ISAR's "Harming Companion Animals" Monograph To Be Used In Law School "Animal Law And Rights" Course

Previous blogs (see May 8, 2008) have called readers's attention to the ISAR-produced monograph entitled "Harming Companion Animals: Liability and Damages."

Since its publication, the monograph has received considerable attention and has been used as a resource by animal custodians throughout the United States.

Recently, a lawyer who this summer will be teaching "Animal Law and Rights" at a New England law school asked for a copy of the monograph for use in his course. ISAR responded by offering him copies for all 25 of the students registered for the course, and he gladly accepted.

ISAR has additional copies in its inventory, and until we run out we'll make the same offer to any lawyer teaching an animal law course elsewhere.

ISAR and Animal Rights in Europe

Supporters of International Society for Animal Rights know that in recent years we have extended our humane education activities to many places outside the United States by "exporting" thousands of copies of our Reports and each August encouraging and assisting observance of our International Homeless Animals Day and candlelight vigils.

ISAR has looked beyond our shores because the awakening animal protection movements around the world are going to need all the help they can get, particularly in countries with no tradition of humane treatment of animals.

There is encouraging news:

• Three years ago, Great Britain barred hunting with dogs--although they are still allowed to follow the scent of foxes, but just not kill them.
• In Beijing where, as in the rest of China, people eat dog meat, restaurants have had a moratoriam imposed on the practice--although after the Olympics they will doubtless revert to this barbaric practice.
• Israel has barred the production of foie gras, as have some localities in Britain, and California has prohibited it--although the law is not effective until the year 2012.
• In Scotland, live animals may not be given as prizes, nor sold to children under the age of 16--although it is easy to see how the law will be circumvented.
• Hungary, Austria, Singapore, and Croatia have barred wild animals from circus acts--although the law apparently does not apply to domestic animals.
• Italy no longer allows animals to be used on television if they would be caused stressed or be forced to act against their nature--although the law's loopholes are evident.
• Bullfighting in Spain is under attack, with doping tests now conducted to ascertain if the doomed animals' useless attempts to defend themselves has been compromised and television no longer broadcasting the obscene spectacle--although without doping and TV broadcasts the fights continue.
• Four months from now a law goes into effect in Switzerland requiring dog owners to pay for and complete a two-part course focusing on the nature and needs of their animals--although holding wild animal in captivity goes on.
• Some medical schools in Russia have stopped what has been characterized as "the harmful use of animals"--although others have not, and experimentation has not been abolished.

ISAR is encouraged by these early steps toward animal protection because they stem from the growing awareness that took hold in the United States about a generation ago: that animals do have certain rights, and that it is arrogant and wrong for humans to abuse them.

Even though the current European laws leave a lot to be desired, they are a beginning--and ISAR intends to assist their proponents in strengthening and enlarging them.

We hope that our supporters realize, as we do, that animal protection seeds are sprouting all over the world--and that they need to be nurtured. With your help ISAR will keep working hard to do just that.

"Harming Companion Animals: Liability and Damages"

Last March, this Blog made brief mention of a monograph that ISAR has prepared for complimentary distribution, Harming Companion Animals: Liability and Damages. Because of the importance of the subject, we’re going to expand on that mention today.

Too often, especially with the advent of the Internet, advice is sought from ISAR by the custodians of companion animals about harm done to them by veterinarians through misdiagnosis, prescribing the wrong medicine, operating unnecessarily or not at all when they should, and committing every other kind of malpractice imaginable. We also receive heartbreaking reports of intentional acts of cruelty perpetrated against companion animals: dogs shot by neighbors, cats stoned by teenagers, horses maimed by sadists.

The media exposure now being given to the harm being visited upon companion animals understandably causes nightmares for their custodians, who live in fear their animals may be the next victims.

Given what is now known about the emotional aspects of the human animal bond, and how the millions of companion animal caretakers experience that bond, it’s not surprising that when harm is caused the custodian seeks some kind of recourse.

Often a complaint is made to prosecutors, the licensing authorities, or the Better Business Bureau. Sometimes newspaper announcements are placed, reporting what the wrongdoer did, or failed to do. Mostly, however, the reaction of choice is a lawsuit—usually not to recover damages for their own sake, but to expose the wrongdoer’s conduct, to prevent him from harming any animals in the future, and/or, sometimes, to punish him financially.

Once virtually unheard of, in the past two decades the number of civil lawsuits arising out of harm to companion animals has soared. Various reasons have been given for this phenomenon, among them the information explosion, a more litigious culture, a burgeoning literature on the subject, more lawyers willing to take such cases, the development of new theories on which to sue, a greater awareness of the importance of companion animals to their caretakers’ quality of life, and a greater willingness on the part of legislatures and courts to treat seriously the harm done to companion animals.

But to say that “the number of civil lawsuits arising out of harm to companion animals has soared,” is not to say that the litigation is succeeding. In fact, despite the occasional anecdotal story that makes the news-papers and a sound bite on local TV news, much of the litigation is not succeeding—not if success is measured by achieving the lawsuits’ primary goal: imposing a financial penalty on the wrongdoer so that his conduct will be deterred.

This is especially true of litigation triggered by veterinary malpractice, which is without question the source of most harm to companion animals.

Tactically, suing for veterinary malpractice is a good idea. But even if a veterinarian is found liable in a civil action, the damages are usually inconsequential because of the legal status of companion animals and the judicial system’s indifference to the value companion animals have to their custodians. Because of these two disabilities—animals as mere property, and their worth akin to inanimate objects—the cost to those who harm
companion animals is virtually nil.

In a malpractice case, if the veterinarian has the usual professional liability coverage, the insurance company, not the veterinarian, will pay the costs of the defense. If the plaintiff proves liability, the insurance company will pay, not the veterinarian.

But even if there is no insurance, or liability is imposed for conduct that the insurance does not cover (e.g., an intentional act), the damages the veterinarian has to pay will be relatively small. And to the extent that damages for harm to companion animals is minimal, there is less an incentive for a veterinarian and his staff to exercise the appropriate level of care.

It is a truism that generally people exercise care in direct proportion to their assessment of, and their willingness to incur, risk.

Most lawyers will be careful and not wait until the last day to file a notice of appeal. They appreciate the risk of disastrous consequences from a malpractice suit, if the notice of appeal is “out of time.” If the lawyer has malpractice insurance that has to pay a claim arising out of failure to timely file a notice of appeal, if he can even get malpractice insurance afterwards the company will likely raise his premium and his deductible.

But this disincentive to sloppy professional work because of either non-renewed coverage, or coverage at a higher cost, does not affect veterinarians. If their malpractice policies are not renewed and they are later found liable in a later case, the damages will usually be modest.

If veterinarians do have coverage and lose a malpractice case, the insurance company will pay the judgment and the increased premium, just as the initial premium, will be negligible.

Why is veterinary malpractice insurance so inexpensive?

The answer is obvious: The handful of awards in companion animal veterinary malpractice cases have been nowhere near the available policy liability limits because, since companion animals are considered mere “property,” their custodians cannot recover damages for their emotional loss, and pain and suffering, caused by the negligence or intentional harm.

Thus, as a practical matter, the insurance companies have little or no financial risk—especially if the award is within the policy’s deductible limit, which the insured veterinarian will invariably pay himself.

