What’s (Legally) Inside of a Dog?

The evolving understanding of pets as property

Posted Jul 13, 2016

Under U.S. law, pet animals are considered the personal property of their owner. An animal can be bought, sold, rented, manipulated, bred, and even killed (as long as the killing is “humanely” executed) by a human owner. The status of animals as property may give them a small thread of protection. For example, nobody can just take my dog Maya from me—this would be considered stealing. Yet, many animal advocates believe that the legal status of companion animals as “mere” property has hindered efforts to protect them from harm, particularly from harm inflicted by an animal’s owner. And, perhaps counterintuitively, it is their human owners from whom companion animals often seem to need protection.

The legal status of animals is gradually evolving, both in general terms and in relation specifically to the status of companion animals. This nascent evolution is perhaps nowhere more evident than in Stephen Wise’s efforts to gain legal personhood for several chimpanzees. Yet in the realm of companion animals, a scattering of court cases over the past several years has also challenged the long-standing assumption that pet animals are like any other piece of inanimate property.

The latest of these court cases was a ruling made in June by the Oregon Supreme Court in Oregon v. Newcomb.

Some background: Pet owner Amanda Newcomb was convicted in 2011 of second degree animal neglect for starving her dog Juno (under Oregon law, second degree animal neglect is when someone “recklessly or with criminal negligence fails to provide minimum care for an animal in such person’s custody or control.”) Newcomb’s conviction was based on blood evidence collected by a veterinarian in 2010. Juno was removed from Newcomb’s home after a concerned citizen reported that the dog was being beaten, starved, and kept in a kennel for long hours at a stretch. Juno was “seized” by an animal cruelty investigator and examined by a veterinarian. A blood sample taken by the veterinarian was later used in trial to establish that Juno’s emaciated condition was caused by malnourishment and not by an underlying disease or intestinal parasites.

Newcomb appealed the ruling, arguing that her constitutional rights had been violated because her property (Juno) was seized and searched without a warrant. Drawing blood from her dog, Newcomb argued, amounted to searching through her property—as if drawing and examining Juno’s blood were analogous to opening and searching through a suitcase.

In arguing that the blood testing was an unlawful search, defendant emphasized that dogs are personal property under Oregon law; defendant therefore took the position that dogs are “no different than a folder or a stereo or a vehicle or a boot” or other items of personal property. Even if Juno was lawfully taken into custody, defendant urged, the state could examine only the exterior of seized property without seeking a warrant.

The Court of Appeals upheld Newcomb’s appeal, arguing that the she had a protected privacy interest in Juno’s insides, including her blood.

A month ago, Oregon Supreme Court reversed the Court of Appeals ruling. The reversal centered around the lawfulness of testing Juno’s blood and whether the dog’s blood was private property.

The Court wrote, in its ruling, that although animals “can be lawfully owned and possessed much as other property can be,” the welfare of animals is “subject to a series of explicit statutory exceptions that are distinct to animals” and that don’t apply to inanimate property. Indeed, the fact that neglect and abuse of animals are considered crimes speaks to the unique legal meaning of “pets as property.” Unlike other property, which we can dispatch however we like, we are legally obligated to provide “minimum care” for our animal property. Minimum care is defined by the Court as “care sufficient to preserve the health and well-being of an animal.” We are obligated to provide our animals with adequate nutrition and shelter, as well as “[v]eterinary care deemed necessary by a reasonably prudent person to relieve distress from injury, neglect or disease.” Animals are not analogous to suitcases or folders or stereos or cars, because these objects don’t have welfare interests. But animals do. And when Newcomb neglected Juno’s basic welfare needs, she forfeited her “right of dominion and control over Juno.”

Considering that somewhere around 25% of all owned dogs and 45% of owned cats in the U.S. never see a veterinarian during their lifetime, even when ill or injured, this “minimum care” standard is actually quite powerful, as is the Court’s statement that those who fail to provide for the welfare needs of companion animals forfeit their “right of dominion.”  

You can read the full transcript of Oregon v. Newcomb here: http://law.justia.com/cases/oregon/supreme-court/2016/s062387.html