Republished with permission.  Originally posted on Feb 20, 2019.

 

Here’s some good news! Supreme Court says constitutional protection against excessive fines applies to state actions:

“For good reason, the protection against excessive fines has been a constant shield throughout Anglo-American history: Exorbitant tolls undermine other constitutional liberties,” Ginsburg wrote. “Excessive fines can be used, for example, to retaliate against or chill the speech of political enemies. . . . Even absent a political motive, fines may be employed in a measure out of accord with the penal goals of retribution and deterrence.”

As a cherry on top, this was a unanimous ruling, too. But how does this relate to animal issues?

For over 30 years we have watched private nonprofit humane societies armed with state police powers seize animals – primarily dogs – under color of law, with very mixed results. There are definitely cases of horrendous neglect and abuse where animals must be removed from their current environment to protect and save their lives.

However, we have also observed animal confiscations that appeared to be little more than media events designed to provide a poster child opportunity for a humane society’s current legislative or fundraising campaign. We have seen seized animals that were portrayed by the shelter as being at death’s door when seized but made available for adoption within days of confiscation.

Decades ago, when dog overpopulation was still a problem in most parts of the country, the primary role of humane societies was to house and rehabilitate stray, neglected, owner relinquished and abused animals, and rehome them. But in the modern era, many shelters serve primarily as a major source of pets in their communities, often importing animals from different states and even foreign countries to maintain a steady supply of adoptable dogs. Confiscating pets in this environment is highly questionable and creates the perception of a serious conflict of interest. In addition, NAIA believes that nonprofit organizations should never be granted police powers, and that animal confiscations should only be carried out by duly appointed law enforcement personnel operating under proper legal justification, not by employees of a private nonprofit operating under the mission statement of their organization.

Three cheers for the Supremes and this decision. This applies to seizure of property that is used in engaging in criminal activity and, since dogs and other animals are defined as property, we expect that state legislatures will address their laws to align with this Supreme Court decision.

 

New Jersey proposed bills S2037 and A1050 would revise the State’s “equine animal activities law in accordance with recommendations of New Jersey Law Revision Commission to clarify responsibility and liability issues.”

The New Jersey Law Revision Commission issued its final report on May 22, 2014 in which it:

[r]ecommend[ed] . . . modification of current statute to address an issue raised by the 2010 New Jersey Supreme Court in Hubner v. Spring Valley Equestrian Center[, 203 N.J. 184 (2010)]. The Court found that the Act’s assumption of risk provisions conflicted with the exceptions to limitations on operator liability. Accordingly, the Act’s assumption of risk provisions have been consolidated and new language emphasizes affirmative duties and responsibilities of equestrian activities operators and participants.

The bills incorporate the Commission’s recommendations which clarifies the responsibility of both the equine operator and participants, similar to sections in sister laws governing skiing and rollerskating.

It looks like this is the second legislative session these bills have been introduced to the New Jersey Legislators.

Historically the equine industry in New Jersey has had a significant economic impact in the State. The Commission, citing reports from Rutgers Equine Science Center stated

[t]he New Jersey equine industry, which is home to 42,500 horses, is valued at $4 billion…producing an annual economic impact of approximately $1.1 billion…and 13,000 jobs. Horses are found on 7,200 facilities in every county statewide which maintain open space of 176,000 acres, which in turn provides an enhanced quality of life for New Jersey residents. Horse operations tend to be more sustainable than other types of agricultural businesses, making the horse industry critical to the growth and land-use strategy of the state.

These statistics were reported in a comprehensive report published by the New Jersey Agricultural Experiment Station in 2007.

The report included the direct and indirect economic impact related to equine activities.

It would be helpful to receive an update from that now decade-old report, but that should not hinder the movement of these bills through the legislative process until they are hopefully passed and enacted.

It looks like sister bills in New Jersey that would provide “immunity from civil and criminal liability for rescue of [an] animal from motor vehicle under inhumane conditions” are moving through the lame duck session of the state legislature.