Damage awards will be nowhere near the available policy limits until our culture, legal and social alike, changes its basic attitude toward the nature of companion animals and their value to their human caretakers—an attitude rooted in outdated notions about both.

In the meantime, because the necessary change in values has not yet occurred, ISAR frequently receives reports of veterinary malpractice and intentional harm done to companion animals. Because these requests for information about what can be done to right these wrongs have so grown in number, it is no longer efficient for the ISAR to respond to them individually. Accordingly, ISAR has prepared Harming Companion Animals: Liability and Damages, an extensive monograph for complimentary distribution.

ISAR’s monograph is intended to be, and should be understood as, only educational in nature. It is not intended to constitute, and should not be considered, legal advice generally or for any individual situation in particular. When confronted with a legal problem regarding negligent or intentional harm to a companion animal, there is no substitute for face-to-face, fact-specific advice obtained from one’s own attorney. Accordingly, ISAR urges anyone with a potential or actual problem of this kind to consult a lawyer.

Moreover, Harming Companion Animals: Liability and Damages is not intended to be a comprehensive statement of the law on that subject. Its modest goal is to present merely general statements of the principal legal categories, using a single example to illustrate each.

Specifically, Harming Companion Animals: Liability and Damages focuses on the nature and scope of wrongdoers’ liability and the damages that may be recoverable from them. The monograph’s methodology is to present brief but thorough explanations of the applicable principles of liability and damages, and then to illustrate them by the use of extensive quotations from actual cases.

Although the monograph has not been written primarily for lawyers, the information contained in it should be of considerable value to them, especially our use of actual cases and our extensive bibliography, which includes:

• Law review articles.
• Law review notes.
• Book reviews.
• Books.
• International resources.
• Journals.
• Magazine articles.
• Miscellaneous resources.
• Newspaper articles.
• Online resources.
• Pending legislation.
• Unsuccessful bills.
• Currently existing statutes.
• Recently reported cases.

Complimentary copies of Harming Companion Animals: Liability and Damages may be obtained through our website, www.isaronline.org.

The monograph consists of two major parts. Part I deals with “liability” resulting from wrongful conduct. Someone must have done something either negligently or intentionally (or even through breach of contract) to cause harm to a companion animal. If there is liability, the second question, dealt with in Part II, is: what are the “damages”?

A final point: Even though most of the harm to companion animals results from
veterinary malpractice, Harming Companion Animals: Liability and Damages
should not be taken as a criticism (let alone a condemnation) of all veterinarians.

On the contrary.

Although among the thousands and thousands of veterinarians in the United States there are some bad apples—just as in the medical, legal, and all other professions—the vast majority of veterinarians and their staffs are caring, dedicated, competent, healers who feel deeply about the animals they treat. For them, all of us who share our lives with companion animals are eternally grateful.

Redemption: The Myth of Pet Overpopulation in America by Nathan J. Winograd

An initial reaction to Mr. Winograd's book by those involved in the animal protection movement is that his assertion that the problem of pet overpopulation in the United States is a "myth" is utterly indefensible. Everyone in this movement is painfully aware that millions of healthy dogs and cats are killed in shelters annually. Indeed, the author himself puts the figure at about five million. (Mr. Winograd's website can be found HERE. At the bottom of his home page is a YouTube interview where he explains his theory of No Kill.)

Thus, if millions of companion animals are put down every year, how can there not be an overpopulation problem?

In his well researched, extremely persuasive book, Mr. Winograd provides the answer. One paragraph sums up his position:

In theory, we could be a No Kill nation tomorrow. Based on the number of existing households with pets who have a pet die or run away, more homes potentially become available each year for cats than the number of cats who enter shelters, while more than twice as many homes potentially become available each year for dogs than the number of dogs who enter shelters. Based on the existing lifespan of existing pet dogs and cats, every year more families are potentially looking to bring a new dog or cat into their home than currently enter shelters. According to one commentator, "since the inventory of pet-owning homes is growing, not just holding even, adoption could in theory replace all population control killing right now--if the animals and potential adopters were better introduced." In other words, if shelters did a better job at adoptions [and elsewhere in his book the author argues convincingly that too many do a rotten job], they could eliminate all population control killing today. This does not include the fact that the market of homes (the number of homes that do not currently have a dog or cat but will acquire one) is expanding rapidly. If shelters increased market share by just a few percentage points, we could be a No Kill nation right now. But we are far from it. (My emphasis.)

If the author's figures are correct, that would mean that the vast majority of the five million cats and dogs killed each year (allowing for the sick, seriously injured, and otherwise unadoptable) could find homes--and indeed "No Kill" could be a reality.

But there's a catch--which is why Mr. Winograd hedges his argument with the "in theory" qualifier.

The catch is that the "overpopulation" mindset must be radically altered, and shelters must do "a better job at adoptions"--which is not impossible.

In the meantime, what is to be done?

To his credit, the author strongly supports spay/neuter, making that point throughout his book.

For example, he notes that the American Veterinary Medical Association "opposed the endorsement of municipal- or SPCA-administered spay/neuter clinics that provided the poor an alternative to the prohibitively high prices charged by some private practice veterinarians."

"Sterilization of animals to curb their reproductive capacity thus leading to the birth of fewer dogs and cats and consequently fewer surrenders to shelters, is one of the keys to substantially reducing shelter killing."

"While laws were passed to force people to spay or neuter their pets, little was done about the high cost of sterilization that kept poor people from complying."

"The genesis of the failed model [solution] can be found at the 1974 meeting at which self-proclaimed animal welfare 'leaders' failed to demand the one thing that could have achieved results: low-cost and free spay/neuter, particularly for the pet of the poor."

"Study after study had already confirmed that unaltered pets tend to belong to the people with the lowest incomes. If there was a solution in front of them, it was not hard to see: make spay/neuter affordable."

"At a time when every shelter in the country was telling people to spay and neuter their pets, many of these shelters were not altering the animals in their own care prior to adoption."

"Until its low-cost spay/neuter clinics were closed . . . the City of Los Angeles had begun the march toward No Kill with its municipality funded program that provided affordable access to spay/neuter services and incentives to increase the number of animals sterilized."

"Studies show the primary reasons people do not sterilize their pets are cost and lack of access to spay/neuter services."

Who is to blame?

In 1974, the Humane Society of the United States, the American Humane Association, the ASPCA, and other animal welfare groups had an opportunity to take a decisive stand [for spay/neuter]. Had they endorsed and succeeded in promoting municipally funded low-cost spay/neuter nationwide, the lifesaving results could have been dramatic. Sadly, they failed to do so. * * * Despite two more years of indisputable proof that high volume spay/neuter clinics in Los Angeles were having a decisive impact on lowering shelter deaths . . . the [conference] participants again failed to support municipally funded low-cost spay/neuter programs for fear of alienating veterinary business interests. (My emphasis.)

And so the beat goes on: too many shelters do an incompetent job, spay/neuter programs fall far short, dogs and cats continute to breed (and be bred!), and as they multiply the dead bodies of their predecessors go up in smoke--in a neverending cycle of birth, suffering, and destruction.

