Dogs And Guns Don’t Mix

So what is up with the rash of dog shootings by law enforcement lately?  First there was Bear-Bear, shot by an off-duty officer in a Maryland dog park.  Then there was Parrot, shot by DC officers in Adams Morgan.  Now there’s Mercedes, a Rottie lab mix, shot by PG County officers.  And who could forget the Berwyn Heights mayor’s labs killed by officers during a supposed “drug raid”?  Apparently, the DC metro area is not the only place where law enforcement has been killing pets.  An officer in Elk Grove, California recently shot a pit bull terrier, another officer shot a pit bull running at large in Madison County, Illinois, and a Shar-Pei at large in Milton, Wisconsin had to be euthanized after an officer pursued and hit the dog with his truck.

Apparently, dog shootings have also been happening at the hands of people who are not law enforcement.  Mack Donald Hudson decided that he’d run back home to grab his gun so he could chase around and shoot Grace, a neighboring Australian Shepherd he claimed was trespassing on his property.  Fortunately, Grace did not die, but she underwent considerable medical treatment.  The Henrico County judge gave Hudson twelve months in jail with eleven months suspended, and ordered him to pay a fine and thousands of dollars for Grace’s vet bills.  Michael McLeod shot and killed his neighbor’s black lab, Rex, supposedly because he was sick of Rex’s barking.  The Norfolk judge hammered McLeod with five years in prison, in part because he was on the lam for seven years after his initial guilty plea.  Virginia isn’t the only place this is happening.  In Illinois, Elvin Dooley got twenty months in prison for shooting and killing a dog who wandered into his backyard.

Whatever the reason for these shootings, the solution has got to involve a greater understanding of dog behavior, prevention and problem solving – not only on the part of law enforcement, but also on the part of owners.  Each of us is responsible for our pets.  Owners should not leave their dogs unattended outside, and must be respectful of their neighbors if their dogs start barking.  Before an owner or handler takes a dog to a crowded public event, that person must be fully aware of the dog’s temperament and whether the dog really can handle the situation.  Whether to take your dog to a public event has been discussed in detail in the Washington Post article, At Crowded Public Events, A Doggy Divide and Dog’s Welcome or Dogs Unwanted on Steve Dale’s Pet World.  [These points bring up interesting issues of liability, especially in light of fosters and rescues, to explore in later posts.]  Respecting and enforcing rules such as noise ordinances and dog park laws might have avoided some of these situations. 

But, when things go wrong, animals can lose their lives.  Even if the dog survives, other laws such as dangerous dog statutes, rear their ugly heads and impose what some would say are overly harsh consequences.  On that note, Great Britain, which has had a dangerous dog statute for much longer than Virginia, is discovering that its dangerous dog statute has been ineffective in reducing dog bites and incidents.  They have found that the laws should focus instead on – you guessed it – proactive owner responsibility, such as spay and neuter requirements and leash laws.  [Another very ripe area for later posts!]

That said, even if a dog is being unruly, there are better ways to handle the situation than whipping out a gun and shooting.  Hudson and McLeod should have tried talking with their neighbors, and calling animal control if that failed.  The officers could have used much less extreme methods with Parrot and Bear-Bear to get the situation under control.  There are laws against discharging weapons in public for a reason.  If this keeps up, it won’t be long before we are reading a story about a civilian or an officer who shot at a dog and hit an innocent canine or human bystander.

For a deeper look into possible reasons for an escalation in the number of dog shootings by police, along with a link to a petition urging disciplinary action against the officers who shot Parrot, see Pat Miller’s recent post, Cops Shooting Dogs, on her Peaceable Paws blog.  Also don’t miss Casey Matthews-Lomonaco’s post on dogster, Why are Police Killing Pets?

Support Animal Rescue, With a Smile: OK Go and White Knuckles

Here’s a great way to have a laugh and support animal rescue at the same time!  If you want to pass this video along, PLEASE go to www.okgo.net/dogs to download this video and make a donation through OK Go’s site.  The band put a ton of hard work into this video, and the animals deserve it!  The funds will be earmarked for rural, volunteer run animal shelters through the ASPCA. 

If you would like to know more about how OK Go made the video, take a look at this post, Here They Go Again:  New OK Go Video is a White Knuckle Ride on the Guardian’s site and How OK Go Went to the Dogs in Their New Video on New York Magazine’s site.

Watch For These Changes To The ADA Definition Of “Service Animal”

In July 2010, the DOJ issued final regulations revising the Americans with Disabilities Act (ADA), including the definition of a “service animal.”  DOJ published the new regulations in the Federal Register on September 15, 2010, with the final rules taking effect March 15, 2011.   28 C.F.R. Part 35 (Title II) applies to state and local government entities, and 28 C.F.R. Part 36 (Title III) (applies to public accommodations and commercial facilities. 

The final rule limits “service animals” to dogs, disqualifying other species and rejecting requests to include “common domestic animals” or primates.  Nonetheless, the rule contains an interesting discussion about animals such as capuchin monkeys trained to assist paraplegics and quadriplegics, and how reasonable accommodations for these animals under the Fair Housing Act is appropriate.

