In Justice v. Gwendolyn Vercher, Case No. 18CV17601 (Oregon Judicial Department, Washington County Circuit Court, Twentieth Judicial District, Sept. 17, 2018) the Court dismissed a complaint filed by the Animal Legal Defense Fund, for Justice, the Plaintiff, a quarter horse.  The Court held that an animal, including the equine Plaintiff, lacked the legal capacity to sue, pursuant to Oregon Rule of Civil Procedure (ORCP) §21(A)(4) and for failure to state facts sufficient to constitute a claim, pursuant to ORCP 21(A)(8).

The court finds that a non-human animal such as Justice lacks the legal status or qualifications

necessary for the assertion of legal rights and duties in a court of law . . . Justice is not the real party in interest. There are profound implications of a judicial finding that a horse, or any non-human animal for that matter, is a legal entity that has the legal right to assert a claim in a court of law. Such a finding would likely lead to a flood of lawsuits whereby non-human animals could assert claims we now reserve just for humans and human creations such as business and other entities. Furthermore, non-human animals are incapable of accepting legal responsibilities.

The Court observed that an appellate court or the state legislature might determine that public policy regarding this issue should permit such legal actions from animals, perhaps opening the door for further uncertainty through an appeal or legislative action.

The Court declined to award attorneys’ fees and costs to the defendant that was dragged into this seemingly frivolous lawsuit.

This is not the first time—or likely the last—activist nonprofit organizations have filed lawsuits on behalf of animals, in attempts to elevate their status to those of humans.  The Nonhuman Rights Project, Inc. (NHRP) filed a number of failed attempts to apportion personhood rights to certain animals, The Nonhuman Rights Project, Inc., on Behalf of Tommy v. Lavery, 100 N.E.3d 846 (N.Y. 2018); The Nonhuman Rights Project, Inc. ex rel. Tommy v. Lavery, 54 N.Y.S.3d 392, 394 (N.Y. App. Div. 2017), leave to appeal denied sub nom. The Nonhuman Rights Project, Inc., on Behalf of Tommy v. Lavery, 100 N.E.3d 846 (N.Y. 2018); The Nonhuman Rights Project, Inc. ex rel. Kiko v. Presti, 3 N.Y.S.3d 698 (N.Y. App. Div. 2015); The Nonhuman Rights Project, Inc., ex rel. Kiko v. Presti, 999 N.Y.S.2d 652 (App. Div. 2015); Article 70 of CPLR for a Writ of Habeas Corpus, The Nonhuman Rights Project, Inc. ex rel. Hercules & Leo v. Stanley, 16 N.Y.S.3d 898 (N.Y.  Sup. Ct. 2015); The Nonhuman Rights Project, Inc. v. Stanley, 2015 WL 1812988 (N.Y. Sup.); see also, Cetacean Community v. Bush, 386 F.3d 1169 (9th Cir. 2004); Naruto v. Slater, 2018 WL 1902414 (9th Cir. April 23, 2018); Tilikum v Sea World Parks & Entertainment, 84 2 F.Supp.2d 1259 (S.D. Cal. 2012).

NHRP filed another petition, The Nonhuman Rights Project, Inc. v. R.W. Commerford & Sons, Inc., No. 17-5009822, slip op. (Conn. Super. Ct. Dec. 26, 2017), seeking personhood rights through a writ of habeas corpus for three elephants in Connecticut owned by R.W. Commerford & Sons, Inc. (the “Commerford Zoo”) on November 13, 2017.  Long before the scheduled status conference, which was to be held on February 27, 2018, the Court filed a Judgment of Dismissal and related Memorandum of Decision on December 26, 2017, finding that the petitioner lacked standing under the “next friend” theory.  Id.

The burden is on the next friend clearly to establish the propriety of his status and thereby justify the jurisdiction of the court . . . [and holding that] [b]ecause the petition has failed to allege that it possesses any relationship with the elephants, the petitioner lacks standing.

The Court also found the petition “wholly frivolous on its face in legal terms,” stating:

even if the petitioner here had standing, resolution in its favor would require this court to determine that the asserted liberty interests in its petition are assured by statute, constitution, or common law, i.e., that an elephant is a person for the purposes of this land’s laws that protect the livery and equality interests of its persons . . . [and] [b]ased on the law as it stands today, this court cannot so find.

