Animal Law

What Are the Laws Regarding Animal Testing?

In the United States, a number of products like pharmaceuticals, cosmetics, and detergents are first tested on animals to determine what their effects are likely to be on humans. This has raised a number legal and ethical concerns among consumers. So, what are the laws regarding animal testing?

 

In the United States, animal testing (at least as it applies to vertebrates) is largely regulated by the Animal Welfare Act of 1966 (AWA). The AWA is enforced by the Animal and Plant Health Inspection Service (APHIS) of the United States Department of Agriculture (USDA). The AWA is designed to provide a minimum standard of care and treatment for animals while ensuring that the regulations do not interfere with “the design, outlines, or guidelines of actual research or experimentation.”

Currently, the AWA only protects mammals. In fact, in 2002 the Farm Security Act, an amendment to the AWA, specifically excluded purpose-bred (as opposed to wild-captured) birds, rats, and mice from regulation under the AWA. As a result, the AWA now applies to relatively few animals commonly used in research.

The AWA requires any company or institution that uses covered species to maintain an Institutional Animal Care and Use Committee (IACUC). The IACUC is responsible for ensuring the company or institution remains in compliance with the AWA. However, some research suggests that the use of IACUC’s as a system of monitoring and regulation is unreliable. A 2001 study by Wesleyan University showed that decisions between different companies’ and institutions’ IACUC’s were statistically unrelated and inconsistent.

However, companies and institutions that conduct animal testing are also subject to unannounced inspections by the USDA. Unfortunately, there are only about 70 inspectors nationwide to monitor approximately 1100 research institutions. The same inspectors are also called upon to conduct pre-licensing inspections which accounts for more than 4000 additional inspections. As a result, APHIS has been criticized for its lack of resources and thoroughness. Indeed, several APHIS and USDA personnel have even criticized the system, themselves, and have provided anecdotal reports of being told to turn a blind eye to violations simply because of the additional work such reports would create.

Another way that animal testing is regulated is through the Public Health Service (PHS). The PHS Policy on Humane Care and Use of Laboratory Animals became law with the enactment of the Health Research Extension Act of 1985. The laws are enforced by the Office of Laboratory Animal Welfare (OLAW), and apply to any scientist or institution that receives federal funds and would be required to have an IACUC under USDA regulations. OLAW enforces the standards contained in the Guide for the Care and Use of Laboratory Animals, which is published by the Institute for Laboratory Animal Research. The Guide includes in its purview all vertebrate species, including rodents and birds. Thought the Guide is more inclusive than the AWA, OLAW will only conduct inspections when there is a suspected or alleged violation, and even then only when the alleged violation cannot be resolved through written correspondence.

Finally, some private institutions also accredit animal research facilities. For example, accreditation by the Association for Assessment and Accreditation of Laboratory Animal Care International (AAALAC), is considered the highest standard. Accreditation is dependent on regular AAALAC site visits and program evaluations conducted by the member institution every three years.

If you are concerned about the treatment of animals at a facility in your area, you should contact the USDA and report your concerns. You may also want to speak with an attorney to see if you have a basis for filing suit yourself, or if there is another means of reporting your concerns and stopping the improper animal testing. Alternatively, if you are a company or institution that engages in animal testing that wants to ensure compliance with the law or private regulation, you should consult with your corporate counsel.

 

The Dog Lawyer – Richard Bruce Rosenthal, Esq. National Authority On Animal And Dangerous Dog Law. Give us a call today (718) 261-0200

 

Oregon Dog Bite Injury Claims

Dog bites can be serious injuries, and cause both physical and emotional harm. But a dog bite victim will have trouble getting compensation unless he or she can prove the dog’s owner had reason to believe the dog was dangerous.

There are exceptions to this rule, obviously, and for serious injuries most Portland dog bite lawyers will be willing to investigate the situation, but usually there needs to be a known danger in the dog’s behavior.

Exceptions include:

1. If the dog has trespassed on someone else’s property.
Example: A dog wonders away from the owner and bites a child in front of the child’s house.

2. The owner intentionally causes the dog to attack.
Example: The dog owner commands the dog to attack the victim.

3. The owner has been negligent in preventing the dog from causing harm.
Example: The dog owner has failed to repair a fence, which allows the dog to get out and bite a person walking by.

In some cases where the dog breed is not known to be violent, it can be especially hard to prove negligence or knowledge of danger. In other instances, where the dog breed is known to be prone to violence, Oregon law is much more severe – and the expectation for owners to be more careful has been established.

The Dog Lawyer – Richard Bruce Rosenthal, Esq. National Authority On Animal And Dangerous Dog Law. Give us a call today (718) 261-0200

 

 

Why Is the Department of Animal Services Seldom Held Liable for Dog Bites?

