What the court decision in Medlen vs. Strickland teaches us about dogs, love, and who has our backs.
On June 2, 2009, Avery escaped from his yard and was picked up by an animal control officer. His family went to animal control to pick up Avery but they did not have enough money to pay the fees. If this was Washoe County, Nevada, animal control would have put the family on a payment plan and given them their dog back. As Mitch Schneider of Washoe County Regional Animal Services explains,
Accidents happen, so we treat the dogs and their owners the way we would want our pets and ourselves to be treated. If the person is truly irresponsible, we’re going to issue citations, but we aren’t going to threaten to kill their dogs or make it more likely that their dogs will be killed.
Moreover, Schneider notes that holding the dog only ties up kennel space and increases costs, and in “shelters” which kill “for space,” that simply does not make sense. But this was not Washoe County, Nevada. It was Fort Worth, Texas. And animal control would not release Avery. However, they did agree to hold Avery and told his family to come back with the money. But Avery was killed anyway. When the family returned for Avery, he was already dead.
The family sued but the case was dismissed. Avery had no real “market value” and the trial court ruled that even though Avery was irreplaceable to his family, they were not entitled to emotional or what courts call “sentimental” damages. In other words, to the trial court, Avery wasn’t worth anything. The family appealed. And in a seminal decision that should be cheered by anyone who has ever loved an animal, the Texas Court of Appeals reversed the trial court and reinstated their lawsuit. The three-judge panel ruled that the family was entitled to emotional damages for the loss of their irreplaceable companion. And why shouldn’t that be the case?
Throughout history, art and literature have depicted humans in all walks of life and social strata with dogs, illustrating their widespread acceptance in everyday life. Closer to home, our own culture is populated with examples of the well-established place dogs have found in our hearts and homes. People of all ages, but particularly the elderly and the young, enjoy their companionship. For single people, dogs offer a welcome relief from loneliness. For children, an animal in the home contributes warmth and unconditional love, and teaches responsibility and consideration for the needs of another creature. Those who suffer from disease or injury experience a therapeutic, even emotional, benefit from their presence.
Dogs do so much good for the community: they give us a sense of optimism, safeguard us from depression and loneliness, and break down the barriers that isolate us from one another. Their presence improves our health, protects us from danger, and teaches us about caring and responsibility. And they ask for so little in return.
In 1869, when the late-Senator George Vest of Missouri was a young lawyer, he represented a client who was suing a neighbor for killing a pet dog. This is what he argued to the jury:
The best friend a man has in the world may turn against him and become his enemy. His son or daughter that he has reared with loving care may prove ungrateful. Those who are nearest and dearest to us, those whom we trust with our happiness and good name, may become traitors to their faith.
The money that a man has he may lose. It files away from him, perhaps when he needs it most. A man’s reputation may be sacrificed in a moment of ill considered action. The people who are prone to fall on their knees to do us honor when success is with us may be the first to throw the stone of malice when failure settles its cloud upon our heads. The one absolutely unselfish friend that a man can have in this selfish world, the one that never deserts him, the one that never proves ungrateful or treacherous, is his dog.
When all other friends desert, he remains. When riches take wing and reputation falls to pieces, he is as constant in his love as the sun in its journey through the heavens. If fortune drives his master forth an outcast in the world, friendless and homeless, the faithful dog asks no higher privilege than that of accompanying him to guard against danger, to fight his enemies, and when the last scene of all comes and death takes the master in its embrace and his body is laid away, there by his graveside will the noble dog be found, his head between his paws, his eyes sad but open in alert watchfulness, faithful and true even unto death.
And nothing captures that timeless truth better than this cartoon from the New Yorker, which still makes me weepy-eyed every time I look at it:
So why is the American Veterinary Medical Association (AVMA), the Texas Veterinary Medical Association (TVMA), the American Kennel Club (AKC), Cat Fanciers’ Association (CFA), Animal Health Institute, American Pet Products Association, and the Pet Industry Joint Advisory Council—the very organizations whose members are enriched because of how Americans feel about their companion animals—fighting the decision alongside animal control and other similar groups? The answer, of course, is—as it always is—follow the money.