Recently, the NHRP filed another writ of habeas corpus in Orleans County, New York, The Nonhuman Rights Project, Inc., on behalf of Happy v. Breheny, No. 18-45164 (N.Y. 2018) “demanding recognition of [an elephant named] Happy’s legal personhood and fundamental right to bodily liberty as well as her transfer to an elephant sanctuary.”  Happy has been housed at the Bronx Zoo since around 1977.  In the Memorandum of Law filed in support of its application, NHRP did not cite to the decision in R.W. Commerford & Sons, Inc.

Circuit Judge Smith’s concurring opinion in Naruto v. Slater, 2018 WL 1902414 (9th Cir. April 23, 2018) also discusses restrictions on “next friend” or “third party” standing, stating:

The limitations on the ‘next friend’ doctrine are driven by the recognition that ‘it was not intended that the writ of habeas corpus should be availed of, as matter of course, by intruders or uninvited meddlers, styling themselves as next friends’ . . . Indeed, if there were no restrictions on ‘next friend’ standing in federal courts, the litigant asserting only a generalized interest in constitutional governance could circumvent the jurisdictional limits of Art. III simply by assuming the mantle of ‘next friend.’

More to come on these latest legal proceedings and other continued attempts to change the legal status of nonhuman animals.

 

In Naruto v. Slater, 2018 WL 1902414 (9th Cir. April 23, 2018)-the case in which Naruto, a crested macaque by and through his alleged “next friends,” People for the Ethical Treatment of Animals, sued a photographer and his publishers for copyright infringement-the Court, citing an earlier case, Cetacean Cmty. v. Bush, 386 F.3d 1169, 1175 (9th Cir. 2004) stated that at least part of the requirements for standing-the existence of a case or controversy-was not impossible simply because the plaintiffs were animals.

While in both cases, the Ninth Circuit held that the plaintiffs did not have standing under the relevant statutes-in-suit, the fact that animals may have standing has been disputed by some and seems inconsistent with this court’s reasoning.

In Cetacean Cmty. the Court stated “we see no reason why Article III prevents Congress from authorizing a suit in the name of an animal, any more than it prevents suits brought in the name of artificial persons such as corporations, partnerships or trusts, and even ships, or of juridically incompetent persons such as infants, juveniles, and mental incompetents.”  Cetacean Cmty., 386 F.3d at 1176.

But what the courts seem to overlook is that Article III is one of several articles to the Constitution of the United States which begins:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.  (Emphasis added).

I find Circuit Judge Smith’s concurring opinion in Naruto v. Slater, explaining the restrictions on “next friend” or “third party” standing, instructive.

The limitations on the ‘next friend’ doctrine are driven by the recognition that ‘it was not intended that the writ of habeas corpus should be availed of, as matter of course, by intruders or uninvited meddlers, styling themselves as next friends.’

NOTE-isn’t this essentially what the Nonhuman rights project has done in its various, non-winning petitions for writs of habeas corpus.

And Judge Smith added:

Indeed, if there were no restrictions on ‘next friend’ standing in federal courts, the litigant asserting only a generalized interest in constitutional governance could circumvent the jurisdictional limits of Art. III simply by assuming the mantle of ‘next friend.’

Judge Smith disagreed with the majority finding that lack of next friend standing removes jurisdiction of the court, while the majority held that next-friend standing is nonjurisdictional.

Both Judge Smith and the majority agreed that “animals cannot be represented by a next friend.”

And Judge Smith explains that “[t]here is no textual support in either the habeas corpus statute or Rule 17 for animal next friends,” providing additional legal support for courts’ rejections of the Nonhuman Rights Projects’ petitions that claimed that animals were legal persons.

However, because of these holdings over standing via Article III’s case and controversy provision by the 9th Circuit we expect to see more cases brought under the guise of the next friend.

Of note, in Oregon, a lawsuit was filed by a horse (Justice) “by and through his Guardian, Kim Mosiman” against his former owner, who had already pleaded guilty to neglect of the horse.  The suit includes a single claim for relief of negligence, allegedly based on Justice’s owner’s requirement to comply with Oregon’s anti-cruelty statute, which the owner had previously pleaded guilty to.  Justice requests relief for economic damages of not less than $100,000, non-economic damages in an amount to be determined at trial, reasonable attorneys’ fees, costs and disbursements, and other relief the court deems proper.

We should expect similar lawsuits to be filed in many jurisdictions.

 

On May 17, 2018 a plethora bills were reported out of the New Jersey Assembly Agriculture and Natural Resources Committee, some with amendments that will benefit animals and their owners if they become law, and others with sorely needed amendments.

Here is a summary of what occurred (as reported on the New Jersey Legislative website):

A781 is a bill that would establish processes for recovering the cost of caring for domestic companion animals involved in animal cruelty violations.  This bill was reported favorably with some amendments, but more should be adopted before further action.

