause a dog to be the victim of attacks by other dogs due to an inability to communicate. 37 5. Pain. For most, this is the critical issue in determining whether an activity constitutes cruelty. To this point, the majority of the discussion has focused on tail docking. Pain, however, is particularly relevant to the ear cropping discussion. First, with regard to tail docking: tail-docking advocate Professor Dr. R. Fritsch, Leader of the Clinic of Veterinary Surgeons at Justus-Lieberg University in Germany, maintains that at the age of two to five days, a puppy's nervous system is not fully developed and the conscious feeling of pain is unlikely at that stage. 38 Similarly, with regard to ear cropping, veterinarian Wendy Wallmer states that: Individual dogs, like people, have different levels of pain tolerance. In general, boxers are very pain tolerant and most puppies return home from an

ear crop will be eating normally and playing just as they did before surgery within hours of the procedure. Although the ears are decidedly uncomfortable if touched excessively or bumped, this discomfort usually subsides within a few days of the surgery. Some veterinarians will offer pain medication for those individuals who seem to have a low pain tolerance. The skill and experience of the surgeon also have an effect on the discomfort level after the procedure. 39 Advocates of ear cropping tend to downplay the amount of pain experienced by the dog. It is important, however, to note that the vast majority of American veterinary schools to not teach ear cropping or tail docking. 40 As a result, veterinarians must learn this procedure "on the job" which would lend itself to causing even more pain. Additionally, in large "puppy mills," breeders will simply cut puppies ears with scissors, and it is unlikely that this amateur procedure is conducted with an anesthetic or "post-operative" pain relievers. 41 Moreover, anti-docking and cropping supporters note that anatomically, all mammals (including humans and dogs) have the same neurotransmitters, receptors, and higher brain functions. 42 So while puppies may respond differently to pain, there can be no doubt that they feel pain similarly to humans. To this end, veterinarian Jean Hofve notes, "it is well documented in the human medical literature that newborns do feel pain, and neonatal pain management is taken seriously . . . 'even very prematurely born infants respond to pain.'" 43 Moreover, anatomical studies have shown that the number of nerve endings in a newborn puppy may equal, or even exceed that of adult dogs. 44 This means that a puppy will experience pain in amounts equal, or even greater to those experienced by the adult dog. In addition, there is the possibility of pathological pain. 45 Pathological pain refers to the "sensation perceived from an inflammation that accompanies tissue injury." 46 A good example is the "phantom" pain experienced by an amputee in a leg that is no longer there. Moreover, since the brain is still in development in puppies, a trauma of that magnitude may affect the development of the dog's "final architecture of the pain system," 47 which could affect the dog for the whole of its adult life. Although animals tend to be more stoic than humans, puppies do exhibit whimpering and an "escape response" after tail docking. 48 This indicates that the puppies are indeed

feeling the pain of losing an appendage. Finally, as with any amputation, there is a serious risk of the formation of growths composed of nerve cells and fibers or a growth composed of scar tissue. 49 In both cases, the growths are painful. For ear cropping, although the procedure is generally conducted while the dog is under an anesthetic, the dog awakens to sore ears with raw edges closed by sutures that are taped and held up by a bracket. In addition, the puppy is subjected to a series of post-operative visits where the ear is stretched, reshaped, and re-taped. 50 Most veterinarians do not prescribe pain medication. In some cases, if a dog's ears do not stand up after the crop, the dog will be subjected to a second crop. 51 As with any surgery, there are inherent risks associated with anesthesia and the possibility of post-operative infection such as gangrene, septicemia, and meningitis. 52 The reasons for ear cropping and tail docking are antiquated and no longer relevant to modern veterinary care. As such, these procedures are purely cosmetic and for the pleasure of the human owner/custodian - and not the dog. These practices are propagated by organizations such as the American Kennel Club (AKC) which requires ear cropping, tail docking, or dewclaw removal for certain breeds to conform to the AKC's breed standards. To this end, the AKC has established exacting requirements for what each dog should look like, and assigns "faults" for physical characteristics that do not conform perfectly to the established AKC breed standard. In addition, the AKC seems concerned only with the "look" of a dog, which, in addition to unnecessary canine cosmetic surgery, has lead to serious problems resulting from inbreeding. 53 Increasingly, animal welfare and animal rights groups are speaking out against ear cropping and tail docking. The World Small Animal Veterinary Association released this statement: The WSAVA considers amputation of dogs' tails to be an unnecessary surgical procedure and contrary to the welfare of the dog. The WSAVA recommends that all canine organizations phase out any recommendations for tail amputations (docking) from their breed standards. The WSAVA recommends that the docking of dogs' tails be made illegal except for the professionally diagnosed therapeutic reasons, and only then by suitably qualified persons such as registered veterinarians, under conditions of anesthesia that minimize pain and stress. 54

Similarly, the Association of Veterinarians for Animal rights released the following position statement: The Association of Veterinarians for Animal Rights is opposed to various surgeries done to meet "breed standards" or to correct so-called vices. Procedures such as ear cropping, tail docking, or debarking in dogs, or declawing in cats are unacceptable because of the suffering and disfigurement they cause an animal are not offset by any benefits to the animal. If such a procedure can be shown to be necessary for medical or humane reasons, then it is permissible. The "breed standards" for dogs must be altered to allow the animals to be shown without being surgically mutilated. 55 These position statements reflect a call to ban cosmetic surgeries on animals. In the scheme of animal rights issues, this may appear unimportant - but it must be noted that over 130,000 puppies undergo these painful procedures in the U.S. each year. 56 Currently, however, because the Animal Welfare Act , and other legislation designed to promote animal welfare does not specifically address this issue, and because ear cropping and tail docking are currently culturally acceptable in the United States, it is difficult to prosecute dog owners for subjecting their animals to these procedures. V. The International Perspective Many different countries have responded to this epidemic in a variety of ways. For example, the Canadian Veterinary Medical Association released a statement indicating that it opposes the "surgical alteration of any animal, for purely cosmetic reasons . . . includ[ing] tail docking . . . ear cropping . . .." 57 Similarly, the Council of the Royal College of Veterinary Surgeons (UK) ruled cosmetic docking to be "unethical." 58 The Australian Veterinary Association has consistently renewed its call for a ban on cosmetic surgery for dogs. Dr. Lindy Scott, animal welfare consultant for the AVA stated that the "mutilation of animals for cosmetic (non-veterinary) purposes was strongly opposed by the majority of the veterinary profession." 59 In an even bolder statement, Belgium, Denmark, Finland, Germany, Great Britain, Greece, Italy, Luxembourg, The Netherlands, Norway, Portugal, Sweden, and Switzerland have all banned cosmetic ear cropping and tail docking. 60 Recently, in England, two dog owners and their associate were fined and jailed three months each after eleven rottweiler puppies died during a tail

docking procedure. 61 The defendants believed that the dogs would be more "saleable" if the tails were docked, but did not want to pay veterinary fees so they hired Lloyd Earlington, who was not a vet, but who stated that he had experience in docking tails, and who agreed to conduct the operations at a reduced rate. 62 Earlington arrived with Stanley knife blades and a "painkiller" solution. 63 The puppies' spinal cords were left exposed by the procedure and two main arteries had been left exposed in several cases. 64 Two puppies died almost immediately from the pain and another three were in such shock that they had to be put down soon after the docking. 65 The remainder of the litter died within three weeks. 66 Because tail docking (by non-veterinarians) is prohibited in Great Britain, the prosecution was a success. VI. The Domestic Perspective In the United States, however, although this procedure may constitute cruelty under many American statutes, successful prosecutions of tail dockers are unlikely. For example, in People v. Rogers , 67 a defendant who docked a puppy's tail using a rubber band was charged with violating an anti-cruelty statute, but was not convicted. The defendant sold the puppy to a neighbor who became concerned about the condition of the tail; the infection of the tail was so severe that the puppy was ultimately euthanized. The criminal charges, however, were dismissed because the court found that the language of the anticruelty statute 68 was vague, and that the law did not specifically speak to, or include, tail docking. In the decision, the court stated the following: There is justifiable maiming or mutilation causing physical injury not specifically prohibited by statute such as the clipping of a dog's ears so long as it is done in a manner defined by statute (under an anesthetic and performed by a licensed veterinarian) and, in this case, the clipping of a dog's tail, The procedure for which the law is silent. The defendant engaged in "docking" or a newborn puppy's tail by putting a rubber band around it. This procedure is no more of a maiming or mutilation causing injury to a dog resulting in similar physical pain or suffering than is found when a dog's ears are clipped. Both are common practices and are not proscribed by the statute. The law requires ear clipping to be done in a certain manner by a veterinarian using a painkiller, while there is no such requirement when a dog's tail is docked. Implicit in the requirement of a veterinarian involvement in ear clipping is the prescription

that the procedure is to be done painlessly and that there will be professional care of the wounded area to be sure that during the after care period the dog will be relatively pain free and the wound heals completely. The act of docking a dog's tail does not require professional supervision so an ordinary person of common intelligence is only required to avoid unjustifiable physical pain and suffering. . . The act of docking a dog's tail is not "conduct calculated to cause harm," but rather "essentially innocent conduct" and the "legislature may not validly make it a crime to do something which is innocent in itself merely because it is something done improperly." The court's comments are interesting because the court first characterizes ear cropping as "maiming and mutilation," acts which are generally prohibited in anti-cruelty statutes. The court, however, does say that it is "justifiable. In reality, these concepts are mutually exclusive; under the cruelty statute an act cannot constitute mutilation and remain legal. In addition, the court states that the pain suffered during a tail docking is analogous to an ear cropping procedure. The court, however, held that since the legislature did not proscribe veterinary care for a docking procedure then it was not for the court to apply a strict interpretation of the anti-cruelty statute. Finally, the court did not even hold that a person who undertakes a surgical procedure should be held to a higher standard. This court had a real opportunity to hold that tail docking, particularly when conducted by non-veterinary professionals, violated the animal cruelty statute. But it failed to do so, thereby tacitly affirming the practice. This is particularly disturbing in light of the fact that the New York anti-cruelty statute specifically prohibits the maiming or mutilation of animals - and though the court characterized the defendant's actions as such, did not hold him accountable for the life of the young puppy. It did, however, send a message to the legislature that "if the legislature wants to prohibit the practice of docking a dog's tail (as in the case of the horse) or prescribe how it can be done legally (as in the case of clipping a dog's ears), then the appropriate legislation should be passed." 69 Since it is unlikely that the courts will take any proactive steps in the fight against cosmetic surgery on animals, the responsibility falls to the legislature. Although all states have anti-cruelty statues, the statutes are generally broad enough so that a person who crops or docks can dodge prosecution. It is likely

that any other cases involving ear cropping or tail docking will be met with outcomes similar to Rogers . The problem is that the laws are not likely to change without there first being a popular movement towards banning these procedures. Chris Lawrence, Chief Veterinarian for the Royal Society for the Prevention of Cruelty to Animals noted that "in the United States, both ear cropping and tail docking are allowed, which puts the U.S. way behind the times." 70 Since 1898, dogs with cropped ears have been ineligible to compete in shows in the United Kingdom under kennel club rules. Conversely, in the United States, AKC breed standards still encourage, or even require, that ears are cropped or tails docked before the dog can be shown. 71 Progress, however slow, is being made. In Maine, the cropping of dogs' ears is prohibited, as behavior constituting unlawful mutilation. In 1999, State Representatives from Georgia propose a bill that would have banned cropping and docking within the state. Although the bill did not pass, it represents a growing grassroots movement opposed to cosmetic cropping and docking. 72 The Michigan Humane Society recently reported two tail-docking cases where the defendants were found guilty. One woman was found guilty of cruelty after allowing rubber bands used for docking to become embedded in the tails of four puppies. In another case, the tail of a four-week old puppy was amputated after his tail had been improperly banded for the purpose of docking. 73 Two recent cases have opened the door to successful animal cruelty prosecutions for ear cropping and tail docking. First, in Hammer v. American Kennel Club , 74 a dog owner brought a discrimination suit against the AKC alleging that a docked tail standard effectively excluded his dog from participating in competitions, as the owner believed tail docking to be a form of animal cruelty. Although the court dismissed the action on the ground that the plaintiff had failed to state a claim for which relief could be granted, 75 and this case had no effect on the previous decision in Rogers , the court did specifically state that the anti-cruelty law could be construed to prohibit tail docking for cosmetic purposes as unjustifiable mutilation. Additionally, in a pointed dissent, N.Y. Supreme Court (Appellate Division) Justice Ellerin states, "Assuming arguendo that the protection of hunting dogs against tail injuries

justifies docking the tails of hunting dogs, it is not a justification for docking the tails of non-hunting dogs . . . for the purposes of AKC competitions." 76 Second, in Elisea v. State , 77 an Indiana Appellate Court upheld convictions for animal cruelty and practicing veterinary medicine without a license, after the defendant performed amateur ear cropping procedures on twelve pit bull puppies. The court described the facts in Elisea : During the procedure, Elisea has an assistant bind the dogs' legs and mouths with tape. Once immobilized, Elisea marked a line along each ear with an eyeliner pencil and, after numbing the ears with ice, but without any anesthetic, cut the dogs' ears with a pair of office scissors. Vaseline and Bactine were placed on each cut, and Elisea told [the dogs' owners] to keep the puppies outside in the cold because their ears would heal more quickly. 78 Because Indiana's animal cruelty statute 79 does not specifically define the terms "torture" and "mutilate," as used in the statute, the court relied on their plain meanings 80 and found that the trial court did not err in finding the defendant guilty of animal cruelty. Furthermore, the court found that "Elisea's act of cutting the puppies' ears was a surgical procedure for which he accepted money" 81 and was a violation of Indiana's prohibition of practicing veterinary medicine without a license. 82 This case is particularly important because owners and breeders can no longer conduct amateur ear croppings and tail dockings under the auspices of a "common amateur practice" that was excluded from the prohibition against animal cruelty or practicing veterinary medicine without a license. VII. A Modest Proposal Anti-cruelty statutes must be changed to specifically include cosmetic ear cropping and tail docking. Because laws generally reflect societal attitudes, current anti-cruelty statutes have no "teeth," where ear cropping and tail docking are concerned. The practice must be removed from the mainstream and popular culture in order to affect change. Animal rights activists have been successful in the past, as in anti-fur campaigns, and there is every reason to believe that American society is ready to accept this change. First, the most influential group, the American Veterinary Medical Association must take a stand against cosmetic cropping and docking. In addition, animal rights groups such as the Humane Society must make this

issue a priority to bring about public awareness. Finally, the AKC and other breed-specific organizations must change breed-standards in favor or natural ears and tails, but also disqualify "competitors" with cropped ears or docked tails. Federal and State Congresspersons with animal rights interests must continue to introduce bills that would prohibit cropping and docking. Until social changes occur, however, it is possible to make progress under existing laws. Even if courts are reluctant to create policy, or engage in what they may feel is judicial activism, courts can uphold cruelty convictions under existing statutes. First, as in Hammer or Elisea , the courts may construe terms (such as maim, mutilate, or torture) to include ear cropping and tail docking. Moreover, if a particular statute contains a "justification" clause, courts may hold that "breed standards" are not justification for mutilation of dogs. Second, also as in Elisea , courts may construe prohibitions against practicing veterinary medicine without a license to include amateur tail docking and ear cropping procedures. These procedures have often been overlooked as practicing veterinary medicine without a license because they have been socially accepted and commonplace among breeders and owners. Convictions for practicing veterinary medicine without a license for tail docking and ear cropping would establish an environment where those procedures were not considered part of the social norms of breeders and would be viewed as the serious surgical procedures that they are. One or two highly publicized cruelty or practicing veterinary medicine without a license cases will bring the problem to the forefront. Anti-docking advocates must press for the filing of criminal charges against breeders who conduct tail docking. Once these charges are filed, anti-docking advocates must argue that these procedures do constitute mutilation that is prohibited by most state statutes and that people who practice veterinary medicine without a license are prosecuted to the full extent of the law. Although preventing ear cropping will take more effort since veterinarians generally conduct it, public awareness can ultimately prevail. Animals have long had the misfortune of being regarded as "property" as opposed to "wards," or other status whereby the custodian has an affirmative duty to protect. Because of their "property " status, animals have no legal rights when they have been mistreated. Humans have legal rights, only to the extent that their

property has been damaged, with limited ability file claims for the pain and suffering of the animal. Pet owners must take on a custodial role, whereby the custodian has a duty to protect the animal, and will be subject to prosecution for failing to uphold this duty or for engaging in practices, such as cropping or docking, which are contrary to the welfare of the animal. Footnotes: 1 Robert Wansborough, Cosmetic Tail Docking of Dogs Tails, 74 Australian Veterinary Journal (July 1996), available at (URL removed for reprint) 2 Royal Society for the Prevention of Cruelty to Animals, Tail Docking - The Issues, at (URL removed for reprint) 3 Alice Crook, Cosmetic Surgery in North America and Latin America (World Small Animal Veterinary Association - World Congress 2001) at (URL removed for reprint) Ms. Crook notes that, in some jurisdictions, tail docking by nonveterinarians "constitutes the practice of veterinary medicine without a license and is [therefore,] illegal." 4 Wansborough, (URL removed for reprint) 5 Jean Hofve, DVM, Cosmetic Surgery in Companion Animals, 31 Animal Issues (Spring 2000), available at (URL removed for reprint) (last visited July 3, 2003). 6 Wansborough, (URL removed for reprint) 7 Progressive Animal Welfare Society (PAWS), Cosmetic Surgeries . . . A Cut Above Cruelty?, at (URL removed for reprint) (last visited July 3, 2003). 8 Hofve, (URL removed for reprint) 9 Id. 10 Allison White, Ear Cropping: The Keymaster Philosophy, at (URL removed for reprint) (last visited July 3, 2003). 11 PAWS, (URL removed for reprint) 12 Jean Lamarck was a French naturalist who "proposed a theory of evolution . . . which maintained that animals acquired useful characteristics during their lifetime that they then passed on to their offspring. . . . Lamarck maintained, for instance, that the giraffe developed a long neck by stretching to reach tall trees, then passed this characteristic to its young. This theory of

inheritance of acquired characteristics was replaced by Charles Darwin's theory of natural selection." Eric W. Weissten, Lamarck, "Lamarck.' Eric Weisstein's World of Scientific Biography, at (URL removed for reprint) 13 Wansborough, (URL removed for reprint) 14 Rick Beauchamp, Old English Sheepdog: Bobbed Tails and Bonhomie, at (URL removed for reprint) (last visited July 3, 2003). 15 Wansborough, (URL removed for reprint) 16 Beauchamp, (URL removed for reprint) 17 Genie Murphy, Pembroke Welsh Corgi, at (URL removed for reprint) (last visited July 3, 2003). 18 Arthur Frederik Jones, The Origins of the Terrier Tail, excerpted from Down to Earth Dogs, the Terriers, in MAN'S BEST FRIEND - NATIONAL GEOGRAPHIC BOOK OF DOGS (Merle Severy, ed, 1971) available at (URL removed for reprint) (last visited July 3, 2003). 19 Stop the Crops, The Problem, at (URL removed for reprint) (last visited July 3, 2003). 20 Council for Docked Breeds (CDB), The Case for Docking, at (URL removed for reprint) (last visited July 3, 2003). 21 Id. 22 Id. 23 Hofve, (URL removed for reprint) 24 Wansborough, (URL removed for reprint) 25 CDB(URL removed for reprint) 26 Sunny DeYoung, Ear Cropping: Correct or Cruel?, at (last visited July 11, 2003). 27 Wansborough, (URL removed for reprint) 28 Id. 29 CDB, (URL removed for reprint) 30 John Baxter, "A View on Tail Docking By TV Vet John Baxter, at (last visited July 25, 2003). 31 J.L. Holmes, BVM &S, MRCVS, Vets for Docking Submission, at (URL removed for reprint) (last visited July 3, 2003).

32 Id. 33 Wansborough, (URL removed for reprint). 34 Id. 35 Id., See also, John Bower, MRCVS, Response to Royal College of Veterinary Surgeons Challenge to Write a Logically Argued Article About Tail Docking, at (URL removed for reprint) (last visited July 25, 2003). 36 Id. 37 Id. 38 R. Fritsch, Tail Docking - Pain Felt by Puppies, at (URL removed for reprint) (last visited July 3, 2003). 39 Wendy Wallner, Ear Cropping, Tail Docking, and DewClaws, at (last visted July 3, 2003). 40 Crook, (last visited July 24, 2003). 41 Stop the Crops, 42 Wansborough, 43 Hofve, 44 Wansborough, 45 Id. 46 Id. 47 Id. 48 Id. 49 Id. 50 White, (URL removed for reprint) 51 Id. 52 Wansborough, (URL removed for reprint) 53 A good example is the high incidence of hip displaysia among German Shepards that have been bred to exhibit very low hips. 54 World Small Animal Veterinary Association (WSAVA), WSAVA Tail Docking Position Statement, at (URL removed for reprint) (last visited July 3, 2003). 55 Association of Veterinarians for Animal Rights, Position Statement: Cosmetic Surgery or Surgery to Correct 'Vices', at (URL removed for reprint)

(last visited July 3, 2003). 56 Stop the Crops, (URL removed for reprint) 57 CDB, Canadian Veterinary Medical Association - Cosmetic Surgery Position Statement, at (URL removed for reprint) (last visited July 3, 2003). 58 CDB, Tail Docking in the U.K., (URL removed for reprint) (last visited July 3, 2003). 59 CDB, AVA Calls for an End to Cosmetic Tail Docking, at (URL removed for reprint) (last visited July 3, 2003). 60 Erin Harty, To Crop and Dock . . . or Not? (June 29, 2002), at (URL removed for reprint) (last visited July 3, 2003). 61 Ananova, Three Jailed for 'Barbaric' Puppy Tail Docking (April 26, 2002), at (URL removed for reprint) 62 Id. 63 Id. 64 Id. 65 Id 66 Id. 67 703 N.Y.S.2d 891 (2000) 68 In People v. Rogers, the defendant was charged with a violation of the following statute: NY Agriculture and Markets Law § 353. Overdriving, torturing and injuring animals; failure to provide proper sustenance A person who overdrives, overloads, tortures or cruelly beats or unjustifiably injures, maims, mutilates or kills any animal, whether wild or tame, and whether belonging to himself or to another, or deprives any animal of necessary sustenance, food or drink, or neglects or refuses to furnish it such sustenance or drink, or causes, procures or permits any animal to be overdriven, overloaded, tortured, cruelly beaten, or unjustifiably injured, maimed, mutilated or killed, or to be deprived of necessary food or drink, or who wilfully sets on foot, instigates, engages in, or in any way furthers any act of cruelty to any animal, or any act tending to produce such cruelty, is guilty of a misdemeanor, punishable by imprisonment for not more than one year, or by a fine of not more than one thousand dollars, or by both.