California law imposes a strict liability rule in dog bite cases, which means that an owner is always liable for any personal injury caused by his or her dog, even in situations where a dog has not bitten before, explains a lawyer. While owners may be held liable for their dogs under California’s dog bite statute, as well as under negligence rules and the negligence per se doctrine, holding animal control responsible for a dog attack becomes a much more complicated proposition.

 

Every state has its own laws concerning dog bite cases, including California. Under California Civil Code § 3342, dog owners can be held responsible for any personal injury or damages arising from a dog bite that occurs on public property or when the bite victim is lawfully on private property, explains a lawyer. The owner is liable regardless of the dog’s history, unless it can be proven that the victim provoked the dog to bite.

While the strict liability statute provides broad protection, there are also other legal doctrines under California law that make dog owners liable for the actions of their dogs. For instance, owners may also be held liable based on traditional theories of negligence under California tort laws, as well as under the negligence per se doctrine which automatically presumes that an action which breaks a law is a breach of duty. A case called Delfino v. Sloan even found that breaking a leash law could be grounds for a negligence per se action.

Animal Control Responsibility for Dog Attacks

While California takes a strict stance against owners in its dog bite laws, liability is generally imposed only against dog owners or handlers. There are several significant challenges a California resident would face in holding the Department of Animal Services responsible for the personal injury and damage sustained from a dog attack, explains a lawyer.

California, like most states, offers protection in the form of governmental immunity, which insulates government workers from personal liability in California Government Code § 8655 and government entities from liability in California Government Code § 815. Further, California Gov Code § 846 makes clear that “Neither a public entity nor a public employee is liable for injury caused by the failure to make an arrest or by the failure to retain an arrested person in custody.” Failing to declare a dog dangerous could be analogized to failing to arrest or retain an arrested individual.

While government immunity makes it more difficult to file a civil lawsuit against government entities, it is not impossible to do so. The government may waive sovereign immunity and cannot use the doctrine to simply absolve government agencies of all potential claims when a legitimate governmental obligation to protect its citizens was breached. Pierce County, Washington, for instance, also has governmental immunity rules and Animal Control there was subject to suit and found liable.

In 2011, the victim of a pit bull attack sued Pierce County after two pit bulls came into her home and attacked while she was sleeping. Pierce County Animal Control had visited the dogs house around a dozen times before the attack on the victim, 59-year-old Sue Gorman. On at least four of those visits, there was sufficient evidence for animal control to declare the dogs dangerous.

In the Pierce County case animal control was held responsible. In fact, 42 percent of the responsibility for the attack was attributed to animal control, with the remaining 58 percent of responsibility falling on the shoulders of the dogs’ owner. Animal Control was thus 42 percent responsible for paying Gorman’s damages and required to pay $924,000 of the total verdict of $2.2 million, reported The News Tribune.

The PierceCounty case, while perhaps providing hope for California dog bite victims who feel animal control dropped the ball, is not binding precedent in the state of California. The case is also currently being appealed, so may not end up as precedent in WashingtonState either. Regardless of the final outcome, California dog bite victims are likely to continue to collect damages only from dog owners and handlers and will have a hard battle to fight if they wish to impose some responsibility on the agency vested with the task of protecting the public from dangerous dogs.

 

The Dog Lawyer – Richard Bruce Rosenthal, Esq. National Authority On Animal And Dangerous Dog Law. Give us a call today (718) 261-0200

State High Court Spares Life of Dog That Bit Man

In a split ruling, the West Virginia Supreme Court of Appeals on Thursday said a municipal court didn’t have the authority to order the killing of Major, a pit bull terrier whose owner went to court to save the pooch’s life.

The dog’s troubles stem from a biting incident last year when an animal control officer responded to a complaint about Major and another dog at the home of Bluefield resident Estella Robinson, according to the court’s opinion. A municipal judge directed that the city kill the dog, citing a city ordinance that authorizes the destruction of dogs deemed “vicious, dangerous or in the habit of biting or attacking persons.”

Ms. Robinson, who last year pleaded guilty to having a dangerous animal, claimed that the municipal court’s death sentence clashed with a state dog regulation that says only circuit and magistrate courts may decide the fate of an allegedly dangerous canine. The state’s highest court agreed with her.

“A municipality seeking an order to kill a vicious or dangerous dog must do so in circuit or magistrate court,” wrote Justice Menis E. Kethum in the opinion.

Justice Allen H. Loughry Jr., in a dissenting opinion, said he strongly disagreed with the majority’s ruling.