This bill, as amended, provides for the cost of care for animals involved in animal cruelty violations, and establishes a procedure, when the owner of the animal is the alleged violator, for the owner of the animal to pay for the cost of care of the animal. The bill, as amended, specifies that ‘animal’ includes the whole brute creation, but does not include agricultural livestock or domestic livestock.

This amendment protects farmers from the overreaching practices of law enforcement supported by animal activist groups that assist in seizures of animals before the owner(s) has a hearing or opportunity to prove they have not committed alleged acts of animal cruelty.

The groups that house the seized animals charge owners millions of dollars for the “care” of these animals, even though, in some instances, they do not have adequate, if any, training in providing such care. The seized animals suffer from negligent care and sometimes die.  Many animal owners, particularly farmers, would be unable to pay for such costs and therefore forfeit ownership-all before they are actually found guilty of anything.

A1334 is a bill which would add the theft or release of an animal during burglary to the ever-expanding list of provisions that constitute animal cruelty. This amendment is not necessary and makes the cruelty statute even more cumbersome than it currently is.   If someone steals an animal that constitutes theft, for which there are existing legal remedies.  If the thief does not properly care for the animal while in their possession, then the cruelty statute already provides for remedies.  If an animal is released during a burglary and is injured there are also existing provisions in the law that would apply.

A1923, a.k.a. Nosey’s law, was amended before it was reported out of committee, but still requires amendments.  The original intent of this bill was to ban the exhibition of elephants in circuses and traveling zoos.  The amendments to the current version (which is much better than prior versions) largely address concerns of those who humanely exhibit exotic animals.  However, a glaring error remains. The bill defines “[w]ild or exotic animal” as any live animal that is classified into any of the following scientific classifications: (1) Artiodactyla, excluding domestic cattle, bison, water buffalo, yak, zebu, gayal, bali cattle, suidae, sheep, goats, llamas, vicunas, or alpacas; (2) Camelidae . . .”

This effectively excludes llama, vicunas and alpacas from the definition of wild or exotic animals on the one hand, but then includes them since they are members of the Camelidae family.

Additional amendments are clearly required.

A2318 , a bill that would permit any person to break into a vehicle to “rescue” an animal, if they believed that an animal was in danger, was also reported out of committee.  The bill should require any animal so “rescued” to be immediately examined by a licensed veterinarian.  If the rescuer has a good faith belief that the animal is in need of help, then examination by a veterinarian should be mandated.  The owner should pay for that examination if the veterinarian determines the animal’s health was in jeopardy, but if not, the rescuer should have to pay for the veterinary examination.  Adding those provisions may help decrease unnecessary rescues.

Another issue with this bill is that the wording “other circumstances likely to endanger or cause bodily injury or death to the animal” is vague and essentially meaningless.

A3218, a bill that “permits municipalities to contract with animal and humane societies which engage in animal foster care,” was also reported out of committee.  This bill would expose animals and people to unnecessary harm because animal foster care organizations are not regulated in New Jersey.

Finally, A4385, a bill that would require “institutions of higher education, and related research facilities, to offer cats and dogs no longer used for educational, research, or scientific purposes to animal rescue organizations for adoption prior to euthanizing the animals,” was also voted out of committee.  Not only is this bill unnecessary since successful adoption programs from these institutions have been in existence for years, reliance on unregulated animal rescue operations, as above, places animals and people at risk.

The lawsuit filed against SeaWorld Parks and Entertainment, Inc. (SeaWorld) in the Northern District of California, styled Marc Anderson, et al. v. SeaWorld Parks and Entertainment, Inc. has been ongoing since May 14, 2015.

The Court recently ruled on SeaWorld’s Motion for Summary Judgment, which it granted in part and denied in part.  Marc Anderson, et al. v. SeaWorld Parks and Entertainment, Inc., No. 15-02172, slip op. (N.D. Cal. Feb. 20, 2018).

As a reminder, three plaintiffs brought individual and putative class claims for various alleged violations of California’s False Advertising Law and California’s Unfair Competition Law based on allegations that Plaintiffs relied on statements from SeaWorld about their care of animals before making certain purchases.