A separate New York law specifically prohibits the docking of horses' tails, and the court finds that since the statute does not specifically prohibit the docking of dogs's tails, the practice is, therefore, tacitly permitted by the legislature. Similarly, since a statute prescribes the method in which ear cropping is to be executed, but does not specifically prescribe the methods by which tail docking shall be executed, then the court does not feel that it is in its discretion to include tail docking as a criminal act. The courts failure to construe the statute as prohibiting tail docking (particularly that which results in the euthanization of the dog) by finding the statute vague, when it is unlikely that the court would come to the same decision if a person had maliciously cut a dog's tail off - without the justification of "docking" for breed conformation. 69 Id. at 896. 70 The Scoop - Dogs in the News, Snips and Snails and Puppy Dog Tails (March 15, 2002), (URL removed for reprint) (site temporarily unavailable) (last visited July 3, 2003). 71 Crook, (URL removed for reprint) (July 24, 2003). 72 CDB, State of Georgia - Feb. 2, 1999, at (URL removed for reprint) (last visited July 3, last visited 2003). 73 Jean Hofve, Cosmetic Surgery for Dogs and Cats: Tail Docking, Ear Cropping, Debarking,Declawing, (In Defense of Animals), at (URL removed for reprint) (last visited July 3, 2003). 74 758 N.Y.S.2d 276 (2003) 75 To this end, the court stated, "Dog tail length . . . is not a consideration protected by state or federal anti-discrimination law." 76 Id. (Emphasis added.) 77 777 N.E.2d 46 (2002) 78 Id, at 47. 79 IC 35-46-3-12 Beating vertebrate animal Sec. 12. (a) This section does not apply to a person who euthanizes an injured, a sick, a homeless, or an unwanted domestic animal if: (1) the person is employed by a humane society, an animal control agency, or a governmental entity operating an animal shelter or other animal impounding facility; and

(2) the person euthanizes the domestic animal in accordance with guidelines adopted by the humane society, animal control agency, or governmental entity operating the animal shelter or other animal impounding facility. (b) A person who knowingly or intentionally beats a vertebrate animal commits cruelty to an animal, a Class A misdemeanor. However, the offense is a Class D felony if: (1) the person has a previous, unrelated conviction under this section; or (2) the person knowingly or intentionally tortures or mutilates a vertebrate animal. (c) It is a defense to a prosecution under this section that the accused person: (1) reasonably believes the conduct was necessary to: (A) prevent injury to the accused person or another person; (B) protect the property of the accused person from destruction or substantial damage; or (C) prevent a seriously injured vertebrate animal from prolonged suffering; or (2) engaged in a reasonable and recognized act of training, handling, or disciplining the vertebrate animal. 80 The court relied on definitions provided in Webster's Third New International Dictionary Unabridged (1967) and stated, "[t]he dictionary meaning of the word 'torture' is to cause intense suffering [or] subject to severe pain" and " 'mutilate' means to 'cut off or permanently destroy . . . an essential part of the body' and 'to cut up or alter radically so as to make imperfect.'" 81 Elisea, 777 N.E.2d at 49 . 82 IC 15-5-1.1-34 Offenses; veterinarian Sec. 34. A person who knowingly: (1) practices veterinary medicine in this state without a license or special permit to practice veterinary medicine issued by the board. The definition of "practicing veterinary medicine" is in IC 15-5-1.1-2 which states, in part, as follows: Practice of veterinary medicine" means: (1) representing oneself as engaged in the practice of veterinary medicine, veterinary surgery, or veterinary dentistry in any of its branches or using words, letters, or titles in a connection or under circumstances that may induce

another person to believe that the person using them is engaged in the practice of veterinary medicine, veterinary surgery, or veterinary dentistry; (2) accepting remuneration for doing any of the things described in subdivisions (3) through (6); (3) diagnosing a specific disease or injury, or identifying and describing a disease process of animals, or performing any procedure for the diagnosis of pregnancy, sterility, or infertility upon animals; (4) prescribing a drug, medicine, appliance or application, or treatment of whatever nature for the prevention, cure, or relief of bodily injury or disease of animals; (5) performing a surgical or dental operation upon an animal; or (6) administering a drug, medicine, appliance, application, or treatment of whatever nature for the prevention, cure, or relief of a wound, fracture, or bodily injury or disease of animals, except where such drug, medicine, appliance, application, or treatment is administered at the direction and under the direct supervision of a veterinarian licensed under this chapter. In addition to the actual ear cropping, the court also refers to Elisea's administration of Bactine and Vaseline, and statements concerning keeping the dogs in the cold as further evidence of his practicing veterinary medicine without a license.

Chapter 21 Veal crate bans

Introduction to veal crate bans Michigan Rhode Island Colorado The case against the veal crate Introduction to veal crate bans Veal is the byproduct of the dairy industry. When a male dairy calf is born, the dairy industry has no use for the animal. The animal cannot give milk when they reach maturity. They can't give birth to a milk giving cow. Rather than euthanize the animal at birth, factory farmers have historically placed these young animals into crates so small that the animals can't to move. After 4 to 20 weeks the animals are slaughtered. Because the animals can't move, they are easy to manage, gain weight quickly, and have tender flesh. After public outcry, many jurisdictions are banning these veal production methods. In Michigan, a factory farmer can confide or tether a calf for most of

the day. In Colorado, factory farms must give the animals enough space to turn around and lie down. The EU has banned veal crates. In "The case against the veal crate" Carol McKenna describes the EU veal crate ban. McKenna also lays out cruel veal crates are. As one example, the article describes how the animals become distressed when their limbs are not able to develop while kept in a veal crate. 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 § 4-1.1-3. Unlawful confinement. Notwithstanding any other provision of law, a person is guilty of unlawful confinement of a sow or calf if the person is a farm owner or operator who knowingly tethers or confines any sow or calf in a manner that prevents such animal from turning around freely, lying down, standing up, or fully extending the animal's limbs. History of Section. (P.L. 2012, ch. 275, § 1; P.L. 2012, ch. 285, § 1.) COLORADO REVISED STATUTES C.R.S. 35-50.5-102

Current through all Laws passed during the 2018 Legislative Session Colorado Revised Statutes TITLE 35. AGRICULTURELIVESTOCKARTICLE 50.5. CONFINEMENT OF CALVES RAISED FOR VEAL AND PREGNANT SOWS 35-50.5-102. Confinement of calves raised for veal and pregnant sows exceptions - penalty (1) No person shall confine a calf raised for veal or gestating sow in any manner other than the following: (a) A calf raised for veal shall be kept in a manner that allows the calf to stand up, lie down, and turn around without touching the sides of its enclosure. (b) A gestating sow shall be kept in a manner that allows the sow to stand up, lie down, and turn around without touching the sides of its enclosure until no earlier than twelve days prior to the expected date of farrowing. At that time, a gestating sow may be kept in a farrowing unit. (2) This section shall not apply during the following: (a) Periods of scientific or agricultural research; (b) Examination, testing, or individual veterinary treatment; (c) Transportation; (d) Exhibitions at rodeos, fairs, or youth programs; or (e) Slaughter pursuant to article 33 of this title and rules adopted pursuant to article 33 of this title. (3) A person who violates any provision of this section commits a class 2 misdemeanor and shall be punished as provided in section 18-1.3-501, C.R.S. History Source: L. 2008: Entire article added, p. 862, § 2, effective May 14. The Case Against the Veal Crate Carol McKenna An examination of the scientific evidence that led to the banning of the veal crate system in the EU and of the alternative group housed systems that are better for calves, farmers and consumers. Carol McKenna, Compassion in World Farming, April 2001

Acknowledgements The author wishes to thank everyone who helped with the researching of this report, in particular those working in the group housed veal industry who spared time to respond to questions and who invited me to their farms. Grateful thanks especially to Professor John Webster and Compassion in World Farming’s Campaign Directors in Holland, Italy and France, Geert Laugs, Adolfo Sansolini and Ghislain Zuccolo, The 1995 Report on Calf Welfare of the European Commission’s Scientific Veterinary Committee was an invaluable source of information. Thanks to Lekker Dier for use of their photograph of a Dutch calf in a veal crate (see front cover). Carol McKenna is an animal welfare and campaigns consultant who has worked for several UK based animal protection organisations. She worked on the UK veal crate ban with CIWF (1985 - 1989) and on the EU veal crate ban campaign with the World Society for the Protection of Animals (1995-1996). She has visited veal farms using both crates and group housing in the UK, Netherlands and Italy. One of her most vivid campaign memories is being told by a UK Ministry of Agriculture, Fisheries and Food official that veal crates would not be banned in the UK until it could be scientifically proven “that four-legged animals need to walk”. Conversion notes – imperial equivalents to metric measurements are given. Values used are 1cm/0.39 inch; m/3.28 feet; square metre/1.2 square yards; kilogram/2.2 lb; tonne/1.1 ton. For further information contact: Compassion in World Farming Charles House 5a Charles Street Petersfield Hampshire GU32 3EH United Kingdom Tel: +44 (0) 1730 264208 Fax: +44 (0) 1730 260791 e-mail: [email protected] Website: (URL removed for reprint) CONTENTS ACKNOWLEDGEMENTS PHOTOGRAPHS: VEAL CRATE AND GROUP-HOUSED SYSTEMS INTRODUCTION SECTION ONE THE EU VEAL INDUSTRY Production Consumption THE WELFARE OF CRATED CALVES The needs of calves

RECENT RESEARCH INTO THE WELFARE OF CALVES REARED FOR VEAL Space Diet Social Interaction Comparisons of the welfare of group-housed and individually housed calves SECTION TWO ALTERNATIVES TO THE VEAL CRATE Group-housed veal production in the UK Group – housed veal production in the Netherlands Group–housed veal production in Italy Group–housed veal production in France AN ECONOMIC PERSPECTIVE CONCLUSION RECOMMENDATION APPENDIX 1 - LEGISLATION APPENDIX 11 – WELFARE STANDARDS REFERENCES Photographs: veal crate and group-housed systems Introduction At first glance the Allevamenti Due V agricultural company’s farm in the flatlands of Mantua, northern Italy, is completely unremarkable: a simple farmhouse and two large sheds filled with calves, surrounded by maize fields and cypresses. But this farm is one of a new breed across Europe in which improved animal welfare is benefiting calves, farmers and consumers alike. The1,800 calves are penned in groups (group-housed) in which they are free to move around. They can interact with each other, stand up and lie down normally, eat solid food from a trough and drink milk replacer twice daily. This may not seem in any way extraordinary or even noteworthy, except for one thing: these are calves being reared for veal, traditionally denied the freedom of performing such basic behaviours. Veal is the name of the light-coloured meat from young calves, produced since ancient times by using surplus cow’s milk to rear a fattened calf for special occasions. Within the European Union veal consumption has traditionally been most popular in France and Italy. The Italians have been

fond of veal ever since Roman times and it is the basis of most of their meat dishes.i During the pre-war period the taste of veal was reportedly made even better for the French palate by feeding raw eggs to the calves.ii In her epic ‘History of Food’ published in 1987, Toussaint-Samat commented: “It is hard to imagine such a state of affairs now, when calves are hobbled (and) battery reared”.iii For in the last 50 years the production of veal has become one of the most intensive of agricultural systems and its calves among factory farming’s most pitiful victims. Intensive rearing of calves for veal developed in the 1950s to handle surpluses of male calves and skimmed milk from the dairy industry.iv Calves began to be confined individually in rows inside farm buildings and fed on an all-liquid diet of milk replacer, severely restricted in iron to ensure white meat and denied the solid feed necessary for normal development. Today this is how most calves reared for veal in Europe and the USA are forced to spend their brief lives This system is commonly described as the veal crate system and the veal crate is a term that has come to be used to describe the two types of individual confinement systems in use for calves being reared for veal. Firstly, partial stalls (open at the rear) in which the calf is tethered by the neck to the front of the stall and secondly, enclosed boxes, sometimes called pens, in which the calf is confined but not tethered. However, some producers may tether calves in these for the first few weeks in order to prevent them turning around.v After about two weeks they would have difficulty doing so because of their size. The crates are traditionally made of wood with a slatted floor. The sides may be solid so that the calf cannot normally see or touch its fellows (common in the USA and Francevi) or they may be barred, permitting visual and some tactile contact. The calves are fed from buckets attached to the front of the crates. John Webster, Professor of Animal Husbandry, Head of the Veterinary School at the University of Bristol and one of the UK’s leading experts on dairy cattle has described the veal crate system as “one of the most bizarre and, in my opinion, unequivocally cruel forms of livestock production”.vii To this day, most calves reared for veal in the EU are still confined individually in crates so narrow that after a few weeks they are unable to turn around and groom themselves properly, adopt a normal sleeping position or

even stand up and lie down without difficulty. But veal crates, long condemned by veterinarians, animal behaviourists and overwhelming numbers of consumers, are now being abolished in the EU. Since 1998 EU welfare legislation has made it illegal to build or rebuild a veal crate unit and has required farmers to provide calves with a diet “adapted to their age, weight and behavioural and physiological needs, to promote good health and welfare”.viii They therefore receive a minimum daily ration of fibrous food containing a certain amount of iron. ix. This legislation, the 1997 Directive laying down minimum standards for the protection of calves, will ban the use of all veal crates from 31 December 2006.x The adoption of this legislation by the EU represented a major victory for animal welfare campaigners against the huge and powerful veal industry: in l997 alone the three main veal producing countries – France, Italy and the Netherlands produced nearly 700,000 tonnes of veal between them. Legislation to achieve a ban on the veal crate was achieved only after lengthy and concentrated campaigning. In the UK the Brambell Committee established by the Government to consider animal welfare in the new factory farming systems, condemned the methods of rearing calves in the ‘white veal industry’ as early as 1965. After hearing expert evidence it called for calves to be given a diet containing iron and roughage, to be reared in individual pens of sufficient size to allow freedom of movement, including space to turn around, with sufficient clean straw or other bedding on which to lie down.xiii Nevertheless it was not until 1987 that the UK Government introduced legislation to prohibit the veal crate system: that legislation came into force in 1990. Within the EU, the European Commission (EC) first proposed the phasing out of veal crates in 1989. This followed earlier calls from the European Parliament and its Agriculture Committee for a ban. A Directive adopted in 1991 laying down minimum standards for the protection of calves was widely criticised for failing to introduce a ban, although it did set a minimum width for individual crates of 90 cm (35.1 inches) (plus or minus 10 per cent) or 0.80 times the height at the withers, thereby stimulating a move to keeping calves in groups on economic grounds as the increased fixed cost to the crated calf producer made group housing more competitive.

Fortunately, for the progress of animal welfare standards in the EU, this Directive also made provision for amendments on the basis of a report from the European Commission’s Scientific Veterinary Committee (SVC) on “the intensive farming systems which comply with the requirements of well-being of calves” and stated that this should be submitted to the Council of Agriculture Ministers no later than 1 October 1997. In 1995, the Council of Agriculture Ministers bowed to public and political pressure, spearheaded by a coalition of leading European animal protection groups, and agreed to bring forward the SVC report. The report was published later that year, and, comprising a review of some 40 years of scientific evidence, was the final nail in the coffin of the veal crate in the EU. It led directly to the introduction of the 1997 Directive, which prohibits the use of veal crates from 2006. The campaign against veal crates was based on the view that farm animals should not be treated as ‘resources’, ‘commodities’ or ‘things here for our use’ but as sentient beings with their own dignity and intrinsic value and a right to respect and moral solicitude. The campaign’s most basic premise was that a farm animal should at least have ‘pleasure in life while it lives and then be humanely slaughtered”. xiv Consumers shared these views and substantial reductions in veal consumption occurred. In 1987, Donald Broom, Professor of Animal Welfare at Cambridge University, commented, “Many people will not eat white veal because they do not like the production system and it is likely that the numbers of people with this attitude will increase”.xv The feelings and welfare of animals are now recognised by the EU, where attitudes have changed significantly since 1957 when the founding Treaty of Rome classified animals as goods or ‘agricultural products’. In 1997, all the EU Member States agreed to include in the Treaty of Amsterdam a legally binding Protocol aimed at ensuring improved protection of animals and respect for the welfare of animals as sentient beings. The Protocol requires the EU, in formulating and implementing its policies on agriculture, transport and research to "pay full regard to the welfare requirements of animals". The Protocol was achieved because of the immense support given to animal welfare issues by the EU public. Indeed, the European Commissioner for Health and Consumer Protection commented in a recent press release that he received more correspondence on animal welfare than on any other single issue.xvi

Farm animal welfare legislation in the EU is based on the 1976 European Convention for the Protection of Animals Kept for Farming Purposes, which aims to ensure that animals are cared for in a manner that meets their natural biological and behavioural needs on the basis of “established experience and scientific knowledge”.xvii The campaign to ban the veal crate achieved success only when it received the backing of science and demonstrated that veal could be produced both humanely and economically in group-housing systems. Operators like Allevamenti Due V are already proving that group housing is commercially successful. This Italian company produces 65,000 calves for veal a year at 51 farms. Half of these calves are now group-housed and the company is changing over to group-housing as quickly as possible. Managing Director Gian Luca Vercelli stresses that the new EU veal farming legislation did not prompt their abandonment of the veal crate system. “What veal producers want to do is to produce meat with the necessary kinds of characteristics at minimum cost. The group system, managed in the right way, gives a better result technically and therefore economically. We are adopting this system because we can produce meat at a lower price, because it is better for the farmer and we have better results”.xviii In Brabant in Holland, Toon and Rene Peters, father and son contract farmers for Navobi, one of the two leading veal companies in Holland, have just invested around half a million Dutch guilders (c. $202 000) in a new building for 462 calves kept in penned groups of seven with a space allowance exceeding the requirements of the EU Directive. They used to keep calves only in veal crates. Today, the only regret of both father and son is that they did not convert to group- housing ten or twenty years ago. The growth of group housed veal production in Holland has been dramatic. Today about 60 per cent of all veal producing farms use group housed systemsxix compared to 22.9 per cent of Dutch calves being group housed in 1995 and just 4.7 per cent in 1985.xx Martin Kelders, Navobi District Manager for the southern Netherlands reports “group-housed calves give better results than crated calves”.xxi This report is aimed at assisting debate in countries that continue to permit the individual confinement of calves for veal production. Section One introduces the EU veal industry, examines the scientific basis for the EU ban on veal crates and includes comparison of the health and welfare of

crated calves with that of group housed calves. Section Two reports on more humane alternatives to the veal crate in use in the EU and refers to the practical experience of European farmers. Section One The EU Veal Industry Production France is the EU’s main veal producer despite a decrease in production of 16 per cent between 1990 and 1999. It produced 242 800 (267 080 tons) equivalent carcass weight in 2000, compared to 204 000 tonnes (224 400 tons) in Holland and 153 200 in Italy (168 520 tons).xxii Table 1 shows the developments in veal production for these countries in the years preceding the adoption of the 1997 EU Directive prohibiting veal crates. French and Italian production had been declining and Dutch production had been increasing. In 1999, while 35 000 fewer calves were slaughtered in France than the previous year, for the first time since 1990 the tonnage of veal meat produced increased (by 1.2 per cent) because of an increase in slaughter weight of an average of 4kg (8.8lb) per head.xxiii In 1999, the two other main producers also increased their tonnage production: Italy by 1.4 per cent and the Netherlands by 6 per cent.xxiv However, in the Netherlands in 2000 slaughter weights decreased by 4.8 per cent, a development probably related to eligibility for a slaughter premium for which the maximum weight is 160 kg.xxv The average EU carcass weight is now 133.5 kg (293.7lb) compared to 135 kg (297lb) in 1999. For France it is 127.6 kg (280.72lb).xxvi Consumption Most veal in the EU is consumed in France, Italy and Germany where the figures per annum are respectively 5kg (11lb), 3.95kg (8.69lb) and 1.15k (2.53lb) per head.xxvii In some countries including the United Kingdom and the Netherlands, veal is not at all popular and is used mainly in the hotel and restaurant trade. The Netherlands, the second largest veal producer, exports 95 per cent of its production and Dutch veal represents 45.6 cent of German consumption, 32.6 per cent of Italian consumption and 16.6 per cent of French consumption.xxviii In France veal is mainly purchased for home consumption. In fact French household consumption represents around 75 per cent of total veal consumption.xxix Surveys of veal consumption show that there have been substantial reductions in several EU member states since the mid-1980s: between 1988 and 1994 French consumption fell by 25 per cent to a then all-time low of 5.1 (11.22lb) kg per head.xxx