The senate version, S2899, a senate substitution, was passed on Dec. 7, 2017 during a session vote.  The assembly version, A3636 passed last year.  According to Tom Leach, the Executive Director of both the New Jersey Association for Biomedical Research and the Pennsylvania Society for Biomedical Research, since “the bills were amended on the floor of the Senate, it will need to pass the full Senate then go back to the Assembly for concurrence with the Senate amendments.  The assembly vote that is needed is a floor vote.  There is no need for further committee activity.  Both houses still have multiple voting sessions scheduled before the end of the legislative session on January 9th.”

Of concern is the fact that the bills do not provide sufficient guidance to the public about what constitutes “inhumane conditions adverse to the health or welfare of the animal.”  The “inhumane conditions adverse conditions to the health or welfare of the animal” enumerated in the bill, include “heat, cold, inadequate ventilation, or other circumstances likely to endanger or cause bodily injury or death the animal.”

If those “inhumane conditions” exists,

any person who, without license or privilege to otherwise enter the motor vehicle, may in good faith enter the vehicle in order to remove, or render emergency care to, the animal if the person reasonably believes that the health or welfare of the animal may be at risk under such circumstances, provided that prior to entering the motor vehicle the person contacted appropriate rescue personnel to report the circumstances and made a reasonable attempt to locate the owner or operator of the motor vehicle or other person responsible for the animal unless exigent circumstances warrant foregoing such actions.

See A3636  (emphasis added).

Since anyone would be able to break into a vehicle and rescue an animal if these bills become law, these vague and ambiguous provisions could result in unneeded “rescues” that could end up injuring animals and unnecessarily destroying property.  As long as a person acts in “good faith,” they will be immune from criminal or civil liability.

Some pets would suffer if not rescued when locked in cars when the ambient temperature is high with the windows closed and no air conditioning on.  Those pets may suffer from heatstroke, but if so, immediate veterinary treatment is imperative, not optional as permitted in the current bills.  If someone in good faith believes an animal must be rescued due to inhumane conditions harmful to their health, then each rescued animals should receive immediate veterinary care.

Since no one in New Jersey other than licensed veterinarians are permitted to diagnose or treat conditions in animals, there should be provisions for mandatory veterinary treatment as soon as animals, suffering from any inhumane conditions, are rescued from vehicles.

As described on Consultant, A Diagnostic Support System for Veterinary Medicine, developed by one of my former mentors, Dr. Maurice E. White at Cornell University, “heatstroke is a multisystemic disorder usually associated with forced confinement of animals in a hot environment such as a locked car.”

The associated clinical signs of heatstroke include:

Abnormal behavior, aggression, changing habits, Abnormal upper airway breathing sounds, Anorexia, Arrhythmia, Ataxia, Blindness, Bloody stools, feces, hematochezia, Cold skin, Coma, Congestion oral mucous membranes, Constant or increased vocalization, Cyanosis, Dehydration, Diarrhea, Dryness of skin or hair, Dryness oral mucosa, Dullness, Dysmetria, Dyspnea, Epistaxis, Excessive salivation, Fever, Generalized weakness, Inability to stand, Increased respiratory rate, Mydriasis, Oral cavity, tongue swelling, Pale, Paraparesis, Petechiae, ecchymoses, purpura, Red or brown urine, Seizures or syncope, Sudden death, Tachycardia, Tetraparesis, Tremor, Vomiting or regurgitation, Warm skin, Weak pulse.

In a study titled “Hemostatic abnormalities in dogs with naturally occurring heatstroke” abnormalities in hemostatic tests run (platelet count, prothrombin and activated partial thromboplastin times (PT and aPTT, respectively), antithrombin activity (ATA), total protein C activity (tPCA), fibrinogen, and D-dimer concentrations) on 30 dogs with naturally occurring heatstroke were identified.  18 of the 30 dogs survived.  The study found:

[h]emostatic derangements are common in dogs with naturally occurring heatstroke. Alterations in PT, aPTT, tPCA, and fibrinogen concentrations appear to be associated with the outcome at 12–24 hours PP, exemplifying the need for serial measurement of multiple laboratory hemostatic tests during hospitalization, even when within reference interval on presentation. The development of disseminated intravascular coagulation (DIC), as defined in this cohort, was not associated with mortality; however, nonsurvivors had significantly more coagulation abnormalities during the first 24 hours PP.

