New York Times August 18, 1999
Legal Pioneers Seek to Raise Lowly Status of Animals

More than a generation after civil rights and environmental lawyers took their battles to the courts, there are now lawyers who say they are following in those footsteps on behalf of clients with names like Freckles and Muffin and Rainbow.

Fighting for creatures like performing orangutans and dogs used in experimentation, the lawyers are creating a new field of animal law with far more ambitious goals than traditionally weak anti-cruelty laws. They are filing novel lawsuits and producing new legal scholarship to try to chip away at a fundamental principle of American law that animals are property and have no rights.

These lawyers are more than brief-writing counterparts of animal activists who throw paint on fur wearers.

And they are influenced by developing scientific and ethical scholarship showing animals to have far higher levels of cognition and social development than previously believed.

This summer, the fledgling field of animal law took an important step toward legitimacy when two of the country's most prestigious law schools, Harvard and Georgetown, announced that they would offer courses in animal law for the first time.

The animal lawyers have also gained a handful of court victories in recent years, the most important of which was a Federal appeals court decision last year that gave a human zoo visitor the right to sue to get companionship for chimpanzees. And since 1994, legislatures across the country have given these lawyers a potent new tool by sharply upgrading animal cruelty crimes to felonies from misdemeanors.

"We have created a field of law," said Joyce Tischler, executive director of the Animal Legal Defense Fund, an organization based in Petaluma, Calif., with an annual budget of $3 million. "We've learned our trade, and now we are focusing on the next steps."

Critics ridicule animal law as the latest example of absurdity in the legal system. They see it as an attack on the economic system's reliance on animal products that could wreak havoc in the courts.

"Would even bacteria have rights?" asked Richard A. Epstein, a professor at the University of Chicago Law School. "There would be nothing left of human society if we treated animals not as property but as independent holders of rights."

The animal lawyers say the idea that animals are mere property evolved centuries before modern notions of some animals as sentient beings with perceptions and even emotions.

The lawyers have been moving on many different fronts to establish precedents that they say could provide a foundation for direct attacks on the property status of animals.

In civil cases involving veterinary malpractice or pet deaths, some lawyers have won verdicts and settlements of $15,000 or more. Lawyers have also had success in battling what they call execution orders, the sort of routine euthanasia that occurs when dogs bite people.

In Washington, D.C., two lawyers who had worked in Ralph Nader organizations started a firm specializing in animal law six years ago. The firm, Meyer & Glitzenstein, now with five lawyers, handles complex cases involving animal issues, like filings with Federal agencies concerning standards for the treatment of circus elephants.

Yesterday, the firm's lawyers announced an important victory in a

legal battle that had gone to the Pennsylvania Supreme Court. The organizers of an annual pigeon shoot in Hegins, Pa., canceled the event. The animal lawyers were seeking an injunction to stop the shoot, which has taken place for 65 years, on grounds of animal cruelty.

Last year, a groundbreaking ruling was issued in a case that involved an apparently lonely chimpanzee named Barney. In its decision, the United States Court of Appeals for the District of Columbia Circuit gave a zoo visitor the legal standing to sue the Government to try to force it to issue regulations assuring chimpanzees group living arrangements and appropriate amenities.

The suit involving Barney (and a female monkey named Samantha who was alone in a cage near Barney's at the Long Island Game Farm Park and Zoo) was filed under amendments to the Federal Animal Welfare Act that had received little judicial interpretation. The amendments, passed in 1985, said conditions of confinement must assure "the psychological well being of primates."

Valerie J. Stanley, a lawyer who worked on the case, said the law "does not mean you throw them a toy and you give them an orange once a month." The decision has been widely viewed as giving people new powers to challenge the living conditions of animals that are publicly displayed.

The suit is still being fought in Federal court, but Barney was shot to death by a zoo employee in 1996 after he escaped from his cage, bit someone and uprooted a sign, which he threw at a merry-go-round.

Some lawyers say they are in the field to advance their ideology, but some note that it is an area of legal practice that could be profitable. The lawyers in private practice charge fees to human clients, like pet owners. Some groups, like the Animal Legal Defense Fund, pay salaries to staff lawyers. And lawyers for industry groups that battle the animal lawyers say millions of dollars are available from animal welfare groups to pay for work that advances their goals.

Critics of the animal law movement, including livestock groups and representatives of pharmaceutical companies that rely on animal experimentation, say such rulings are an alarming foot in the courthouse door for advocates of animal rights.

"If the goal is to use the courts to put us out of business," said Steve L. Kopperud, president of the Animal Industry Foundation, a livestock and poultry group, "they've got a pretty effective tool. I look at this as an abuse of the system."