Veal is expensive compared with other meat. For example, in France the price of veal increased continuously between 1980 and 1985 and by 1.5 per cent between 1998 and 1999.xxxi The increases in veal meat prices have tended to be greater than increases for other meat products.xxxii 1999 prices for a kilogram (2.2lb) of veal meat purchased for household consumption in France average 75.1 francs (c. $10.10), in Italy 18 390 lire (c. $8.43) and in Germany 21.6DM (c. $9.80).xxxiii The average European cost of veal increased by 0.8 percent in 2000 and was 4.71 euro/kg net (c.$10.83/2/2lb net).xxxiv In the face of falling consumption the French meat industry has been trying to reduce production costs and improve the image of meat products.xxxv This has proved difficult for veal because along with a relatively high price it has a negative image with consumers who consider that its production system is too industrial.xxxvi There is no doubt that the public’s negative perception of the veal industry helped the campaign to ban veal crates in the EU and that the public outcry, inspired by awareness campaigns aimed at highlighting the conditions in which veal was produced, was no doubt partly responsible for the general decline in veal consumption. In the UK it took little time for veal to become ‘a dirty word’. “Few foods have raised as many hackles as veal” wrote one journalist recently, adding “even those who don’t in principle mind eating doe-eyed baby animals might balk at tucking into one that has spent its short life in a crate, deprived of light, bedding and all food but milk, unable to move or lie down properly”.xxxvii Highlighting a decision to give a £150 000 (c. $212 745) marketing grant to a new scheme to produce welfare veal, the UK Ministry of Agriculture Fisheries and Food (MAFF) contrasted the planned animal friendly production methods “with the intensive farming methods that have put many consumers off buying veal on ethical grounds”.xxxviii In the Netherlands group housing of calves for veal started about fifteen years ago when the largest supermarket, Albert Heijn, decided that it would not sell veal from animals kept in crates.xxxix This step resulted in the establishing of welfare standard for group-housed veal production.xl Publicity about the availability of ‘welfare veal’ has also led to sales increases. In 1995 Safeway’s, one of the top four UK supermarkets, reported that following publicity on the cruelty of veal crates and the availability of high welfare British veal in their

stores “sales of veal increased by 30 per cent”.xli In the UK, Marks and Spencer reports that although veal is very much a niche product, demand has increased. “This is attributable to an increased interest in Italian food but also because of the improved welfare standard for calves reared for veal”.xlii In Denmark annual consumption of veal increased to 2kg (4.4lb) per head from a low of 0.5kg (1.1lb) following development of light red veal from group-housed calves fed with milk and roughage.xliii Moreover, a 1995 Gallup public opinion poll revealed that 64 per cent of French and 45 per cent of Italians were prepared to pay 10 to 15 percent more for humanely produced veal.xliv For many consumers, the veal crate ban may be said to have improved the veal industry’s image. 1999 and 2000 saw EU veal consumption per habitant at a stable 2kg per annum.xlvii This information may be of particular relevance to the USA where some 800 000 calves are reared for veal each year. Most are tethered by the neck in individual stalls, usually 61 – 66 cm (23.79 - 25.71 inches) wide and 1.6 - 1.8m (5′2 - 5′85 feet) in length.xlviii Numerous scientific investigations have established that stalls of this size severely restrict limb movements; make it difficult for calves to stand up and lie down and do not give them enough room to adopt a normal lying posture let alone turn around.xlix A US study of the effects on calf growth performance of rearing calves in crates with widths of 56, 66 and 76cm (21.84, 25.75 and 29.64 inches) by Terosky and others (1997) found little difference between these three crate widths but concluded: “Neither increased costs nor lack of negative production or physiological data may be adequate justification for how veal calves are housed”. l The authors suggested: “The long-term consequences of negative public perception associated with an existing production system could encourage an industry to change to an alternative system, perhaps ensuring that the questions of animal treatment, including space and freedom of movement, receive appropriate ethical treatment”. Table 1 Total carcass production of calves reared for veal slaughtered in France, Italy and the Netherlands (Table removed for digital reprinting) Germany109108102 Source: Report of the EU Scientific Veterinary Committee, 1995. The Welfare of Crated Calves As has been mentioned the Scientific Veterinary Committee (SVC) of the European Commission examined

the welfare of calves specifically “on the intensive farming system(s) which comply with the requirements of the well-being of calves from the pathological, zootechnical, physiological and behavioural point of view, as well as the socioeconomic implications of different systems, together with proposals relevant to the report’s conclusions”. An expert working group was established by the SVC under the chairmanship of Donald Broom, Professor of Animal Welfare at Cambridge University.li The following section reports on the SVC’s review of the scientific evidence and gives a summary of the committee’s conclusions. The needs of calves The European Convention for the Protection of Animals Kept for Farming Purposes requires farm animals to be reared in conditions that meet their “physiological and ethological needs in accordance with established experience and scientific knowledge”. According to the SVC “the criterion for acceptability of management systems should not be survival and growth but the satisfaction of needs and hence good welfare”. A need was defined as “a requirement, which is a consequence of the biology of the animal, so to obtain a particular resource or respond to a particular environmental or bodily stimulus” that is determined by the basic biology of the animal. Consideration of the biology of calves by the SVC identified the following basic needs: A nutritionally balanced digestible diet Rest and sleep Exercise and exploration Avoidance of disease and parasitism Social interaction with other calves Examination of the scientific evidence reviewed by the SVC reveals that calves reared for veal in crates on an all-liquid diet are unable to fulfil these needs. As a result they develop high levels of stereotyped and abnormal behaviours such as tongue rolling and tongue playing that “are not shown by calves able to cope well with their environment”.lii A nutritionally balanced digestible diet There are three main problems concerning the diet of calves reared for veal in conventional systems: (1) feeding milk in a bucket, (2) the lack of solid food and (3) the low levels of iron in the diet. A calf is biologically adapted to ingest colostrum initially, then milk and finally pasture plants. Colostrum is the cow’s first milk and contains maternal antibodies to protect the young calf against the common infections that it is likely to encounter

during its early life. The gut is adapted to absorb large immunoglobin molecules from colostrum only for a short period after birth and this is why a calf instinctively searches for and attempts to suck from a teat soon after birth. This need to suck and search for colostrum and then milk results in the wellknown desire of calves to suck objects in their reach, especially if they are teatlike. Moreover, this desire is so strong, the calf persists in such behaviour even when its gut is filled with milk. The SVC Report stresses: “The licking and sucking behaviour itself is of importance to the calf.” Rearing calves in deprived conditions without a teat leads to the development of abnormal oral behaviour that may be stereotyped and to the conclusion that the availability of artificial teats is likely to be of importance for the calf’s welfare.liii Abnormal behaviours include “exaggerated sucking of teat-shaped objects, such as a non-nutritive teat”liv or, in the case of group-housed calves milk-fed by bucket, of parts of other calves.lv Numerous research studies from as early as 1954 showed that feeding with an artificial teat feeding greatly reduces the incidence of navel sucking among group-housed calves.lvi Cattle are ruminants with a fourchambered stomach digestive system adapted to digest fibrous grasses. At the age of two to three weeks a calf would normally begin to eat pasture plants or similar food that stimulates the development of tiny finger-like protuberances called papillae that project all over the inside of the rumen (or first stomach). Plant food is stored in the rumen for fermentation, a process necessary to release nutrients. After fermentation, the food is returned to the mouth for chewing before being passed to the next stomach for digestion. At four months of age, a calf can spend 6 hours a day grazing and also several hours ruminating or chewing the cud. Most calves reared in veal crate systems are denied access to any solid feed and are fed a liquid milk replacer – a mixture of milk, tallow and vegetable fats and other types of proteins from cereal, vegetable or fish sources. Professor John Webster states this “completely distorts the normal development of the rumen” and predisposes the calf “to infectious enteritis” (scouring or diarrhoea) and “chronic indigestion”. lvii Calves whose rumen does not develop normally are more likely to be found to have hairballs in the rumen at slaughter. One reason given by the SVC for this is that hair that is ingested is not passed on down the gut but remains in the

rumen. A further reason may be that calves denied solid food show more preference for self-licking and hair ingestion. The accumulation of hairballs in the rumen can impair digestion.lviii Indigestion and enteritis may also be caused by forcing calves to drink twice-daily large quantities of milk from a bucket. A calf suckling from it mother takes about 6-7 good milk feeds a day and drinks at a rate that is limited by the flow of milk through a teat. This ensures that the milk flows directly into the abomasum (fourth stomach) where it can be digested properly. Bucket-feeding and an all-liquid diet can lead to ruminal drinking in which milk flows back into the rumen from the abomasum (fourth stomach) leading to poor digestion, poor growth and severe economic losses.lix An all-liquid diet does not only affect the physical or physiological development of calves leading to indigestion and enteric disease but also denies them the opportunity to perform the normal behaviours of rumination and chewing.lx As a result they develop abnormal oral activities in an attempt to satisfy their need to ruminate. These are characterised by sucking, licking or biting inanimate objects, and by tongue rolling and tongue playing.lxiIn a study by van Putten and Elshof (1978) this ‘sham rumination’ occurred in individually housed milk fed calves for two hours a day.lxii Webster (1985) found that ‘purposeless oral activity’ occupied a mean of 15 per cent of the time in crated calves but only 2–3 per cent in grouphoused calves. Studies show that provision of straw to calves reduces the occurrence of these oral stereotyped behaviours.lxiii Professor Broom has commented, “There is no doubt that the tongue rolling etc. must be regarded as abnormal and an indicator that welfare is poor”.lxiv Traditionally veal producers have objected to providing solid feed for calves as it might increase iron intake and prevent the production of white meat. The SVC report, however, refers to research by Moser et al (1994), showing that while keeping calves on straw does not reduce the number of white-meat carcasses, hay does produce meat that is pinker in colour.lxv Another reason for producers denying solid feed cited by the SVC are indications of higher mortality rates for calves reared in groups on straw reported by Bertrand and Martineau (1995). The SVC dismissed these reports “as they do not permit a proper analysis of factors contributing to mortality (such as diet, housing design and provenance of calves) and nor do

they distinguish between diseases of dietary origin (such as diarrhoea) and other infections such as pneumonia”. The SVC considered the association of keeping calves on straw with an increased incidence of small ulcerations and erosions of the abomasum (fourth stomach) commenting that it would be logical to assume that straw alone may be “an unsuitable solid feed for young calves, since the digestibility of the fibre is so low and it contains insufficient degradable protein to stimulate a satisfactory microbial population in the rumen”. The Committee highlighted successful studies in which calves were fed computer-controlled amounts of liquid feed plus a concentrate ration balanced for starch, fibre and degradable protein.lxvi It concluded “controlled feeding of small amounts of roughage and concentrate properly balanced to stimulate normal fermentation and rumen development is likely not only to meet the need of the calf to ruminate but also reduce the risk of digestive diseases such as infectious diarrhoea”. Over 60 per cent of calves reared for veal slaughtered at 3 – 4 months of age show lesions, small ulcerations and erosions, of the abomasum.lxvii Professor Webster points out that these are common in all calves but pass unnoticed unless the animals are slaughtered. He says “although not unique to calves being reared for veal they are probably worse than in conventionally reared animals probably as a function of the quantity of milk consumed at a single meal and worse still in those that are given straw as their only solid food since this is poorly fermented in the rumen and passes into the abomasum where it causes mechanical irritation.”lxviii The other dietary factor influencing both the health and welfare of calves reared for veal is that they are kept in an anaemic state to produce white meat. Their dietary intake of iron is restricted to achieve a target mean haemoglobin concentration of around 4.6 millimoles/litre (mmol/l). The SVC describes such calves as “undoubtedly iron deficient”. A normal concentration of haemoglobin in the blood is greater than 7mmol/l. Research by Morrisse et al (1995) cited by the SVC reported that at a haemoglobin level of 4.5 to 5 mmol/l, 95 per cent of veal calf carcasses are still graded 1 or 2; that is to say, they were white enough for the premium price.lxix Research by Gygax et al (1993) found that calves with blood haemoglobin concentrations of below 4.5mmol/l show clear signs of increased disease

susceptibility and immunosuppression.lxx Studies by Piquet et al (1993) of exercise in even slightly anaemic calves show they can have problems and cope less well.lxxiThe traditional all- liquid, low iron diet fed to calves being reared for veal is clearly inadequate. The SVC described the extent of abnormal behaviour in calves fed only milk as “very substantial” adding: “the welfare of calves older than 4 weeks fed only such a diet is not good”. Indeed, “calves fed on a milk diet with no solid feed would die before adulthood so it is clear that such a diet is not sufficient for healthy growth”. The SVC concluded: “Calves which lack specific nutrients, including iron, which are given a poorly balanced diet and which are not provided with adequate roughage in the diet after four weeks of age can have serious health problems, can show serious abnormalities of behaviour, and can have substantial abnormalities in gut development. Every calf should receive a properly balanced diet with adequate nutrients.” “Every calf should be fed fermentable material, appropriate in quality and sufficient in quantity to maintain the microbial flora of the gut and sufficient fibre to stimulate the development of villi in the rumen. Roughage, in which half of the fibre should be at least 10mm (0.4 inches) in length, should be fed to the calves. They should receive a minimum of 100g (4 oz) of roughage per day from 2 – 15 weeks of age, increasing to 250g (10oz) per day from 15 – 26 weeks of age but it would be better if these amounts were doubled.” “All calves should be fed in such a way that their blood haemoglobin level does not fall below a minimum of 4.5 mmol/litre.” Rest and sleep A young calf may spend up to 80 per cent of its time lying down. Ethological studies have been carried out into the lying postures of calves to assess the space they need in order to adopt normal resting and sleeping postures and stand up and lie down normally.lxxii These have found that calves use several resting and sleeping postures some of which involve stretching the legs or resting the head on the legs. The space needed depends on the position the calf adopts and the position the calf adopts is determined by the available space. Research by Smits and de Wilt (1991) found that in calves reared in pens about 1.65m (5.36 feet) long by 0.70m (27.3 inches) wide, the incidence of lying with legs extended and the head turned back on the shoulder or belly decreased rapidly as the calves grew and thus had less space to adopt this position.lxxiiiInability of calves to lie in this position may interfere with sleep.lxxiv Webster (1986) concluded that

calves in crates 75 cm (29.25 inches) wide cannot lie flat with their legs extended.lxxv Ketelaar-de-Lauewere and Smits (1991) concluded that in order to lie with legs outstretched, calves weighing 170 – 300kg need crates measuring 80 – 90 cm wide (31.2 – 35.1inches).lxxvi According to Webster et al (1986) denying calves the opportunity to adopt a normal sleeping posture is “a significant insult to welfare” and he and his fellow researchers, concluded that to overcome this crates would need to be at least 90cm (35.1 inches) wide. lxxvii Where lack of space prevents the adoption of a normal resting posture, calves respond differently dependent on the size of the crate. They may lie with all four legs bent; in a crate of adequate length but inadequate width, they will spend more time lying with the front legs extended and in a crate that is too short they will lie on their sternum with front legs bent. Ketelaar-de-Lauwere and Smits (1991) also found that calves in crates have needed more time to stand up or lie down and had difficulty in changing positions because of lack of space. lxxviii Calves may also wish to lie flat with their legs extended when they feel warm and wish to lose heat. A calf in a crate measuring less than 90cm (35.1 inches) in width cannot follow this process and will be forced to stand up in order to avoid overheating. Webster et al (1986) commented that well-grown calves reared for veal in temperatures above 20°C may feel uncomfortably hot and “denying them the opportunity to adopt a position designed to maximise heat loss only makes things worse”. The SVC concluded, “there is evidence of increasingly poor welfare as pen width decreases” and stated: “Every calf should be able to groom itself properly, turn around, stand up and lie down normally and lie with its legs stretched out if it wishes to do so.” “If the preferred system, grouphousing, is not possible then individual pens whose width is at least the height of the calf at the withers and whose length is at least the length of the calf from the tip of its nose when standing normally to the caudal edge of the tuber ischii or pin bone x 1.1 should be used.” This formula ensures that a calf can turn around. Exercise and Exploration Calves need to exercise in order to ensure normal bone and muscle development. lxxix At pasture calves not only walk but also run about, jump and play. lxxx Calves confined in veal crates cannot turn around let alone walk or run. Older calves confined in crates measuring “less

than 1.7m long by 80 cm wide (5.52 feet by 31.2 inches) are, said the SVC report “severely restricted in their ability to make normal limb movements”. The SVC experts commented, “If calves cannot move their limbs sufficiently they are likely to be severely distressed and their ability to carry out certain movements will be impaired”. When finally taken out of their crates to go for slaughter, calves may stumble or have difficulty walking. Research by Trunkfield et al (1991) found that some calves kept in individual pens until 6 months of age had difficulty walking when released from the pens to go to slaughter, and this fact is often reported in the industry. lxxxi Young animals need to avoid danger. They instinctively explore their surroundings and hide or try to escape if faced with a perceived danger. All calves show exploratory behavior lxxxii and many scientists believe that the frustration of normal exploratory and escape behaviours contributes to the high incidence of oral stereotypies, self-licking and hair ingestion in confined calves.lxxxiii Research by Webster and Saville (1981) found that calves kept in poorly lit buildings show excessive fearfulness of humanslxxxiv and found that such calves have higher levels of stereotypies that may be caused by their inability to explore. lxxxv Calves tied with tethers shorter than their body length can stand up and lie down only with difficulty. Turning around and walking are impossible. They are often unable to groom themselves, interact socially or explore. Research by Friend et al (1985) shows that the welfare of tethered calves is worse than that of untethered calves in crates.lxxxvi The SVC pointed out that calves can become tangled in their tethers and injured. Professor Webster describes tethering as “a profound insult to animal welfare”. lxxxvii The SVC concluded: “In order to provide an environment which is adequate for exercise, exploration and free social interaction, calves should be kept in groups.” “Tethering always causes problems for calves…Individually housed calves should not be tethered.” Avoidance of disease and parasitism Disease and parasitism result in poor welfare and animals have basic biological mechanisms that have evolved to reduce disease incidence. For calves these involve ingesting colostrum, grooming to keep the body clean and to help in heat regulation and foraging for food to satisfy nutritional deficiencies. The SVC stressed the importance of calves being able to groom their whole body and stated “inability to groom

[only] part of the body will cause problems”. There is evidence that calves make considerable efforts to groom themselves thoroughly and it is clear that they have a need to groom adequately.lxxxviii Studies of crated calves, however, show that they are unable to reach the hind part of their bodies lxxxix and that grooming behaviour may therefore become stereotypedxc. It may be that their inability to groom the hind part of the body increases the desire to groom the parts they can reach, leading to excessive grooming such as self-licking, resulting in much hair ingestion and the formation of hairballs in the rumen. xci The greatest threats to the health and welfare of the young calf are infections, which may cause septicaemia, enteritis (inflammation of the intestines leading to diarrhoea or scours) and pneumonia. The organisms responsible for these conditions are widespread and young calves, especially those that are moved through markets are practically certain to be disposed to some degree of infection. In such incidences veterinary treatment is important. It is often argued by producers opposing legislation to prohibit veal crates that disease incidence and mortality are much higher in group-housing systems. Yet, as reported in Section Two of this report ‘Alternatives to the Veal Crate’, far from encouraging sickness group housed systems actually reduce its incidence among calves reared for veal. European farmers report that group housed calves are far more resistant to disease. They say group housed calves grow better, suffer less illness, have fewer lung problems because they can move freely and recover more quickly from pneumonia than they do in crate systems. Their reports are borne out by savings in veterinary costs and independent scientific analysis. Not surprisingly, they also report that working with group housing systems is much more pleasant and rewarding. As will be reported, a three year project on a UK government research farm, involving 570 calves reared in 10 different batches in groups in straw yards, found that far from being prone to illness the calves proved remarkably robust, with mortalities at only 2.6 per cent, well below the 5 to 8 per cent that are the norm in most commercial veal units. Health problems were “minimal, with very little scouring [diarrhoea]”. The SVC examined a number of comparisons of veal crate and group housing systems. More diarrhoea was found in group pens by Perez et al. (1990) by Olsson et al (1993) and by Smits and Ham (1988).xcii However, Peters (1986)

reported more diarrhoea in crates.xciii Webster et al 1985b found no difference in the incidence of enteric disease between group-housed and individually housed early-weaned calves.xciv Waltner–Toews et al (1986c) found no difference between individual pens and group reared calves.xcv Webster et al 1985b, Waltner- Toews et al (1986c) and Smits and Ham (1988) found no difference in the incidence of respiratory disorders between the two systems. In 1986, the Department of Animal Husbandry of Bristol University published the results of a seven-year scientific study of production, health and welfare in calves reared for veal. xcvi One of the most effective alternatives to the veal crate proved to be ACCESS (A Computer-Controlled Eating Stall System) in which calves equipped with transponders, received controlled amounts of milk replacer or digestible dry food contributing respectively to 90 per cent and 10 per cent of nutrient intake. With this system, food conversion efficiencies were achieved comparable to those in crates (1.5 – 1.6 in both cases). Professor Webster commented, “Moreover, the health of the calves” compared to those kept in crates “was greatly improved by eliminating the worst abnormalities of feeding and housing”. xcvii 36 per cent of crated calves suffered from enteric disease compared to less than 8 per cent in the ACCESS system and 9 per cent of crated calves suffered respiratory disease compared to 3.2 per cent of calves reared in the ACCESS system. As will be seen from the following table the study found lower, in some cases dramatically lower, incidences of mortality, enteritis (diarrhoea), respiratory disease, digestive disorders and other diseases and losses in a group housed system with computer controlled feeding than in the traditional veal crate. Crated calves Computer Controlled feeding in groups Total calves at start Percentage incidence Deaths and culls 68 9.063 Nil Enteritis (diarrhoea and associated signs of ill-health). Respiratory disease 36 9.08.0 3.2 e.g. coughing, laboured breathing and fever) Digestive disorders other than diarrhoea Other disorders19 1.5Nil 13 Other disease and losses7524