Good Samaritans and law enforcement officials, including animal control and humane officers or agents, assisting pets experiencing inhumane conditions in locked vehicles, should be required to bring that pet immediately to a veterinarian, once rescued.  It should not be optional.

A “Good Samaritan” bill, S 3134, introduced in the New Jersey Senate on May 8, 2017 would “provide immunity from civil liability for veterinarians or emergency responders who assist animals at accident scene or emergency.”  Sister bill A4770 was introduced and referred to the Assembly Law and Public Safety Committee on May 11, 2017.

Currently veterinarians have immunity for civil damages for rendering emergency care:

Any individual licensed to practice veterinary medicine who, in good faith, renders emergency care to any animal which has, immediately prior to the rendering of such care, been brought to such individual’s attention at or from the scene of an accident or emergency situation or has been discovered by such individual at the scene of an accident or emergency situation shall not be liable for any civil damages as a result of any acts or omissions by such person in rendering the emergency care.  NJSA 45:16-9.11

So what do these newly introduced bills do differently?

First, it seems as if the bill sponsors and oversight from the Office of Legislative Services may have been unaware of the existing provisions for veterinarians, since the introduced bills purport to amend  NJ Rev Stat § 2A:62A-1 (2013) a statute titled “Civil immunity for emergency care” and there is no citation to the above-mentioned statute, part of the NJ Veterinary Medical Practice Act.

The provisions for veterinarians in these newly proposed bills appears redundant to immunity already provided.

However, the bills would expand the immunity to all “emergency responders” defined as “a law enforcement officer, paid or volunteer firefighter, paid or volunteer member of a duly incorporated first aid, emergency, ambulance, or rescue squad association, or any other individual who, in the course of employment, provides medical care or other assistance at the scene of an accident or emergency.”

The actual provisions of the bills is similar to the immunity provided for in the State Veterinary Practice Act for veterinarians, namely:

An emergency responder or veterinarian who in good faith renders emergency care to an animal at the scene of an accident or emergency shall not be liable for any civil damages as a result of any acts or omissions in rendering the emergency care. Nothing in this section shall exonerate an emergency responder or veterinarian from gross negligence.

It would appear that these bills would provide immunity to emergency responders and veterinarians responding to pets confined in a vehicle during inclement conditions that could be considered emergencies, e.g., excessively high temperatures.

Therefore, while these bills are, in part redundant, they extend immunity to emergency responders and strike an appropriate balance that would benefit pets and their owners.

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

ASSEMBLY, No. 3757, recently introduced in the New Jersey Assembly, would “[c]reate . . . rights of action for pecuniary damages against person committing certain harm to domestic companion animal.”

So you might ask yourself, like I did, “what the heck does that mean” and “how is that different from the existing law?”

Let’s break this down.

First, “pecuniary” simply means “economic.” So, this law permits owners of domestic companion animals to sue and recover economic damages from someone who either:

  1. was found criminally or civilly liable under the state animal cruelty statutes or
  2. was accused of veterinary malpractice that resulted in injury or death to the owner’s animal.

As specified in the statue, economic damages means may include, but need not be limited to, the economic value of the animal, replacement value of the animal, breeding potential of the animal, veterinary expenses incurred by the owner in treating the animal, reasonable burial or cremation expenses, reimbursement of animal training expenses, any unique or special value of the animal, such as if the animal is a guide or service animal, and lost wages incurred by the owner due to the loss of or injury to the animal.

Fortunately, the statute limits remedies to “the person who was the owner of the animal at the time the act of animal cruelty was committed.” The statute of limitations for such lawsuits (the time limits for a suit to be filed) is one year.

So would this law provide that is not already available to an aggrieved pet owner?

Probably not much, in its current form.