The Court denied SeaWorld’s Motion on the issue of standing which would have put an end to the litigation (unless the decision was appealed).  The Court stated, “[i]n a class action, standing is satisfied if at least one named plaintiff meets the requirements.”  Id. (citing Bates v. United Parcel Service, Inc., 511 F.3d 974, 985 (9th Cir. 2007).  The Court found that SeaWorld “failed to meet its burden on the question of whether [Plaintiff] Anderson has standing to seek injunctive relief . . . because the testimony . . .presented on this issue relates to whether Anderson would purchase tickets to SeaWorld in the future; not whether he would purchase SeaWorld merchandize if he could rely on its advertising.”  Id. (citations omitted).  Since Anderson purchased merchandize, the Court held the argument was faulty.  As to the other two Plaintiffs, the Court held that it “cannot make credibility determinations at this stage of the proceedings” which was the basis of SeaWorld’s evidence.

However, the Court granted, in part, SeaWorld’s Motion on [Plaintiff] Anderson’s claims, stating

[i]n order to survive SeaWorld’s motion, Anderson ‘must point to specific facts indicating that [he] actually saw the misrepresentations about which’ he complains, ‘and that those misrepresentations were ‘substantial factor[s]’ in’ his decision to purchase the Shamu toy.  Id. (citations omitted).

The Court concludes that, like the plaintiffs in In re iphone, Anderson has not met his burden to overcome Sea World’s motion to the extent his claims are premised on the mother-calf separation statement . . . Anderson has not shown that he saw the mother-calf separation statement and, therefore, he could not have relied on that statement when he purchased the Shamu toy.  Id. (citations omitted).

However, the Court held that, when considering the entirety of Anderson’s testimony, “the record is sufficient for a reasonable juror to find that if Anderson had known what he contends to be the truth about orca lifespans in captivity, in all reasonable probability he would not have purchased the Shamu toy,” thereby granting in part and denying in part SeaWorld’s motion on Anderson’s claims.

As to Plaintiff Nelson, the Court concluded that “Nelson has put forth sufficient evidence to create a triable issue of fact about whether she suffered an economic injury.”  The Court was “not willing to find as a matter of law that Nelson lacks standing simply because her husband turned over the funds that were used to purchase the tickets” and that therefore Nelson did not suffer an economic injury.

The Court found sufficient evidence, at this point, to deny SeaWorld’s motion claiming that Nelson did not rely on SeaWorld’s statements before her husband purchased tickets to SeaWorld, despite Nelson being unable to identify where or when she actually saw those statements.

Finally, the Court denied the motion claiming that Plaintiff Morizur had “abandoned her claim for restitution because she testified that she does not ‘care about the money’; is not ‘in this for the money’; and is asking the Court to give her ‘0.00 dollars.’”  Id.

The Court did invite SeaWorld to ‘“attempt to impeach [Plaintiffs] . . . at trial with prior statements’ it believes ‘are inconsistent . . .”  Id.

I am sure SeaWorld will do just that.

Journey on.

 

As they had promised, the Nonhuman Rights Projects, Inc. (the “petitioner”) filed another petition seeking personhood rights through a writ of habeas corpus for 3 elephants in Connecticut owned by R.W. Commerford & Sons, Inc. (the “Commerford Zoo”) on November 13, 2017.

Long before the scheduled status conference, which was to be held on February 27, 2018, the Court filed a Judgment of Dismissal and related Memorandum of Decision on December 26, 2017.

Relying on expert testimony, by way of Affidavits, petitioner alleged that elephants, including the subjects of its petition “are autonomous beings who live extraordinarily complex emotional, social, and intellectual lives and who possess those complex cognitive abilities sufficient for common law personhood and the common law right to bodily liberty protected by the common law of habeas corpus, as a matter of common law liberty, equality, or both.”  Nonhuman Rights Project, Inc. v. R.W. Commerford & Sons, Inc., No. LLI-cv-17-5009822, slip op. (Conn. Super. Ct. Dec. 26, 2017).

The court described the issue at hand which it summarily dismissed:

The issue is whether the court should grant the petition for writ of habeas corpus because the elephants are ‘persons” entitled to liberty and equality for the purposes of habeas corpus.  The court denies the petition on the ground that the court lack subject matter jurisdiction [based on lack of standing] and the petition is wholly frivolous on its face in legal terms.”  Id.

On the issue of standing, under the “next friend” theory, the court opined”

The burden is on the next friend clearly to establish the propriety of his status and thereby justify the jurisdiction of the court . . . [holding] [b]ecause the petition has failed to allege that it possesses any relationship with the elephants, the petitioner lacks standing.”  Id. (emphasis in original).

On its website, the petitioner states :

we are studying the decision and will likely either seek to amend our habeas corpus petition to add a sentence stating that Minnie, Karen, and Beulah have no significant relationships with anyone able to to file a habeas corpus action against their captors or we will refile our lawsuit so that our petition includes this sentence.