Nathan J. Winograd has come up with a challenging, and perhaps workable, solution to the massive annual killing that goes on relentlessly in our enlightened nation. His book should be read, his ideas studied, and his leadership of No Kill applauded.

In the meantime, ISAR will continue its spay/neuter humane education in the hope that at least some companion animals will be spared the fates of many too many of their ancestors.

Get Political for Animals and Win the Laws They Need by Julie E. Lewin

In a forthcoming law review article entitled “The Birth of Animal Rights Law: The Role of Lawyers in the Animal Rights/Protection Movement from 1972-1987” Joyce Tischler, Esq., founder and president of Animal Legal Defense Fund, sets out to “explore the roots of a large scale, organized movement, which started in the early 1970s in the United States, spearheaded by attorneys and law students with the express purpose of filing lawsuits to protect animals and establish the concept of their legal rights, regardless of the species of the animals or the ownership interest of humans.”

In that article, Ms. Tischler graciously names as “the first animal rights lawyer” ISAR’s chairman and general counsel, Henry Mark Holzer, professor emeritus at Brooklyn Law School.

She credits Professor Holzer, then a practicing attorney professionally associated with ISAR, with three accomplishments crucial to establishing the field of what today is known as “animal rights law”: with ISAR, having brought the first federal and first state lawsuit to invoke the moral concept of “animal rights”; with ISAR, having founded the Animal Rights Law Reporter, which became “the legal clearinghouse for animal rights law information”; and, again with ISAR, having organized the “First National Conference on Animal Rights Law”—an undertaking, in Ms. Tischler’s words, “[t]he significance of which cannot be overstated.”

One of the topics addressed at that conference was how activists can foster the enactment of statutes and ordinances protective of animals. We included that topic because while on the legal side of the ledger it was not difficult for capable lawyers to write the appropriate laws, on the legislative side of the ledger getting them enacted and signed was an entirely different, and extremely difficult, matter.

Over the years animal protective legislation has of course been enacted, but the problem has been that except for the very few national humane orgainizations with deep pockets and strong legislative connections everyone else has lacked the requisite information and skills to lobby successfully.

No more!

Julie E. Lewin of the National Institute for Animal Advocacy (Guilford, CT) has written a book that can alter the landscape of animal legislation in the United States. Its complete title and subtitles are: "Get Political for Animals [GPFA] and Win the Laws they Need; Why and how to launch a voting bloc for animals in your town, city, county or state; A step-by-step manual for animal rights and rescue advocates and organizations."

This description promises a lot, and it delivers!

GPFA has been rightly endorsed by the Humane Society of the United States, In Defense of Animals, ASPCA, Animal Legal Defense Fund, legislators, and others.

Lewin's book has rightly been called "important," "groundbreaking," "superb," "wonderful," "a masterpiece" and "a great resource."

It is all of those things, and more.

Indeed, the Table of Contents alone consists of eleven letter-size pages, providing an overview of
the 276 page book.

The scope of what is covered in GPFA is so comprehensive that attempting to relate it here would be a disservice to the research, writing, and experience that the author brought to this invaluable project.

To illustrate this point, here are the chapter titles, without the abundance of material that each one contains.

1. "We can be power players who win strong laws for animals."
2. "The dynamics of social change: from charity to political organization."
3. "The structure of government--and why activists need to know it."
4. "The structure of politics, the culture of politics, and the political mind."
5. "The dynamics and mechanics of political campaigns and voting blocs' role."
6. "How the lawmaking process really works--and the role of the voting bloc system."
7. "Playing to win: the pro-active lobbyist for a political organization is a power player."
8. "The legal side: how individuals, informal animal rights and rescue groups, and charities can
launch political organizations for animals."
9. "How to use media to help win laws for animals--and when to avoid it."
10. "Make it happen: how to launch your voting bloc for animals."
11. "Political quiz: read between the lines."

In the history of social-cultural-political movements there have been defining moments--a speech ["Tear Down That Wall"], a book [Uncle Tom's Cabin], a judicial decision [Brown v. Board of Education]--that sent our nation down a new road.

That is what Lewin's book does for the protection of animals through the legislative processes of the United States of America.

More animal protective laws will be introduced--and thanks to Julie E. Lewin and the National Institute for Animal Advocacy, many of them will be enacted. The animals should be, as we are, extremely grateful.

To purchase a copy of Ms. Lewin's book, please visit www.nifaa.org.

Suing on Behalf of Animals: New Case

For many years ISAR has received requests for information about how concerned individuals and humane societies can bring legal action against local animal shelters that are not being run properly. Unfortunately, there are many ways in which shelters can be derelict in their statutory, humane and moral responsibilities to the unfortunate dogs and cats that come into their custody.

As we consistently point out, there are several difficult hurdles “outsiders” have to clear in order to bring such lawsuits, some of them practical (e.g., cost, capable counsel, entrenched political obstacles) and other of them legal (e.g., proof, legal theory, a fair judge).

The greatest problem, however, has always been what lawyers call “standing to sue”—the legal requirement that the lawsuit be brought by the appropriate plaintiff.

In both the federal and state legal systems, not just anyone can start a lawsuit against either a private party or the government. Generally speaking, the person (or entity) who would sue (the plaintiff) must have some connection with the grievance and with whomever the lawsuit is directed against (the defendant). This requirement is the standing to sue requirement.

For about the past fifty years, the Supreme Court of the United States for the federal system, and the highest courts of the states for the non-federal system, have crafted increasingly complex rules to regulate standing to sue. These rules are of crucial importance to would-be litigants, because they control access to the courts. (For a lengthy ISAR article on standing to sue see http://www.isaronline.org/, under LAW/Articles.)

There are two ways for would-be plaintiffs to obtain standing to sue.

The hard way, and the easy way.

As to the hard way, for an individual, a group, or an organization to possess standing to sue—to be able to get into court and ask that it resolve the alleged dispute—the plaintiff must have suffered (or soon will suffer) some injury reasonably caused by the defendant, an injury that will be redressed if the plaintiff wins in court.

The corollary of this standing requirement is that the plaintiff usually can’t raise the claims of others (though there are exceptions), the plaintiff can’t raise claims that are common to everyone else (e.g., taxpayers; though, again, there are exceptions), and the plaintiff can’t sue for violation of a statute unless he (or it) is someone intended by the statute to be protected or is otherwise affected.

These standing to sue requirements, as difficult to understand and apply in “normal” cases, have become all the more problematic since the 1950s when activists of all kinds—e.g., civil rights, abortion, anti-war—have turned from the legislatures to the courts to implement their agendas, be they political, moral, social, economic, or whatever.

And nowhere has the standing to sue problem proved more thorny than as regarding “Animal Rights.”

However, there is an easy (or at least easier) way.

That way is exemplified by a lawsuit recently brought in North Carolina by two animal welfare organizations against a county sheriff and other county and state officials seeking to end the use of a gas chamber at the county animal shelter.

Rather than paraphrase the plaintiffs’ complaint, here it is:

State of North Carolina
Union County
)
)
)
In the General Court of Justice DISTRICT Court Division
08-CVS-

)

NORTH CAROLINA COALITION FOR HUMANE EUTHANASIA and THE HUMANE SOCIETY OF UNION COUNTY,

Plaintiffs,

v.