While there is no private right of action under the animal cruelty statute in New Jersey, a civil lawsuit can be filed to recoup economic damages against someone found criminally or civilly liable under the statute. The fact that statutory damages are available means that there can be no credible argument that damages are not available.

As far as the impact to veterinarians, there is also not much that would change.  Whether brought under a theory of negligence, breach of a duty of care, such as failure to obtain informed consent, breach of contract, this bill would not increase the amount of damages available if a veterinarian is sued for malpractice.  However, I could see someone arguing that since damages are available statutorily the fact finder (judge or jury) should assess greatest damages allowed.

I think the risk regarding this bill lies in its potential future amendments that would “noneconomic” in addition to economic damages.

The official bill statement follows:

This bill would create statutory rights of action for pecuniary damages against persons committing certain acts of harm to domestic companion animals.

Specifically, under the bill, a person who owns a domestic companion animal that has been subjected to an act of animal cruelty, resulting in the death of or injury to the animal, for which the person committing the act has been found guilty of, or civilly liable for, violating an animal cruelty law of the State, may bring a civil action for pecuniary damages against the person committing the act of cruelty. Additionally, the owner of a domestic companion animal that the owner believes has been subjected to veterinary malpractice, resulting in the death of or injury to the animal, may bring a civil action for pecuniary damages against the veterinarian allegedly committing the veterinary malpractice. In the case of animal cruelty, the owner would have one year after the date of conviction, or entry of judgment, for the act of cruelty to bring the suit for pecuniary damages. In the case of alleged veterinary malpractice, the owner would have two years after the cause of action for veterinary malpractice has accrued.

Under the bill, pecuniary damages would include, but need not be limited to: the economic value of the animal, replacement value of the animal, breeding potential of the animal, veterinary expenses incurred by the owner in treating the animal, reasonable burial or cremation expenses, reimbursement of animal training expenses, any unique or special value of the animal, such as a guide or service animal, and lost wages incurred by the owner due to the loss or disability of the animal. Domestic companion animal is defined as an animal commonly referred to as a pet that lives in the household, and that has been bought, bred, raised, or otherwise acquired in accordance with local ordinances and State and federal law for the primary purpose of providing companionship to the owner, rather than for business or agricultural purposes. Domestic companion animal would not include domestic livestock, animals used for biomedical research purposes, or animals used in activities regulated by the federal Animal Welfare Act.

The replacement of the term “owner” with “guardian” has been proposed by animal activists for many years, but rejected by many veterinary associations concerned about the unintended consequences of such a change in designation.

According to the AVMA “[a]ny change in terminology describing the relationship between animals and owners, including ‘guardian,’ does not strengthen this relationship and may, in fact, harm it. Such changes in terminology may adversely affect the ability of society to obtain and deliver animal services and, ultimately, result in animal suffering.”

The Missouri Veterinary Medical Association warns that guardianship may result in “a delay in the veterinarian’s ability to provide medical care . . . ”

The Council of State Governments opposes legislation that reclassifies pet, livestock or animal owners as guardians or that otherwise alters the legal status of the animals because, among other concerns:

guardianship status would permit challenging in a court of law the course of treatment an animal’s owner and veterinarian decide on, or permit animal owners and veterinarians to be sued for providing what another individual may regard as inadequate care.

However, a change in status from owner to guardian is not required for pet owners to be charged with animal cruelty violations for their alleged failure to provide adequate veterinary care.

Many states include in the definition of animal cruelty the failure to provide an animal with necessary care. Importantly, further guidance on what constitutes necessary care, particularly in terms of veterinary treatment, is often absent.

In New Jersey individuals may be found criminally or civilly liable if they

Fail, as the owner or as a person otherwise charged with the care of a living animal or creature, to provide the living animal or creature with necessary care (see 4:22-17(a)(4)); or

Fail, as the owner or a person otherwise charged with the care of a living animal or creature, to provide the living animal or creature with necessary care, or otherwise cause or procure such an act to be done. (see4:22-26 (a)(4)).