Source: Department of Animal Husbandry of Bristol University, 1986 An extensive two-year study in the Netherlands reviewed by the SVC concluded that there was no difference in mortality between a group housed system and traditional veal crate system (2.9 per cent for the group-housing in both 1993 and 1994 and 2.8 per cent and 2.9 per cent for the individual system). Moreover, as will be reported in the next section European farmers report that the overwhelming majority of veal calf deaths occur in the first month on the farm and are independent of the system used. Recent scientific research and commercial experience in Italy, discussed in the next section of this report, shows that veterinary costs can be dramatically reduced in group housing systems. Indeed, research by Allavementi and the Instituto Zooprofilatticio di Brescia has found that the immunology profile of group-housed calves was twice that of those reared in crates and veterinary costs were 40 per cent lower. Professor Broom has also stated that, in general, calves kept in crates have to be given extra medication to ensure that they survive. xcviii The more productive the animal, the more metabolic heat it produces, so the greater its tolerance to cold but the greater its susceptibility to heat. Well-grown calves by virtue of their very high intakes from a high-fat liquid diet are extremely tolerant of cold but very sensitive to heat. Webster reports (1984) that in temperatures above 20°C in veal units, calves will sweat profusely and may wish to drink water, rather than milk replacer containing water, to avoid further heat production. xcix The all-liquid milk replacer diet of crated calves causes health problems. The SVC Report recommended the provision of solid feed to avoid the problems of indigestion and enteric disease associated with the failure to ensure some degree of normal rumen development. It should be recalled that Webster et al (1986) stated that the prevention of such normal development predisposes the calf “to infectious enteritis” (scouring or diarrhoea) and “chronic indigestion”. c Webster describes the incidence of enteritis and respiratory disease in crated calves as “unacceptably high” and kept under control “only by the liberal and repeated administration of antibiotics”.ci The SVC concluded: “Calves are vulnerable to respiratory and gastro-intestinal disease and welfare is poor in diseased animals. Better husbandry is needed to minimise disease in grouphousing conditions but that results which are as good as, or better than those

from individual housing can be obtained.” “Calves that are diseased and those which are in hot conditions need to drink water as well as milk or milk substitute and all calves drink water if it is available. The provision of milk or milk substitute is not an adequate alternative for the provision of water. Hence calves should be provided daily with water to drink. It is recommended that drinkers be provided in all pens.” Social interaction with other calves The need for social interaction is very obvious in bovine animals. A calf’s first instinct is to seek its mother. They soon form a strong bond. Le Neindre (1993) states that in natural conditions a cow would continue to suckle its calf 3 – 6 times a day for up to 5 months.cii Comparison of mothered and motherless calves reveals that mothered calves stand earlier, drink more colostrum and are more active.ciii Calves can survive without their mothers but their health and welfare are improved if they are offered some substitute in the form of companionship for the contact and care that their mothers would have provided. Research shows that when their mother is present calves group together after 1 – 2 weeks.civIn the absence of their mother, calves choose to associate with other calves from the age of 7 days onward and seem thereby to compensate for the mother’s absence by a higher level of interaction with their peers.cvi Le Neindre (1993) concludes that a calf confined in a veal crate “lacks social contacts and suckling opportunity and has a poor general environment”. cvii Crated calves will endeavour to make contact with other calves. However, many calves are confined in crates with solid walls that prevent visual or tactile contact with their neighbours. Various studies have compared the behaviour of calves kept in visual and tactile isolation to calves kept individually but allowed to see and touch their neighbours. cviii Isolated calves spent much time with the head out of the front of the pen and when their heads were inside the pen they spent more time licking and rubbing themselves and licking parts of the pen than did non- isolated calves or calves kept in pairs. Veissier and Le Neindre (1994) compared calves with different degrees of social contact in individual pens and concluded that solid partitions resulted in considerably more licking of walls. cix The SVC report concluded, “It is clear from this evidence that solid partitions between pens do not allow adequate social contact for calves”. Comparisons of the welfare of group-

housed and individually housed calves Examination of physiological and ethological scientific studies by the SVC showed that group housing on straw represents the least problems for calf welfare and individual housing with no social contact results in the most problems. Studies by Friend et al (1985) indicated that the combined effects of lack of straw and social contacts, as well as reduced stimulation and space, are a source of stress to crated calves.cx It is difficult to attribute the benefits of group housing to any one factor, for example increased space or the possibility of exploring, but the SVC experts noted “the very strong preferences demonstrated by calves for social contact make it likely that social interaction represents a very important part of the improved welfare”. Abnormal behaviour is often found in crated calves, is less common in small groups housed on slats and generally absent in groups kept on straw. The improvement in welfare seems to be partly because of opportunities for social interaction, partly to the greater space and partly to the provision of straw. Van Putten and Elshof (1978) found that the provision of straw reduced but did not eliminate excessive self-licking in crated calves. Webster et al (1985) reported that calves provided with straw in individual crates spent 15 per cent of their time in “grooming” and 14 per cent of their time in “purposeless oral activity” as compared with 6 per cent and 3 per cent respectively of their time in group housing. Studies have shown that tongue rolling was much more frequent in individually reared calves than in calves reared in groups. cxi The SVC concluded, “the factors of social contact, stimulation and space have a significant effect upon the incidence of stereotypical behaviour independently of the provision of straw. Chazal (1994) recorded a lower level of stereotypies for calves housed in individual pens with slatted floors when social contact was available. cxii Calves kept individually in large crates, ranging in size from 70cm by 1.5m (27.3 inches by 4.87 feet′) to 1.7m by 2.5m (5.52 by 8.12 feet), performed oral stereotypies for 20–30 per cent of the time cxiii, seeming to show, said the SVC that “lack of social contact or of other stimuli are the cause of the poor welfare rather than just the amount of space”. The SVC commented that the many scientific studies demonstrate that apart from the importance of providing straw, “the availability of full social contact, stimulation and space which group penning provides has a significant effect upon the calf’s welfare”.

The SVC Report concluded: “Calves need resources and stimuli which are normally provided by their mothers. All calves should be given adequate food and water, appropriate conditions of temperature and humidity, adequate opportunities to exercise, good lying conditions, appropriate stimuli for sucking during the first few weeks of life and social contact with other calves from one week of age onwards.” “Where calves cannot be kept with their mother, the system where welfare is best is in groups with a bedded area and an adequate space allowance available to them.” “Appropriate bedding, for example straw, is recommended.” “The welfare of calves is very poor when they are kept in small individual pens with insufficient room for comfortable lying, no direct social contact and no bedding or other material to manipulate.” Recent Research into the Welfare of Calves reared for veal The conclusions of the SVC report published in 1995 are supported by subsequent scientific studies. Space When comparing the effects on calves of veal crates measuring 56 (21.84 inches) 66 (25.74 inches) and 76 (29.64 inches) cm wide, Terosky et al (1997) found a general increase in knee and hock swelling as stall or pen width decreased. Calves housed in the 56 cm (21.84 inches) pens had difficulty in changing from a standing to a lying position and could not lie with one or more legs extended towards the end of the production cycle. The researchers commented, “This is in agreement with Le Neindre 1993 who concluded that calves housed in smaller size pens kept knees and hocks bent while lying. This posture might have contributed to the increased joint swelling in the smaller pens.”cxiv Wilson et al (1999) found increased cortisol levels over time in calves kept in the above- mentioned crates and concluded this showed “an increased degree of stress for calves” in the all the crates involved in the study. cxv Calves were observed performing stereotypic, repetitive behaviours of tongue playing, including tongue rolling, investigative activities including licking or smelling accessible objects (stall, chain, tether, bucket, bucket holder etc.) and chewing of these. Studies by Gottardo et al (1997) found that calves in individual creates less than 75 cm (29.25 inches) wide are forced to keep their legs bent, cannot adopt a comfortable position and are unable to groom themselves normally. cxvi Diet Terosky et al (1997) reported that calves fed an all-liquid diet and reared in

crates averaged 5.2 hairballs with 3.9 hairballs less than or equal to 5.1cm wide (1.98 inches, 1.3 hairballs between 5.1 and 10.2 cm wide (1.98 and 3.97 inches) and 0.05 hairballs wider than 10.2cm (3.97 inches). The authors noted, “Most cattle and calves fed solid feeds and ad libitum water do not accumulate hairballs, in contrast to calves reared for veal, which are fed only milk replacer and limited water”. cxvii Gottardo et al (1997) noted that calves denied solid food develop abnormal behaviours. cxviii Morrisse et al (1999) compared three groups of calves reared in crates 0.81 cm (31.59 inches) wide by 1.7 m (5.52 feet) long and tethered for the first five weeks. The animals were fed either an all-liquid diet or milk replacer diet supplemented by either a total of 10 kg (22lb) or 25 kg (55lb) of pellets during the fattening period. cxix 85 per cent of the calves fed the all-liquid diet had hairballs compared to 20 per cent of the calves that received 10 kg of pellets and 10 per cent of calves that received 25 kg of pellets. This accords with previous studies showing hairballs in 80 – 90 per cent of calves fed an all-liquid milk replacer. Cxx The authors said that the drastic reduction in the number of hairballs observed by giving solid feed could not be explained by a reduction of grooming activity, as levels were similar in all treatments. Calves given solid food showed normal rumen development and those given most showed improved daily weight gain by 9 per cent and carcass weight by 6.5 per cent. The provision of solid feed did not create any significant difference in the frequency of slight erosions to the abomasum of calves in the different groups. The authors concluded that supplying calves with straw-cereal pellets meets the SVC’s criticisms concerning physiological impairments observed in calves reared for veal fed an all-liquid diet. Veissier et al (1998) commented that “Tongue-rolling seemed to come from a cumulative effect of the lack of social contacts and of feeding activities, since it appeared mainly in calves housed in stalls and fed milk only”. Regarding the provision of solid food these researchers noted “calves that had access to solid foods gained more weight, owing not only to an increase in gut contents but also to heavier carcass weight” and that “the provision of appropriate concentrated food and then of chopped straw has no effect on abomasal ulcers or carcass quality while it largely reduces non-nutritive nibbling”.cxxi Social Interaction Veissier et al (1997) compared the behaviour of

64 calves in individual crates 90 cm by 2 m (35.1 inches by 6.5 feet). Half were given a tyre and piece of chain on which to nibble. Those kept in social isolation and deprived of objects on which to nibble exhibited more self-directed activities (lip-licking and tongue-rolling) and greater (fear) reactions than those permitted social contacts and objects for nibbling.cxxii Comparisons of the welfare of group-housed and individually housed calves Research by Andrighetto et al (1998) compared the effect on growth, behaviour and meat quality of calves reared for veal in individual tether stalls with group housing. cxxiii Both groups received an all-liquid diet. The individual stalls measured 60 cm (23.4 inches) wide as is traditional in Italy cxxiv and 1.4m (4.55 feet) long. The group housed calves were reared three to a pen with a space allowance of 1.5 sq m (1.8 sq yd) each (less than specified by the 1997 EU Directive). The study found that the increased space allowance and freedom of movement allowed by the group pen improved veal calf welfare as shown by both behavioural measurements and growth performance. The crated calves in the study spent more time lying with all legs bent. Those in groups more frequently adopted “comfortable resting postures” with one or more legs outstretched. The tethered calves were observed tongue rolling. Group pen calves touched each other with more frequency. Those tethered in crates tended to address their attention more to the surrounding environment or to themselves. The authors commented, “the move to group housing of calves should not in anyway penalise the growth performance of the animals. On the contrary the experimental investigations we carried out showed, in the final part of the production cycle, an increase in weight gain and of food conversion in calves reared in groups compared to calves reared in crates. These results demonstrate that the isolation of animals in crates, chained in too narrow a space, limits not only locomotory activity but also induces a status of physical and mental stress that makes the feed conversion and the rhythm of body development worse.”cxxv There were no differences in carcass weight and dressing percentage but the carcasses of the group pen calves had a better conformation. The group calves’ meat displayed reduced cooking losses and was considered more tender and tasty by an expert panel conducted according to the guidelines of the American Meat Science Association. The authors considered that the positive effect of the group pen housing on veal meat

tenderness arose from the movement allowed by this housing system and cited previous studies on pigs and sheep that showed similar results. The group-housed calves, however, showed a higher haemoglobin concentration than the crated calves resulting in ‘pink’ meat that the authors said did not meet consumer preference. They recommended further studies to reduce the negative effect of group housing on meat colour. As will be reported in the following section, commercial group-housed producers interviewed do not experience problems with meat colour. The conclusion of this study was that the results obtained “with the individual crates were not satisfactory from an ethological and productive point of view and supported their future substitution with group pens”. Section Two Alternatives to the Veal Crate The previous section has proven that rearing calves in veal crates and feeding them only a liquid milk replacer diet is a significant abuse of their welfare. The physiological and ethological needs of calves are not met by this farming system. The veal crate fails to meet all five freedoms: cxxvi, against which experts measure farm animal welfare:1.Freedom from hunger and thirst by ready access to fresh water and a diet to maintain full health and vigour The calves are deprived of solid food. This completely distorts gut development and encourages the formation of hairballs that may lead to chronic indigestion. The lack of dietary iron in the diet renders calves anaemic. 2.Freedom from discomfort by providing an appropriate environment including shelter and a comfortable resting position. The calves are enclosed in individual crates that make it impossible for the calf to turn around, let alone to get up and lie down normally. When over 150 kg (330lb) it is impossible for them to adopt normal resting and sleeping postures, nor groom themselves all over 3.Freedom from pain, injury and disease by prevention or rapid diagnosis and treatment. Research shows that the incidence of enteric and respiratory diseases is unacceptably high in calves kept in crates.cxxviii 4.Freedom to express normal behaviour by providing sufficient space and proper facilities and company of the animals own kind.

The calves are denied any exercise or direct social contact. 5.Freedom from fear and distress by ensuring conditions and treatment, which avoid mental suffering. Calves show abnormal behaviours and stereotypies not found in calves able to cope well with their environment e.g. tongue rolling. The wealth of scientific studies examined by the SVC and subsequent researchers confirm the need to replace the veal crate with more humane group housed systems. Donald Broom, Professor of Animal Welfare and Chairman of the SVC expert working group on the welfare of calves says: “It was scientific evidence that led to the Directive banning veal crates in the EU.”cxxix Politicians, even those from the main veal producing countries, could not hold out against the comprehensive scientific evidence of poor welfare in crates, the availability of commercially viable alternatives and the support of European consumers for a ban. The legislation adopted was based on the advice of the SVC and further details concerning the provisions of the Directive are given in Appendix 1. Group housing systems are criticised by producers in countries that have yet to prohibit veal crates. They imply that welfare-friendly group housed systems are inherently unhealthy and less successful commercially. This is untrue. As demonstrated in the previous section, established scientific experience shows overwhelmingly that results from group housing systems can be either the same or better than those obtained using crates. Commercial producers using group- housed systems are also finding this to be the case. Their experiences are reported below. Most of the group-housed systems currently in widespread, successful commercial use in the main EU producing countries involve rearing small groups of calves on slatted floors without bedding. Professor Broom describes such systems as “a lot better than crates” but adds “welfare is better still if straw is supplied both [for the calves] to manipulate and as bedding”.cxxx Straw-yard group-housed systems are in use in the UK where they have been promoted by animal welfare organisations (see Appendix II for details of the Freedom Food Standard of the Royal Society for the Prevention of Cruelty to Animals (RSPCA) and successive Governments as part of the campaign to achieve a EU-wide veal crate ban. UK legislation for group-housed veal production is stricter than in the EU and details appear in

Appendix 1. Group-housed veal production in the UK Recently much publicity has been given to a new group housing initiative, Veal Cymru, which has established a demonstration unit in Wales in a converted storage shed. Calves are reared in groups in pens that are mostly straw-bedded and fed at computerised feeding stations, around which there is a slatted area, on a fourtimes a day cycle. Each pen is fitted with a ball suspended from the roof, dummy teats and brushes against the wall where calves can groom themselves. Water is available at all times in drinking bowls.cxxxi Tony Clifton, the company’s Managing Director, a calf dealer and former exporter of live calves, describes the rearing system as “ keeping calves in a natural environment: they’re in a herd, in sub-groups of about 30 animals. They have 3 sq metres (3.6 sq. yards) of floor space each, straw- bedding and natural lighting and seem happy and contented”.cxxxii The aim is to rear the calves to a slaughter weight of around 300kg (660lb). There are currently two pilot study farms: the demonstration unit and a farm in East Sussex from which the first veal produced was exported to customers in Italy and Belgium in July 2000. Clifton describes the veal as ‘rosy pink’ in colour and reports that customers are very happy with it, “one Italian customer asked for more three days after receiving the first consignment”. Veal Cymru is in partnership with Serval SA, a French veal specialist company and Anglo-Dutch Meats in Kent. These companies aim to supply farmers with calves, milk, and technical back up and market the meat. The farmers supply buildings, labour, water, and electricity and lease the feeding stations and computer monitoring equipment from Serval. On-screen data about each calf’s feed intake, weight and growth is continually up-dated from ear tag microchips. Another initiative in the North of England has received a marketing grant from the UK Government’s Agriculture Development Scheme. Rose Veal UK Ltd involves three Cheshire farmers and is being backed by Meadowvale Foods, the food processing and marketing arm of Lloyds Animal Feeds group of companies and Dutch firm Vitelco which is providing expertise from its extensive background of marketing rose veal in Europe. So far 100 pubs and restaurants have used the veal and the response has been “excellent”.cxxxiii In 1995 a veal demonstration unit, funded by the UK Government was established at a Ministry of Agriculture, Fisheries and Food research farm.

The project aimed to find the best methods for producing high quality, welfare-friendly veal and also to show financial viability.cxxxiv A total of 570 calves were reared in 10 different batches during the three-year project. All were purchased at two weeks of age and loose-housed in groups of 11-12 in straw bedded pens. Each calf had a space allowance of 3.2 sq. m (3.84 sq yd), nearly double the minimum specified in EU legislation. Warm milk substitute was available to them on demand via an automatic feeder and fresh drinking water at all times. Average daily weight gains of 1.06kg (2.33lb), 1.08kg (2.37lb) and 1.13kg (2.48lb) were recorded for Hereford cross heifers, Continental cross heifers and Holstein/Friesian bulls respectively. The calves were slaughtered at 20, 22 and 26 weeks in years one, two and three respectively and feed conversion efficiencies were 1.94, 1.98 and 2.05 during these years. Net profit was closely linked to calf purchase and sale price and peaked with a net profit of £43/calf (c. $60.98) with Hereford cross heifers. Far from being prone to illness the calves proved remarkably robust, with mortalities at only 2.6 per cent, well below the 5 to 8 per cent that are the norm in most commercial veal units. Health problems were “minimal, with very little scouring [diarrhoea]”. With veal colour, the project aimed to provide the calves with enough iron for health but low enough to produce the salmon pink meat required by the UK veal market. To test this iron content of the finishing milk powder was varied and blood samples taken at different times. Additionally, the colour of the resulting veal was assessed. Of those samples tested, all met the acceptable colour standard. The results of the project show that quality veal can be produced humanely and also economically. They also show that far from being breeding grounds for illness as some traditional veal producers claim, wellmanaged group housing systems can be significantly healthier environments than veal crates. Dennis Chapple, a senior research consultant who oversaw the project says: “The system works extremely well. The profitability doesn’t depend on the system, though; it depends on buying a cheap calf and marketing it at the right price.” “If done properly group housed systems can be as good as veal crate systems for calves, if not better - if you’ve got a sick calf on a crated system the first thing you do is give it bedding”.cxxxv Group – housed veal production in the Netherlands Group housing is more widely used in the Netherlands than in France and Italy. The Dutch were amongst the first to

pioneer the system in the mid-1980s. Since then the growth of group systems has been rising steadily year-by-year. Today, about 60 per cent of Dutch veal farms are using group housing systems and Dutch farmers using group housing have their own industry standard, the “Producert” of which details are given in Appendix 11, which may be overseen on their behalf by the Deltacon company. Andre Wisselink, Managing Director of Deltacon and Producert explains that problems experienced when group housing was first used in the 1980s have been solved. The result, says Wisselink, is that Dutch farmers “are frantically changing to group housing - stable builders are very busy indeed.” The stables they are building - light, airy and comparatively spacious - are a far cry from the old dark, damp, claustrophobic veal crate units they are fast replacing. The economic success of these new farms and, to some extent, the welfare of the calves on them is encouraged by the contract farming system that is widespread in the EU. Most of Holland’s group housing farms are under contract to food companies, of which the Van Drie Group, of which Navobi is part, and Alpuro are among the biggest. The farmers provide the farm infrastructure, the companies supply them the calves and feed. The farmers are paid for each animal they rear to slaughter and also receive bonuses according to the classification, colour and fat percentage of the veal they produce and, importantly for the calves’ welfare, the health of their livestock. Group housing, says Wisselink, requires more management, knowledge and skill from a farmer, not least because he must give his stock more attention. “If he wants a good result it’s more work, but once he knows how to do it the results are better.” The benefits of group housing to the calves are self-evident. “When you walk into a [crated] system the calves are fearful and nervous,” says Wisselink. “In group housing they are relaxed, curious and not frightened at all.” Dutch group housed calves receive at least 1kg (2.2lb) of roughage per day, which he says enables them to develop a normal digestion system. This boosts their health yet has no effect on the colour of the veal. Some traditional veal producers, notably in the US, cling to their crates claiming the group system causes sickness, infection problems, is expensive to run and staff. “Those farmers here who have picked up the new system and are doing well with it would laugh at such notions,” says Wisselink. “The group housing

system means calves grow better and suffer less illness. The work is much more pleasant for the farmers and more rewarding.” A Navobi Farm The benefits are clear to Peters senior and junior, who farm 1,000 calves for veal for Navobi at Brabant in Holland. Their farm features two newly built group-housing sheds that are a far cry from the veal crate units he gave up using several years ago. One shed houses 462 calves in six rows of 11 groups, each containing seven penned animals. Each pen is 14.56 sq m (17.47 sq yd) giving each calf 2.06 sq m of space (2.47 sq yd). The floors are wooden slats. No bedding is supplied and neither, in general, is drinking water. The building has natural ventilation, controlled by a computer that opens and closes curtains according to temperature and wind direction. The calves are fed milk and maize twice daily. Peters believes in giving plenty of roughage: “It is good for growth and for animal welfare.” By the time they are slaughtered each of his calves will have eaten 300kg (660lb) of maize, twice the Dutch average. The iron content of the roughage and that of the calves’ blood is regularly monitored. Peters says that good management is crucial with group-housed systems, especially when it comes to the speed at which different calves drink milk. “You have to watch the animals better with this system, you need to look at the group and see which calf is last to come to the milk. You must chalk on the pen which one wasn’t drinking very quickly yesterday so you can check its progress today. “ But this system does not mean more work than the individual box system. Feeding is fast and the roughage is delivered with a small tractor. Another benefit is that because the calves can move freely their lungs work better, which causes fewer lung problems.” In particular, he says, group housed calves that suffer pneumonia - a problem generally in veal farming - recover more rapidly. “You are more a farmer with this system. It’s more about management. You have a better relationship with the animals and it is definitely better for them. It proves that if you treat the calf right then the calf will do right for you as well”.cxxxix The Peter’s FarmJ System Peter’s Farm

is one of the divisions of the

Alpuro Group. The system it uses is based on groups/herds averaging 60 calves and with a maximum of 80. “The animals are able to walk around freely in large areas with daylight and fresh air,” says the director of Peter’s Farm

, K.