EDDIE CATHEY, SHERIFF OF UNION COUNTY, NC, LT. MICHELLE STARNES, ANIMAL SERVICES OFFICER OF UNION COUNTY, NC, PHILLIP TARTE, LOCAL HEALTH DIRECTOR FOR UNION COUNTY, NC, and DEMPSEY E. BENTON, SECRETARY OF THE NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES,

Defendants.


Verified complaint for MANDATORY INJUNCTION AND OTHER RELIEF



Plaintiffs, North Carolina Coalition for Humane Euthanasia (“NCCHE”) and The Humane Societyof Union County, Inc. (“HSUC”), each a non-profit domestic corporation, allege as follows:

SUMMARY

Plaintiffs file this Complaint to stop defendants from unlawfully killing young, geriatric, injured, sick or pregnant animals in the gas chamber in violation of North Carolina law. While plaintiffs understand that not every animal that ends up in defendants’ custody can be placed in an adoptive home and that some of them must be euthanized, defendants, as government employees charged with enforcement of the law, should themselves comply with the law. North Carolina law prohibits the use of the gas chamber to euthanize young, geriatric, injured, sick or pregnant animals. However, documents that defendants are required by law to maintain (Animal Services Complaint Report/Impound Sheets) and which they were compelled to provide to NCCHE show that they routinely use the gas chamber to do what the law prohibits them from doing—euthanize young, geriatric, sick, injured and pregnant animals in the gas chamber.

PARTIES

1. Plaintiff NCCHE is a non-profit domestic corporation organized under the provisions of N.C. Gen. Stat. Chapter 55, with its principal place of business in Chapel Hill, North Carolina. It is dedicated to the prevention of cruelty to animals.

2. Plaintiff HSUC is a non-profit domestic corporation also organized under the provisions of N.C. Gen. Stat. Chapter 55, with its principal place of business in Monroe, Union County, North Carolina. HSUC is dedicated to preventing cruelty to animals, relieving suffering among animals, and to educating the public about the humane treatment of animals.

3. Each of the Plaintiffs is a “person” as defined by N.C. Gen. Stat. 19A-1(3).

4. Defendant, Eddie Cathey, is the duly elected Sheriff of Union County and his duties include, among others, responsibility for the Union County Animal Control Division of the Union County Sheriff’s Department. Sheriff Cathey is the commanding officer of the Union County Sheriff’s Department and is being sued in his official capacity.

5. Defendant Lieutenant Michelle Starnes is an employee of Union County and reports to defendant Sheriff Cathey, who is her supervisor. Lt. Starnes’ duties include operation of the Union County Animal Control division. Lt. Starnes is being sued in her official capacity.

6. Defendant Phillip Tarte is the Local Health Director for Union County North Carolina. As the local health director, Mr. Tarte has the statutory obligation to “administer the programs of the local health department and enforce the rules of the local board of health.” N.C. Gen. Stat. § 130A-4(a). Mr. Tarte is being sued in his official capacity.

7. Defendant Dempsey E. Benton is the Secretary of the N.C. Department of Health and Human Services (“Secretary”). As the Secretary, Mr. Benton has the statutory obligation to “administer and enforce the provisions of [Chapter 130 of the North Carolina General Statutes] and the rules of the Commission. N.C.” Gen. Stat. § 130A-4(a). Mr. Benton is being sued in his official capacity.

JURISDICTION AND VENUE

8. This Court has subject matter jurisdiction pursuant to N.C. Gen. Stat. §§ 19A-1 through 19A-4.

9. This Court has personal jurisdiction over defendants because each of them is a real party-in-interest pursuant to N.C. Gen. Stat. § 19A-2. Specifically, Defendants Cathey and Starnes have possession of animals in Union County by virtue of their responsibility for animal control functions in Union County, including operation of the Union County Animal Shelter. Defendants Tarte and Benton have possession of animals and are responsible for their treatment because, among other reasons, of their statutory responsibilities to administer the provisions of Chapter 130A of the North Carolina General Statutes and the programs of the local health department, which responsibilities include the duties imposed pursuant to N.C. Gen. Stat. § 130A-192 to impound and hold for 72 hours certain animals and provide for proper disposition.

10. Venue is proper pursuant to N.C. Gen. Stat. §§ 19A-1 through 19A-4 because Union County is the county in which the Defendants cruelly treated the animals.

FACTS

Acceptable methods of euthanizing animals
are dictated by statute in North Carolina.

11. N.C. Gen. Stat. 19A-23(9) provides a statutory definition of “euthanasia,” as follows:
“Euthanasia” means the humane destruction of an animal accomplished by a method that involves rapid unconsciousness and immediate death or by a method that involves anesthesia, produced by an agent which causes painless loss of consciousness and death during such loss of consciousness.

N.C. Gen. Stat. 19A-24(5) provides that “[a]n animal shall only be put to death by a method and delivery of method approved by the American Veterinary Medical Association, the Humane Society of the United States, or the American Humane Association.”

12. There are many different methods of euthanizing animals. These include inhalants, such as carbon monoxide gas (CO), and non-inhalant pharmaceutical agents, such as pentobarbital.

13. Inhalants are frequently administered to multiple animals which have been placed in a gas chamber. The gas chamber is flooded with the chosen inhalant, usually CO, resulting in the eventual death from hypoxia of the animals in the gas chamber. The American Veterinary Medical Association, the Humane Society of the United States, and the American Humane Association all address the subject of gas chamber use.

14. In regard to euthanasia of young animals, the American Veterinary Medical Association Guidelines on Euthanasia provide:

Neonatal animals appear to be resistant to hypoxia, and because all inhalant agents ultimately cause hypoxia, neonatal animals take longer to die than adults. … The panel recommended that inhalant agents not be used alone in animals less than 16 weeks old except to induce loss of consciousness, followed by the use of some other method to kill the animal.

See Exhibit 1.

15. Likewise, the Statement on Euthanasia Methods for Dogs and Cats published by the Humane Society of the United States provides:

It is always unacceptable to use CO for the euthanasia of dogs and cats who are:

Geriatric;
Under the age of four months;
Sick or injured; or
(Obviously) pregnant.

Old, sick, or injured animals may have poor blood pressure or weak hearts, which may delay the effects of CO, causing them to experience distress prior to unconsciousness. Animals under the age of four months may not have the lung capacity to inhale enough CO to be effective. In pregnant animals, it is likely that the mother will die from exposure to CO before the unborn puppies/kittens. Consequently, it is possible that the puppies/kittens will die as a result of the mother’s death (by suffocating to death) rather than from exposure to CO. The HSUS condemns using CO for animals meeting the above criteria.

See Exhibit 2 (emphasis added).

16. Finally, the American Humane Association “considers euthanasia by injection of sodium pentobarbital (EBI) to be the only acceptable method of euthanasia of dogs and cats in animal shelters,” regardless of age. See Exhibit 3 (emphasis in original).

17. Evidencing her understanding of the reason for the law, defendant Starnes has commented to the media that kittens and puppies should only be euthanized by injections of pentobarbital because the gas would take a cruelly long time to knock them out.

18. On information and belief, Union County uses a gas chamber and gas to euthanize almost all of the animals it euthanizes, including puppies and kittens, geriatric, injured, sick and pregnant animals.