Under the “frivolous” prong, the Court found:

even if the petitioner here had standing, resolution in its favor would require this court to determine that the asserted liberty interests in its petition are assured by statute, constitution, or common law, i.e., that an elephant is a person for the purposes of this land’s laws that protect the livery and equality interests of its persons . . . [and] [b]ased on the law as it stands today, this court cannot so find [that there is a possibility or probability that the Court would find that an elephant is a legal person entitled to those same liberties extended to humans].

The Court “points the petitioner to this state’ laws prohibiting cruelty to animals” but that is not petitioners’ goal-it is instead to “help build a national and global movement to win legal personhood and rights for nonhuman animals.”  See NHRP, Inc.

In civil litigation, when a court finds one party has filed a frivolous lawsuit against another, at least in federal court, the victimized party may request sanctions, in certain circumstances.  See, generally, Fed. R. Civ. P. 11.  Should petitioner, now that it has been on notice that at least this Court has determined that its petition is “frivolous” be required to pay for the cost of subsequent litigation or will citizens be required to fund such cases in the future?

 

Reports from two animal-related trade organizations provide insight into the current status and goals of animal rights organizations intent on eliminating the use of animals by humans, without regard to how humanely those animals are treated.

Based on these revealing comments from activists it remains vitally important that the public is exposed to the differences between animal rights activists and animal-related industries whose goals are to ensure that animals under the care of humans are treated humanely.

Members of the National Association for Biomedical Research and the Animal Agricultural Alliance attended the 2017 Animal Rights National Conference held on August 3-6 in Alexandria Virginia.

As advertised on the website

The Animal Rights National Conferences have been organized since 1981 by Farm Animal Rights Movement (FARM) with some breaks between 1987 and 2000, then every year since 2000. They are typically co-sponsored by more than a dozen national organizations.

Farm Animal Rights Movement (FARM) is a national non-profit organization working to end the use of animals for food through public education and grassroots activism. We believe in the inherent self-worth of animals, as well as environmental protection and enhanced public health.

Speakers at the conference talked about the “Power of confrontation in advancing animal rights,” and alleged abuses of animals used for all human purposes including: animals in Entertainment (circuses, rodeos, zoos, aquariums), animals in science (education, product testing, drug research),animals in Fashion, Companion animals, food Animals, and animals in the wild.

Kay Johnson Smith, Animal Agriculture Alliance president and CEO described this year’s conference:

The speakers at this year’s Animal Rights National Conference made their goals clear – ending all forms of animal agriculture, regardless of how well animals are cared for . . . Their persistent focus on pressure campaigns targeting restaurant, retail and foodservice brands is of great concern to the Alliance and our members. We encourage anyone with a vested interest in producing, processing or selling meat, poultry, eggs and dairy, to read this year’s report and hear how determined these groups are to eliminate food choices and make our society vegan.

The alliance reported that speaker encouraged attendees to protest and conduct rescues from farms without permission, and that “[b]reaking the law can often be a good thing to do.”

The Alliance also reported that one speaker, David Coman-Hidy with the Humane League encouraged attendees to damage the reputation of food companies.

Consistent with previous years, another key message from conference speakers was for attendees to focus efforts on eliminating farms of all types and sizes, not only the large-scale, modern operations (declared to be “factory farms”) that have historically been targeted.

National Association for Biomedical Research reported about the following speakers and their comments at the conference, intent on eliminating the use of animals in research:

  • Justin Goodman, lobbyist for the White Coat Waste project (WCW), an animal rights group that promotes itself as a fiscally conservative consumer watchdog group, spoke about WCW’s “defund” campaign to “take money away so [research institutions] can’t buy the animals to do the testing.” He continued to focus on making sure universities and other institutions that conduct animal research “don’t get their money.” 

  • Michael Budkie explained [Stop Animal Exploitation Now] SAEN seeks to end animal research by “hanging them with their own paperwork.” We understand this to mean the group attacks the reputations of research institutions and individual scientists by deliberately misusing or mischaracterizing written statements provided by the institutions to government agencies like the NIH and the USDA.

  • Speaking again on behalf of SAEN, Michael Budkie explained his approach to stopping animal research by targeting researchers: “We like to paint them as idiots. They are criminals. SAEN’s job is to let people know animal research is meritless. We will ruin their reputation and credibility. We are coming after them…It becomes news and we’re changing public opinion of what labs do.”

  • A celebrated figure in the animal rights world, Richard Couto conducts undercover investigations of factory farms and food enterprises that use animals. He gains access by working as an employee while filming and documenting abuse for later use in criminal prosecutions of his erstwhile employers. Joined by other so-called “undercover investigators,” they encouraged attendees to join their ranks by stating, “anybody in this room has what it takes to be an undercover investigator.”