DOJ’s final rule defines “service animal” as “any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition. The work or tasks performed by a service animal must be directly related to the handler’s disability. Examples of work or tasks include, but are not limited to, assisting individuals who are blind or have low vision with navigation and other tasks, alerting individuals who are deaf or hard of hearing to the presence of people or sounds, providing non-violent protection or rescue work, pulling a wheelchair, assisting an individual during a seizure, alerting individuals to the presence of allergens, retrieving items such as medicine or the telephone, providing physical support and assistance with balance and stability to individuals with mobility disabilities, and helping persons with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors. The crime deterrent effects of an animal’s presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition.”

The Rule changed the phrase “providing minimal protection” to “providing non-violent protection.”  This change was meant to include seizure alert dogs, while specifically excluding attack dogs and dogs kept solely as a crime-deterrent effect.  Similarly, the Rule changed the language “alerting to intruders” to “alerting to the presence of people or sounds,” in order to include dogs trained to alert a person who is deaf or hard of hearing to a doorbell ring, but exclude watch or attack dogs.

There was much discussion about the phrases “doing work” or “performing tasks,” with particular concern about whether a dog assisting a person with a psychiatric disorder would qualify.  The Rule refused to change these phrases, noting that a dog assisting a person with a psychiatric disorder easily qualifies as “doing work” and “performing tasks” based on its training in recognition (e.g., awareness of an imminent psychiatric episode) and response (e.g., nudging, barking or moving the person to a safe location).

As noted above, the Rule recognizes the role of psychiatric service animals, but not “emotional support animals.”  Once again, the Rule noted that the appropriateness of an emotional support animal under the Fair Housing Act and the Air Carrier Access Act, but refused to include emotional support animals under the wider umbrella of public settings that are covered by the ADA.  On this note, the Rule specifically retained the term “service animal,” refusing to accept other terms such as “assistance animal” or “support animal.” Although the Rule refused to create a carve out for military personnel, the Rule did note its support of state or other laws that would allow emotional support animals for current and former members of the military. 

Most notably, the Rule refused to set size, weight or breed limitations.  The Rule made it abundantly clear that the ADA would not bow to state or local breed restrictions, primarily because the ADA already allows exclusion of an animal based on the specific animal’s actual behavior or history.  For an insightful discussion about the Rule and breed restrictions, don’t miss Bob Barr’s The Barr Code post, Federal Law Leashes Pit Bull Restrictions, in the Atlanta Journal Constitution.

You may also consult DOJ’s ADA fact sheet on the final regulations to Title II and the fact sheet for Title III, and take a look at this post on Service Dog Central and the related links.

On a very interesting sidenote, the Washington Post recently took a look at a study by the Equal Rights Center showing that half of DC cabs will drive right by a blind person with a service dog.  So how do you enforce the requirement that cabs make reasonable accommodations in that situation?

Pets, Personal Property And Price, Part 3: What Damages Can Fido Sue For?

As we saw in How Much Is Fido Really Worth Part 2, damages – based on the “value” – of your pet dog could cap out at around $200, unless your dog happens to be an expensive pure breed or has extensive training like a seeing eye dog.  But could this always be the case?  What if someone killed your dog?

As the law stands now in Virginia, the question of whether you can recover damages for a pet initially turns on whether the act was intentional or due to negligence.  If someone negligently injures or kills a pet, the owner cannot recover damages for emotional distress.  This very scenario came up in 2006 in the Virginia Supreme Court case, Kondaurov v. Kerdasha.  Ms. Kerdasha was driving on Route 110 in Arlington County when her jeep was struck in an accident caused by a tour bus being driven by Mr. Kondaurov.  Fortunately, Kerdasha did not suffer major injuries, but she was horrified to learn that her dog, Sushi, to whom she was very attached, had been ejected from the jeep during the accident.  Sushi ran down Route 110 into a neighboring residential area, where she was finally found, with an injured tail that needed to be partly amputated.

Kerdasha sued Kondaurov for negligence, claiming damages in part based on injuries caused to Sushi.  Kondaurov agreed that he was negligent, but fought Kerdasha on damages.  A jury awarded Kerdasha $300,000 in damages, and Kondaurov appealed, claiming that Kerdasha was not legally entitled to that amount.  When addressing the damages related to Sushi, the Virginia Supreme Court acknowledged Kerdasha’s strong bond to Sushi, and the fact that people often form bonds with their pets akin to a parent-child relationship.  But the Court stood by the fact that Virginia – just like the majority of states – still considers pets to be personal property.  Because Virginia law has never allowed recovery for emotional distress resulting from negligently inflicting injury to personal property, the Court refused to award damages based on Sushi’s injuries.  In support of its position, the Court included a footnote with a string cite of cases from a number of states that likewise refuse to allow damages for emotional distress for injury or death caused by ordinary negligence.

But that same footnote in the Kondaurov opinion left open a window for intentional acts.  In that footnote, the Court cited cases from Florida, Idaho, Kentucky and Louisiana allowing recovery of damages for emotional distress for pets injured or killed by willful, intentional or outrageous torts.  So if a Virginia court was confronted with a person who intentionally killed a pet, would the court allow recovery of damages?  We came close to finding this out in yet another Arlington County case involving Buster, a twelve-pound Chihuahua.