Union County Animal Control officials have the statutory obligation to maintain certain records relating to the animals of Union County Animal Control impounds

19. N.C. Gen. Stat. § 130A-192 requires, among other things, that the county Animal Control Officer “shall maintain a record of all animals impounded under this section which shall include the date of impoundment, the length of impoundment, the method of disposal of the animal and the name of the person or institution to whom any animal has been released.”

20. Subchapter 52J .0100 of the North Carolina Administrative Code (January 1, 2006) mandates that operators of all animal shelters shall maintain records on all dogs and cats showing the: (i) origin of animals (including names and addresses of consignors) and the date animals were received; (ii) description of animals including species, age, sex, breed, and color markings; (iii) location of animal if not kept at the licensed or registered facility; (iv) disposition of animals including name and address of person to whom an animal is sold, traded or adopted and the date of such transaction; in the event of death, the record shall show the date, signs of illness, or cause of death if identified; if euthanized, the record shall show date and type of euthanasia; and (v) record of veterinary care including treatments, immunization and date, time, description of medication (including name and dosage), and initials of person administering any product or procedure.”

NCCHE requested documents relating to the Union County Animal Shelter

21. On February 14, 2007, pursuant to the North Carolina Public Records Act, N.C. Gen. Stat. 132-1 et seq. (“PRA”), Attorney Marguerite E. Huggins, acting on behalf of plaintiff NCCHE, mailed a PRA request to the following people: (i) the County Manager for Union County, (ii) the County Attorney for Union County, (iii) defendant Sheriff Cathey, and (iv) Union County Animal Control Officer Bill Tucker (collectively, the “PRA Recipients”).

22. NCCHE requested from the PRA Recipients, for the period beginning January 1, 2006 through the date of the first PRA request, copies of all animal impoundment records they are required to maintain pursuant to N.C. Gen. Stat. § 130A-192 and Subchapter 52J .0100 of the North Carolina Administrative Code.

23. In response to the first PRA request, in approximately the last week of February, 2007, Lt. Michelle Starnes produced to NCCHE over 300 pages of documents (the “PRA1 Documents”). Included among the PRA1 Documents were hundreds of Union County Sheriff’s Office Animal Services Complaint Report/Impound Sheets (“Impound Sheets”) reflecting the disposition of animals impounded by Union County Animal Services.

24. On November 2, 2007, pursuant to the North Carolina Public Records Act, N.C. Gen. Stat. 132-1 et seq., Michele King, on behalf of plaintiff NCCHE, e-mailed a second PRA request to Union County Animal Control Officer, Captain Bill Tucker.

25. NCCHE requested from Captain Tucker, for the period beginning March 1, 2007, through the date of the second PRA request, inter alia, copies of all animal impoundment records they are required to maintain pursuant to N.C. Gen. Stat. § 130A-192 and Subchapter 52J .0100 of the North Carolina Administrative Code.

26. In response to the second PRA request, in approximately the last week of November 2007, Captain Tucker produced to NCCHE over 3000 pages of documents (the “PRA2 Documents”). Included among the PRA2 Documents were thousands of Impound Sheets reflecting the disposition of animals impounded by Union County Animal Services. Most of the Impound Sheets did not reflect the age of the animal as required by Subchapter 52J 0.100 of the North Carolina Administrative Code or the health or pregnancy status of the animal.

27. Union County is euthanizing neonatal, geriatric, injured, sick and pregnant animals in the gas chamber and in violation of state law.

28. As reflected on the Impound Sheets that Lt. Starnes and Captain Tucker produced in response to the PRA1 and PRA2 requests, Union County routinely euthanizes puppies and kittens under 16 weeks of age, as well as pregnant, sick, injured, and geriatric animals, by means of the gas chamber.

29. Attached hereto as Exhibit 4 are Impound Sheets which demonstrate a pattern and practice by the Union County Sheriff’s office of euthanizing puppies and kittens under 16 weeks of age in the gas chamber. For Example:

a. Exhibit 4.1 is an Impound Sheet bearing reference number 72512, dated 10/2/06, and documenting the disposition of a 3-week-old “feral” kitten as “chamber.”

b. Exhibit 4.2 is an Impound Sheet bearing reference number 72745, dated 10/21/06, and documenting the disposition of a 2-week-old kitten as “chamber.”

c. Exhibit 4.3 is an Impound Sheet bearing reference number 71243, dated 6/26/06, and documenting the disposition of a one-month-old kitten as “chamber.”

d. Exhibit 4.4 is an Impound Sheet bearing reference number 70871, dated 5/25/06, and documenting the disposition of a 5-week-old kitten as “chamber.”

e. Exhibit 4.5 is an Impound Sheet bearing reference number AS07001295, dated 6/30/07, and documenting the disposition of a 2-4 month-old cat as “chamber.”

f. Exhibit 4.6 is an Impound Sheet bearing reference number AS07000785, dated 4/28/07, and documenting the disposition of a baby/whelping cat as “chamber.”

g. Exhibit 4.7 is an Impound Sheet bearing reference number AS07001056, dated 6/5/07, and documenting on p. 2 the disposition of a baby/whelping cat as “chamber.”

h. Exhibit 4.8 is an Impound Sheet bearing reference number AS07001101, dated 6/11/07, and documenting the disposition of an under 2-month-old dog as “chamber.”

i. Exhibit 4.9 is an Impound Sheet bearing reference number AS07001145, dated 6/15/07, and documenting the disposition of an under-2-month-old dog as “chamber.”

j. Exhibit 4.10 is an Impound Sheet bearing reference number AS07001205, dated 6/21/07, and documenting the disposition of a 2-4 month-old dog as “chamber.”

k. Exhibit 4.11 is an Impound Sheet bearing reference number SO07043677, dated 8/27/07, and documenting on pp. 3-4 the disposition of an under 2-month-old cat as “chamber.”

l. Exhibit 4.12 is an Impound Sheet bearing reference number AS07002352, dated 10/27/07, and documenting the disposition of an under-2-month-old cat as “chamber.”

m. Exhibit 4.13 is an Impound Sheet bearing reference number AS07002408, dated 11/01/07, and documenting the disposition of an under-2-month-old cat as “chamber.”

30. Attached here to as Exhibit 5 are Impound Sheets which demonstrate a pattern and practice by the Union County Sheriff’s office of euthanizing old and sick animals in the gas chamber. For Example:

a. Exhibit 5.1 is an Impound Sheet bearing reference number 70488, dated 4/11/06, and documenting the disposition of an old, blind and sick dog as “chamber.”

b. Exhibit 5.2 is an Impound Sheet bearing reference number 71022, dated 6/8/06, and documenting the disposition of an old and sick dog as “chamber.”

c. Exhibit 5.3 is an Impound Sheet bearing reference number 70167, dated 3/9/06, and documenting the disposition of a sick dog with a possible respiratory infection as “chamber.”

d. Exhibit 5.4 is an Impound Sheet bearing reference number 72526, dated 10/3/06, and documenting the disposition of a very small and young, sick kitten as “chamber.”

e. Exhibit 5.5 is an Impound Sheet bearing reference number 71720, dated 7/29/06, and documenting the disposition of three puppies with parvo as “chamber.”

f. Exhibit 5.6 is an Impound Sheet bearing reference number AS07000856, dated 5/10/07, and documenting the disposition of a “senior” dog as “chamber.”

g. Exhibit 5.7 is an Impound Sheet bearing reference number AS07000948, dated 5/22/07, and documenting the disposition of a “senior” dog as “chamber.”

h. Exhibit 5.8 is an Impound Sheet bearing reference number AS07002190, dated 10/6/07, and documenting the disposition of a dog sick with parvo as “chamber.”

i. Exhibit 5.9 is an Impound Sheet bearing reference number AS07001363, dated 7/9/07, and documenting the disposition of a dog sick with heartworm as “chamber.”

j. Exhibit 5.10 is an Impound Sheet bearing reference number AS07002301, dated 10/19/07, and documenting the disposition of a cat that “does not appear healthy” as “chamber.”