Clearly, the goals of animal rights organizations, on display at this conference, should concern those who are involved in animal-related industries where animals are owned and cared for by humans.

Today, lawmakers in Trenton, New Jersey did not have the opportunity to reject an attempted override to Governor Christie’s condition veto of Senator Lesniak’s so-called “puppy mill bill,” one of more than 200 similar laws nationwide orchestrated by the Humane Society of the United States and other animal rights groups opposed to anyone who makes money breeding, raising and selling animals.  The bill, as previously discussed, was chock-full of constitutional violations, that were mostly―but not completely ―cured by the Governor’s veto.

Lesniak, without sufficient votes to override the veto, pulled the bill before the vote.  In a tweet Lesniak published afterward, he said “I held the bill so I can attempt another override at any future Senate meeting until January 10, 2018.” He also posted the names of the Senators who did not support his effort.

Around the same time, ordinances in Morristown and Jersey City to ban USDA licensed breeders from sales to pet stores were considered.  Jersey City voted to reject the ordinance, Morristown did not take action.  Brian Hackett, the Human Society of the United States’s New Jersey Director told the Jersey City Council that all pet stores in New Jersey are purchasing all their puppies from puppy mills since the state limits their sources to USDA licensed breeders.  All USDA licensed breeders, according to Hackett, are puppy mills.  But not according to Lesniak, as previously reported, who, on June 23, 2016 said that sales from USDA licensees to pet stores should be allowed to continue, because these breeders were not the “puppy mills” his original bill had been targeting to eliminate.  (See testimony on June 23, 2016 at the Senate Budget and Appropriations committee starting at 3 hours 3 minutes 24 seconds (3:3:24)).

Perhaps Lesniak should consider a bill that would actually help animals without hurting the people and businesses that treat them humanely.

For example, this state desperately needs an overhaul of the law granting law enforcement authority to volunteer nonprofit groups (New Jersey and County Societies for the Prevention of Cruelty to Animals).  Walt Kane, of “Kane in Your Corner,” has been spearheading an investigation about the NJSPCA, published on New 12 New Jersey.  The latest installment, in which I was interviewed, aired May 24, 2017, “NJSPCA law enforcement practices questioned.”

Walt obtained records of complaints that had either not been investigated or had no written description of any investigation performed or results achieved.

As I said after reviewing those records, it is long past time that the state shift enforcement of its animal cruelty statutes to professional law enforcement agencies.  Those dedicated and expert in animal health and welfare should be able to assist officers at police and sheriff’s departments by providing that expertise as a special investigator in relevant animal cruelty investigations.  If we are serious about animal welfare, it is time to make that change.

The intentional misrepresentation of facts is one of the most disturbing (if not illegal) tactics that animal rights organizations use to convince the public that individuals and businesses involved with the breeding, raising, and care of animals for companionship, biomedical research, conservation research, sports, entertainment, and food and fiber, is inhumane.

We have previously described the intentional misrepresentation that pet stores sell puppy mill puppies based on the false statement that all commercial breeders are puppy mills. Puppy mills are substandard, unlicensed large scale facilities where dogs are improperly cared for.  Pet stores buy from licensed USDA facilities, or small breeders who exceed the humane standards of care required by law, not from substandard breeding facilities.

Similar misrepresentations of facts are pervasive from animal rights organizations opposed to the use of animals in biomedical research, even when that research benefits animals.

The following purported quote from FDA is repeated by groups like PETA and the Beagle Freedom Fund to “prove” that research in animals does not provide valid scientific results that can lead to successful drug approvals for human use:

The Food and Drug Administration has confirmed that 92 percent of drugs that test safe and effective in animals are failing in Phase I clinical trials.

The biomedical research community has attempted to explain why this statement is misleading by reviewing the original statement made by FDA.

For example, as posted on July 25, 2008 on Speaking of Research :

The statistic is from the FDA (Food and Drug Administration), used to illustrate inefficiencies in drug development. However the actual statistic is much broader, it should be:

92% of drugs fail during human trials

The original quote was:

A new medicinal compound entering Phase 1 testing, often representing the culmination of upwards of a decade of preclinical screening and evaluation, is estimated to have only an 8 percent chance of reaching the market.

In another post on Speaking of Research on January 23, 2013, guest author Professor Robin Lovell-Badge further explained:

Those opposed to animal research often point out that most drugs that pass the legally required toxicology tests in animals go on to fail in human clinical trials. They then go on to suggest that this shows that animal research does not work, or that it is proof that animals are not accurate models for humans.