Mulderij. “There are many objects for the calves to be able to distract themselves with in the living areas: skippy balls, tires on chains, empty jerry cans to knock about, or salt licks and pacifiers to suckle. They are also able to look outside”. The calves are fed at automatic feeding stations with milk supplement and multi-grain feed mix permitting calves to decide for themselves when and how much they wish to eat. The floors of the pens are entirely slatted. cxl The system was established in 1997 with a policy of openness. The Peter’s Farm

website at (URL removed for reprint) posts

photographs of a farm every ten minutes daily between 9.00 and 17.00Central European Time. On every veal product sold there is a product code whereby the consumer is able via the Internet to trace back to the farm where the veal was raised. Blind tasting of the veal organised by an independent organisationcxli found that veal from Peter’s Farmb “is more tender, has a higher degree of taste and is valued overall higher than regular veal”.cxlii Farmers using the system say there are satisfied to see the calves showing more natural behaviour than in individual or the conventional Dutch group-housing system: “We are even closer to the calves than in other systems,” says farmer J. Arts “You really get a better feel about their character and their behaviour. There is also more information available (from the computer monitoring) which allows you to optimise the system and to be able to offer a better living environment. We are much more flexible in our time management. The work is less labour intensive. All of these points make it a more positive experience for us”.cxliii The Dutch Society for the Prevention of Cruelty to Animals has stated that it is pleased with developments such as Peter’s Farm

and has scored the

system positively cxliv for: Provision of freedom of movement Social contact where large groups are brought together Possibilities for the calves to carry out self grooming behaviour Enabling calves to suckle in a natural position Providing distraction through toys and open doors for viewing outside Public transparency of the production system A research study comparing the behaviour and welfare of calves raised in the Peter’s Farm

with that of

calves reared in veal crates and conventional group systems (small groups in slatted floor pens) was carried out on 18 farms by the Faculty of Ethology of the

Agricultural University of Wageningen. The authors concluded that calves in Peter’s Farm

“are kept under conditions more beneficial to animal welfare

than the calves in individual housing and conventional group housing”. cxlv Group–housed veal production in Italy. On farms run by Allevamenti Due V newly arriving calves are divided into groups according to breed, size and age. They spend the first 20 days separated in the pens by rails through which they can see and touch each other. These barriers are then removed allowing the calves to move freely thereafter within the pen in groups of four, five or six with each calf having a space allowance of 1.8 sq m (2.16 sq yd). The sheds that house the pens have natural light and ventilation, with some having blue artificial night-lights. The calves receive two feeds of milk per day and two of maize silage roughage. The roughage allowance starts at 20g (0.8oz) per day, rises to 500g (20 oz) after 60 days and finally to 1.5- 1.75kg (3.3lb – 3.85lb) when they are older. Water is provided only in hot summer weather but the company is currently experimenting by giving some calves water for two to three hours a day. The group-housed calves are reared for longer, typically for 175 days compared to 155 days for crated calves. The difference in weight gain is negligible: 1.114kg (2.45lb) per day for the group calves compared to the 1.180kg (2.59lb) increase seen in those that are crated. Yet, crucially, the conversion of food to meat is significantly better in the group-housed calves: each puts on between 590-600gm 23.6oz – 24 oz) for every kilo (2.2lb) of food milk replacer eaten while a typical crated calf gains 550560gm (22oz – 22.4oz).cxlvi This results in the group housed calves attaining a live weight prior to slaughter of 10 to 13kg (22lb – 28.6lb) more on average than crated calves. The resulting veal is exactly the same colour as that produced from the crating system. But there is one distinct difference according to Allevamenti Due V managing director Gian Luca Vercelli: “Tests have shown that the group housed veal is more tender, which disproves the ideas of some in the industry that allowing calves to move makes their meat tough.” Proponents of veal crates often claim that group housing is more labour intensive. The Allevamenti farms disprove this. At the company’s Mantua farm only three staff are needed to tend 1,800 calves while at another farm in nearby Reggio Emilia four people maintain 1,250 group-housed calves. The company says that feeding group

housed calves is much quicker. Says Vercelli: “Working with a group system is more stimulating and better for the farmer. He has to work less with his hands and more with his brain.” The mortality rate in l999 was 3.9 per cent. Vercelli says: “Ninety per cent of all mortality is in the first month and is not dependent on which system is used. It has far more to do with the age of the calves when they arrive on the farm and whether they have received enough colostrum to strengthen their immune systems. The younger the calves are on arrival, the higher the mortality rate.” For this reason Allevamenti tries not to buy calves younger than two weeks old and Vercelli believes that there should be a law to prohibit the movement of calves less than 15 days old. Calves reared in Allevamenti’s group housing system are far healthier than those reared in crates. Says Vercelli: “The welfare improvement that the new kind of stabling brings the animal gives it more resistance against infectious diseases.” This means they need far less medication. “Investigations have been carried out by us, in co- operation with the Istituto Zooprofilattico di Brescia, which have found the immunology profile of group-reared calves was double that of ones reared in crates, with extremely clear empirical data of what this means on the farm: the consumption of medicines for group calves is 40 per cent lower.”cxlvii On average this means a saving in medicinal costs of 15,000 lire (c. $6.88) per calf. Vercelli also reports that the group-housed system improves farm profits with heavier group housed calves, with better texture veal, fetching more than typical crated calves. Small wonder that his company is anxious to discard its remaining crates - 50 per cent of its calves are still crated - as soon as possible. Vercelli is keen for other farmers to reap the benefits of the group-housed system but stresses that farmers have to be prepared to make the necessary investment: “ Unfortunately veal from the two systems is not separated and labelled at the point of sale in Italy. This needs to be done so that more farmers are motivated to change to group housing.” Labelling and marketing of group housed veal would also assist farmers considering the poll that showed 45 per cent of Italians are prepared to pay 10 – 15 per cent more for humanely produced veal. cxlviii Group–housed veal production in France Most French calves reared for

veal are reared in crates measuring mainly 60cm by 1.6m (23.4 inches by 5.2 feet) or 70cm by 1.8m (27.3 inches by 5.85 feet). There are also several quality labels for veal under which calves are fed organic milk or entire milk or mother’s milk. For example, some 300,000 calves in France are traditionally reared each year with their mothers under a scheme called ‘veaux èlevé sous la mère’(calf raised with its mother) The veal from this system is sold under the Label Rouge and is regarded as a premium product. Marc Beaujeau, the buying manager for Personal Catering, eulogises this veal saying: “This is a different way of raising the animals that is far more humane. The calf suckles from its mother in the field, fully at liberty until it is slaughtered. The meat turns out more red than crate-raised veal but in my opinion it has a better flavour”.cxlix Unfortunately, Ghislain Zuccolo, of Protection Mondiale des Animaux de Ferme, Compassion in World Farming’s French partner organisation, reports that in reality it is rare for calves to be reared with their mothers, instead they are confined and/or tethered in crates but released to be taken to their mother twice a day to nurse.cl Ofival, the French veal industry body, reports that as a result of the imposition of welfare standards by the EU, one in every ten veal farmers is ceasing production.cli This has made room in the market for new producers and companies such as Serval and producers’ co-operatives are actively prospecting for new farmers to take the place of those who are quitting. Daniel Chérel, responsible for Serval’s production, explains that farmers who become contract veal producers for Serval are guaranteed an income. “A farm with 200 places will result in 60,000 francs net per year (c $8069). This production is interesting for young farmers or farmers looking to diversify. Investment in new buildings is about 5,000 francs per place (c. $672). The banks are interested in these projects because remuneration is guaranteed”.clii Serval is backing the Veal Cymru scheme in the UK. At the official opening of the first Veal Cymru unit Serval president Gerard Lemaitre said the company was already linked to veal production in Canada, Italy, Spain, Portugal, Greece and South Africa. Serval automated feeding stations used by Veal Cymru were developed by veterinarian Pierre Bouffet. At a French farm using his system calves are reared in straw yards in groups of 20–25 and fed on a four-times a day cycle as they are at the demonstration

unit in Wales. Bouffet says: “This breeding system requires three times less work than intensive systems since a computer handles everything.” He states that the calves reach their slaughter weight more quickly “in 120 days rather than 140” and at one month old “a calf bred in a group weighs 9kg (19.81lb) more than one bred in a crate”.cliii Pierrick Delongléee, a French farmer with 440 calves reared for veal , has already converted one of his buildings from crates to a group system. He opted for a system of 4 groups of 60 calves on slatted floors with automatic feeders. The cost amounted to 1,500 fr (c $201.73) for each place. He says: “I wouldn’t want to go back, there’s not a lot less work but there’s a lot more flexibility because you’re not tied to set feeding times. The work is more pleasant, you have more contact with the animal and they’re generally less stressed. This will give another image of veal to consumers”.cliv An Economic Perspective Economic comparisons of veal production in crates versus group housed systems on slats or on straw will depend on the actual costs and conditions in place at the time. The SVC Report analysed the costs of increasing the size of individual crates and of converting existing systems to group-housing or building new group-housing units. They found that buying feed accounts for about 45 per cent of the total cost of veal production with the purchase price of calves making up 30 per cent. Fixed costs (housing and labour) made up 15 per cent and other costs 10 per cent. The SVC found, not surprisingly that investments per calf in buildings and housing materials “increase considerably with larger pens in individual housing systems and more space in group housing”. However, the expert committee concluded that there is little difference in both fixed costs and net profit between the two systems. An European Commission statement, in January 1996 reported: the cost of changing from individual pens with an area of 1.4 sq m (1.68 sq yd) per calf to group housing with an area of 2.0sq m (2.4 sq yd) is about 0.06 ECU (c. $0.05) per kilogram (2.2lb) (slaughter weight) or an increase in costs of about 1.1 per cent”. One issue that affects profitability of all veal is the colour of the meat. Providing higher levels of iron in the diet in order to ensure that calves do not suffer anaemia can result in meat that is pink rather than the pale pink (called white) traditionally required by the Continental veal industry and its consumers. Some producers, for example, Tony Clifton of Veal Cymru, see this

as a marketing advantage as they wish to distinguish their veal from the white veal that consumers associate with poor welfare. However, the SVC reported that the keeping of calves on straw does not necessarily have an effect on meat colour and that “it seems that calves can be kept so that their welfare is good without any effect on meat colour”. The SVC highlighted surveys of veal consumption which show substantial reductions in several member states over the past 7–10 years, some of which “is likely to be due to concern over welfare of animals” and concluded that the veal industry would remain under pressure unless producers “are perceived to be keeping animals in a way which results in good welfare”. The key component of profitability is the purchase price of the calf. Professor Webster has argued “It is dangerous to attempt too detailed an analysis of the economics of veal production because costs vary so much. The major determinant of profitability in a veal enterprise is the purchase price paid for the calf. Veal is profitable only when calves are cheap”.clv This view is shared by other veal producers and experts interviewed for this report. Dennis Chapple, who ran the 3-year group-housed veal demonstration unit for MAFF referred to above, explains: “Profitability…depends on buying a cheap calf and marketing the calf at the right price. If calf prices are high and sale prices low, then there will not be a good profit”. Martin Kelders of Navobi says: “ The most important factor regarding profitability is the market situation. How much you pay for the animal when you buy it and how much you get for it when it goes out”. The condition in which calves arrive at the farm has an important bearing on profitability. Some research with calves reared for veal suggests that the initial transport from the dairy farm, with intermediate stops at market, can profoundly reduce the calves health and welfare.clvi Professor Webster explains, “Such animals are deprived of normal food, water and physical comfort and are confused, exhausted and exposed to a wide range of infectious organisms of which the most important are the Salmonella bacteria. By the time they reach their rearing unit they are likely to be infected, dehydrated and stressed and need special care if they are to survive.”clvii Mortality rates and the amount of medication used are likely to be lower, if the calves arrive at the unit when they are at least 14 days old and if they travel directly from their place of birth.

Perhaps the most important factor regarding the economics of group-housed veal production is that it is being carried out successfully on a wide-scale in the Netherlands. It is economically viable and examination of production statistics shows that veal production has been increasing in the Netherlands for some time whereas it has been declining in France and Italy.clviii French veal producers complain: “Every time a veal place closes in France, one opens in the Netherlands”.clix Leading food retailer, Marks and Spencer reports: “We have worked with our Dutch supplier for a long time. Sales have been increasing which shows that group housing can be done successfully, both from the farmers point of view and the calves.”clx Conclusion The rearing of calves in crates has been proven by science to be seriously detrimental to their welfare. The evidence is both comprehensive and overwhelming. The 1995 review of the scientific evidence by the Scientific Veterinary Committee of the European Commission led directly to an EU-wide ban on veal crates. Both scientific research and the experience of commercial producers have shown that the more humane group-housed systems are not only better for calf welfare but also commercially viable. The expert report of the Scientific Veterinary Committee states that group housed veal systems can produce “results that are as good as, or better than, those from individual housing”. Commercial producers interviewed for this report said that they obtain better results from group housing than from crate systems. As has been reported, Professor John Webster, one of the UK’s leading experts on dairy cattle and a member of the SVC expert working group, condemns crates not only because of their cruelty but also because “research shows that the incidence of enteric and respiratory diseases is unacceptably high in calves kept in crates” clxi and “is often kept under control only by liberal and repeated administration of antibiotics”.clxii The continued use of veal crates when more humane alternatives exist and are in widespread and successful commercial use therefore equates to the infliction of unnecessary cruelty and suffering on calves. Producers using crates are putting the future of their own businesses at risk: they face declining sales as more and more people become aware of and concerned about the inherent cruelty of veal crates. Compassion in World Farming hopes that the information in this report will be used by all those who

are concerned about animal welfare to ensure that veal crates are phased out in all countries where they continue to be used. Professor Donald Broom, Chair of the SVC Working Group says: “The key to change is to have a system in which welfare is better but the cost is not much different and to ban the bad system or ensure that products from it are not bought”. Group housed veal: better for calves, farmers and consumers. Recommendation Scientific evidence and established experience demonstrate that the rearing of calves in veal crates on an all-liquid diet is unacceptable. Compassion in World Farming calls for veal crates to be prohibited in all countries which still permit their use; for consumers to help by refusing to purchase crated veal and for farmers to adopt group-housed systems that satisfy the physiological and ethological needs of calves. Compassion in World Farming recommends that calves in such systems should: Be kept a) with their mothers, or b) a foster mother or c) other calves Have sufficient space and type of flooring to be able to perform normal exercise such as walking, running, turning around, grooming, lying down and getting up without strain or difficulty. Have a comfortable, dry, bedded area in which to lie, for example, straw. Have suitable roughage added to their diet from the age of two weeks to allow for normal rumen development and ruminating behaviour Have sufficient iron in their diets to maintain full health and vigour. Appendix 1 - Legislation European Community Council Directive 97/2/EC of 20 January 1997 lays down minimum standards for the protection of calves: It is prohibited to house calves in individual pens or boxes after the age of eight weeks, except when necessary for veterinary treatment. The width of any individual calf pen shall be at least equal to the height of the calf at the withers, measured in the standing position, and the length shall be at least equal to the body length of the calf measured from the tip of the nose to the caudal edge of the tuber ischii (pin bone), multiplied by 1.1 This formula enables the calf to turn around. Individual pens for calves used up to the age of eight weeks must not have solid walls, but perforated walls to allow calves to have direct visual and tactile contact with other calves. For calves kept in groups, each calf shall have an unobstructed space allowance of 1.5 sq m (1.8 sq yd) for each calf with a live weight of less than 150 kilograms (330lb); at least equal to 1.7sq m (2.04 sq yd) for each calf with a live weight of 150 kilograms (330lb) or more but less

than 220 kilograms (484lb), and at least equal to 1.8sq m (2.16 sq yd) for each calf with a live weight of 220 kilograms (484lb) or more. These provisions came into affect from 1 Jan 1998 for new or rebuilt units and must be complied with by 31 December 2006 by all holdings. Commission Decision 97/182/EC of 24 February 1997 lays down additional requirements: Calves may not be tethered except for one hour at feeding time in the case of group- housed animals. The accommodation must be constructed in such a way as to allow each calf to lie down, rest, stand up and groom itself without difficulty. All calves shall be provided with an appropriate diet adapted to their age, weight, behavioural and physiological needs, to promote good health and welfare. Their food shall contain sufficient iron to ensure an average blood haemoglobin level of at least 4.5 mmol/litre and a minimum daily ration of fibrous food shall be provided for each calf over two weeks old, the quantity being raised from 50g (2oz) to 250g (10oz) a day for calves from eight to 20 weeks old. Calves must receive colostrum within the first six hours of life. In hot weather conditions or for calves that are ill, fresh drinking water shall be available at all times. UK Veal crates have been banned in the UK since 1990. UK legislation goes beyond t he EU requirements, for example, larger space allowances for group-housed veal production and requiring bedding. The current legislation governing group-housed veal production is the Welfare of Farmed Animals (England) Regulations 2000: For calves kept in groups, the space allowance available shall be at least 1.5 square metres (1.8 sq yd) for each calf with a live weight of less than 150 kg (330lb), at least 2 square metres (2.4 sq yd) for each calf with a live weight of 150 kg (330lb) or more but less than 200 kg (440lb), and at least 3 square metres (3.6 sq yd) for each calf with a live weight of 200 kg (440lb) or more. All calves shall be provided with appropriate bedding. Daily ration of fibrous food for every calf over 2 weeks old – minimum of 100g (4 oz) at 2 weeks old to a minimum of 250 g (10oz) at 20 weeks old. Appendix 11 – Welfare Standards The Dutch Group-housed Producert Standard Some 15 years ago the Dutch SPCA supported a group-housed system for veal calf production and a standard was developed. The 1997 EU Directive requirements are almost identical to Dutch group-housing systems. Farmers complying with the Producert certification scheme, for example, will not have to make any changes to meet the legislation. To receive Producert

accreditation, the following requirements must be met: - Calves should receive roughage from one week after arrival in the group house system. Over the total fattening period they shall receive an average of 1 kg (2.2lb) a day of roughage. During the full fattening period iron levels should be an average of 8.5g/dl (approx 5.54 mmol/l) For individual calves it should be 8 g/dl (approx 4.9mmol/l) Space allowance for calves complies with the EU Directive, the calves all have at least 1.8 sq m (2.16 sq yd) from start to finish. Groups should consist of at least four animals. Farms must be inspected four times a year. RSPCA Welfare Standards for Freedom Food Freedom Food is an independent organisation established by the RSPCA that offers a label to eggs, meat and dairy products that have been produced to standards set and monitored by the RSPCA. The standards relating to veal production go further than both UK and EU legislation: Starter roughage for calves must be unchopped meadow hay or unchopped barley or wheat straw. The objective should be to encourage rumen development using long fibre. The iron content in the diet must be sufficient to maintain a minimum blood haemoglobin level of 5.6 mmol/l. Cattle including calves over 7 days must be provided with continuous access to an adequate supply of clean, fresh drinking water each day, except when required by attending veterinary surgeon. The floor must not be slatted. Deep wheat/barley straw bedding must be provided and topped up daily. A fall on the floor of 1 in 20 minimum must be provided to facilitate drainage. References i Toussaint-Samat, M., History of Food, Blackwell, 1994. ii as above. iii as above iv Webster, J., Saville, C., Welchman, D., ‘Improved Husbandry Systems for Veal Calves’, Department of Animal Husbandry, University of Bristol School of Veterinary Science, Bristol, 1986. v as above. vi Lensink, B.J., Boivin, X., Pradel, P., Le Neindre, P., and Veissier, I. ‘Reducing veal calves reactivity to people by providing additional human contact’, J. Anim. Sci. 78:1213-1218. 2000. vii Stevenson, P. The Need to Prohibit the Veal Crate System, CIWF, 1999.

viii Commission Decision 97/182/EC of 24 February 1997 amending the Annex to Directive 91/629/EEC laying down minimum standards for the welfare of calves. ix . The SVC had to decide on a recommendation regarding iron levels. The question is how anaemic a calf can be before it is made illegal? Below 6 millimoles/l research shows that there is a significant effect on the ability of calves to move around. Below 4.5 there is immunosuppression. The SVC decided to recommend 4.6 mmol/l. x Council Directive 97/2/EC of 20 January 1997 lays down minimum standards for the protection of calves. Commission Decision 97/182/EC of 24 February 1997 lays down additional requirements. xi Eurostat. xii Ofival, 1999. xiii Report to the Technical Committee to Enquire into the Welfare of Animals kept under Intensive Livestock Husbandry Systems, presented to Parliament, December 1965, HMO, London. xiv Ruth Harrison, Animals, Men and Morals xv Broom, D.M. ‘Welfare aspects of housing systems for veal calves and fattening bulls’ ed. M.C. Schlichting and D. Smidt. Luxembourg: Commission of the European Communities (EUR 10777 EN), 161 – 166. 1987. xvi Press release No IP/00/169 of 17 February 2000 xvii European Convention for the Protection of Animals Kept for Farming Purposes, 1976. European Treaty Series No 87. Council of Europe, Strasbourg. xviii Personal communication xix Martin Kelders, Navobi District Manager for Southern Netherlands, personal communication. xx European Union, Scientific Veterinary Committee (SVC), Animal Welfare Section, Report on the Welfare of Calves, Commission of the European Communities, Directorate-general for Agriculture, Vi/5891/95 PVH/kod, 9/11/1995. xxi Personal communication xxii Ofival, 2000estimates.