31. Attached here to as Exhibit 6 are Impound Sheets which demonstrate a pattern and practice by the Union County Sheriff’s office of euthanizing injured animals in the gas chamber. For Example:

a. Exhibit 6.1 is an Impound Sheet bearing reference number 70338, dated 3/29/06, and documenting the disposition of a badly injured cat as “chamber.”

b. Exhibit 6.2 is an Impound Sheet bearing reference number 71213, dated 6/23/06, and documenting the disposition of an injured kitten as “chamber.”

c. Exhibit 6.3 is an Impound Sheet bearing reference number 71378, dated 7/11/06, and documenting the disposition of an injured puppy as “chamber.”

d. Exhibit 6.4 is an Impound Sheet bearing reference number 72709, dated 10/18/06, and documenting the disposition of an injured puppy as “chamber.”

e. Exhibit 6.5 is an Impound Sheet bearing reference number 71682, dated 1/26/06, and documenting the disposition of an old, sick and injured dog as “chamber.”

f. Exhibit 6.6 is an Impound Sheet bearing reference number AS07000407, dated 3/3/07, and documenting the disposition of an injured cat as “chamber.”

g. Exhibit 6.7 is an Impound Sheet bearing reference number AS07001231, dated 6/25/07, and documenting the disposition of a dog whose “back end is broken will not eat or drink” as “chamber.”

h. Exhibit 6.8 is an Impound Sheet bearing reference number AS07001409, dated 7/13/07, and documenting the disposition of an injured cat as “chamber.”

32. Attached hereto as Exhibit 7 are Impound Sheets which demonstrate a pattern and practice by the Union County Sheriff’s office of euthanizing pregnant animals in the gas chamber. For Example:

a. Exhibit 7.1 is an Impound Sheet bearing reference number 70942, dated 6/1/06, and documenting the disposition of a injured and pregnant cat as “chamber.”

b. Exhibit 7.2 is an Impound Sheet bearing reference number 70254, dated 3/18/06, and documenting the disposition of a pregnant cat as “chamber.”

c. Exhibit 7.3 is an Impound Sheet bearing reference number 71963, dated 8/17/06, and documenting the disposition of a pregnant cat as “chamber.”

d. Exhibit 7.4 is an Impound Sheet bearing reference number 71159, dated 6/19/06, and documenting the disposition of a potentially pregnant cat as “chamber.”

FIRST CLAIM FOR RELIEF

Violations of N.C. Gen. Stat. 19A-24(5) by All Defendants

33. Plaintiffs incorporate by reference the allegations contained in the preceding paragraphs.

34. Defendants, in their capacity as public servants, were required to know, enforce, and comply with the law regarding the care and disposition of animals under their control.

35. N.C. Gen. Stat. § 19A-1(2) defines “animals” to include every living vertebrate in the classes Amphibia, Reptilia, Aves, and Mammalia except human beings. Cats and dogs, being non-human vertebrates, are “animals” for purposes of Chapter 19A.

36. N.C. Gen. Stat. § 19A-1(2) defines cruelty as “every act, omission, or neglect whereby unjustifiable physical pain, suffering or death is caused or permitted.”

37. N.C. Gen. Stat. § 19A 1.1, identifies several types of conduct to which the proscriptions of Chapter 1 of Article 19A do not apply. That list includes “[t]he lawful destruction of any animal for the purposes of protecting the public, other animals, or the public health.” (Emphasis added.) By necessary implication, the unlawful destruction of any animal, even if for the purposes of protecting the public, other animals, or the public health, is not exempt from the proscriptions of Chapter 1 of Article 19A.

38. Defendants have demonstrated a pattern and practice of subjecting animals in their possession to “cruelty” and “cruel treatment” in that, through their intentional acts in their official capacities, they caused those animals to suffer unjustifiable physical pain and suffering and death.

39. Specifically,

a. defendants are unlawfully causing the suffering and death of puppies and kittens by killing them in a gas chamber in direct contravention of N.C. Gen. Stat. 19A-24(5);

b. defendants are unlawfully causing the suffering and death of old and sick animals by killing them in a gas chamber in direct contravention of N.C. Gen. Stat. 19A-24(5);

c. defendants are unlawfully causing the suffering and death of injured animals by killing them in a gas chamber in direct contravention of N.C. Gen. Stat. 19A-24(5); and

d. defendants are unlawfully causing the suffering and death of pregnant animals and their unborn offspring by killing them in a gas chamber in direct contravention of N.C. Gen. Stat. 19A-24(5).

40. Based on the foregoing evidence and the evidence that will be presented, plaintiffs request that the Court issue a preliminary injunction in accordance with the procedures set forth in N.C.G.S. § 1A-1, Rule 65 and that such preliminary injunction order defendants to comply with North Carolina law as it relates to euthanizing animals. Specifically, plaintiffs request that the Court order defendants Cathey and Starnes to require their employees to comply with the law of the state and not to employ the use of inhalants to euthanize (i) puppies, kittens or other mammals younger than 16 weeks of age, (ii) injured or sick animals, (iii) geriatric animals, or (iv) pregnant animals. Additionally, plaintiffs request that the Court order defendants Tarte and Benton to require the Union County Sheriff’s Department and Union County Animal Services to comply with the law of the state and not to employ the use of inhalants to euthanize (i) puppies, kittens or other mammals younger than 16 weeks of age, (ii) injured or sick animals, (iii) geriatric animals, or (iv) pregnant animals, and to monitor the Union County Sheriff’s Department and Union County Animal Services and their compliance with this Court’s order.