However, this is misleading without an understanding of the relevant context and the reasons for the animal safety tests.

Dr. Lovell-Badge goes onto explain that preclinical testing includes both animal testing an non-animal testing, all performed to prevent harm to humans during Phase 1 clinical trials in humans which has proven to protect humans from drugs found to be unsafe.

This topic is also the subject of a report published in Regulatory Toxicology and Pharmacology, “Use of animals for toxicology testing is necessary to ensure patient safety in pharmaceutical development,” by Raja Mangipudy, John Burkhardt and Vivek J. Kadambi. See Regul Toxicol Pharmacol. 2014 Nov;70(2):439-41. doi: 10.1016/j.yrtph.2014.07.014. Epub 2014 Jul 21.

I agree with the authors’ conclusion:

[W]e believe that for the foreseeable future, drug development will continue to depend upon nonclinical experimentation in animal models to provide data in hazard identification and characterization for healthy volunteers and patients. While offering great promise, alternative in vitro systems that can entirely recapitulate the complexity of higher organisms have yet to be designed. Development of engineered 3-dimensional organ systems will create new opportunities to conduct hypothesis-driven research into specific organ system toxicities or provide models for screening compound libraries for toxicity during the lead optimization process. As for all surrogate systems, they will evolve over time as the science improves, but will still falsely predict negatives for unique toxicities that result from complexities not replicated within the in vitro test system. Translation of our complex human biology into safe and effective treatments will continue to require the use of humane animal testing (Nature Medicine Editorial, 2013).

 

Attorney Talk - Veterinary Law with Nancy Halpern

I’m pleased to have been able to participate in Attorney Talk, a podcast centered on casual conversations about the law. Hosted by Kenneth W. Thayer, a partner at Gaylord Popp, LLC, each episode features discussions with individual lawyers about themselves, their practices, and what they love about the law and legal profession.

I invite you to visit the episode page on the Attorney Talk website to hear my wide-ranging interview. You can also visit the show’s iTunes page to listen to full episodes, subscribe and provide a rating (5 stars, of course.)

Thanks to Ken for the wonderful conversation!

The Conversation logo

Richard L. Cupp, Pepperdine University, writes for The Conversation:

My reaction to the killing of Harambe the gorilla at the Cincinnati zoo when a child went into the gorilla’s enclosure is probably typical: I am sickened and I am angry. This must not happen again.

One step that some advocates will surely press for in light of Harambe’s killing is to change our legal system to designate gorillas and other great apes such as chimpanzees as legal persons.

Expanding legal personhood to include intelligent nonhuman animals would give them legal rights, and would create standing for a human guardian to initiate legal actions on their behalf – much like children’s rights are protected in courts by guardians.

At first blush this may sound progressive and enlightened, but in reality the concept is fundamentally flawed and dangerous for society.

Turning to our legal system in responding to Harambe’s tragedy is the right approach, but our legal focus should be on ensuring effective human responsibility for the proper treatment of gorillas and other nonhuman animals rather than on pretending that gorillas are people.

Protections for animals

At surface, legal personhood for intelligent nonhuman animals has an edgy appeal and is often compared by its advocates to the noble battles to attain civil rights for marginalized humans.

Illustrating growing popular interest in the concept, a documentary about the legal battle for nonhuman animal personhood entitled Unlocking the Cage made its debut in January at the Sundance Film Festival. It is now opening in some theaters, and will be aired on HBO, BBC, and other television outlets later this year. The documentary highlights lawsuits filed in New York seeking to have intelligent chimpanzees treated as legal persons so that the chimpanzees would be removed from confined environments and placed in less restrictive, more natural environments.

These lawsuits do not seek to set the captive chimpanzees loose on the streets, but rather seek to have them moved to chimpanzee sanctuaries. Their arguments are based primarily on chimpanzees’ impressive cognitive abilities, asserting that as “self-aware, autonomous beings” they are “entitled to such basic legal rights as bodily liberty and integrity.” Significantly, the organization behind the lawsuits has indicated that it also plans to pursue legal personhood for other great apes (which include gorillas), as well as elephants and dolphins.

Would Harambe’s tragic killing have been avoided if our legal system considered a gorilla to be a legal person? Probably. A zoo likely would not be permitted to confine a legal person for viewing by the public. But although the nonhuman animal personhood approach has dramatic flair, it is not needed to change our laws regarding great apes and zoos.

