Pets as Property?

Monday, Feb. 17, 2003

Is intentionally killing a dog or cat qualitatively different than smashing a plate? Pet owners tend to think so. Yet under current law in most jurisdictions, a pet's value is calculated like that of any other material object.

If you sue the murderer of your beloved pooch, you can typically expect to receive the dog's replacement cost in damages. A recent survey found that two out of three people say that they wouldn't trade their pets for $1 million. Yet the legally-recognized value of domestic animals does not take into account these deep emotional bonds. In the eyes of the law, in most localities, a dog is more like a plate than a pal.

This rule may be changing, however. A quiet revolution is underway, one that would reform the legal relationship between people and pets, and adjust legal norms to better accord with moral principles and emotional realities. Rather than conceiving of pets as material goods, a new set of laws would recognize them as sentient beings: companions, not property.

The Traditional Rule: Pets as Personal Property

Although a few courts have permitted pet owners to recover for the loss of their pet's companionship when the pet has been killed or injured, this is not the usual rule. More commonly, in suits for the negligent or purposeful infliction of harm to the animal, courts hold that it is the market value of the animal that counts.

Under this view, the "sentimental attachment" of an owner to his or her pet has no place in the computation of damages for the animal's death or injury. Even the most beloved mutt or tabby is deemed virtually worthless: rescued from an animal shelter for a nominal fee, they can be "replaced" at the same expense.

In reaching such conclusions, courts have repeatedly emphasized that the law categorizes domestic animals as personal property. Whatever additional value they may have as companions, from this perspective, is beyond the purview of the law to address.

At least one court has expressed discomfort with this legal characterization, even as it barred the owner of a dog that was shot and killed by an off-duty police officer from obtaining damages for her emotional distress. "Labeling a dog 'property,'" the Wisconsin Supreme Court acknowledged in its 2001 opinion, "fails to describe the value human beings place upon the companionship that they enjoy with a dog." (Indeed, as the court might have noted, four out of five pet owners refer to themselves as the animal's "mom" or "dad.")

While classifying dogs as property, however reluctantly, the court seemed eager to distinguish them from mere objects. "A companion dog is not a fungible item," said the court, "equivalent to other items of personal property. A companion dog is not a living room sofa."

Recent Legal Changes: Pets as "Companions" and Owners as "Guardians"

The effort to establish a legally meaningful distinction between pets and living room sofas has recently gained momentum. Draft legislation was just introduced in Colorado to change the legal status of dogs and cats from property to companion animals.

The pending bill would allow Colorado residents to seek damages for "loss of companionship" in suits against intentional animal abusers and negligent veterinarians. It is the latest initiative in a national campaign to reshape pets' legal status.

Several cities have already passed measures that characterize pet owners as "guardians," rather than mere property owners. In San Francisco, for example, the Board of Supervisors passed an ordinance in January that amended city and county laws so that they speak of the "owner or guardian" of animals, as opposed to simply the "owner." (For good measure, the ordinance also eliminated the adjective "dumb" from its definition of animal, which previously referred to "any bird, mammal, reptile, or other dumb creature.")

In passing the ordinance, San Francisco became the seventh city in the country to codify animal guardian language. Boulder, Colorado, was the first city to pass such a measure, in July 2000; later came Berkeley and West Hollywood, in California, followed by Sherwood, Arkansas, Amherst, Massachusetts, and Menomonee Falls, Wisconsin. In July 2001, Rhode Island became the first state to include the term "guardian" in its pet-related legislation.

What These Laws Mean: Not Just Better Remedies When Animals Suffer Harm

The practical impact of such changes is to encourage stronger legal remedies in cases of animal abuse and neglect. But the use of the terms "guardian" and "companion," as opposed to "owner" and "property," has deep moral and philosophical underpinnings.

In Defense of Animals (IDA), the organization spearheading the guardianship campaign, explains that the terminology change reflects a conceptual shift: "Being a guardian of an animal companion signifies a higher level of responsibility, respect and care for our animal friends. Animals need to be regarded as more than the material property of an owner. Replacing the term 'owner' with 'guardian" is a conceptual move toward recognizing the importance and needs of animals."

The IDA abjures the term "pet," preferring the more egalitarian "animal companion" or "animal friend." And its literature argues that people should not conceive of themselves as "buying" animals, but should instead as "adopting" them (making an implicit analogy to children) or even "rescuing" them (as with fugitive slaves).

The IDA's stated reasoning differs meaningfully from that set forth in the pending Colorado legislation. The draft law, echoing the reasoning of the 2001 Wisconsin court decision, focuses on the emotional bond that owners feel toward their pets. As one of its provisions explains, "the death of a companion dog or cat is psychologically and emotionally significant and often devastating to the owner."

The real focus of the law's concern is, in other words, the owner, not the animal. The law simply seeks to put legal muscle behind the idea that the loss of the animal may cause emotional distress to the owner.

But the Colorado law's rationale sweeps rather too broadly. There are many items of personal property whose loss causes emotional distress that far outweighs their market value. Consider a family heirloom that has been passed down through generations, or a watch that belonged to a dead parent. (At the top of my personal list would be a 1968 Volkswagen bug of which I'm inordinately fond.) In the end, such protections need to find their basis in something intrinsic to the animals themselves.

The Backlash: Anger Against Animal Rights

The notion that animals have rights, or should be deemed to have rights, is far from accepted. It should come as no surprise, therefore, that the move to redefine pets as companions has drawn fierce opposition from a number of national pet-owner associations, including the American Kennel Club. These groups portray the recent legal changes as part of a dangerous trend toward humanizing animals and annulling the rights of their owners.

In an editorial siding with this position, USA Today warned that if society were to recognize that pet are not property, and that animals have rights, "it would arguably be impossible to spay or neuter a pet without its permission." Calling owners "guardians" and pets "wards" might seem to be "amusing legal concessions to emotional attachment," the paper stated, but those who favor such terms ignore their deeply worrisome ramifications.

Such concerns seem wildly overblown. To recognize that animals have a claim to rights does not, in itself, indicate how those rights should be defined or how they might be limited. And already, in the criminal law, society has implicitly recognized the qualitative difference between animals and property by enacting animal cruelty laws.

These laws prohibit the torture of domestic animals, even if the victimized animal belongs to the torturer. You may rip apart your sofa, if you like, but you are not allowed to do the same to your dog.

Animals are sentient beings. They feel pain and, as any pet owner or guardian can attest, they are capable of emotional attachments. In these ways, they are profoundly different from property, and similar to humans.

If the ramifications of recognizing that animals are something more than property are radical, so be it. Pets of the world unite; you have nothing to lose but your leashes.

Joanne Mariner is a FindLaw columnist who learned a lot about animal rights from a basenji named Punk.

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