xxiii Ofival. xxiv As above. xxv Ofival, 2000 estimates xxvi As above xxvii As above. xxviii Ofival. xxix Ofival, 1997 and 1998. xxx SVC Report quoted above. xxxi Mainsant, P ‘Les consommateurs de viande de veau en France et en Europe’. In: Le Veau a l’horizon de l’an 2000, Federation de la Vitellerie Francaise (ed), Proc. Int. Symp. Veal Production, 12 – 13 September, Le Mans, France, 3 – 25, 1996. xxxii E.g. beef increased 1998- 1999 by 1.1 per cent in France (Ofival) xxxiii Ofival. xxxiv As above. xxxv Bauchart, D., Durand, D., Gruffat-Mouty, D, Piot, C., Graoulet, B., Chilliard, Y., Hocquette, J.F. ‘Transport sanguine et metabolisme tissulaire des lipids chez le veau de boucherie. Effets du remplacement du suif par l’huile de coprah dans l’aliment d’allaitement.’ INRA Prod. Anim., 12, 273 – 285. 1999. xxxvi Mainsant, P., quoted above. xxxvii Atkins, L., ‘For the love of veal’ The Guardian, 28/7/00. xxxviii MAFF News Release, ‘Cheshire Farmers benefit from Government’s £3M ‘Action Plan for Farming’ Marketing Grants’, 21/8/00. xxxix Andre Wisselink, Managing Director, Producert. Personal communication. xl As above. xli World Society for the Protection of Animals and Eurogroup for Animal Welfare, ‘Facts about Veal’ 1995. xlii Personal communication. xliii Colin Maclean, UK Meat and Livestock Commission at MAFF Veal Seminar, 24 Feb 1995. xliv Gallup survey on behalf of Eurogroup for Animal Welfare 1000 people in each country were polled. ‘The European Union accession and animal welfare. An introduction to European animal welfare legislation’, Eurogroup for Animal Welfare and RSCPCA International, 2000. xlv Ofival

xlvi as above. xlvii as above xlviii Wilson, L.L., Terosky, T.L., Stull, C.L., and Stricklin, W.R., Effects of Individual Housing Design and Size on Behaviour and Stress Indicators of Special-Fed Holstein Veal Calves, J. Anim. Sci. 77:1341-1347, 1999 and Terosky, T.L., Wilson, L.L., Stull, C.L., and Stricklin, W.R. ‘Effects of individual housing design and size on special-fed Holstein veal calf growth performance, haematology, and carcass characteristics’ J. Anim. Sci. 1997. 75:1697-1703. xlix SVC quoted above. l Terosky, T.L., Wilson, L.L., Stull, C.L., and Stricklin, W.R. ‘Effects of individual housing design and size on special-fed Holstein veal calf growth performance, haematology, and carcass characteristics’ J. Anim. Sci. 1997. 75:1697-1703. li Members of the Committee were Professor D.M. Broom, Cambridge University, Dept of Clinical Veterinary Medicine, UK assisted by Mr. R. Kirkden; Dr. H.J. Blokhuis, Institute for Animal Science and Health, Zeist, The Netherlands; Dr. E. Canali, University of Milan, Institue of Veterinary Medicine; Professor A.A. Dijkhuizen, Wageningen Agricultural University, Department of Farm Management, The Netherlands; Dr R. Fallon, Teagasc Grange Research Centre, Ireland; Dr. P. Le Neindre, Instit National de Recherche Agronomicques (I.N.R.A.), France; Professor H. Saloniemi, University of Helsinki, Department of Clinical Veterinary Science, Finland and Professor A.J. Webster, University of Bristol, Department of Clinical Veterinary Medicine, UK and Dr. P. Van Houwelingen of the EC Commission. Members were chosen for scientific expertise in the field and not as representatives of their country. lii SVC quoted above. liii Broom, D.M., Needs and welfare of housed calves. In: New trends in veal calf production. Proceedings of the International Symposium on Veal Calf Production edited by Metz, J.H.M and Groenestein, C.M. pp. 23 – 31. EAAP Publications No 52, Pudoc, Wageningen, 1991. liv Waterhouse, A. The effect of pen conditions on the development of calf behaviour, Applied Animal Ethology 4:286-280, 1978; Broom, D.M.Husbandry methods leading to inadequate social and maternal behaviour in cattle. In: Disturbed Behaviour in

farmed animals, edited by Bessei, W. Hohneheimer Arbeiten 121:42-50. Eugen Ulmer, Stuttgart, 1982; Broom, D.M., 1991 quoted above; Metz, J.H.M., Regulation of sucking behaviour in calves. Proceedings of the International Congress on Applied Ethology in Farm Animals, edited by Unshelm, J., van Putten, G., and Zeeb, K. pp 70 – 73. KTBL, Kiel, Germany, 1984 and Hammell, K.L., Metz, J.H.M. and Mekking, P., Sucking behaviour of dairy calves fed milk ad libitum by bucket or teat. Applied Animal Behaviour Science 20:275285,1988. lv Sambraus, H.H. Humane considerations in calf rearing, Animal Regulation Studies 3: 19-22, 1980; Stephens, D.B. A review of some behavioural and physiological studies which are relevant to the welfare of young calves. In: Welfare and husbandry of calves, edited by Signoret, J.P. pp.47-67. Martinus Nijhoff, The Hague, 1982 and de Wilt, J.G. Behaviour and Welfare of Veal Calves in Relation to Husbandry Systems. Thesis, Agricultural University, Wageningen, 1985. lvi Geddes, H.J. Calf rearing. Australian Veterinary Journal 30: 77-79; Hoyer, N. and Larkin, R.M. Bucket and nipple feeding of calves. Queensland Agricultural Journal 79: 46-50., 1054. lvii Webster et al 1986 quoted above. lviii Signoret, J.P. (Editor) Welfare and husbandry of calves, Martinus Nijhoff, The Hague, 1982; Hoffis, G.F. and McGuick, S.M. Diseases of the abomasums and the intestinal tract. In: Current veterinary therapy. Food animal practice 2, edited by Howard, J.L., W.B.Saunders Company, Philadelphia, 1986. lix van Weeren – Keverling Buisman, A. Ruminal drinking in veal calves. Thesis, University of Utrecht, 1991. lx Broom 1991 quoted above. lxi van Putten, G. and Elshof, W.J. Zusatzfuettering von Stoh an Maestkaelber. Aktuelle Arbeiten zur artgemaessen Tierhaltung 233:210219.KTBL, Darmstadt,1978; de Wilt 1985 quoted above; Sambraus, H.H. Mouth-based anomalous syndromes. In: Ethology of farm animals, edited by Fraser, A.F. pp.381-411. Elsevier, Amsterdam, 1985and Webster, A.J.F. Calf husbandry, health and welfare, Granada Publishing Ltd, London, 1984. lxii van Putten and Elshof 1978 as above.

lxiii As above and Webster, A.J.F. Calf husbandry, health and welfare. Granada Publishing Ltd, London, 1984. lxiv Broom, D.M. 1987 quoted above. lxv Moser , M., Bruckmaier, R.M. and Blum, J.W. Iron status, erythropoiesis, meat colour, health status and growth performance of veal calves held on and fed on straw. Journal of Veterinary Medicine, Series A 41: 343-358, 1994. lxvi Webster, A.J.F. Control of infectious diseases in housed veal calves. In: New Trends in Veal Calf Production. Proceedings of the International Symposium on Veal Calf Production. Proceedings of International Symposium on Veal Calf Production edited by Metz, J.H.M. and Groenestein, C.M. pp. 103112. EAAP Publications No 52, Pudoc, Wageningen, 1991 and Welchman, D. de B. and Baust, G.N. A survey of abomasal ulceration in veal calves. Veterinary Record 121: 586-590, 1987. lxvii SVC Report quoted above. lxviii Personal communcation. lxix Morrisse, J.P., Cotte, J.P. and Huonnic, D. L’anémie chez le veau de boucherie. Evolution maitrisée ou problème pathologique. Séminaire International sur le Veau de Boucherie, 1995. lxx Gygax, M., Hirni, H., Zwachlen, R., Lazary, S. and Blum, J.W. Immune functions of veal calves fed low amounts of iron. Journal of Veterinary Medicine, Series A 40: 345-358, 1993. lxxi Piquet, M., Bruckmaier, R.M. and Blum, J.W. Treadmill exercise of calves with different iron supply, husbandry and work load. Journal of Veterinary Medicine, Series A 40: 456-465, 1993. lxxii de Wilt 1985 quoted above; Ketelaar-de Lauwere, C.C. and Smits, A.C. Spatial requirements of individually housed veal calves of 175 to 300 kg. In: New Trends in Veal Calf Production. Proceedings of the International Sympsium on Veal Calf Production, edited by Metz, J.H.M. and Groenestein, C.M. pp. 4953. EAAP Publications No 52, Pudoc, Wageningen, 1991 and Le Neindre, P., Gesmier, V. and Trillat, G. Le confort du veau de boucherie dans les conditions de l’élevage intensif. Contrat ITEB-Interveaux, INRA, Theix, France, 1991. lxxiii Smits, A.C., and de Wilt, J.G. Group housing of veal calves. In New Trends in Veal Calf Production. Proceedings of the International Sympsium on

Veal Calf Production, edited by Metz, J.H.M. and Groenestein, C.M. pp. 49-53. EAAP Publications No 52, Pudoc, Wageningen, 1991. lxxiv Ruckebush, Y. and Bell, F.R. Etude électrographique et comportomentale des étas de veille et somneil chez la vache (Bos tauras). Annales de Recherches Vétérinaires: 1:41-62, 1970 and de Wilt 1985 quoted above. lxxv Webster, 1986 quoted above. lxxvi Ketelaar-de-Lauewere and Smits 1991 quoted above. lxxvii Webster et al 1986 quoted above. lxxviii Ketelaar-de-Lauewere and Smits 1991 quoted above. lxxix Lanyon,L.E., Rubin, C.T. and Baust, G. Modulation of bone loss during calcium insufficiency by controlled dynamic loading. Calcified Tissue International, 38: 209-216, 1986 and Knowles, T.G., and Broom, D.M., Limb bone strength and movement in laying hens from different housing systems. Veterinary Record 126:354-356, 1990. lxxx Phillips, C.J.C. Cattle behaviour. Farming Press, Ipswich, UK, 1993. lxxxi Trunkfield, H.R., Broom, D.M., Maatje, K., Wierenga, H.K., Lambooy, E. and Kooijman, J. Effects of housing on responses of veal calves to handling and transport. In: New Trends in Veal Calf Production. Proceedings of the International Symposium on Veal Calf Production. Edited by Metz., J.H.M. and Groenestein, C.M. pp. 40 – 43. EAAP Publications No 52, Pudoc, Wageningen. lxxxii Kiley Worthington, M. and De la Plain, S. The Behaviour of beef suckler cattle. Birkhaueser Verlag, Basel, 1983 and Fraser, A.F. and Broom, D.M. Farm animal behaviour and welfare. 3rd edition. Ballière Tindall, London, 1990. lxxxiii Andreae, V., Unshelm, J. and Smidt, D. Handhabung von Kaelbern in Gruppenhaltung. Aktuelle Arbeiten zur artgemaessen Tierhaltung 254: 89-96. KTBL, Darmstadt, 1980; Webster, A.J.F., Saville, C., Church, B.M., Gnanasakthy, A. and Moss, R. The effect of different rearing systems on the development of calf behaviour. British Veterinary Journal 141: 472 – 483, 1985 and Wierenga, H.K. Behavioural problems in fattening bulls. In: Welfare aspects of housing systems for veal calves and fattening bulls, edited by Schlichting, M.C. and Smidt, D. pp. 105 – 122. CEC, EUR 1007 EN, Luxembourg, 1987.

lxxxiv Webster, A.J.F. and Saville, C. Rearing of veal calves. In: Alternatives to Intensive Husbandry Systems, pp. 86-94, Universities Federation for Animal Welfare, Potters Bar, 1981. lxxxv Dannenmann, K. Buchenauer, D. and Fliegner, H. The behaviour of calves under four levels of lighting. Applied Animal Behaviour Science 13: 243258, 1985. lxxxvi Friend, T.H., Dellmeier, G.R. and Gbur, E.E. Comparison of four methods of calf confinement. I. Physiology. Journal of Animal Science 60:10951101, 1985. lxxxvii World Society for the Protection of Animals Conference, London 2000. lxxxviii Fraser and Broom 1990 quoted above. lxxxix Le Neindre et al 1991 quoted above. xc Van Putten and Elshof 1978 quoted above. xci Fraser and Broom 1990 quoted above. xcii Perez, E., Noordhuizen, J.P.T.M., Van Wuijkhuise, L.A. and Stassen, E.N. Management factors related to calf mortality and mortality rates. Livestock Production Science 25: 79-93; Olsson, S.O., Viring, S. Emanuelsson, U. and Jacobsson, S.O. Calf diseases and mortality in Swedish dairy herds. Acta Veterinaria Scandinavia 34: 263-269, 1993 and Smits , A.C. and Ham, P.J.M. Group housing of veal calves, a study on commercial farms. Institute of Agricultural Engineering (I.M.A.G.) Report 105, 1988. xciii Peters, A.R. Studies of mortality, morbidity and performance in intensive calf rearing. World Review of Animal Production, 22(3): 83-88, 1986. xciv Webster, A.J.F., Saville, C., Church, B.M., Gnanasakthy, A. and Moss, R. Some effects of different rearing systems on health, cleanliness and injury in calves. British Veterinary Journal 141:472-483, 1985. xcv Waltner-Toews, D., Martin, S.W. and Meek, A.H. Dairy calf management, morbidity and mortality in Ontario Holstein herds. III. Association of management with morbidity. Preventative Veterinary Medicine 4: 137-158, 1986. xcvi Webster, J., Saville, C., Welchman, D., ‘Improved Husbandry Systems for Veal Calves’, Department of Animal Husbandry, University of Bristol School of Veterinary Science, Bristol, 1986.

xcvii UFAW Handbook quoted above. xcviii CIWF ‘The Need to Prohibit the Veal Crate System’, 1999. xcix Webster 1984 quoted above. c Webster et al 1986 quoted above. ci Webster, J., Saville, C. and Welchman, D., Improved husbandry systems for calves, 1985. cii Le Neindre, P. Evaluating housing systems for veal calves. Journal of Animal Science 71: 1345-1354, 1993. ciii As above. civ Kiley Worthington and de la Plain 1983 quoted above; Fraser and Broom 1990 quoted above and Chazal, P. Influence des contacts sociaux sur le bienetre des veaux de boucherie. INRA report, unpublished, 1994. cv Lidfors, L. Mother-young behaviour in cattle. PhD thesis, Swedish University of Agricultural Science, Skara, 1994. cvi Le Neindre 1993 quoted above. cvii As above. cviii Waterhouse, 1978 quoted above and Waterhouse, A. the effects of rearing conditions on the behaviour and growth of dairy calves, PhD thesis, University of Reading, 1979. cix Veissier, I. and Le Neindre, P. Welfare and group housing of calves. In: Proceedings of the 45th Annual Meeting of the European Association for Animal Production, p.203. EAAP, Edinburgh, 1994. cx Friend et al 1985 quoted above. cxi Andreae et al 1980 quoted above, Wierenga 1987quoted above. cxii Chazal 1994 quoted above. cxiii Ketelaar-de Lauwere and Smits 1989 quoted above. cxiv Terosky et al, 1997 quoted above. cxv Wilson et al, 1999 quoted above. cxvi Gottardo F., Cozzi, G., Andrighetto, I. 1997a Studio del comportamento del vitello a carne bianca 1. Confronto tra l’osservazione diretta e indiretta degli animali ed effetto del momento di rilevo. Zootecnica e Nutrizione Animale, 23: 89 – 98 and Gottardo F., Cozzi, G., Andrighetto, I. 1997b – Studio del comportamentto del vitello a carne bianca 2. Effetto della presenza

dell’osservatore e dell’eta dell’animale. Zootecica e Nutizione Animale, 23: 127 – 137. cxvii Quoted above. cxviii Quoted above. cxix Morisse, J.P., Cotte, J.P., Huonnic, D., Martrenchar, A., Influence of dry feed Supplements on Different Parameters of Welfare in Veal Calves, Animal Welfare, 8: 43 0 52, 1999 cxx Morisse, J.P., Cotte, J.P and Huonnic, D., Anaemia in veal calves, husbandry technique under control or pathology? In: Proceedings of the International Symposium: Veal Perspectives to the Year 2000 pp 113 – 124. Federation de la Vitellerie: Le Mans, France, 1996. cxxi Veissier, I., Ramirez de la Fe, A.R., and Pradel, P., Non-nutritive oral activities and stress responses of veal calves in relation to feeding and housing conditions, Applied Animal Behaviour Science, 57: 35 – 49, 1998. cxxii Veissier, I., Chazal, P., Pradel, P. and Le Neindre, P. Providing Social Contacts and Objects for Nibbling Moderates Reactivity and Oral Behaviours in Veal Calve J Anim. Sci. 75:356 – 361, 1997 cxxiii Andrighetto, I., Gottardo, F., Andreoli, D., Cozzi, G. ‘Effect of type of housing on veal calf growth performance, behaviour and meat quality’, Livestock Production Science 57 137 – 145, 1999 cxxiv Cesaro, M.C., Benvenuti, L., Fregolent, G., ‘Quanto costera Ristrutturare glie Allevamenti a Carne Bianca, Informatore Zootecnico N.10, 1998. cxxv Andreoli, D., Cozzi, G., Andrighetto, I., ‘Qualita delle produzione del Vitello a Carne Bianca’, Informatore Zootecnico N.10, 1998. cxxvi The UK Government’s independent advisory body, the Farm Animal Welfare Council, developed the Five Freedoms. cxxvii The UK Government’s independent advisory body, the Farm Animal Welfare Council, developed the Five Freedoms. cxxviii Webster, A.J.F. Beef cattle and veal calves in: The UFAW Farm Handbook 4th edition, edited by Ewbank, R., Kim-Madslien, F. and Hart, C.B., 1999. cxxix Personal Communication. cxxx Personal communication.

cxxxi Veal Cymru information sheet ‘Animal Welfare and Production System’. cxxxii Personal communication. cxxxiii MAFF News Release quoted above. 21/8/2000. cxxxiv Chapple, D., Best Veal Production Practices, MAFF Funded, Final Report, May 1995 – May 1998, ADAS, July 1998. cxxxv Personal communication. cxxxvi Webster, J., Saville, C., Welchman, D., ‘Improved Husbandry Systems for Veal Calves’, Department of Animal Husbandry, University of Bristol School of Veterinary Science, Bristol, 1986. cxxxvii UFAW Handbook quoted above. cxxxviii Martin Kelders, personal communication. cxxxix Personal communication. cxl Mulderij, K. ‘Why Peter’s Farm’, Peter’s Farm Conference, Apeldoorn, 6/10/1999. cxli Centrum voor Smaakonderzoiek, Wageningen, Netherlands. cxlii Cramwinkel, A.B., ‘The experience of taste’, Peter’s Farm Conference, Apeldoorn, 6/10/1999. cxliii Arts, J. (URL removed for reprint) ‘The vision of the Dutch Society for the Protection of Animals regarding veal calves and Peter’s Farm’, Peter’s Farm Conference, Apeldoorn, 6/10/1999 cxlv Bokkers, E.A.M. and Koene, P., ‘A comparative research study into the behaviour and animal welfare of calves raised in the Peter’s Farm and the traditional housing systems’ Peter’s Farm Conference, Apeldoorn, 6/10/1999 cxlvi Gian Luca Vercelli, personal communication. cxlvii Supplemento a Professione Allevatore, Vitelli a Carne Bianca – Altro che solo latte! Supplemento Al N.7, 1999. cxlviii 1995 Gallup poll quoted above. cxlix Guardian quoted above. cl PMAF, Quality Labels on French Farms, Guarantees of Animal Welfare, cli (URL removed for reprint) - ‘Veau de boucherie, Des places a prendre, mais sous conditions’ clii as above.

cliii Ghislain Zuccolo, PMAF, personal communication. cliv Le France Agricole, 9 July 1999. clv Webster et al 1986 quoted above. clvi SVC quoted above. clvii Webster, UFAW Handbook, quoted above clviii ‘Veau de boucherie, Des places a prendre, mais sous conditions’ quoted above. clix as above. clx Personal Communication. clxi Webster, A.J.F. Beef cattle and veal calves in: The UFAW Farm Handbook 4th edition, edited by Ewbank, R., Kim-Madslien, F. and Hart, C.B., 1999. clxii Webster et al 1986 quoted above.

Chapter 22 Animal testing bans

Introduction to animal testing bans California New Zealand Canada The Animal Welfare Act Introduction to animal testing bans The thought of animals being held in laboratory cages to test products for humans has been offensive to many animal activists. There is significant debate regarding animal testing for medical products. There is far less debate on the issue of the ethics of using animals for testing for human cosmetic products. The beauty industry places substances on the skin and eyes of animals to see if the chemicals irritate the animals. After the experiments, the laboratories usually kill the animals. The prevailing thought from the animal welfare side is that animals should not suffer so humans can "look beautiful." To look at existing laws that ban testing for cosmetics, we primarily need to go outside the United States. For example, we look at the ban in New Zealand and the Canadian ban. However, there is one animal testing ban in the United

States that gives us guidance in this area. The state of California has an animal testing ban that goes into effect in the year 2020. The Federal legislation that's in place that regulates animal testing is the animal welfare act. (AWA) Animal advocates have long thought the Animal Welfare Act does little to help laboratory animals. The Congressional research service, the research arm of Congress, has put together an article describing the AWA. It's titled The Animal Welfare Act: Background and Selected Animal Welfare Legislation. The author is Tadlock Cowan. California Senate Bill No. 1249 CHAPTER 899 An act to add Section 1834.9.5 to the Civil Code, relating to animal testing. [ Approved by Governor September 28, 2018. Filed with Secretary of State September 28, 2018. ] LEGISLATIVE COUNSEL'S DIGEST SB 1249, Galgiani. Animal testing: cosmetics. Existing law prohibits manufacturers and contract testing facilities from using traditional animal testing methods within this state when an appropriate alternative test method has been scientifically validated and recommended by the Interagency Coordinating Committee on the Validation of Alternative Methods (ICCVAM) or other specified agencies. This bill would make it unlawful for a manufacturer to import for profit, sell, or offer for sale in this state, any cosmetic, as defined, if the cosmetic was developed or manufactured using an animal test that was conducted or contracted by the manufacturer, or any supplier of the manufacturer, on or after January 1, 2020, except as specified. The bill would specify that a violation of its provisions is punishable by an initial fine of $5,000 and an additional fine of $1,000 for each day the violation continues, and may be enforced by the district attorney or city attorney in the county or city in which the violation occurred, as specified. The bill would not apply to a cosmetic in its final form or to an ingredient, if the cosmetic or ingredient was sold in California or tested on animals before January 1, 2020, as specified. The bill would authorize cosmetic inventory in violation of the bill’s provisions to be sold for a period of 180 days.