Whether animals with the intelligence of great apes should be kept in any zoos, even high-quality zoos, is an increasingly serious question appropriate for thoughtful deliberation. And if the argument that they should not carries the day, this can be readily accomplished by changing the laws within our existing legal framework.

In other words, we do not need to pretend that great apes are people to protect them. Engaging in this pretension would be, in my view, both illogical and dangerous.

Society is rapidly evolving to demand greater protections for nonhuman animals, and appropriately so. Maintaining the status quo regarding levels of protection is in many instances neither feasible nor desirable.

But we are also increasingly facing a question with weighty societal implications. Will we channel this evolution through the animal welfare paradigm of enhanced human responsibility toward nonhuman animals? Or will we channel it through the radical paradigm of legal personhood and human-like rights for nonhuman animals?

In our society, legal personhood is anchored in the human community’s expectations of reciprocity from moral agents. We recognize that humans have rights, but we also generally expect them to accept responsibilities that come with belonging to or interacting with our society. Extending personhood beyond humans and their proxies would be inconsistent with our society’s core foundational principles.

When an adult chimpanzee at the Los Angeles zoo mauled a baby chimpanzee to death in front of zoo visitors in 2012, of course officials did not consider putting the chimpanzee on trial for murder. Although chimpanzees are highly intelligent as compared to most nonhuman animals, none of them are capable enough to be held morally responsible under our society’s laws. We should not dilute the protections and responsibilities connected to personhood by extending it to nonhumans incapable of the level of accountability we generally impose on humans.

Cognitive test?

Corporate personhood – the granting of legal standing and some legal rights to corporations – does not negate humanity’s centrality to personhood, because corporate personhood was created merely as a proxy for the rights and responsibilities of the humans who own the corporation. Regardless of whether corporate personhood is good or bad or whether it has been extended too far in recent Supreme Court cases, it is undeniably intended as a tool for representing human interests.

Further, analyzing courts’ and advocates’ rationales for assigning legal personhood and rights to humans who lack significant moral agency, such as young children and humans with significant cognitive impairments, demonstrates that their belonging in the human community, rather than an assessment of their cognitive abilities, is the anchor of their rights and legal personhood. I have published separate law review articles addressing in much more detail why the legal personhood of young children and the legal personhood of humans with significant cognitive impairments do not support legal personhood for intelligent nonhuman animals.

Humans are the only beings that we know of where the norm is capacity to shoulder the mutual obligations that are at a foundational level related to legal rights in our society. Among other beings of which we are aware, not only do no other types of animals meet this norm, no individual members of any other types of animals meet this norm.

The most vulnerable humans, those with significant cognitive limitations, would face the greatest risks in a shift to considering individual cognitive capacities as a basis for legal personhood. Although the legal personhood paradigm we assign to them would not immediately collapse, over time thinking of personhood in terms of individual abilities could erode their protections.

Nonhuman animal legal personhood presents other intractable problems, such as articulating a workable approach to determining how far down the intelligence chain personhood should extend.

Every species of mammals and many other nonhuman animals demonstrate some level of autonomy, indeed probably more autonomy than some humans with particularly severe cognitive limitations, such as, for example, humans in a persistent vegetative state. To ensure “equality,” should all of these animals be designated as legal persons?

More legal cases to come

Fortunately, New York’s courts have unanimously rejected nonhuman animal legal personhood thus far. By my count at least 23 New York judges have participated in ruling against the cases at various stages of the litigation. In the most prominent appellate opinion to date the court dismissed one of the lawsuits by focusing on chimpanzees’ incapacity to bear the societal responsibilities that are at a foundational level associated with rights.

But we are just at the beginning of what will be a long-term struggle. Many more lawsuits will likely be filed over the years in many jurisdictions. The ultimate outcome is far from clear, and the stakes are high.

Concluding that intelligent nonhuman animals such as Harambe should not be legal persons does not excuse us from doing more to protect them. Harambe’s outrageous death provides a powerful illustration. The facts surrounding his death must be extensively investigated to determine whether the zoo, the child’s parents, or any other humans or human proxies should be held legally accountable.

Regardless of whether the zoo’s employees made the right decision in shooting Harambe, wrong decisions must have been made earlier that allowed this tragedy to take place.

If no laws or regulations were violated, the laws and regulations almost certainly need to be changed to ensure that this does not happen again. But our focus needs to be on demanding appropriate responsibility from morally accountable humans and human institutions, rather than on the dangerous pretense of nonhuman animal personhood.


Richard L. Cupp, John W. Wade Professor of Law, Pepperdine University

This article was originally published on The Conversation. Read the original article.

The Conversation