Property: Cat or Car, Pug or Rug?

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Category: Public, Wisconsin Supreme Court
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He fell on hard times. He lost his job, then his home. His only option was to move into a homeless shelter. But he had two dogs he loved and could not bear to give them up. His dogs started off luckier than he did. Instead of surrendering them to a humane society and having to be split up and placed in new homes, he found the only place in southeast Wisconsin that would be able to spare them – a fledging organization known as “Keep Your Pets, Inc.”

Keep Your Pets, newly founded, is a safety net for pets and owners for crisis management. The concept is to provide temporary housing for pets, mostly dogs and cats, when their owners cannot provide for them. It may be due to illness, relationships with abuse, economic issues, accidents – there are many scenarios, some we can even imagine we could find ourselves in. But the outcome of this type of event has been tragic, until now. The typical options for pet owners are surrendering to a shelter (and usually not getting the pet back without lying to the shelter staff), pawning them off on friends, or euthanasia.

So, he found this option, and his two dogs were spared. Until his luck turned bad again.

His dog’s luck was even worse. He was picked up for impaired driving and taken into custody. The police officer impounded his dogs and car. He begged the officer to take the dogs back to the kennel where they had been housed during his homeless crisis, but this request was denied. Instead, they were taken to the local animal shelter. One was congenial but the other was too edgy for the shelter to commit to housing long-term. Because he could not afford to post bond, she was considered abandoned, and became the property of the shelter. She was euthanized. After all, she is property and the shelter had the right to end her life. They can justify killing a dog based on employee safety and the risks in placing her in a temporary or permanent home. They couldn’t take the chance that they would be liable if she injured someone.

She was just property – like your car, your rug. Or is she the same? Not everyone would agree. I am a lot more attached to my dog than my table.

There are also enormous problems in considering animals, particularly pets, as mere property. There are also enormous problems with elevating the status of animals to guardianships or other classifications. Is there middle ground? This is one of the motivations I had in returning to school to study law. Despite the arguments on both sides, no one has come up with a solution everyone can live with.

Property status reflects the long-standing human dependence on animals for food to labor to scientific research. The status of animals as property has not changed in most states – yet. It nearly did in Rabideau v. City of Racine in 2000. When heard by the Wisconsin Supreme Court, Justice Abrahamson did all she could to assist the attorney with his argument. Listening to the argument is a great exercise in lawyering.

Boulder, Colorado, in 2000, became the first city in the country to define pet owners as guardians. This has spread, including to municipalities in Wisconsin. The legal precedent associated with guardianship create significant legal obligations – to place the welfare of the ward ahead of other interests. Some believe this has a proactive and positive implication. But others think this has the potential to take away the owner/guardian’s right to breed, neuter or spay, make public health decisions, claim the pet if it should run away or even euthanize a sick or injured pet.

Implications to veterinarians include the possibility of non-economic damages that could be recovered, leading to veterinary malpractice insurance costs sky-rocketing, then cost-prohibitive veterinary care, then the inability of the vast majority of Americans to afford to own a pet. The bundle of rights assigned to a ward of a guardian includes that lawsuits could be filed on the ward’s behalf. What if a pet requires such costly care the owner cannot afford it – will the veterinarian be mandated to provide the care regardless? What are the fiduciary responsibilities of the guardian? Who will pay for this? As important as a pet’s relationship is to a family, most people are not able to make the same sacrifices for a pet as they would make for a child. The unintended consequences go on and on. Are American pet owners ready for this kind of transition?

In a similar argument, there is the threat of pending legislation to allow the destruction of animals that have been seized prior to legal action being settled. While this would reduce the burden of housing the animals during legal action, this would potentially leave innocent defendants to have their animals over-vaccinated, spayed or neutered, lost, rehomed with no hope of recovery, or worst of all, euthanized. In fact, this happened to the owner of the dogs in my first legal case after graduation.

Dog seizure cases are a hybrid or civil and criminal law. In cases of dog seizures, related to abuse or fighting, the defendant is required to post bond based on an estimate of the anticipated costs of boarding the dogs until the case is settled. In the case of multiple dog seizures, this can be very costly, and when added to the anticipated legal fees, can exceed the client’s resources. If the defendant is acquitted, the bond is returned and the cost of housing the dogs falls to the county. This may serve as a deterrent to a judge who may be reluctant to order a seizure unless there is assurance there will be clear and convincing evidence. Many times, the cost of bond and legal defense is too great a burden and the owner is forced to surrender their dogs to the shelter. Then the dogs can be sold (there is a possibility that valuable dogs may be seized with marginal evidence so they can be sold), spayed or neutered or euthanized. Even if the defendant is found not guilty, their dogs, companions, lifetime breeding program, and reputation are destroyed and financial future decimated.

Considering all of this, how can we effectively legally manage animals as property?

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One Response to “Property: Cat or Car, Pug or Rug?”

  1. Natalie Neals Says:

    Very interesting post, thank you! We have to look no further than the word “owner” to realize how engrained the property status of pets is in our society. Anybody interested in these issues should be sure to take Animal Law with Megan Senatori when it is offered next.

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