WHEREFORE, Plaintiffs pray judgment of the Court as follows:

(a) that the Court issue a Temporary Restraining Order and Preliminary Injunction restraining Defendants Cathey and Starnes, under the supervision of Defendants Tarte and Benton, from euthanizing animals under 16 weeks of age, as well as pregnant, sick, injured and geriatric animals, by use of the gas chamber;

(b) that the Court grant their Complaint for a Mandatory Injunction directing Defendant Eddie Cathey and Defendant Michelle Starnes, under the supervision of Defendant Phillip Tarte and Defendant Dempsey E. Benton, to euthanize puppies and kittens under 16 weeks of age, pregnant, sick, injured and geriatric animals by intravenous (or where impractical or impossible, intraperitoneal) injection of a nonirritating euthanasia agent or other approved means other than the gas chamber and consistent with the guidelines set out by the American Veterinary Medical Association, the Humane Society of the United States or of the American Humane Association and as required by N.C. Gen. Stat. 19A-24(b)(5);

(c) that the Court order Defendants Cathey and Starnes, under the supervision of Defendant Phillip Tarte and Defendant Dempsey E. Benton, to submit to this honorable court a plan for euthanizing all animals, including animals under 16 weeks of age, pregnant, sick, injured and geriatric animals, consistent with the guidelines set out by the American Veterinary Medical Association, the Humane Society of the United States or of the American Humane Association and as required by N.C. Gen. Stat. 19A-24(b)(5), including a plan to allow for monitoring the compliance therewith;

(d) that the Court order Defendants Cathey and Starnes, under the supervision of Defendants Tarte and Benton, as part of the monitoring plan, to keep complete records of impounded animals pursuant to 02 NCAC 52J.0101, including, inter alia, the noting on Impound Sheets of euthanized animals, the age of animals and the specific means, mode, and route of administration of euthanasia used; specifically, the killing agent used, other drugs administered pre-euthanasia, and the route of administration;

(e) that the court order Defendants Cathey and Starnes, under the supervision of Defendants Tarte and Benton, to implement this plan within a reasonable time;

(f) that the costs of this action be taxed against the Defendants; and

(g) that Plaintiffs have such other and further relief as this honorable court may deem just and proper, as is provided for in N.C. Gen. Stat. 19A-4.

This the ___ day of March 2008.


Rodney E. Alexander
N.C. Bar No.: 23615
Annette K. Ebright
N.C. Bar No.: 36736
Mayer Brown LLP
214 N. Tryon St.
Suite 3800Charlotte, NC 28202
(444) 444-3500
ATTORNEYS FOR NORTH CAROLINA COALITION FOR HUMANE EUTHANASIA and THE HUMANE SOCIETY OF UNION COUNTY


The Plaintiffs’ lawyers—the outstanding international law firm of Mayer Brown LLP—have done a first-rate job of presenting the relevant facts and applying them against the existing statute, leading to the conclusion that the law is being violated and that redress is necessary.

But how do the North Carolina Coalition for Humane Euthanasia and The Humane Society of Union County have “standing to sue”?

The answer is found in three paragraphs of the second major section of the complaint (“PARTIES”);

1. Plaintiff NCCHE is a non-profit domestic corporation organized under the provisions of N.C. Gen. Stat. Chapter 55, with its principal place of business in Chapel Hill, North Carolina. It is dedicated to the prevention of cruelty to animals.

2. Plaintiff HSUC is a non-profit domestic corporation organized under the provisions of N.C. Gen. Stat. Chapter 55, with its principal place of business in Monroe, Union County, North Carolina. HSUC is dedicated to preventing cruelty to animals, relieving suffering among animals, and to educating the public about the humane treatment of animals.

3. Each of the Plaintiffs is a “person” as defined by N.C. Gen. Stat. 19A-1(3).

That section is contained in the North Carolina General Statutes, which contain an article providing for a “Civil Remedy for Protection of Animals”:

§ 19A-1. Definitions

The following definitions apply in this Article:

(1) The term "animals" includes every living vertebrate in the classes Amphibia, Reptilia, Aves, and Mammalia except human beings.

(2) The terms "cruelty" and "cruel treatment" include every act, omission, or neglect whereby unjustifiable physical pain, suffering, or death is caused or permitted.

(3) The term "person" has the same meaning as in G.S. 12-3 [individuals and “bodies politic and corporate”].

§ 19A-1.1. Exemptions

This Article shall not apply to the following:

(1) The lawful taking of animals under the jurisdiction and regulation of the Wildlife Resources Commission, except that this Article applies to those birds exempted by the Wildlife Resources Commission from its definition of "wild birds" pursuant to G.S. 113-129(15a).

(2) Lawful activities conducted for purposes of biomedical research or training or for purposes of production of livestock, poultry, or aquatic species.

(3) Lawful activities conducted for the primary purpose of providing food for human or animal consumption.

(4) Activities conducted for lawful veterinary purposes.

(5) The lawful destruction of any animal for the purposes of protecting the public, other animals, or the public health.

(6) Lawful activities for sport.

§ 19A-2. Purpose

It shall be the purpose of this Article to provide a civil remedy for the protection and humane treatment of animals in addition to any criminal remedies that are available and it shall be proper in any action to combine causes of action against one or more defendants for the protection of one or more animals. A real party in interest as plaintiff shall be held to include any person even though the person does not have a possessory or ownership right in an animal; a real party in interest as defendant shall include any person who owns or has possession of an animal. (Emphasis added)

(a) Upon the filing of a verified complaint in the district court in the county in which cruelty to an animal has allegedly occurred, the judge may, as a matter of discretion, issue a preliminary injunction in accordance with the procedures set forth in G.S. 1A-1, Rule 65. Every such preliminary injunction, if the plaintiff so requests, may give the plaintiff the right to provide suitable care for the animal. If it appears on the face of the complaint that the condition giving rise to the cruel treatment of an animal requires the animal to be removed from its owner or other person who possesses it, then it shall be proper for the court in the preliminary injunction to allow the plaintiff to take possession of the animal as custodian.

(b) The plaintiff as custodian may employ a veterinarian to provide necessary medical care for the animal without any additional court order. Prior to taking such action, the plaintiff as custodian shall consult with, or attempt to consult with, the defendant in the action, but the plaintiff as custodian may authorize such care without the defendant's consent. Notwithstanding the provisions of this subsection, the plaintiff as custodian may not have an animal euthanized without written consent of the defendant or a court order that authorizes euthanasia upon the court's finding that the animal is suffering due to terminal illness or terminal injury.

(c) The plaintiff as custodian may place an animal with a foster care provider. The foster care provider shall return the animal to the plaintiff as custodian on demand.

§ 19A-4. Permanent injunction

(a) In accordance with G.S. 1A-1, Rule 65, a district court judge in the county in which the original action was brought shall determine the merits of the action by trial without a jury, and upon hearing such evidence as may be presented, shall enter orders as the court deems appropriate, including a permanent injunction and dismissal of the action along with dissolution of any preliminary injunction that had been issued.

(b) If the plaintiff prevails, the court in its discretion may include the costs of food, water, shelter, and care, including medical care, provided to the animal, less any amounts deposited by the defendant under G.S. 19A-70, as part of the costs allowed to the plaintiff under G.S. 6-18. In addition, if the court finds by a preponderance of the evidence that even if a permanent injunction were issued there would exist a substantial risk that the animal would be subjected to further cruelty if returned to the possession of the defendant, the court may terminate the defendant's ownership and right of possession of the animal and transfer ownership and right of possession to the plaintiff or other appropriate successor owner. For good cause shown, the court may also enjoin the defendant from acquiring new animals for a specified period of time or limit the number of animals the defendant may own or possess during a specified period of time.

(c) If the final judgment entitles the defendant to regain possession of the animal, the custodian shall return the animal, including taking any necessary steps to retrieve the animal from a foster care provider.

(d) The court shall consider and may provide for custody and care of the animal until the time to appeal expires or all appeals have been exhausted.

