Chapter 1 Companion Animals and the Law

• Library: Pet Law & Custody: Establishing a Worthy & Equitable Jurisprudence for the Evolving Family (ABA) (2017 Ed.)

Chapter 1 Companion Animals and the Law

"I love a dog. He does nothing for political reasons."

—Will Rogers

The terminology for how animals are referred to in American case law varies widely. They may be viewed as quasi-property, a thing, sentimental property, personal property, tangible property, animal property, chattel, equipment, an invention, a product, a good, a special category of property,¹ a law enforcement professional,² a noncommissioned officer,³ a best friend,⁴ a companion animal, a crime victim, or a family member.⁵ Hereinafter, we will call these terms "the continuum." Another way this topic is explored is through the emerging idea that animals are now in an interim category between property and person.⁶

As courts wrestle with these classifications, legislators have shown their interest in animal subjects by passing a wide spectrum of animal welfare and protection laws. In this book, we will explore whether there is convergence; many threads, young and old, comprise the tapestry of our legal system. In pet law, all participate in shaping pet custody jurisprudence within a cultural context.

DEFINING PETS AND COMPANION ANIMALS

There is no universal definition for a pet or companion animal, although there is a current trend to use these nouns interchangeably.⁷ The American Society for the Prevention of Cruelty to Animals (ASPCA) defines a companion animal as "domesticated" or "domestic-bred" and whose physical, emotional, and social needs are readily met.⁸

If instead the animal is used for work, research, sports, or utility, or could be classified as livestock, the animal would not be considered a pet or companion animal. It is for the above reasons that service animals, including those who serve the blind, or animals that provide law enforcement or armed forces duties, are classified differently than companion animals are.

Criteria for identifying a companion animal might include the following:

• Purchased or acquired to be a family pet
• Provides companionship
• Has a name
• Provides no significant source of income
• Receives appropriate food, water, shelter, and veterinary care
• Is bonded to a family member
• Is held out as a pet or companion animal
• Lives indoors
• Owner describes him- or herself as "mom" or "dad"
• Image appears in family photographs, including on social media
• Image is reflected on a computer or cell phone screen saver
• Name is included in family listings
• Acts like a pet
• Brings pleasure
• Provides protection
• Has a guardian
• Is treated kindly and affectionately

Criteria for animals that might not be considered companion animals could include the following:

• Not regularly fed
• Not domesticated
• Not named
• Not bonded to a family member
• Sleeps outside
• Not properly cared for
• Used for sports, entertainment, or performance
• Used for research purposes
• Primary purpose is to breed
• Is a service animal⁹
• Performs work
• Illegal to own

American Pet Products Association

Notwithstanding the fact that there is no uniform definition for pets or companion animals, there is an abundance of statistical information about them, much of it promulgated by the American Pet Products Association. This organization offers a well-publicized annual National Pet Owners Survey. The information collected concerns dogs, cats, freshwater fish, saltwater fish, birds, small animals, reptiles, and horses.¹⁰

Yearly statistics provided by the American Pet Products Association reflect human dedication to animals. Sixty-five percent of American households own 207 million pets, excluding fish.¹¹ In recent years, more than $58 billion has been spent annually on their food, supplies, over-the-counter medicine, veterinary care,¹² animal purchases, grooming, and boarding. Thus far, the survey offers no information regarding pet cremation or burial expenses, but this may change; by 2013, there were already 700 pet funeral homes,¹³ crematories,¹⁴ and cemeteries. The extraordinary amount of money spent on pets suggests that their value exceeds their purchase price.

Wrestling with the definition of a pet and companion animal reminds one of the public frustration following the decision in Jacobellis v. Ohio,¹⁵ a case famous for the court's inability to define the word "obscenity." In a concurring opinion, Justice Potter Stewart, rather than defining obscenity, instead said, "But I know it when I see it." In some ways, the task of sorting out who is a pet and who is not a pet has similar subjective characteristics. Even so, consider the following rule of thumb: companion animals have value beyond their economic value; they have relational value. Another way to think about this subject is that both private decisions and public policies are shaped by personal or societal preferences that are, in essence, our values.

PETS IN THE LEGAL SYSTEM

The landmark decision of Rabideau v. City of Racine¹⁶ captures our collective struggle regarding which pets belong in the legal system and where. In Rabideau, the court said,

At the outset, we note that we are uncomfortable with the law's cold characterization of a dog, such as Dakota, as mere "property." Labeling a dog "property" fails to describe the value human beings place upon the companionship that they enjoy with a dog. A companion dog is not a fungible item, equivalent to other items of personal property. A companion dog is not a living room sofa or dining room furniture. This term inadequately and inaccurately describes the relationship between a human and a dog.

The Rabideau court also expressed the concept of who can be the beneficiary of love from the human heart in a modern soliloquy. Even so, the court ultimately decided:

Humans have an enormous capacity to form bonds with dogs, cats, birds and an infinite number of other beings that are non-human. Were we to recognize a claim for damages for the negligent loss of a dog, we can find little basis for rationally distinguishing other categories of animal companion.

Legal Precedent

The 1897 U.S. Supreme Court decision in Sentell v. New Orleans Carrollton Railroad Co.¹⁷ cast a dark shroud over all animals. There, the court said,

Property in dogs is of an imperfect or qualified nature, and that they stand, as it were, between animals ferae naturae, in which, until killed or subdued, there is no property, and domestic animals, in which the right of property is perfect and complete. They are not considered as being upon the same plane with horses, cattle, sheep, and other domesticated animals, but rather in the category of cats, monkeys, parrots, singing birds, and similar animals, kept for pleasure, curiosity, or caprice.

The court went on to single out dogs for additional negative attention, and said,

They have no intrinsic value, by which we understand a value common to all dogs as such, and independent of the particular breed or individual. Unlike other domestic animals, they are useful neither as beasts of burden, for draught (except to a limited extent), nor for food. They are peculiar in the fact that they differ among themselves more widely than any other class of animals, and can hardly be said to have a characteristic common to the entire race.

Later decisions rely on, rather than distinguish themselves from, this historic relic that imagined the animal kingdom in three categories. A horse, a cow, and a sheep are higher than a cat, a singing bird, or a monkey, while a dog is not even worthy of any property classification unless "dead" or "subdued." Even worse, the court described dogs in this decision as subject to "attacks of hydrophobic madness."

In addition to the above, it is notable that the court's 1897 classification ranked domestic animals with commercial value first and portrayed a point of view...