Fear Mongering by Industry Operatives
The AVMA claims that its goal is to “advance the science and art of veterinary medicine” while its counterpart in Texas says the goal of the TVMA is “to promote animal well-being and public health” among other things. Semantics aside, do their actions reflect their claims? As industry associations, they may do these things in part, but their main concern appears to be profits. They advocate for veterinary profits, even when it hurts the animals those veterinarians are pledged to protect. For decades and in various circumstances, the AVMA has put industry profits ahead of the animals.
In the 1970s, the AVMA opposed the endorsement of municipal- or SPCA- administered spay/neuter clinics that provided the poor an alternative to the prohibitively high prices charged by some private practice veterinarians. Despite the fact that low-cost spay/neuter services aimed at lower income people with pets had a well documented rate of success in getting more animals altered and reducing the numbers of animals surrendered to and killed by “shelters” in a community, the AVMA would not agree to any program that threatened the profits of veterinarians, even though poor people were not, and were unlikely to ever be their customers. In 1986, it also asked Congress to impose taxes on not-for-profits for providing spay/neuter surgeries and vaccination of animals at humane society operated clinics. And it has successfully opposed legislation that would allow families to get damages beyond market value even in cases of wrongful injury and death because of veterinary malpractice.
In their bid to get the Medlen decision overtuned, the AVMA and TVMA argued that other people who love their animals—be they cats, gerbils, or horses—will also seek sentimental damages if those animals are wrongly injured or killed. To which I can only reply, I certainly hope so. Because while veterinarians are not shy about acknowledging what the AVMA and TVMA call “the deep bond humans develop with their pets,” that only seems to matter when we are writing the checks to them.
Veterinarians know this, which helps explain why the average cost of a veterinary visit is now somewhere North of $500 per visit, with some spending over $1,000. When we rescued an injured bird this year, we spent nearly $3,000 for his surgery. But when a veterinarian proves incompetent, when he or she performs below a standard of reasonableness and wrongly injures, kills, or allows your beloved companion to die, the AVMA and TVMA think he has no real value. All the pretty talk about the “human-animal bond” is forgotten. Their claim that “The attachment humans can develop with animals is beyond dispute” becomes nothing more than foolish sentimentality. It’s a one way ticket, folks. And the AVMA and TVMA want to keep it that way.
But it is the other groups—the AKC, CFA, and those other industry groups who collectively make billions on the backs of pet owners—whose fear mongering about the impact of this decision is taken to new heights. According to a local fancier’s group which parroted the opponent’s brief, “This court decision represents a reversal of more than 120 years of settled law relating to what kind of damages that an individual may collect as a result of the loss of an animal.” “Traditionally,” they claim, “courts have followed the reasoning of the 1891 Texas Supreme Court case of Heiligmann v. Rose, which held that the value of a dog may be determined by either a market value, if the dog has any, or some special or pecuniary value to the owner, that may be ascertained by reference to the usefulness and services of the dog.”
In other words, the 19th Century Texas Supreme Court got it right and we should not revisit that decision. Of course, in 1891, the courts of the United States also held that laws banning interracial marriage were valid, that drinking fountains and restaurants and other places with sections “for whites only” and separate sections “for colored people” were constitutional as long as they were “separate but equal,” that forced sterilization of political dissidents was acceptable, that women did not have a right to vote, that jailing those who spoke ill against the government was consistent with the First Amendment, and as late as fifty years later, would authorize the round up of all Americans of Japanese ancestry into concentration camps. Somehow, however, we are supposed to accept the wisdom of an 1891 decision when dogs, like women and minorities, were largely an afterthought. We are supposed to ignore the changing nature of our relationship with animals, the fact that spending on our companions is now the 8th largest sector of our economy, and that most of us consider them members of our family.