“In complete disregard of the unfortunate truth that not all dogs are like the beloved Lassie, a vicious dog has been granted a pardon by the highest court of this State,” he wrote, noting that the officer whom Major attacked required surgery and several days of hospitalization.

Justice Loughry said he loves animals — recalling his “fond memories of [his] childhood companion and faithful dog, ‘Bozo,’ — but said he’s not blinded to “the sad reality” that some dogs are dangerous and vicious.

He also said he was concerned that the ruling could “serve as a springboard for further diminishment of the authority and duty of municipal courts to enforce municipal ordinances.”

An attorney representing Ms. Robinson couldn’t immediately be reached for comment.

Brian K. Cochran, an attorney representing Bluefield, told Law Blog that the ruling throws into doubt the ability of West Virginia municipalities to enforce their own ordinances. He predicted that Bluefield and other cities would lobby state lawmakers to amend the state’s canine regulations so that municipal courts are explicitly empowered to authorize the killing of a dangerous dog.

The Dog Lawyer – Richard Bruce Rosenthal, Esq. National Authority On Animal And Dangerous Dog Law. Give us a call today (718) 261-0200

Moving Animal Cruelty Crimes to the Penal Law?

Assemblyman Anthony Brindisi has proposed a bill to move animal abuse crimes from the Agriculture Markets Law into the Penal Law, a change which he and CNY SPCA note is long overdue.  According to Brindisi, “Many animal abuse laws were written 50 years ago. And most judges and lawyers are just not familiar with agriculture market laws as they are with the penal law . . . When you have a case of animal cruelty, the courts and lawyers may not consider them “real crimes” with animal abuse, even when they are in fact severe crimes.”  Unfortunately, I think this mindset probably exists amongst the general public as well, and this bill proposal is a means of addressing the problem.  Recent cases of animal abuse across Central New York, as disturbing as they are, may be just the momentum needed to enforcing harsher punishments for violators of animal cruelty.

CNY SPCA executive director Paul Morgan also points out that a transition to the penal law would be easier for law enforcement since this is an area in which they are obviously more familiar.  Legislation will be reintroduced to lawmakers this coming January.  In order to gain the necessary support from the Senate, the assemblyman is urging members of the community to do their part.  Advocacy and awareness are key components in shedding light on a particular issue and are often the driving factors in effecting change.  Anyone interested in lending their support is urged to write or call your state legislator.

 

The Dog Lawyer – Richard Bruce Rosenthal, Esq. National Authority On Animal And Dangerous Dog Law. Give us a call today (718) 261-0200

Breed Specific Legislation: Why?

Breed Specific Legislation, or BSL as it is more commonly known, is a way for cities and towns to place either restrictions or full bans on a certain breed of dog. Most commonly these bans are of so called dangerous breeds or even “bully breeds.” Typically the restrictions include the American Pit Bull Terrier, the American Staffordshire Terrier, Rottweilers, and German Shepherds just to name a few. Additionally, there are many mixed breeds that end up being encompassed within these bans, even if the genetic make up of the dog is unknown. The dog just needs to looks like a restricted breed. In enacting these restrictions, the temperament of individual dogs is not considered, only what breed the dog appears to be.

BSL has been around for many years, but there has been more publicity surrounding it in recent years. Many times in enacting BSL, the thought behind the laws was to reduce the number of dog attacks. However, there are many studies that show that placing bans on these breeds does not reduce the number of dog attacks. Any breed of dog can attack, not just the so called dangerous breeds. Additionally, the American Veterinary Medical Association has shown that no breed of dog is anymore dangerous than any other breed. Even recently, President Obama came out against BSL, stating “Breed Specific Legislation is a bad idea.”

So why are cities still enacting BSL laws? Just as recently as October 12, 2013, inDover, Arkansas a ban on pit bulls was approved. Residents that currently have pit bull breed dogs have 60 days to come into compliance with the law or the dog will be confiscated. Just as other cities are repealing BSL laws, other cities are still enacting them. It is any wonder how these bans are still being enacted, as the negative effects are widely known. These bans not only harm the innocent dogs that end up being confiscated because their owners don’t comply but they also take up valuable law enforcement resources when time is spent on compliance issues instead of real crimes.   As increasingly more information is learned about the ineffectiveness of these bans in preventing dog attacks, it is to be hoped that there will come a time when these ineffectual BSL laws that are plaguing cities and towns will vanish.