The bill would prohibit a county or political subdivision of the state from establishing or continuing any prohibition on or relating to animal tests that is not identical to the prohibitions in the bill and that does not include the exemptions contained in the bill. DIGEST KEY Vote: majority Appropriation: no Fiscal Committee: no Local Program: no BILL TEXT THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 1834.9.5 is added to the Civil Code, to read: 1834.9.5. (a) Notwithstanding any other law, it is unlawful for a manufacturer to import for profit, sell, or offer for sale in this state, any cosmetic, if the cosmetic was developed or manufactured using an animal test that was conducted or contracted by the manufacturer, or any supplier of the manufacturer, on or after January 1, 2020. (b) For purposes of this section, the following terms apply: (1) “Animal test” means the internal or external application of a cosmetic, either in its final form or any ingredient thereof, to the skin, eyes, or other body part of a live, nonhuman vertebrate. (2) “Cosmetic” means any article intended to be rubbed, poured, sprinkled, or sprayed on, introduced into, or otherwise applied to the human body or any part thereof for cleansing, beautifying, promoting attractiveness, or altering the appearance, including, but not limited to, personal hygiene products such as deodorant, shampoo, or conditioner. (3) “Ingredient” means any component of a cosmetic as defined by Section 700.3 of Title 21 of the Code of Federal Regulations. (4) “Manufacturer” means any person whose name appears on the label of a cosmetic product pursuant to the requirements of Section 701.12 of Title 21 of the Code of Federal Regulations. (5) “Supplier” means any entity that supplies, directly or through a third party, any ingredient used in the formulation of a manufacturer’s cosmetic. (c) The prohibitions in subdivision (a) do not apply to the following: (1) An animal test of any cosmetic that is required by a federal or state regulatory authority if all of the following apply:

(A) The ingredient is in wide use and cannot be replaced by another ingredient capable of performing a similar function. (B) A specific human health problem is substantiated and the need to conduct animal tests is justified and is supported by a detailed research protocol proposed as the basis for the evaluation. (C) There is not a nonanimal alternative method accepted for the relevant endpoint by the relevant federal or state regulatory authority. (2) An animal test that was conducted to comply with a requirement of a foreign regulatory authority, if no evidence derived from the test was relied upon to substantiate the safety of the cosmetic sold in California by the manufacturer. (3) An animal test that was conducted on any product or ingredient subject to the requirements of Chapter V of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 351 et seq.). (4) An animal test that was conducted for noncosmetic purposes in response to a requirement of a federal, state, or foreign regulatory authority, if no evidence derived from the test was relied upon to substantiate the safety of the cosmetic sold in California by the manufacturer. A manufacturer is not prohibited from reviewing, assessing, or retaining evidence from an animal test conducted pursuant to this paragraph. (d) A violation of this section shall be punishable by a fine of five thousand dollars ($5,000) and an additional one thousand dollars ($1,000) for each day the violation continues. (e) A violation of this section may be enforced by the district attorney of the county in which the violation occurred, or by the city attorney of the city in which the violation occurred. The civil fine shall be paid to the entity that is authorized to bring the action. (f) A district attorney or city attorney may, upon a determination that there is a reasonable likelihood of a violation of this section, review the testing data upon which a cosmetic manufacturer has relied in the development or manufacturing of the relevant cosmetic product sold in the state. Information provided under this section shall be protected as a trade secret as defined in subdivision (d) of Section 3426.1. Consistent with the procedures described in Section 3426.5, a district attorney or city attorney shall enter a protective order

with a manufacturer before receipt of information from a manufacturer pursuant to this section, and shall take other appropriate measures necessary to preserve the confidentiality of information provided pursuant to this section. (g) This section shall not apply to either of the following: (1) A cosmetic, if the cosmetic, in its final form, was sold in California or tested on animals prior to January 1, 2020, even if the cosmetic is manufactured after that date. (2) An ingredient, if the ingredient was sold in California or tested on animals prior to January 1, 2020, even if the ingredient is manufactured after that date. (h) Notwithstanding any other provision of this section, cosmetic inventory found to be in violation of this section may be sold for a period of 180 days. (i) No county or political subdivision of the state may establish or continue any prohibition on or relating to animal tests, as defined in this section, that is not identical to the prohibitions set forth in this section and that does not include the exemptions contained in subdivision (c). (j) This section shall become operative on January 1, 2020. New Zealand Animal Welfare Act 1999 Public Act Date of assent Commencement 1999 No 142 14 October 1999 see section 1(2) Reprinted as at Part 6 s 85 Animal Welfare Act 1999 8 September 2018 84A Prohibition on use of animals in research, testing, and teaching for making cosmetic (1) A person must not use an animal in any research, testing, or teaching that is for the purpose of— (a) developing, making, or testing a cosmetic; or (b) developing, making, or testing an ingredient that is intended exclusively for use in a cosmetic. (2) Subsection (1)(b) does not apply to research, testing, or teaching in relation to an ingredient that is carried out for a purpose unrelated to the intended use of the ingredient in a cosmetic. (3) A person commits an offence who contravenes subsection (1).

(4) In a prosecution for an offence against this section, it is not necessary for the prosecution to prove that the defendant intended to commit the offence. Section 84A: inserted, on 10 May 2015, by section 37 of the Animal Welfare Amendment Act (No 2) 2015 (2015 No 49). Canada First Session, Forty-second Parliament, 64-65-66-67 Elizabeth II, 2015-2016-2017-2018 SENATE OF CANADA BILL S-214 An Act to amend the Food and Drugs Act (cruelty-free cosmetics) AS PASSED BY THE SENATE JUNE 19, 2018 4211515 SUMMARY This enactment amends the Food and Drugs Act to prohibit cosmetic animal testing and the sale of cosmetics developed or manufactured using cosmetic animal testing. It also provides that no evidence derived from animal testing may be used to establish the safety of a cosmetic. Available on the Senate of Canada website at the following address: (URL removed for reprint) 1st Session, 42nd Parliament, 64-65-66-67 Elizabeth II, 2015-2016-2017-2018 SENATE OF CANADA BILL S-214 An Act to amend the Food and Drugs Act (cruelty-free cosmetics) Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: Short Title Short title 1 This Act may be cited as the Cruelty-Free Cosmetics Act. R.S., ch. F-27

Food and Drugs Act 2 Section 2 of the Food and Drugs Act is amended by adding the following in alphabetical order: animal testing means the topical application or internal administration of any substance to a live non-human vertebrate to evaluate its safety or efficacy. cosmetic animal testing means the topical application or internal administration of any cosmetic or ingredient of any cosmetic to a live nonhuman vertebrate to evaluate its safety or efficacy for the purpose of developing or manufacturing a cosmetic. 3 Section 16 of the Act is amended by striking out “or” at the end of paragraph (b), by adding “or” at the end of paragraph (c) and by adding the following after paragraph (c): (d) was developed or manufactured using cosmetic animal testing conducted more than four years after the day on which this paragraph comes into force. 4 The Act is amended by adding the following after section 16: Prohibition 16.1 No person shall conduct or cause cosmetic animal testing to be conducted in Canada. 5 The Act is amended by adding the following after section 18: Evidence 18.1 No evidence derived from animal testing conducted more than four years after the day on which this section comes into force may be submitted or used to establish the safety of a cosmetic or an ingredient of a cosmetic under this Act or the regulations. Derogation 18.2 (1) Paragraph 16(d) and sections 16.1 and 18.1 do not apply to animal testing authorized by the Minister, in prescribed form and manner, when there is no alternative method to evaluate substantiated specific human health problems associated with a cosmetic or ingredient of a cosmetic that is in wide use and cannot be replaced by another cosmetic or ingredient of a cosmetic capable of performing a similar function. Public consultations

(2) The Minister shall, after having given notice in the prescribed form and manner, conduct public consultations before issuing an authorization under subsection (1). Drugs 18.3 The Governor in Council may designate, by regulation, a drug that is to be treated as a cosmetic for the purposes of paragraph 16(d) and sections 16.1,18.1 and 18.2. Published under authority of the Senate of Canada The Animal Welfare Act: Background and Selected Animal Welfare Legislation Tadlock Cowan Analyst in Natural Resources and Rural Development January 5, 2016 Summary In 1966, Congress passed the Laboratory Animal Welfare Act (P.L. 89-54) to prevent pets from being stolen for sale to research laboratories, and to regulate the humane care and handling of dogs, cats, and other laboratory animals. Farm animals are not covered by the AWA. The law was amended in 1970 (P.L. 91-579), changing the name to the Animal Welfare Act (AWA). The AWA is administered by the U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS). Congress periodically amends the act to strengthen enforcement, expand coverage to more animals and activities, or curtail practices viewed as cruel (e.g., animal fighting), among other things. Congress also addresses animal welfare issues through other legislation (e.g., the Horse Protection Act), but the AWA remains the central federal statute governing the humane care and handling of mammals, including marine mammals. Animal welfare bills introduced in the 114th Congress include the Pet Safety and Protection Act (H.R. 2849), which would amend the AWA to ensure that all cats and dogs used in research were properly obtained. H.R. 3136, the Enforcement Transparency Act of 2015, would amend the AWA to require USDA to issue guidelines relating to civil fines imposed for violating the AWA. H.R. 3193, the Animal Emergency Planning Act of 2015, would amend the AWA to require that research facilities, animal dealers, exhibitors, handlers, and carriers under the AWA, develop and implement emergency contingency plans

for animals in their charge. The Orca Responsibility and Care Advancement Act of 2015 (H.R. 4019) would amend both the AWA and the Marine Mammal Protection Act of 1972 to prohibit the capture, importation, and exportation of orcas for public display. The bill would amend the AWA to prohibit the breeding of orcas for exhibition purposes. The Safe Transport for Horses Act (S. 946) and the Horse Transportation Safety Act (H.R. 1282) would amend the Transportation title (49 U.S.C. 80502) to prohibit the interstate transportation of horses in motor vehicles containing two or more levels stacked on top of one another. The Refuge from Cruel Trapping Act (S. 1081/H.R. 2016) would ban body-gripping traps from National Wildlife Refuges. Each of these bills has been referred to committees, but no further action was taken as of late 2015. Following publication of USDA Inspector General’s report on the inadequacy of the current horse soring inspection system, legislation to amend the Horse Protection Act (P.L. 91-540) was introduced. H.R. 3268/S. 1121, the Prevent All Soring Techniques (PAST) Act, would amend the current soring inspection system to place inspections under APHIS control rather than under the horse industry as it is currently. The Horse Protection Amendments Act (S. 1161) would also modify the inspection system, but retain inspection control within the horse industry. Also introduced in the 114th Congress were bills that would end the exemption of farm animals from regulation under the AWA, and bring federal research under AWA registration and inspection. H.R. 746/S. 388, the Animal Welfare in Agricultural Research Endeavors Act, is a response to a widely reviewed article in the New York Times on the research activities at the Meat Animal Research Center, a USDA Agricultural Research Serviced facility. Among APHIS regulatory actions in 2015 concerning the AWA, APHIS announced in May 2015 that it was seeking public comment on a petition from several animal welfare groups asking for specific rules on the care of all primates regarding their social and psychological well-being. APHIS also announced receiving a petition in 2013 from the Physicians Committee for Responsible Medicine to amend the AWA to define alternatives to procedures that may cause pain or distress to animals and to establish standards to consider these alternatives. APHIS is currently considering public comments that it received regarding these two petitions.

Contents Key Provisions of the Animal Welfare Act Animals Covered Businesses and Activities Covered Standards Oversight and Enforcement Legislative History of the Animal Welfare Act Original Law Animal Welfare Act of 1970 Animal Welfare Act Amendments of 1976 Improved Standards for Laboratory Animals Act Protection of Pets Animal Welfare Amendments to the 2002 Farm Bill Animal Fighting Prohibition Enforcement Act of 2007 Animal Welfare Amendments to the 2008 Farm Bill Animal Welfare Amendments to the 2014 Farm Bill Animal Welfare Legislation in the 114th Congress Horse Protection Act Legislation Animal Welfare in Agricultural Research Endeavors Act (H.R. 746/S. 388) Pet Safety and Protection Act (H.R. 2849) Enforcement Transparency Act of 2015 (H.R. 3136) Animal Emergency Planning Act of 2015 (H.R. 3193) Orca Responsibility and Care Advancement Act of 2015 (H.R. 4019) Safe Transport for Horses Act (S. 946) and the Horse Transportation Safety Act (H.R. 1282) Refuge from Cruel Trapping Act (H.R. 2016/S. 1081)Pending APHIS Regulatory Actions Contacts Author Contact Information The Animal Welfare Act (AWA; 7 U.S.C. 2131 et seq.) is intended to ensure the humane treatment of animals that are intended for research, bred for commercial sale, exhibited to the public, or commercially transported. Under the AWA, businesses and others with animals covered by the law must be

licensed or registered, and they must adhere to minimum standards of care. Farm animals are among those not covered by the act, which nonetheless provides a broad set of statutory protections for animals.1 The law was first passed in 1966 following several years of lobbying by animal welfare organizations and growing public outcry over allegations that large numbers of pets were being “dognapped” for sale to medical research laboratories. Congress amended the original law in 1970, 1976, 1985, 1990, and 2002. These amendments generally were intended to expand the scope of the AWA or to clarify various provisions. The U.S. Department of Agriculture’s (USDA’s) Animal and Plant Health Inspection Service (APHIS) administers the AWA. The House and Senate Agriculture Committees have exercised primary legislative jurisdiction over the act and its amendments. Key Provisions of the Animal Welfare Act2 Animals Covered The AWA applies to any live or dead dog, cat, nonhuman primate, guinea pig, hamster, rabbit, or other warm-blooded animal determined by the Secretary of Agriculture to be for research or exhibition, or used as a pet. The AWA also excluded birds, rats, and mice bred for research; horses not used for research; and other farm animals used in the production of food and fiber.3 Retail pet facilities were not covered, unless they sold wild or exotic animals. Coldblooded animals like fish and reptiles also were excluded from coverage. In 2002, an amendment to the AWA changed the definition of “animal” to include birds, rats, and mice. However, APHIS has yet to promulgate a rule to implement this change in the definition. As of late 2015, APHIS stated that it is moving forward with a final rule, but has not stated a timeline for its publication. Businesses and Activities Covered Generally, animal dealers and exhibitors must obtain a license, for which an annual fee is charged. APHIS does not issue a license until it inspects the facility and finds it to be in full compliance with its regulations. If a facility loses its license, it cannot continue its regulated activity. Those who conduct research, and general carriers that transport regulated animals, do not need a license but must still register with APHIS and undergo periodic inspections. Specific details follow.

Dealers, including pet and laboratory animal breeders and brokers, auction operators, and anyone who sells exotic or wild animals, or dead animals or their parts, must have an APHIS license for that activity. So-called Class A licensees are breeders who deal only in animals they breed and raise; all others are called Class B licensees. Exempt from the law and regulations are retail pet stores, those who sell pets directly to pet owners, hobby breeders, animal shelters, and boarding kennels. Exhibitors must be licensed by APHIS as such. These so-called Class C licensees include zoos, marine mammal shows, circuses, carnivals, and promotional and educational exhibits. The law and regulations exempt agricultural shows and fairs, horse shows, rodeos, pet shows, game preserves, hunting events, and private collectors who do not exhibit, among others. Animal transporters must be registered, including general carriers (e.g., airlines, railroads, and truckers). Businesses that contract to transport animals for compensation are considered dealers and must have licenses. Research facilities must be registered. They include state and local government-run research institutions, drug firms, universities, diagnostic laboratories, and facilities that study marine mammals. Federal facilities, elementary and secondary schools, and agricultural research institutions are among those exempt from registration. Animal fighting is prohibited by the AWA. The ban includes dogfights and bear and raccoon baiting; sponsors and exhibitors are subject to penalties. The AWA also has banned bird fights, except in the states where they are not prohibited by state law (namely Louisiana and New Mexico), and the sponsor or exhibitor was unaware that the transaction had occurred in interstate commerce. Under provisions of the 2014 farm bill, spectators at animal fighting venues are now in violation of the AWA. Retail pet stores were originally exempt from AWA licensure. Over the years, selling animals sight-unseen (often over the Internet) raised concerns about humane treatment of these unregulated retail sales. In September 2013, APHIS announced a regulatory change to redefine a retail pet store to mean a place where a buyer could personally observe the animal prior to purchase. Other retail outlets now require licensure and inspection under AWA. Retail pet stores

that sell animals in face-to-face transactions remain exempt from AWA licensure. The regulation further exempts anyone selling animals (except wild or exotic animals) that derives no more than $500 gross income from the sale of such animals. The rule would also increase from three to four the number of breeding female dogs or cats, and/or small exotic or wild mammals, that a person may maintain on premises and remain exempt from AWA licensing and inspection. Standards All licensed and registered entities must comply with USDA-APHIS regulations, including recordkeeping and published standards of care. These standards deal with humane handling, shelter, space requirements, feeding, watering, sanitation, ventilation, veterinary care, and transport. (AWA regulations are found at 9 C.F.R. §1.1 et seq.) Oversight and Enforcement APHIS’s Animal Care (AC) program oversees implementation of the AWA. For 2015, AC had an annual budget of approximately $28 million.4 AC officials make unannounced inspections of registered and licensed facilities to ensure compliance with all rules. Under the AWA, research facilities are to be inspected at least annually. Federal research institutions are exempt from AWA licensing and inspection. Inspection frequency for other AWAregulated facilities is based on risk; for example, moderate-risk facilities are to be visited about once yearly. APHIS inspectors also conduct searches to identify unlicensed or unregistered facilities. Failure to correct deficiencies can result in confiscation of animals, fines, cease-and-desist orders, or license suspensions. In 2010, USDA’s Office of the Inspector General (OIG) released an audit of AC’s investigations of large-scale dog dealers (i.e., breeders and brokers) that failed to provide humane treatment for the animals under their care.5 In a previous audit of laboratory animals, the OIG found that AC did not aggressively pursue enforcement actions against violators of AWA. The May 2010 audit determined that (1) AC’s enforcement process was ineffective against dealers with repeated violations; (2) APHIS misused its guidelines to lower penalties for AWA violators; and (3) some large breeders circumvented AWA by selling animals over the Internet.6 APHIS concurred with the OIG’s

findings and implemented 13 of the 14 recommendations, including a change in the definition of retail pet store to no longer exempt retail pet stores that were not selling animals in face-to-face transactions.7 Legislative History of the Animal Welfare Act Original Law Although long known as the Animal Welfare Act, the original law was passed simply as P.L. 89- 544, and referred to as the “Laboratory Animal Welfare Act” of August 24, 1966. The law requires dealers in dogs and cats for research purposes to obtain a USDA license and to abide by USDA-set humane treatment requirements. It also requires a research facility to register with USDA only if it uses dogs or cats and either (1) purchases them in interstate commerce or (2) receives federal research money. The law authorizes the Secretary of Agriculture to set humane handling standards for guinea pigs, nonhuman primates, rabbits, and hamsters as well as dogs and cats—but only dealers and research facilities with dogs and cats are subject to these standards. Farmers and pet owners are among those exempted from the law. Other provisions spell out recordkeeping requirements, enforcement authorities and penalties for noncompliance. Animal Welfare Act of 1970 P.L. 91-579 renamed the “Laboratory Animal Welfare Act” the Animal Welfare Act and expanded animal coverage to include all warm-blooded animals determined by the Secretary to be used for experimentation or exhibition, except horses not used in research and farm animals used in food and fiber research. The 1970 law also incorporated exhibitors; defined research facilities; and exempted from coverage retail pet stores, agricultural fairs, rodeos, dog and cat shows. Animal Welfare Act Amendments of 1976 The 1976 amendments (P.L. 94-279) added Section 26 to the AWA. Section 26 is directed at animal fighting and made illegal (1) sponsoring or exhibiting an animal in an animal fighting venture; (2) interstate shipment of animals to be used in animal fighting ventures; and (3) use of U.S. mails or communication systems to advertise or promote animal fighting ventures. Section 26 contained its own definitions, authority for

