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Jewish World Review Dec. 5, 2000 / 9 Kislev 5761

Evan Gahr

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Consumer Reports

Fido v. Fido --- the emerging 'pets' rights' movement -- IT SOUNDS like a typical, albeit wrenching, custody battle. When Brooks Brann moved out of Patti Dalby's Newport Beach, California home last year, Dalby kept both the "kids." Today, the two siblings, a boy and girl, continue to play together quite amicably, even as their "parents" fight like cat and dog.

Brann has sued Dalby for custody of his "son," plus compensation for loss of companionship. The "daughter" was Dalby's before she met Brooks Brann. But Dalby says both kids should remain with her because they do best together.

On December 12, an Orange County, California court is expected to adjudicate this nasty dispute, primarily through determining the boy's best interest. Sounds logical, except that the "boy" in question is actually a Rottweiler dog named Guinness. Roxie, the girl, is also a Rottweiler. Not long ago, this kind of case would have been laughed out of any court.

Enter Stephen Wise and other leaders of the burgeoning movement for so-called"pet owner rights." Over the last decade, this new breed of lawyers, some ideological soul mates of the animal rights movement, others just shrewd businessmen who undoubtedly salivate over their huge and lucrative potential clientele (61 million-pet owning households, according to USA Today) , have convinced courts to accord pets quasi-human status. Thus the California court must consider the dog's best interest, as a New York state court did in a similar "custody" battle recently. That's right: how do broken homes affect the house broken set?

All this quite literally turns hundreds of years of common law on its head. Most pets are certainly lovable and virtually "members of the family" or "canine family members" to use PC parlance. But sorry, Fido, to the law you are technically nothing but an armchair. Under common law that dates to antiquity pets are virtually indistinguishable from any other form of property. Veterinarians could only be sued for the monetary value of their "patients" and municipalities had wide latitude to seize and euthanize "vicious" dogs who had maimed or mauled.

Today, however, pet owner rights lawyers file seemingly endless appeals-and even use character witnesses--to keep municipalities from exercising their long-established right to "put down" certifiably "vicious" dogs. The same "creative" lawyering forces vets to pay unprecedented damage awards to settle what are essentially malpractice lawsuits. Like so many other permutations of the rights revolution, this one has a cultural context.

MORAL RELATIVISM: There is no such thing as a bad dog; only a "good dog having a bad day" to use Steven Wise's description of a "client" who mauled a Lincoln, Massachusetts resident.

BETTER YALE THAN JAIL. "Pet incidents can only be reduced and the general public be better protected [through]education, not legislation," argues Adrianne Lefkowitz of the American Dog Owners Association. "It is commonly understood that socializatio n and understanding of behavior is the best way to not only make a community safer regarding the pets we share them with, but to make our pets better companions and less likely to wind up in the shelter.

PSYCHOBABBLE: Nicholas Dodman, author of Dogs Behaving Badly, explains that dogs who bite small children aren't necessarily vicious. Instead, they are afflicted with "interspecies dyslexia" --ie, an inability to differentiate between genuine threats and humans who are harmless, or from the dog perspective, "pink and ouchy."

LENIENCY FOR CRIMINALS: If you're tough on crime that only breed more crime. American Dog Owners Association lawyer Marshall Tanick has contended that laws against pit bulls are problematic because they could exacerbate the pooch's "anti-social" tendencies.

UNDERSTANDING THE CRIMINAL AND HIS "RAGE." In New Jersey, authorities are required to consider whether a dog was provoked before attacked. New York City has a similar measure on the books. That's right; "canine rage" is an acceptable legal defense.

DYSFUNCTIONAL FAMILY: "The breed of the dog is not the problem," the ASPCA contends, "the behavior of the owner is." Pit bulls, German Shepherds and Rotweillers get a bad rap because they tend to attract abusive owners, argues lawyer Karen Copeland.

RACISM: In an argument redolent of feminists insistence that differences between men and women are merely "social constructs," the 'pet owner rights" movements says impossible to make meaningful distinctions between species, or even tell them apart. When the American Kennel Club in 1998 listed certain dogs as "not good" for children, defenders of the ostracized species went ballistic. "To say that all these dogs are 'this' and these dogs are 'that,' that's racism, canine racism," yelped Carl Holder of the Daschund Club of America.

And so on.

Still, like so many areas of American life, in the realm of pet owner rights, the trump card is race. Everywhere from Florida to Minneapolis, courts have declared stuck down breed specific bans or restrictive measures as unconstitutionally vague. In New York City, where pit bull alone have accounted for 80 bite incidents per month, two successive mayors have been stymied in efforts to give strengthen the Big Apple's dangerous dog law.

Veterinarians also have another reason to worry when "Cujo" bears his teeth. Damage awards, just $300 in the early 1990s, have skyrocketed to five figures. This April, a Costa Mesa, California woman whose Rottweiller cried continually after botched dental work won a $20,000 judgment against the vet.

Sounds like some folks are hitting the jackpot in the litigation lottery. But the end result could be much misery for pets and their owners. Vets worry that the litigation explosion is likely to force a dramatic increase in their insurance rates, which today is dirty cheap at around $200. If present trends continue, however, increased premiums would force them to pass the cost along to owners. That could make some services too expensive for some.

Ultimately, the "pet owner rights'' movement is, despite its name, inimical to property rights. The new rights supposedly accorded to our furry friends further fuels the litigation explosion. And further emboldens left-wing advocates who would infringe upon the generally legitimate rights of government and individual property holders. The Animal Legal Defense Fund, which boasts a network of some 500 lawyers nationwide, is supporting legislation in Pennsylvania that would make it a crime to leave a pet alone in the car while the owner is out of sight. Can you still have Fido fetch your slippers?

Perhaps not for long. In his new book Rattling the Cage, Wise, an adjunct professor at Harvard Law School, delineates his ambitious goal to "break down" the legal "wall of separation" between animal and man. Sounds absurd. Still, given recent developments, cynics would be mistaken to assume that Wise and Co. are barking up the wrong tree.

If you thought Kramer vs. Kramer (the 1978 film about a contentious custody battle) was a tearjerker look out for "Fido vs. Fido."

JWR contributor Evan Gahr is senior fellow at the Hudson Institute. To comment click here.


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© 2000, Evan Gahr adapted this piece from his longer version for the December 2000/Jan 2001 American Spectator.