The Dog Lawyer – Richard Bruce Rosenthal, Esq. National Authority On Animal And Dangerous Dog Law. Give us a call today (718) 261-0200

Dog Custody in Divorce

When married couples divorce, who gets to keep the dog?  Under the law, dogs are considered to be personal property, and no matter how loved dogs are, they are not treated like children under the law.  Many judges do not want to get involved in pet disputes. The family pet sometimes becomes a powerless victim of the breakup.  Recently, courts have been ruling dog custody at other forms than property.  In the New York Post on December 4, 2013 there was an article about a pair of divorcing women about to fight it out in court over a miniature dachshund named Joey.  It will be New York’s first matrimonial pet-custody case.  The attorney for one of the women, Sherri Donovan said, “It recognizes the special place of pets in our families.”

Manhattan Justice Matthew Cooper opines in his ruling granting the women oral arguments.  According to the article, the only bone of contention in their divorce is who will get sole custody of their 2-year-old pet, Joey.  One of the women gave Joey as a gift to the other women, which she claims always sleeps on her side of the bed.  Judge Cooper notes that New York law lags behind other states’ legal standing of their pets, and that “most pet owners would not trade their pets for even $1 million in cash.”  The judge will schedule a hearing to determine Joey’s fate, instead of regarding him like a piece of property.  Judge Cooper wants to hear the truth about who bore the major responsibility for meeting Joey’s needs.  He will be asking questions such as: “Who spent more time with Joey on a regular basis?”  The judge says, “…there is certainly room to give real consideration to a case involving a treasured pet.”  The parties are still working out a date for the hearing.

Some state courts like those in Kansas decline to stick their noses in custody cases; others have leaped at the chance to treat canines like humans in legal proceedings.  In Alabama, a judge awarded a dog to one spouse over the other by taking into consideration the pets “best interests,” a standard used in child custody cases.  Thus, the potential for changes in pet custody laws seems to be at a peak because pets are becoming such a big part of our lives.  Courts are beginning to change the property analysis and are more willing to treat pets more like children.  Some courts have considered the best interest of the pets in determining who gets custody of them.  Also, some courts have awarded shared custody, visitation, and alimony payments to the owners.

The Dog Lawyer – Richard Bruce Rosenthal, Esq. National Authority On Animal And Dangerous Dog Law. Give us a call today (718) 261-0200

Animals can now be victims too, but what does this mean?

Two recent Oregon Supreme Court rulings have afforded animals further protections, despite their classification as property under Oregon law. These rulings will allow law enforcement to provide more meaningful aid to animal victims and will allow the court system to levy stricter penalties for those found guilty of animal abuse or neglect. Together they strengthen the intervention and prosecution of animal crimes.

In State v. Arnold Nix, the Oregon Supreme Court held that animals could be victims – thus, rather than considering the starvation of twenty horses and goats into one count of second-degree animal neglect, the perpetrator would be charged with one count for each individual animal victim, or twenty counts of neglect. Naturally, allowing for the accused to be charged with twenty counts, as opposed to one, could result in significantly larger and longer punishments. Furthermore, inherent in this decision is the fact that “victim status” is afforded to more than just companion animals, as the animals in the case were horses and goats.

The Oregon Supreme Court considered several factors in their decision. First, they looked at ordinary meaning of the word “victim,” by looking at the definition found in Webster’s Third New International Dictionary. Immediately, it is clear that in order to exclude animals from the meaning of “victim” would be to apply a narrow and selective reading of the definition. The Court then looked at use of the word “victim” to describe animals in books and news articles, to exemplify common usage. The court then looked at whether the statute at issue, Oregon’s “anti-merger” statute, has any language that suggests that the meaning of “victim” could be other than the ordinary meaning. This consideration only helped the case, as the statute appears to suggest that the meaning of victim could change depending on what substantive statute the defendant violated – thus, a violation of an animal neglect statute would suggest an animal victim. The court went on to look at the legislative history and other factors, but nothing aided the defendant’s argument against the inclusion of animal as a possible “victim.” Even though animals are considered the property of their owners, the owners are not the victims of neglect.

On the same day, in State v. Linda Fessenden and Teresa Dicke, the Oregon Supreme Court held that a sheriff’s deputy was justified in entering private property to aid a malnourished horse, who was in immediate danger, rather than wait for a warrant. The deputy “had probable cause to believe that defendants were committing the crime of animal neglect and reasonably believed…that immediate action was necessary to prevent further imminent harm to and the death of the horse.” Again, the facts of this case require that this holding reach further than traditional companion animals, i.e. dogs or cats. See a previous post on this blog for more details on this ruling.

Thus, in just one day, law enforcement and the courts are now able to better remove animals, beyond just companion animals, from dangerous situations and convict perpetrators of animal crimes in the state of Oregon. These decisions were both made, despite the fact that animals are still recognized as property in Oregon – sentient property. Animal Legal Defense Fund stated that Nix “stands as a pillar for those who demand that our justice system recognizes animals as more than mere property.”