In Delaware

‘Cruelty to animals’ includes mistreatment of any animal or neglect of any animal under the care and control of the neglector, whereby unnecessary or unjustifiable physical pain or suffering is caused. By way of example this includes: . . . failure to feed properly or give proper shelter or veterinary care to an animal. Del.A.S. § 1325(a)(6)

In People v. Arroyo, 777 N.Y.S.2d 838 (N.Y. Crim. Ct. 2004), the court considered the following “novel question”:

Does a pet owner commit an act of cruelty, for which he or she could be prosecuted criminally, by not providing an ill pet (in this case, terminally ill) with medical care? To answer this question the court must review not only the statute forbidding cruelty against animals, but also constitutional due process principles requiring fair notice of conduct that is criminally proscribed, as well as our current standards of morality with respect to pet owners’ duty to provide medical care for their animals.

In this case, a dog’s owner was charged with animal cruelty because he failed to have the dog treated for mammary cancer which would have required extensive, painful surgery which he could not afford and did not want his dog to endure. The court analyzed the relevant statutory terms and found that the “the term ‘sustenance’ in the statute does not include medical care” and therefore the statute did not provide the required notice to the dog owner that failing to provide medical care was a violation of the statute. The court also found that causing “unjustifiable pain” to an animal means “what is not reasonable, defensible, right, unavoidable or excusable.” The court concluded that the animal cruelty statute did not mandate an “affirmative duty to provide medical care in all cases, regardless of the expenses or the owner’s ability to meet them.”

However, in other jurisdictions, pets have been seized and surgery performed or required without notice or approval of the pet’s owner. In Daskalea v. Washington Humane Society, 577 F. Supp. 2d 82 (D.D.C. 2008) several pet owners sued the Humane Society that had seized their pets and without notice or the opportunity to challenge the seizure sterilized one pet owner’s pedigreed breeding dog and mandated unnecessary veterinary treatment and in one case surgery to a terminally ill dog who subsequently died. The court found that the dog owners had been denied due process by the Humane Society who failed to permit them the opportunity to be notified and heard before the seizure and unnecessary veterinary services were completed or mandated.

The American Veterinary Medical Association promotes the optimal health and welfare of animals. Further, the AVMA recognizes the role of responsible owners in providing for their animals’ care.

Whether “owners” or “guardians,” a pet owner’s requirement to provide for adequate veterinary care must be carefully considered and based on the best available science, in light of sound public policy.

A Colorado bill attempts to address the expanding use of “fake” service animals by individuals claiming that they are dependent on their pets for emotional support.  This use, and the growing backlash against anyone with a service animals is impacting individuals with legitimate needs for and dependence upon service animals.  Also, because the federal (and state) laws protect the privacy rights of individuals with disabilities, places of public accommodation “face a dilemma when someone enters the premises and fraudulently misrepresents his or her animal as a service animal or service animal in training.”

Similar to other states, including Florida, this proposed legislation attempts to rectify the growing representation by certain individuals that their dependence on an animal for emotional support is equivalent to the needs of a disabled individual dependent on their service animal.

The importance of the human-animal bond has been well established, including the physical and mental health benefits resulting from pet ownership.  Couldn’t anyone benefiting from pet ownership claim that their pet provides emotional support?

The Colorado general assembly concluded “that the state of Colorado needs to enact a crime of fraudulent misrepresentation of a service animal for a person with a disability.”

Specifically House Bill 16-1308:

creates a criminal offense of fraudulent misrepresentation of a service animal (offense). The offense applies to a person who intentionally fraudulently misrepresents an animal in his or her possession as a service animal for the purpose of obtaining the rights and privileges granted by law to persons with disabilities with service animals. The offense also applies to a person who knowingly and fraudulently misrepresents himself or herself as a trainer of a service animal.

The penalty for fraudulent misrepresentation of a service animal mirrors the penalty for an offender who violates the provisions of the law concerning reserved parking for persons with disabilities. A person who has been convicted of an offense may petition the court to have his or her record of first conviction sealed if he or she has not committed an offense in the 3 years prior to petitioning the court.