Jeff Nanni and Maurice Smith lived together for years with six well-loved dogs, one of whom was Buster.  On one unfortunate day in 2007, Nanni and Smith got into a fight, and Nanni took Buster into his arms.  Smith hit Nanni and Buster repeatedly with a wooden board.  Nanni rushed Buster to the vet, but Buster died of his injuries on the way to the animal hospital.  An autopsy revealed that Buster died of blunt force trauma to the head.  Smith was arrested for assault and battery and animal cruelty.  He later pled guilty and received ten days in jail and one year of unsupervised probation.

After the criminal case, Nanni sued Smith civilly for severe emotional distress based on that incident when Smith beat him and Buster.  Nanni sought at least $15,000 in damages for Buster’s worth to Nanni – not just based on the traditional “replacement value,” but based on Buster’s “unique value” as a companion animal.  Unfortunately, the case never progressed to the point of getting an answer about whether Nanni could recover for Smith’s intentional beating and killing of Buster.  Before the case could be tried, Smith filed for bankruptcy, and the parties ended up resolving their differences in bankruptcy court.

As attractive as it may seem to create law in Virginia allowing for damages if a person intentionally harms or kills a pet, it may also end up being a case of “be careful what you ask for.”  If the law allowed tort and punitive damages for a pet, veterinary malpractice insurance carriers would undoubtedly respond by hiking up premiums, and the hospitals and vets would respond by hiking the cost of services.  Would the change in the law be worth that risk?

Pets, Personal Property And Price, Part 2: How Much Is Fido Really Worth?

As we saw in Part 1, pets are personal property in the eyes of the law.  But what does that mean about the true value of a pet?  For starters, let’s go back to Virginia Code Section 3.2-6585, which says that “all dogs and cats” are “deemed personal property.”  This code section goes on to say that dogs and cats may be the subject of larceny and malicious or unlawful trespass.  Section 3.2-6585 also grants an “owner” the right to sue if their cat or dog is killed, injured, unlawfully detained or unlawfully used, and the right to recover damages in the amount of the “value thereof or the damage done thereto.”  [For more on “owners,” see my post, “So What Are My Responsibilities as a Pet Owner?”]

So what in the world does “value thereof or the damage done thereto” mean?  Often courts consider this to be the pet’s “replacement value,” which could fall right around $200.  There is some support for this figure when you look at Virginia’s larceny laws. 

In Virginia, the line between petit larceny (a misdemeanor) and grand larceny (a felony) is only $200.  Virginia Code Section 18.2-97 (yes, in the Crimes against Property Chapter) makes it a felony to steal a dog, horse, pony, mule, cow, steer, bull or calf.  Larceny of poultry, swine, sheep, lamb and goats could also result in a felony.  Conspicuously missing from the list are cats.  This could be why Section 3.2-6585 says dogs and cats “may” be the subject of larceny.  Even if stealing a cat didn’t result in grand larceny, there is no reason it would not constitute petit larceny.  And although stealing a dog is a felony, the crime carries a maximum of 10 years in prison — compared with the maximum of 20 years when someone steals $201 of clothing or jewelry from a store.

Yet another statute that throws around the $200 figure is Section 18.2-102, dealing with the unauthorized use of animals, aircrafts, vehicles or boats.  Unauthorized use results in a felony if the value of animal, aircraft, vehicle or boat is $200 or over, and a misdemeanor if the value is under $200.

Section 18.2-97.1 makes it a misdemeanor to remove a dog’s electronic or radio transmitting collar in order to prevent finding the dog.  Although it is unclear, I would hope this includes removing a microchip.  This section also talks about “value,” giving a court explicit authority to order restitution of the “actual value of any dog lost or killed as a result of such removal” and “for any lost breeding revenues.”

For those of you in Prince William County, Prince William County Code Section 4-22 gives you the right to sue if your dog is injured or killed on your property by another dog that did not have permission to be there.  Damages would be – you guessed it – the “value thereof or the damage done thereto.”

Can the “value thereof or the damage done thereto” really max out at about $200?  If your dog is not a particular breed or does not have particular training, this certainly could be the case.  However, a property owner has always been able to testify about the value of his or her property, and this should not be any different for dogs.  A person with an expensive pure breed or a dog with extensive training, such as a service dog or protection dog, should be allowed to establish the value of their dog by showing how much they paid for the dog and the dog’s “replacement value,” including any unique characteristics or training.

Even if you own a mutt and are limited to something like $200 for actual damages, what if someone intentionally killed your pet?  Could you sue for emotional distress or punitive damages?  If you’re interested in these questions, stay posted for Part 3.

As a final note, what about the line between grand larceny and petit larceny?  The $200 mark is not just for animals.  It is the same for any stolen item – money, jewelry, a car or a boat.  It has been so since 1980.  Is it time for that to change?  If you want more info about this threshold, take a look at this 2008 Power Point presentation by the Virginia State Crime Commission.