Allowing the Medlen decision in place of the one decided in 1891 to stand, they argue, will lead to bedlam. Even though they too pay lip service to the “human-animal bond” in their brief by acknowledging “the love and affection owners and pets give each other and the real sense of loss owners feel when a pet is wrongly injured or killed,” that shouldn’t matter. According to their brief, the decision will (I kid you not):
- Advance the “animal rights” secret agenda of giving animals “rights of their own” (as far as I know, neither Avery’s family nor their lawyer is even vegetarian, not that it matters one way or the other);
- Result in many families not treating ill animals or killing them to avoid paying for their care;
- Spay/neuter clinics will close;
- Shelters and rescue groups will stop taking in animals;
- Shelter staff will quit their jobs;
- More pets will be abandoned;
- Fewer pets will be adopted;
- Dog walkers and dog boarding facilities will close;
- Friends will stop watching your pet for you;
- Rabies and other zoonotic diseases will increase;
- Police officers will be less likely to protect public safety from aggressive dogs; and,
- Auto insurance rates will also rise.
And parroting the veterinarian groups, the industry trade groups claim that families whose “cats, hamsters, rabbits, parakeets” are wrongly killed will also feel entitled to sentimental damages. And again, I say, it is high-time we stopped treating cats, hamsters, rabbits, and birds as second and third class pets. For those of us blessed with having shared our lives with them, we love them as much as we love our dogs.
But here’s the rub: The Court of Appeals did not ignore Heiligmann. In fact, they did not even disagree with Heiligmann. Even in that case, the 1891 Court noted the “dogs were of special value to their owner.” More than that, the Court has repeatedly held that where personal property “had little or no market value, and its main value is in sentiment, damages may be awarded based on this intrinsic or sentimental value.” Texas courts have allowed such damages for the wrongful destruction of family correspondence, family photographs, keepsakes, a wedding veil, a watch, even the shade from trees and the sky has not fallen as the AVMA, AKC, CFA, and the other organizations claim will happen if we extend that to dogs. Of course, these groups do not argue we should overturn all those rulings, just the one which extends this well-settled law to dogs. Thankfully, the Court of Appeals did not agree.
Given “the special position pets hold in their family,” the court wrote, “we see no reason why existing law should not be interpreted to allow recovery in the loss of a pet at least to the same extent…” The law, they argued, “should reflect society’s recognition that animals are sentient and emotive beings” and consider family dogs at least as valuable as a photograph. In fact, the Court of Appeal correctly observed that “to treat a dog differently” than photographs “would be irrational.” Otherwise, “intrinsic damages could be awarded for a sentimental photograph … [of a] dog, but not for the dog itself.”
To understand why they’ve taken this position, once again, all you have to do is follow the money. If animal control shelters are financially liable for wrongly killing a beloved companion—Google “pet mistakenly euthanized” and you’ll get 1.4 million hits—it provides an important incentive for them to stop making these “mistakes” over and over and over and over (read “over” a few more hundred thousand times) which they have historically done with no ramifications of any kind. But if people who dearly love their animals can get more than market value, when the pet food industry poisons our animals as they do periodically do with their chemical-laden tainted food, they’ll have to pay, too. When the members of the Animal Health Industry which manufacture pharmaceuticals, vaccines, and feed additives allow contaminated products to further harm animals, they’ll have to pay as they should. If a breeder sells you a dog with chronic issues because of genetic defects they knew or should have known about, they’ll have to pay for your suffering. For all the talk of the “human-animal bond” which enriches them, they only want to hear about it when you are at the cash register handing them money. They no longer care to hear how much you loved your pet if it means they have to pay for having wrongly injured or killed him.
Though the groups have vowed to push for an appeal to the Texas Supreme Court and, failing that, seeking legislation to overturn the decision, the Court of Appeals was not impressed with their arguments and thankfully denied their motions for rehearing.