The Legislation, setting forth the background and necessity for the law, distinguishes an animal that provides emotional support, well-being, comfort or companionship from the work or tasks of a service animal “that [is] properly trained to assist persons with disabilities [and] play[s] a vital role in establishing independence for such persons.”

The legislators found:

No vest, other marking, or documentation is required for an animal to qualify as a service animal, nor are such vests, markings, or documentation a reliable indication of whether an animal is, by law, a service animal. People sometimes erroneously think that a therapy animal, an emotional support animal, or any animal wearing a vest or having any other type of marking is a service animal as defined by law.

There are an increasing number of occurrences where people exploit the confusion related to service animals and attempt to bring an animal into a place that it would otherwise not be allowed to enter by passing off a pet, therapy animal, or emotional support animal as a service animal or a service animal in training, either by oral misrepresentation, placing a vest or other marking on the animal, or presenting a “certificate,” despite knowing that it is not a service animal; [and that]

Some companies mislead individuals into believing that they will be entitled to the rights or privileges for individuals with disabilities with service animals if only they buy the company’s vests or obtain some type of certificate. These misrepresentations, in some cases, are unlawful deceptive trade practices and compound the confusion around service animals.

 

Legislators in New York (Asw. Linda Rosenthal) and Maryland (Del. Tony McConkey) have recently introduced bills that would require veterinarians to report suspected animal cruelty to government officials. If these bills are adopted, New York and Maryland would mandate rather than permit the voluntary reporting of animal cruelty, which is already an ethical if not legal responsibility of veterinarians.

However, like most other animal-related issues, such reporting is not without controversy or potential liability to reporting professionals.

Why?

First, most states prohibit veterinarians from releasing the medical and other records of their clients and patients to anyone unless certain specific exceptions exist. For example, in New Jersey:

 

A licensed veterinarian shall keep records confidential, unless:

1) The licensed veterinarian is required by law to release the records;

2) The Board requests the records;

3) The client, at the time services were rendered by the licensed veterinarian, authorizes the licensed veterinarian to release the records; or

4) It becomes necessary to release information in the records in order to protect the health of a person, the animal that is the subject of the records or another animal.

Veterinarians may be hesitant to report suspected animal cruelty if such reporting is not expressly exempt from other governing laws.

Second, legal definitions of “animal cruelty” vary among the states. Limited guidance exists to help veterinarians navigate this issue. In the” Practical Guidance for the Effective Response by Veterinarians to Suspected Animal Cruelty, Abuse and Neglect” the authors address these concerns:

In common usage, the terms “cruelty to animals,” “abuse,” and “neglect” encompass a range of behaviors harmful to animals, from unintentional neglect to malicious killing, and it is difficult to arrange these commissions and omissions along a scale of acceptability in a variety of cultures.

The legal definitions of the following terms (and even the legal definition of “animal”) vary from jurisdiction to jurisdiction, and clinical descriptions and public perceptions may vary from statutory terminology: [animal cruelty, neglect, animal abuse, animal physical abuse, non-accidental injury, animal sexual abuse, hoarding, fabricated or induced illness, emotional abuse.]

Third (and most importantly) veterinarians are not commonly trained in methods to identify cruelty, abuse or neglect. As reported by the AVMA in 2001, Dr. Gary Patronek, director of the Center for Animals and Public Policy at Tufts University School of Veterinary Medicine acknowledged deficiencies in educating veterinarians:

Absent in veterinary medicine is a set of standard guidelines for determining what constitutes evidence of possible intentional cruelty to animals. Some resources for recognizing and reporting abuse are available to veterinarians, but for the most part, forensic investigation of animal cruelty has been consigned to the periphery of veterinary medicine.

Since that time, there have been advances in the field of veterinary forensic medicine, but more has to be done before finding veterinarians legally responsible if they do not recognize signs of animal cruelty, abuse or neglect.