Although this North Carolina statute contains some objectionable features—e.g., research, farming—its important virtue, for the animals in this case and all others in the State of North Carolina, is that the law provides statutory standing to sue for individuals and entities working for the protection and humane treatment of animals.

As a matter of fact, the North Carolina appellate court noted in 2007, in a case entitled
Animal Legal Defense Fund v. Woodley, that Section 19A “express[es] the [Legislature’s] intent that the broadest category of persons or organizations be deemed ‘[a] real party in interest’ when contesting cruelty to animals.”

There are at least four lessons to be learned from the NCCHE/HSUC case.

The first is that animal shelters are not above the law, and that their conduct can and should be scrutinized by outsiders, and certainly by the governments and/or private donors that support them.

Second, is that an irreplaceable requisite for suing an animal shelter for dereliction of its duty is competent counsel, like the lawyers at Mayer Brown who put this case together. There is no substitute for this! (ISAR can provide guidance in obtaining counsel.)

Third, is that because a crucial key to litigation in behalf of animals—whether in lawsuits against shelters or otherwise—is the ability to solve the standing to sue problem, the entire animal protection movement must push hard for other states to enact a North Carolina-type statute giving individuals and entities the right to sue. (ISAR can provide guidance in crafting a standing to sue statute which does not suffer from some of the infirmities of the North Carolina statute.)

Finally, the NCCHE/HSUC complaint is a template for lawsuits not only against shelters that are not following the law, but against any other individuals and entities that are disregarding their responsibilities to animals. That template should be used often—and effectively.

Capitol Hill's Animal Friends

One of the lesser known positive stories about activities on Capitol Hill is the interest of some Representatives in the welfare of animals. Spurred by the efforts of Rep. Christopher Shays (CT) and the late Rep. Tom Lantos (CA) The Congressional Friends of Animals Caucus is at the leading edge of pro-animal legislation in the United States Congress.

According to Congressman Shay’s website, The Congressional Friends of Animals (CFA) Caucus “is a bipartisan congressional organization that raises awareness within Congress on animal welfare issues. It was founded in 1989 and has been co-chaired by Rep. Christopher Shays (R-CT) and [the late] Rep. Tom Lantos (D-CA).”

The CFA organizes forums and briefings for Members of Congress and their staff on issues affecting animals and upcoming animal welfare legislation formed around the interests and needs of the Members. CFA also tracks legislation and provides Members of Congress with reliable, up-to-date information. Because our membership covers a wide spectrum of beliefs, the CFA does not write policy papers or produce issue briefs.

The organization has achieved success in building coalitions among Members on specific animal protection bills. CFA members have used the organization to help promote animal welfare issues of particular interest to them and their constituents.

Congressman Shays, as he states categorically on his website, is “committed to animal welfare because I believe humankind has an obligation to all animals.” He adds that “[s]ome species have become our companions and some play important roles in sensitive ecosystems. It is our duty to protect and care for all of these animals.”

In furtherance of that commitment, Shays has sponsored many pro-animal initiatives in the House of Representatives, among them:

Shays and Lantos introduced the Pets Evacuation and Transportation Standards Act, requiring state and local preparedness groups to include plans for evacuation of pet owners, pets and service animals in the event of a major disaster like hurricane Katrina. This legislation passed overwhelmingly on May 22, 2006, by a vote of 349 to 29.

Shays and Rep. Peter DeFazio (OR) introduced the Farm Animal Stewardship Purchasing Act, requiring that those supplying food to the federal government—including the military, federal prisons, school lunches, and other programs— meet a basic set of modest welfare standards for farm animals.

Shays is a co-sponsor of the American Horses Slaughter Prevention Act, which is similar to H.R. 297. H.R. 503 would prohibit any person from: (1) slaughtering a horse for human consumption; (2) importing to, or exporting from, the United States horseflesh or horses for human consumption; or (3) selling, bartering, transferring, receiving, or distributing horseflesh or horses for human consumption.

Shays voted for an amendment to the Agriculture Appropriations Act that prevents horse slaughter. The amendment prohibits the use of funds to pay salaries and expenses of personnel to inspect horses under the Federal Meat Inspection Act, which is required before the horses can be sold.

Shays is an original cosponsor of the Downed Animal Protection Act, requiring that livestock animals that are too sick to walk must be “humanely euthanized,” meaning that they must be rapidly killed by mechanical, chemical or some other means.

Shays, consistent with his support for the preservation and protection of endangered species, voted against the Threatened and Endangered Species Recovery Act because it made it more difficult to list species as endangered or threatened and sweept away regulatory protections for those that are listed as such. (The bill also weakened the process by which the government ensures its own actions do not jeopardize species and created a mandatory entitlement program for private property owners, which was likely to be hugely expensive. Finally, the bill appeared to give the opinions of individuals without any scientific expertise equal standing with those of scientists and repeals protections against hazardous pesticides).

Shays is a co-sponsor of the Yellowstone Buffalo Preservation Act, which would prohibit state and federal government agency officials from hazing, capturing, or killing Yellowstone bison on federal lands except when a person's life is in danger or property has been damaged.

Shays is an original co-sponsor of the Inhumane Trapping Prevention Act, which would ban the use of steel-jawed leghold traps on animals in the United States. The traps are excessively cruel and unselective—often capturing both wild and domestic non-target animals.

Shays is a co-sponsor of the Captive Primate Safety Act, which prohibits the sale of nonhuman primates—such as chimpanzees, monkeys, lemurs and others— because of is concern about humans holding nonhuman primates as pets.

Shays was a co-sponsor of the Captive Wildlife Safety Act, which bars interstate and international trade and transport of exotic cats, specifically of lions, tigers, leopards, cheetahs, jaguars, and cougars, except by persons and entities holding appropriate licenses, because he believes big cats should not be held as pets.

Shays is a co-sponsor of the Pet Animal Welfare Statute, which would strengthen enforcement of the Animal Welfare Act by requiring commercial breeders who annually sell more than seven litters of dogs or cats, or sell more than 26 dogs and cats directly to the public to be licensed by the United States Department of Agriculture.

Shays is an original cosponsor of the Pet Safety and Protection Act, which removes the incentive to procure animals through theft or fraud by mandating that research facilities acquire dogs and cats from licensed dealers, legal owners, or publicly-owned and operated pounds or shelters.

Shays is a co-sponsor of the Animal Fighting Prohibition Enforcement Act, which increases the imprisonment penalty for animal fighting violations from one year to two years and also makes it unlawful to ship in interstate commerce a knife, gaff, or other sharp instrument used in cockfighting.

Shays introduced a House Resolution recognizing National Pet Week and calling for its annual observance.

Shay’s caucus sponsored a hearing on the humane treatment of animals because there is no federal law regarding the treatment of farm animals.

Shays, in connection with the farm animal problem, addressed the annual Taking Action for Animals Conference.

This support for animals by Congressman Shays, and his colleagues both within and outside of The Congressional Friends of Animals Caucus—though in its details revealing a disappointing acceptance of certain “animals-as-property” assumptions—is nonetheless spectacularly impressive and extremely commendable.

Indeed, it points to the inescapable conclusion that ideas do have consequences, and that the right ideas can exercise a formidable influence on those who make, or do not make, laws regarding animals.