Lawyers concerned with animal issues say civil rights and environmental lawyers faced ridicule, too. In interviews, several of them noted parallels with those who began the fights for integration and clean air.

The new legal field, for example, has a single scholarly journal, Animal Law, which has been published for five years by the same law school that published the first environmental law journal 30 years ago: Northwestern School of Law of Lewis & Clark College in Portland, Ore.

Animal Law serves as a manifesto for lawyers in the field. Steven M. Wise, a Boston lawyer who is to teach the course this spring at Harvard Law School, has argued in articles in the journal that rights to bodily integrity and liberty should be given first to chimpanzees and bonobos because they are so similar to people.

Wise, who once listed a captive dolphin named Rainbow as the plaintiff in a suit against an aquarium, is one of a group of perhaps 30 lawyers across the country who spend most of their time on animal issues. Hundreds more, including lawyers at some of the country's largest law firms, handle animal cases on a volunteer basis.

Wise, who taught animal law this summer at John Marshall Law School in Chicago, said the legal work now being done on behalf of animals was paving the way for change.

"It is a long-term strategy," he said, "to show that animals are not just things for our use."

One example, he said, is a case he is handling in a Massachusetts appeals court on behalf of the owners of seven pet sheep who were killed by two dogs owned by a neighbor.

Because animals are property under American law, damages are generally limited to their market value. But in some cases lawyers have persuaded courts to award added damages for loss of companionship or for the emotional distress of the owner when a pet is killed.

The case of the dead sheep, Wise said, could help establish that market value is not adequate compensation. The sheep owners, a childless taxidermist and his wife, Wise said, were attached to the animals. "I am talking about people who let the sheep in the house and baked them muffins," Wise said.

The strategy of lawyers practicing animal law has included a campaign to increase the criminal penalties for animal cruelty. In 1994, all but six states regarded such violations as misdemeanors, punishable by small fines and short jail terms. Now 27 states make violations felonies, with fines up to $100,000 and prison terms up to 10 years.

Lawyers often provide prosecutors with legal assistance to make such prosecutions stick. In one case, involving cruelty to turtles, lawyers provided a veterinarian as an expert witness. The veterinarian testified that elevated heart and respiration rates showed that turtles do suffer.

Anti-cruelty laws typically declare that people cannot be prosecuted for standard farming practices, like beef slaughtering.

But there have been some felony prosecutions involving malicious mistreatment or torture of farm animals.

Last month in northeastern North Carolina, a district attorney, Frank R. Parrish, announced the state's first felony animal cruelty indictment. The case, which involved workers at a hog farm, was taken to a grand jury after an animal welfare group, People for the Ethical Treatment of Animals, gave Parrish videotape that it had secretly recorded.

Members of the group and their lawyers said the tape clearly showed hogs being beaten and skinned alive.

The farm workers, who face sentences of up to 15 months in prison if convicted, have not yet entered pleas. But the manager of the farm, Fred Cunningham, issued a statement saying that the farm was committed to humane practices and that scenes on the tape "seem certain to be staged."

Neither the farm nor Dr. Cunningham, a veterinarian, face charges.

Some lawyers say cases like the one involving the hog farm are legal milestones. But even among animal lawyers there are sharp disagreements over strategy.

Prof. Gary L. Francione, who teaches animal law at Rutgers University, said in an interview that animal lawyers should be much more aggressive than they are.

Professor Francione, once a law clerk to Justice Sandra Day O'Connor of the Supreme Court, said they should, for example, file suit on behalf of gorillas, asserting that "they should be declared to be 'persons' under the Constitution," with constitutional rights.

For the moment, most animal lawyers are adopting a more incremental approach. The Animal Legal Defense Fund, for example, has a staff lawyer who spends her time studying precedents that could be used on behalf of animals, including the legal steps taken in the emancipation of slaves.

Although there are similarities to other legal movements, the animal law movement has differences, too, some animal lawyers say. For example, several lawyers, like Ms. Tischler of the defense fund, said they no longer ate animal products.

"My commitment," she said, "is I don't eat my clients."

© New York Times

Followup 20 February 2000:

In ''Rattling the Cage,'' Steven M. Wise, who practices and teaches (at the Harvard and Vermont Law Schools and elsewhere) animal rights law, has attempted a vindication of the rights of animals. His arguments recall Taylor's, but Wise intends no parody. His major focus is on chimpanzees and bonobos. His basic claim is that ''the legal thinghood'' of these animals should be replaced ''with a legal personhood'' that would entitle them to immunity ''from serious infringements upon their bodily integrity and bodily liberty.'' Without legal personhood, he writes, you are ''invisible to civil law'' and ''might as well be dead.''

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