As our animal cruelty jurisprudence grows and evolves, reflecting changes in societal values, sentences, for the most part, are also becoming larger and longer. And with that, some are concerned that these might grow to be too strict for what is appropriate for our society. For example, the young man in New York who kicked a cat, and published a video of the cruelty on the internet, is facing possible jail time, which some say is too harsh. They note the long-term effects that this might have on the young man, compromising his future – yet, these arguments would sound ridiculous when if they were made against jail time, and a misdemeanor on a record, for a crime against another living being – humans. More applicable to the Nix holding, four teens in California were arrested for slaughtering 920 chickens at an agricultural facility with a golf club and another object. Under the Nix holding, if chickens, owned as an agricultural commodity, were considered animals, these teens could face 920 counts of animal cruelty (however, this is also ignoring the fact that agricultural animals would not be protected under these statutes). So, ignoring the obvious problems with this example, these teens, if convicted, could face enormous jail time. Again, an extreme and probably inapplicable example, but this holding could aggravate the growing concerns that animal cruelty sentences are too great. Or perhaps with the growing recognition of the sentient qualities of animals and their intrinsic value, beyond market price, this lengthening punishment is just right, and long overdue.

The Dog Lawyer – Richard Bruce Rosenthal, Esq. National Authority On Animal And Dangerous Dog Law. Give us a call today (718) 261-0200

Half of Earth’s Animal Population Gone in Just Forty Years

The Living Planet Index (LPI) from the World Wildlife Fund reported that between 1970 to 2010 there has been a 52% decline in vertebrae species populations on Earth. The study considered 10,380 populations of 3,038 species of mammals, birds, reptiles, amphibians and fish. The most dramatic decline, 83%, was seen in Latin America. Freshwater species were the most impacted with a decline of 73%. The report also found that the primary causes of the decline are habitat loss, degradation and exploitation through hunting and fishing.

It is clear that the culprits are humans. The report states that we need 1.5 Earths in order to “meet the demands humanity currently makes on nature.” In other words, humans need to reduce their overall ecological footprint, most significantly carbon emissions. The United States utilizes 13.7% of the world’s resources landing second only to China who accounts for about 20% of the world’s demand.

Recently thousands gathered for the People’s Climate March in New York City to shed light on this very problem. The march aimed to put pressure on the world’s leaders to act swiftly in order to address climate change.

Two countries that have been successful in their efforts to reduce their impact on the environment are Denmark and Brazil. By December 2013, 57.4% of Denmark’s electricity was wind powered. Brazil has successfully reduced deforestation by 70 percent and kept 3.2 billion tons of carbon dioxide out of the atmosphere in recent years.

Although some critics find the WWF study to be somewhat pessimistic, most agree that there is a lot that can be done to slow down or reverse destruction. As the study states, “the sum of all human demands no longer fits within what nature can renew.”

The Dog Lawyer – Richard Bruce Rosenthal, Esq. National Authority On Animal And Dangerous Dog Law. Give us a call today (718) 261-0200

Advances in Animal Law

15 years ago, nine of the 203 law schools in the United States offered courses in animal law. Today, more than 130 universities do. That’s a huge advance in the outlook for legal protection for animals. In fact, professional interest in the field of animal law is outpacing the demand, at this point. Law school graduates who specialize in this field are taking positions in general law firms and offering their special expertise when opportunity arises, or doing pro-bono work for non-profit animal organizations.

Once considered mere property, animals are being invested with legal standing as they’re increasingly being named as partial beneficiaries of estates, subjects of lawsuits and victims of abuse. Abuse and cruelty cases are the most common in animal law, but animal law is rapidly diversifying as courts are asked to consider what to do when animal companions and their humans come into contact with the law. Lawyers address legal issues such as what happens to pets that are abandoned, involved in divorce custody disputes or left behind after an owner dies. As our society’s tolerance for normal dog behavior continues to declines and even minor bites can be grounds for lawsuits, dog-bite law is another ripe venue for animal law attorneys.

Animal law disputes still take place in largely uncharted legal territory and often revolve around questions about the inherent rights of animals. The Animal Legal Defense Fund, based in Cotati, California, was founded in 1970, and has long been an effective leader in the field of animal law. The organization has member-attorneys around the country, and has been responsible for pushing the envelope of legal rights and protections for animals for more than three decades.

The Dog Lawyer – Richard Bruce Rosenthal, Esq. National Authority On Animal And Dangerous Dog Law. Give us a call today (718) 261-0200

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