Friends to a Point
In the 1990s and early 2000s, before Redemption, before the nation’s first No Kill community in Tompkins County, New York, before our movement catapulted onto the national scene, the fledgling No Kill movement’s efforts to embrace compassion in our nation’s so-called “shelters” had few allies. When California’s groundbreaking Hayden Law which, among other things, makes it illegal for “shelters” to kill animals if rescue groups are willing to save them, was making its way through the legislature, when every “shelter” in California opposed it, when groups like the Humane Society of the United States were fear mongering against it, only a small number of rescue groups, along with the Cat Fanciers’ Association, supported it. I was then and still am grateful for that support which helped to propel our message against the powerful, entrenched forces within the animal protection movement itself, who either ignored or condemned it. When HSUS was arguing that TNR was “subsidized abandonment,” they supported us, too. In fact, when the No Kill Conference was first kicked off, they provided valuable financial sponsorship. But that support has its limits.
Moreover, because I have argued for years that mandatory spay/neuter does not work, results in increased impounds and killing, and that pet overpopulation is (thankfully) a myth, I’ve been accused of being “in league with puppy millers” and groups like the AKC. Shelter killing advocates like Pat Dunaway and others, and even Wayne Pacelle, have made the false claim that I must have some nefarious intent. Now that I have been shown to be right, now that the voices opposing such punitive laws include some of the most recognized names in the No Kill movement precisely because these regressive laws do little more than empower dysfunctional “shelters” to write citations and round up and kill even more animals. Now that we definitely know that the demand for animals exceeds the supply of animals being killed in “shelters” almost ten-fold, those arguments have lost their cache.
But here we are, with a court decision that recognizes how we truly feel about dogs and in doing so, puts some teeth in our efforts to hold those who wrongly harm them—including animal control “shelters” when they kill them illegally—accountable, and the groups who “support” No Kill and even promoted my book are lining up with the opposition. They are lining up with neglectful and even abusive shelters. They are lining up with pet food companies which sell tainted products. They are lining up with puppy millers. Given that opponents of No Kill also support this decision (HSUS and the ASPCA are, of course, deafeningly silent), does that mean they are all in league with abusive puppy millers? By the logic of those who accused me of the same thing, they are.
I don’t necessarily subscribe to that (il)logic. But it does go to show that politics makes strange bedfellows. And while they may fight with us on some issues, they will oppose us on others when their own money is at stake. In the end, it seems that the only people we can rely on every single time the animals truly need us are each other. Those of us who love animals and do not want them to see them harmed or killed, not because we can make money off of them, but because we truly love them. So the next time someone, say your veterinarian, tells you that they love dogs, ask them “How much?” Ask them if they love dogs more than they love a photograph of that dog?
Because if they oppose the Medlen ruling, they are in fact arguing that “intrinsic damages could be awarded for a sentimental photograph … [of a] dog, but not for the dog itself.” And if that is their belief, what they are really saying is they may love dogs to a point, but they love making money off of dogs even more. At least, that is the logic of the arguments made to the Texas Court of Appeals.
Update: In January 2013, the Texas Supreme court will hear the case. The No Kill Advocacy Center has filed an amicus brief in the case arguing that the Court of Appeals correctly ruled that dogs are worth more than market value for a replacement. In other words, while the family can get another dog, they cannot get another Avery.
The No Kill Advocacy Center is being opposed by the American Veterinary Medical Association, the American Kennel Club, the American Pet Products Association and other industry groups. And, of course, the large national groups like the Humane Society of the United States, remain silent because their friends at shelters will also be held accountable for wrongly harming and killing people’s animals.
For a copy of the No Kill Advocacy Center brief: http://bit.ly/W3uATI
To read Nathan Winograd’s article about the case: http://bit.ly/UnKnyT
Once again, we are grateful for the support of attorney Ryan Clinton, who freely gave of his time and expertise in writing the brief, as well as attorneys Sheldon Eisenberg and Kathi Cover.
Further Update: In April 2013, the Texas Supreme Court reversed the ruling of the Court of Appeal. Avery’s family and animal lovers throughout Texas whose companion animals are harmed will now find the doors of justice shut to them.