The AVMA recognizes that veterinarians may observe cases of animal abuse or neglect as defined by federal or state laws, or local ordinances. The AVMA considers it the responsibility of the veterinarian to report such cases to appropriate authorities, whether or not reporting is mandated by law. Prompt disclosure of abuse is necessary to protect the health and welfare of animals and people. Veterinarians should be aware that accurate, timely record keeping and documentation of these cases are essential. The AVMA considers it the responsibility of the veterinarian to educate clients regarding humane care and treatment of animals.

Additional guidance for the profession is needed to assist veterinarians to identify and report suspected cases of animal cruelty.

 

 

Despite a new amendment to the public health laws in New York State that permit dogs to accompany their owners at outdoor bars and restaurants as of October 26, 2015, a restaurant patron, Sondra Hargro, sued a restaurant owner, Scott Ross, for injuries she received from a dog bite from another patron’s dog inside Ross’s restaurant.

The Court found that Ross “was not liable, under the theory of strict liability, in absence of any evidence that restaurant owner had actual or constructive knowledge that dog had any vicious propensities.”  Hargro v. Ross, 21 N.Y.S.3d 520 (N.Y. App. Div. 2015).

The Court also held that Hargro could not prevail “under a theory that restaurant owner was negligent in failing to maintain safe premises.”

Most interesting, and relevant to New York’s newly amended public health law is that the restaurant owner’s alleged violation of provision of State Sanitary Code regarding presence of animals in food service establishments was only some evidence of negligence.

Not many facts were included in the published slip opinion in Hargro v. Ross, but it seems as if the dog was inside the restaurant, not outside.  The state amendments only permit companion dogs at outdoor dining areas.

 

 

 

 

 

Specifically, the law provides:

§ 1352-e. Companion dogs at food service establishments
1. Companion dogs under the control of a person may be allowed in an outdoor dining area at a food service establishment if all of the following conditions are satisfied:
(a) the owner of the food facility elects to allow companion dogs in its outdoor dining area or a designated portion of it, and subject to any restrictions that the owner of the facility may establish;
(b) a separate outdoor entrance is present where companion dogs enter without going through the food establishment to reach the outdoor dining area and companion dogs are not allowed on chairs, benches, seats or other fixtures;
(c) the outdoor dining area in which companion dogs are allowed is not used for food or drink preparation or the storage of utensils. A food employee may refill a beverage glass in the outdoor dining area from a pitcher or other container;
(d) food and water provided to companion dogs shall only be in single-use disposable containers;
(e) food employees are prohibited from having direct contact with companion dogs while on duty. A food employee who does have such prohibited direct contact shall wash his or her hands as required by law;
(f) the outdoor dining area is maintained clean. Surfaces that have been contaminated by dog excrement or other bodily fluids shall be cleaned and sanitized;
(g) the companion dog is on a leash or confined in a pet carrier and is under the control of the companion dog owner;
(h) there is reasonable signage indicating that companion dogs are allowed in the outdoor dining area or a designated portion of it. The signage shall state that restrictions on companion dogs do not apply to guide, hearing or service animals;
(i) the food facility owner ensures compliance with local ordinances related to sidewalks, public nuisance and sanitation; and
(j) such other control measures approved by the enforcement agency are complied with.
2. This section shall not impair or diminish the right of an individual to be accompanied by an animal where otherwise permitted by law, including but not limited to the rights of people with disabilities using guide, hearing or service animals.
3. For purposes of this section:
(a) “Food service establishment” shall mean any business which has areas, including outdoor seating areas, in which food is sold for on-premises consumption.
(b) “Companion dog” shall mean a domesticated dog accompanying an individual or owner for the purpose of companionship or convenience of such individual or owner, and shall not include guide, hearing or service dogs.

The regulation in question has not been amended to reflect changes in the law and prohibits live animal from food service operations, except for “patrol dogs accompanying security police officers or guide dogs accompanying blind persons.”  10 NYCRR 14-1.183.Since it is likely that this incident occurred before the amendments to the law were in place, the existing regulations would apply.  However the law only permits dogs in outdoor dining areas.

Finally, it is important to keep this in mind: with more dogs accompanying their owners to restaurants and other public places, there will be increased incidences of injuries to people and pets and related lawsuits.