investigations, and penalty provisions. The 1976 amendments also clarified and expanded previous regulations covering animal transport and commerce. Hunting animals are generally exempt. The amendments passed over the objections of USDA and the U.S. Attorney General, who believed that animal fighting was a state and local law enforcement issue. Improved Standards for Laboratory Animals Act These amendments were passed as Title XVII, Subtitle F, of the Food Security Act of 1985 (P.L. 99-198, the omnibus 1985 farm bill). The law directs the Secretary to set new minimum standards of care for handling, housing, feeding, water, sanitation, ventilation, and so forth. One new provision that was highly contentious at the time singles out two species by requiring standards for the exercise of dogs and the psychological well-being of primates. The law provides that research facilities must have procedures that minimize pain and stress to the animals, and describes practices considered to be painful. Each research facility must establish an Institutional Animal Care and Use Committee to review research proposals that involve animal experimentation and to provide oversight of laboratories. The amendments also increase civil and criminal penalties for AWA violations, and establish an animal welfare information center at USDA’s National Agricultural Library. Protection of Pets Section 2503 of the Food Agriculture, Conservation, and Trade Act of 1990 (P.L. 101-624, the 1990 farm bill) extended pet protections. It required public and private animal shelters and research facilities that acquire dogs and cats to hold them for at least five days to allow time for either adoption or recovery by the original owner before they could be sold to a dealer. Dealers are prohibited from selling dogs and cats they did not breed unless they provide certified records on, among other things, the animals’ origin. Other new recordkeeping requirements also were specified. Animal Welfare Amendments to the 2002 Farm Bill Title X, Subtitle D, of the Farm Security and Rural Investment Act of 2002 (P.L. 107-171, the omnibus 2002 farm bill) makes it a misdemeanor to ship a bird in interstate commerce for fighting purposes, or to sponsor or exhibit any bird in a fight with knowledge that any of the birds were so shipped (even fights

within a state where the practice is permitted). The law also increases the maximum financial penalty for a violation (a misdemeanor) of the anti-fighting provisions of the AWA, to $15,000 from $5,000. The 2002 law also explicitly excludes from AWA coverage birds, rats, and mice bred for research purposes. The Secretary of Agriculture had previously published regulations excluding these animals from coverage, which the Animal Legal Defense Fund challenged in federal court. When USDA agreed to settle the case by essentially reversing its regulations, Congress (in P.L. 106-387, the FY2001 agriculture appropriation bill) blocked the action by prohibiting funds for such a rule change. The 2002 law made the exclusion a permanent part of the AWA.8 The 2002 farm bill also amended the AWA’s definition of “animal” to include rats, mice, and birds as animals covered under the AWA. Birds, rats, and mice bred for use in research were excluded from the amended definition. APHIS has, as of late 2015, not published its final rule implementing the definition change. Animal Fighting Prohibition Enforcement Act of 2007 P.L. 110-22, signed into law May 3, 2007, made a violation of the animal fighting provisions of the AWA a felony punishable by up to three years in prison, under Title 18 of the U.S. Code (Crimes and Criminal Procedure). The law, based on companion bills (H.R. 137/S. 261), also made it a felony to trade, in interstate and foreign commerce, knives, gaffs, or other sharp objects designed for use in animal fighting, or to use the Postal Service or other “interstate instrumentality to trade in such devices, or to promote an animal fighting venture.” Proponents of various animal fighting bills had observed that in 2001, the House and Senate approved strong animal fighting sanctions in their respective farm bills, but that conferees on the final 2002 farm bill (P.L. 107-171) removed the felony language. Proponents argued that stronger deterrents were needed because animal fighting is a brutal, inhumane practice closely associated with criminal activity, endangers children where aggressive dogs are being reared, and may contribute to the spread of avian influenza in the case of live birds. Opponents countered that such measures would violate provisions in the U.S. Constitution that protect states’ rights, including the Commerce Clause, and that recognize private citizens’ right to travel for economic reasons. Other

opponents argued that completely banning and/or stiffening penalties for all animal fighting activities would drive them further underground, undermining efforts to protect animals and the public from any disease problems created by such activities. Animal Welfare Amendments to the 2008 Farm Bill The 2008 farm bill (P.L. 110-246) contained a number of amendments to the AWA. One section (§14207) strengthened further the definitions of, and penalties for, activities related to animal fighting. For example, the amendments increased maximum imprisonment to five years from three years. The animal fighting provision was based on language in S. 1880 and H.R. 3219 (110th Congress)—bills introduced shortly after the July 17, 2007, indictment of National Football League quarterback Michael Vick on charges related to dog fighting—to more explicitly ban various dog fighting activities, and to define the term. The 2008 farm bill also required regulations prohibiting importation for resale of dogs unless they were at least six months of age, in good health, and had all necessary vaccinations. There were exemptions for research, veterinary treatment, or imports into Hawaii from certain countries. Another section (§14214) increased the maximum penalty for a general violation of the act from the current $2,500 to $10,000 for each violation. The regulations require that live dogs imported into the United States for resale, research, or veterinary treatment be accompanied by an import permit issued by APHIS. APHIS published its proposed rule in September 2011, and the final rule was published August 2013. Animal Welfare Amendments to the 2014 Farm Bill While animal fighting or hosting an animal fighting exhibit were prohibited under P.L. 110-22, attendance at animal fighting exhibitions was not. The Animal Fighting Spectator Prohibition Act (H.R. 366, S. 666) was reintroduced in the 113th Congress. The bill would have imposed criminal penalties for attendance at animal fighting exhibitions, or for causing a minor to attend an animal fight. This prohibition on attendance was added to both the 2013 House (H.R. 1947) and Senate (S. 954) farm bills and included in the final bill (Section 112308, P.L. 113-79).

The 2014 farm bill also establishes a new “de minimis” standard for the AWA. The “de minimis” provision apples to the entire AWA and gives APHIS new discretionary authority to exclude licensing and registration requirements for animal dealers and exhibitors dealers “if the size of the business is determined by the Secretary to be ‘de minimis.’” The “de minimis” provision will likely allow a large number of current dealers and exhibitors to avoid APHIS registration and licensing who otherwise would, without the “de minimis” standard, be required to have an AWA license. As of late 2015, the “de minimis” is still in the APHIS clearance process. Animal Welfare Legislation in the 114th Congress Horse Protection Act Legislation The Horse Protection Act (HPA), enacted in 1970 (P.L. 91-540), prohibits the showing, sale, auction, exhibition, or transport of sored horses. Soring is a practice primarily used in the training of Tennessee Walking Horses, racking horses, and related breeds to accentuate the horse’s gait. Horse soring is accomplished by several techniques, including the application of chemicals to irritate or blister a horse’s forelegs, or the use of various mechanical devices. APHIS is responsible for administrating the HPA and for conducting inspections at horse shows, exhibitions, and auctions. In 1976, the Horse Protection Act Amendments were enacted (P.L. 94360) in response to APHIS’s weak enforcement of the HPA. The act established what became the Designated Qualified Person (DQP) Program, an organizational structure that organizes inspections at horse events. The DQP program was implemented in 1979 (9 C.F.R. 11.7). A DQP is a person who, under the provisions of Section 4 of the HPA, is appointed and delegated authority by the management of a horse show or sale to detect horses that are sored. DQPs are USDA-accredited veterinarians with equine experience, or they are farriers, horse trainers, or other who have been formally trained and licensed by USDA-certified Horse Industry Organization (HIO).9 In 2010, USDA’s Office of the Inspector General issued a report on enforcement of the HPA.10 The report revealed serious shortcomings in the

inspection process, with lax enforcement, repeat offenders receiving little or no sanctions, and poor documentation of inspections and sanctions. In particular, the report found that the industry’s self-regulation system had not been adequate to ensure that these horses were not being abused. In the wake of this report, the Animal and Plant Health Inspection Service agreed with the analysis and the need to put into place better efforts to enforce the regulations of the HPA.11 The Prevent All Soring Tactics (PAST) Act (H.R. 3268/S. 1121) would amend the HPA to ban “action devices” on horses, modify the existing DQP inspection system, and impose new penalties on HPA violations.12 The “action devices,” like other soring techniques, produce a more pronounced gait in a Tennessee walking horse, a racking horse, or a spotted saddle horse. The amendments apply only these breeds and apply to the sale, showing, or transportation of such horses. The PAST Act would also end the horse industry’s ability to self-police with industry-selected inspectors by creating a new licensing process requiring APHIS to appoint inspectors for HPA- regulated activities and venues. Hiring inspectors would be the responsibility of the show, sale, or auction. The definition of “event management” would be expanded to include “sponsoring organizations” and “event managers.” This expansion would make them potentially liable for HPA violations. The bill would also increase the maximum fine for HPA violations from $3,000 to $5,000 as well as raise maximum prison sentence to three years. Trainers with three violations could get a lifetime ban from participating in shows, exhibitions, or auctions. These changes would be applicable to all horse breeds subject to HPA regulation. Animal welfare organizations have been active supporters of the bills (e.g., American Horse Protection Association, Humane Society of the United States, American Horse Council, and Association for the Prevention of Cruelty to Animals, Animal Welfare Institute, American Association of Equine Practitioners). Horse breeder associations have generally opposed the bill or major portions of the proposed amendments (e.g., Tennessee Walking Horse Breeders and

Exhibitors Association, Tennessee Walking Show Horse Organization, Racking Horse Association of America, National Spotted Horse Breeders and Exhibitors Association). Another bill introduced in the 114th Congress addresses some of the major concerns of those opposed to the PAST Act. The Horse Protection Amendments Act of 2015 (H.R. 4105/S. 1161) would establish how inspectors are to be appointed and the manner of conducting inspections. The bill would direct USDA to establish the Horse Industry Organization governed by a ninemember board. This board would have two members appointed by the Commissioner of Agriculture for Tennessee and two members appointed by the Commissioner of Agriculture for Kentucky. These members would serve a term of four years. Two additional members of this board would represent the Tennessee Walking Horse Industry and be appointed by the two Commissioners of Agriculture. These representatives would serve a term of three years. The remaining three members of the board would be appointed by the other six members. This proposed board would establish requirements to appoint individuals to conduct inspections of horses. USDA would certify the Horse Industry Organization for purposes of licensing inspectors. These individuals would be “qualified to detect and diagnose a horse which is sore.” To address potential conflicts of interest by inspectors, the board would prohibit any potential inspector from having employment with, or providing services to any show manager, trainer, owner, or exhibitor of Tennessee Walking Horses, Spotted Saddle Horses, or Racking Horses. Nor could a potential inspector train, exhibit, show, breed, or sell Tennessee Walkers, Racking Horses, or Spotted Saddle Horses. Animal Welfare in Agricultural Research Endeavors Act (H.R. 746/S. 388) In January 2015, the New York Times (NYT) published an exposé of research activities at the U.S. Meat Animal Research Center located near Clay Center, Nebraska. The center is a USDA facility overseen by USDA’s Agricultural Research Service (ARS). The news article described “unsanitary housing and brutal treatment of pigs; violent forced mating between bulls and cows; and hormonal experiments conducted on sheep,” among other animal welfare issues.

The research practices reported in the NYT article raised significant public concern about animal welfare standards at the center. It prompted the Secretary of Agriculture to order USDA staff to deliver an updated Animal Welfare Strategy plan for the center and other ARS laboratories within 60 days. The Secretary also announced the appointment of an animal welfare ombudsman to coordinate USDA’s review of animal welfare at the center and other ARS laboratories.13 The AWA currently excludes farm animals from AWA coverage, and also excludes federal research institutions from AWA registration and inspection.14 H.R. 746/S. 388 (the Animal Welfare in Agricultural Research Endeavors Act) would amend the AWA to require that farm animals and federal laboratories using farm animals be subject to AWA regulations. The bill was referred to the House Agriculture Committee, but no further action was taken as of late 2015. Pet Safety and Protection Act (H.R. 2849) Critics have long asserted that the limited number of Class B dealers who still collect dogs and cats from random sources, including “free to a good home” classified ads, auctions, and flea markets, are more concerned about profit than animal welfare. Others have contended that passage would leave no viable sources of random source dogs and cats, which are needed by medical and veterinary researchers because of their genetic and age diversity, and that the majority of Class B dealers are in compliance with the AWA. A National Research Council (NRC) report on the issue published in May 2009 concluded that random source dogs and cats may be desirable and necessary for certain types of biomedical research but that “it is not necessary to acquire them through Class B dealers, as there are adequate numbers of such animals from shelters and other sources.” The NRC noted that of the more than 1,000 Class B dealers in the United States, at last count only 11 of them acquired and sold live dogs and cats for research and teaching. The report’s conclusions and recommendations applied only to these 11 dealers that may supply such animals for research funded by the National Institutes of Health. The report discussed in more detail the advantages and disadvantages of random source dogs and cats, which constitute less than 1% of all laboratory animals; evaluates the Class B dealer system, under which (it found) animal standards of care appear to vary greatly; and offers alternative options for

obtaining random source animals. These alternatives include partnering with pet owners, veterinarians, breeders, and others; obtaining animals from Class A dealers and through donations from small breeders and hobby clubs; and acquiring animals directly from pounds and shelters, among others. The Pet Safety and Protection Act was reintroduced in the 114th Congress as H.R. 2849 and would amend the AWA to limit the sources of random source dogs and cats to a licensed dealer (under Section 3 of the AWA) who has bred and raised the animal; a publicly owned or operated pound or shelter that meets certain qualifications; someone donating the dog or cat that bred and raised the animal or owned it for not less than one year; and research facilities licensed by the Secretary of Agriculture. The bill also would subject violators to a fine of $1,000 per violation, over and above any other applicable penalties. The bill was referred to committee, and no further action was taken as of late 2015. Enforcement Transparency Act of 2015 (H.R. 3136) The Enforcement Transparency Act would require the Secretary of Agriculture to publish guidelines on USDA’s website relating to the calculation of civil fines for violations under the AWA. The guidelines would require quarterly updates and the updates published in the Federal Register. Animal Emergency Planning Act of 2015 (H.R. 3193) Disasters can leave animals as vulnerable as humans. Past natural disasters such as Hurricanes Katrina and Sandy highlighted the need for planning to minimize the effects of such disasters. The Animal Emergency Planning Act would amend the AWA to require research facilities, animal dealers, handlers, exhibitors, and carriers to develop and document a contingency plan to provide for the humane handling, treatment, housing, and care of animals in the event of an emergency or disaster. Orca Responsibility and Care Advancement Act of 2015 (H.R. 4019) Humane care and handling of marine mammals are also covered under AWA regulation. Following widespread dissemination in 2015 of a film about captive orcas at Sea World (“Black Fish”), media and public attention to captive marine mammals (e.g., porpoises, whales, orcas) increased significantly. The Orca Responsibility and Care Advancement Act would amend both the AWA and the Marine Mammal Protection Act of 1972 to prohibit the capture, importation, and

exportation of orcas for purposes of public display. The bill would also amend the AWA to prohibit the breeding of orcas for exhibition purposes. Safe Transport for Horses Act (S. 946) and the Horse Transportation Safety Act (H.R. 1282) Animal welfare activists have argued that hauling horses in double-decker trailers is dangerous and inhumane. Because double-deckers were designed for hauling cattle and hogs, the trailers do not provide sufficient headroom for horses to stand up straight. S. 946 and H.R. 1282 would amend the Transportation title (49 U.S.C. 80502) to prohibit interstate transportation of horses in motor vehicles containing two or more levels stacked on top of one another. Refuge from Cruel Trapping Act (H.R. 2016/S. 1081) The National Wildlife Refuge System, managed by the Fish and Wildlife Service, permits wildlife trapping in over half the system’s refuges. Bodygripping traps such as snares and steel-jaw leg- hold traps can kill and maim non-target animals. Even when trapping target animals, the traps are considered to be cruel and inhumane by animal welfare groups. The Refuge from Cruel Trapping Act would amend the National Wildlife Refuge System Act of 1966 (16 U.S.C. 668dd et seq.) by banning the possession or use of bodygripping traps in wildlife refuges, and impose civil fines and forfeiture for violations. Pending APHIS Regulatory Actions In March 2015, APHIS filed public notices in the Federal Register regarding the agency’s consideration of two petitions they had received that could require changes to existing AWA regulations. The first petition, received in 2013, was from the Physicians Committee for Responsible Medicine.15 The petition requests that APHIS initiate rulemaking to add a definition of the term “alternatives” in order to define what a primary investigator at a facility using animals as research models is required to consider in lieu of a procedure that may cause more than momentary or slight pain or distress to an animal. The petition further requests that APHIS amend the existing definition of “painful procedure” to codify long-standing APHIS policy that a procedure should be considered painful if it may cause more than momentary or slight pain or

distress to the animal. APHIS is currently considering public comments and supporting documents received by May 29, 2015. The second petition, published May 1, 2015, concerns the social and psychological well-being of primates in captivity.16 Following a decision by the National Institutes of Health in 2013 to retire most of its chimpanzees used in biomedical research, and to house them in sanctuaries suitable to their natural social groups and behaviors, animal welfare activists turned their attention to the estimated 110,000 other primates in research laboratories. These primates, like chimpanzees, are also highly social animals. The New England Anti-Vivisection Society filed a petition with APHIS asking for specific rules on the care of all primates regarding their social and psychological well-being. APHIS took public comments until June 30, 2015, and is currently considering them. 1 Legislation introduced, but not passed, in the 111th Congress, the Prevention of Farm Animal Cruelty (H.R. 4733) would have restricted federal purchases of food products derived from animals to those raised free from cruelty and abuse. Numerous other federal laws seek to protect other classes of animals, often those from the wild. Examples include the Marine Mammal Protection Act, the Lacey Act as amended, and the Wild Free-Roaming Horses and Burros Act. These and the others are described, with legal citations, in CRS Report 94-731, Brief Summaries of Federal Animal Protection Statutes, by Vivian S. Chu. 2 Unless noted, sources on the AWA are various materials provided by APHIS. 3 For example, rabbits raised for food are exempt from AWA coverage; those for pets are not. 4 A portion of this total amount, $697,000, is used to administer the Horse Protection Act (15 U.S.C. §§1821-1831), which makes it a crime to exhibit or transport any “sore” horse, i.e., one whose feet have been injured to alter its gait. See discussion of the Horse Protection Act below. 5 Animal and Plant Health Inspection Service Animal Care Program Inspections of Problematic Dealers, May, 2010. Report is accessible at (URL removed for reprint)

6 Large breeders that sell AWA-covered animals over the Internet are exempt from AC’s inspection and licensing requirements due to a loophole in AWA. The IG report recommended that APHIS prevent large breeders from circumventing AWA requirements by seeking legislative change to exclude these breeders from the definition of “retail pet store,” and require that all applicable breeders that sell through the Internet be regulated under AWA. The Puppy Uniform Protection and Safety Act (H.R. 835), reintroduced in the 112th Congress, would close the existing AWA loophole. 7 The OIG audit found that more than 80% of sampled breeders were not licensed under AWA because they sold animals over the Internet and claimed the “retail pet store” exemption under the AWA. Such “puppy mill breeders” were not being monitored or inspected to ensure the health and humane treatment of the animals. 8 CRS Report 94-731, Brief Summaries of Federal Animal Protection Statutes, by Vivian S. Chu. 9 An HIO is licensed by APHIS to establish a DPQ training program. An HIO wanting USDA certification must formally apply and present its proposed training program to USDA for approval. In 2009, there were 12 HIOs with APHIS-certified DQP programs that participated with APHIS in annual DQP training seminars, clinics, and educational forums. 10 USDA. Animal and Plant Health Inspection Service Administration of the Horse Protection Program and the Slaughter Horse Transport Program. Office of the Inspector General. Audit Report 33601-2-KC. September 2010. Report may be accessed at (URL removed for reprint) 11 Link removed 12 An “action device” is a boot, collar, chain, roller, or other device that encircles or is placed upon the lower extremity of the leg of a horse. The devices rotate around the leg or slide up and down the horse’s leg causing painful friction. 13 CRS Report R44091, Meat Animal Research Center: The Animal Welfare Act and Farm Animal Research, by Tadlock Cowan and Joel L. Greene. 14 While ARS laboratories are excluded from AWA oversight, ARS does follow very similar standards through its own animal welfare guidance documents.

15 Federal Register, Vol. 80, No. 60, 16592. March 30, 2015. (URL removed for reprint) 16 Federal Register, Vol. 80, No. 84, 24840. May 1, 2015. (URL removed for reprint) (continued...) Author Contact Information Tadlock Cowan Analyst in Natural Resources and Rural Development [email protected],

Acknowledgments

This book wouldn't be possible without the support of my wife, Laura Allen. She knows all my weaknesses props me up where I need propping up. My colleagues Kathy Hessler and Pam Frasch at the Center for Animal Legal Studies create an environment that allow books like this to come to life. There were three research assistants from Lewis & Clark Law school whom I owe a great deal. Corinne Fletcher worked tirelessly on this project from the project's conception. Brittany Rowe came through and helped out at a critical time in the life of the book. Leanne Glikbarg volunteered and helped format the text. This book would not have come together without all of their hard work on the project. Thank-you. I want to thank the many authors of these materials for allowing me to bring these materials together in this collection. Some were quick to give permission. Others believe so firmly in sharing the work that they placed creative commons licenses on their articles to freely allow the dissemination of their work. I thank all of you for the use of your work. In particular, I thank David Favre from Michigan State University College of Law. He opened up the vast collection of materials from the Animal Legal & Historical Center for our use. David's contribution to the field of animal law is tremendous.

My last acknowledgment is to the animals, so many of us strive to help. You are the ones who motivate us to devote our time to this critical work. I only wish we could do more for you.

About the Author

Russ Mead Russ Mead is a popular lecturer nationwide who uses examples from his career as general counsel for animal rights organizations to illustrate animal welfare and other animal-related laws. Russ has served as General Counsel for two of the best-known animal sanctuaries: Best Friends Animal Society, and Farm Sanctuary; and served as Farm Sanctuary's interim Executive Director. Russ is the Shared Earth Foundation visiting professor at Lewis & Clark Law School in Portland Oregon. Russ also has experience implementing and managing large scale animal rescues, including during hurricane Katrina. He has been involved in animal hoarding cases, each involving hundreds of animals. Russ' legislative advocacy work includes grassroots organizing, lobbying, and media promotion. In private practice, Russ has represented animal nonprofits in tax matters, intellectual property disputes, employment issues, fundraising compliance, and nonprofit formation. On a personal level, Russ raises awareness of animals by attempting to capture their spirit in ink wash paintings.

Russ holds a JD from St. Louis University School of Law, an MBA from Lindenwood College, and a BS in Accounting from Arizona State University, and earned a CPA license. He is a frequent lecturer at law schools, bar associations, and animal law conferences. Other books by author Russ Mead Nonprofit Animal Law Farm Animal Law Trial Advocacy in Animal Law