Oregon Supreme Court: Animals Now Seen as “Victims” under Animal Neglect Statute

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By: Stacy A. McKerlie

Arnold Weldon Nix was indicted on 23 counts of first-degree animal neglect, and 70 counts of second-degree animal neglect. Each count identified a different animal. Nix was found guilty and was convicted of 20 counts of second-degree animal neglect under Oregon Revised Statute 167.325 (http://www.oregonlaws.org/ors/167.325). Defendant Nix argued that he should only be convicted of one count of animal neglect instead of 20 because there could only be one victim under the statute: the public or the animal’s owner. At the trial level, Nix was charged with only one conviction, despite the fact that he was found guilty of neglecting 20 animals. Under Oregon Revised Statute 161.067(http://www.oregonlaws.org/ors/161.067), the trial court concluded that only people, not animals, could be seen as victims.

ORS 161.067 states, “When the same conduct or criminal episode, though violating only one statutory provision involves two or more victims, there are as many separately punishable offenses as there are victims.” This law is also referred to as the “anti-merger” statute.

On August 1, 2012, the state appealed the trial court’s decision to the Court of Appeals and won (http://www.publications.ojd.state.or.us/docs/A145386.pdf).  On August 7, 2014, the Supreme Court of the State of Oregon issued a decision affirming the Court of Appeals. Now, Oregon’s anti-merger statute is interpreted under ORS 167.325 to include animals as people. The Court determined that the ordinary and common definition of the term “victim” includes animals, citing to dictionaries. The Court also determined that nothing in the legislative history shows the intent to exclude animals in the definition of victim.

The court stated that whether a victim should be counted for purposes of sentencing depends on “who suffers harm that is an element of the offense”. The court also said that the intent of ORS 167.325 (second-degree animal neglect) is to protect individual animals, not harm to animals in general.

Nix’s case will be remanded to the lower courts for entry of separate convictions and resentenced according to the new law. Note that the Court interpreted animals as victims only pertaining to ORS 167.325, second-degree animal neglect.

You can find a link to the Oregon Supreme Court’s decision here:



FDA Does Not Have To Hold Hearings On Anti-Biotic Use in Animal Feed Despite Promising to Do So Since 1977

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BY:    Robert S Simon

Appeals court decision on NRDC’s lawsuit against FDA for failing to address antibiotic overuse in livestock production. The court grants judgment for the government  ruling that the court has not authority to require the agency to implement its Congressional mandate in any particular manner, least of all, in an effective manner.

Commentary – (this piece is the opinion of the author and not the opinion of the Oregon State Bar, the Animal Law Section Executive Committee, or the Section Members)

The U.S. Second Circuit Court of Appeals ruled that the U.S. Food and Drug Administration (FDA) does not have to consider banning the practice of regularly feeding antibiotics to animals that are not sick despite its finding that such misuse of antibiotics threatens the effectiveness of essential human medicines. The appeals court overturned two district court rulings in cases brought by the Natural Resources Defense Council (NRDC) and other groups, which directed the FDA to stop the routine use of certain antibiotics in healthy animals unless drug manufacturers proved the safety of such use. http://docs.nrdc.org/health/hea_14072401.asp

The majority opinion http://www.ca2.uscourts.gov/decisions/isysquery/40aa1550-e4ae-4fb7-b8dc-a2c4a99e90ac/1/doc/12-2106com_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/40aa1550-e4ae-4fb7-b8dc-a2c4a99e90ac/1/hilite/  decided July 24, 2014 ruled against the citizen advocates and the effort to force the Food and Drug Administration to apply common sense to regulation of antibiotic use.  The posture of the case was an appeal of the District Court ruling on Summary Judgment in which the court found that the FDA had to hold hearings to determine whether to withdraw approval of the use in animal feed of penicillin and tetracyclines. The District Court ruled in summary judgment that the refusal to have a hearing was “arbitrary and capricious” by the FDA within the meaning of 5 U.S.C. Section 706(2). Second Circuit panel reversed,  by a vote of 2-1, the Presiding Judge dissented, and Judge Forrest of the District Court (Southern District of New York)  sitting by designation cast the deciding vote to reverse the District Court decision.  Judge Gerard E. Lynch wrote for the majority. As one would expect from a federal judge, especially one in a high-powered city like NYC, Judge Lynch has an amazing résumé. He graduated first in his class from Regis, first in his class from Columbia College (1972), and first in his class from Columbia Law School (1975). He clerked for Judge Wilfred Feinberg on the Second Circuit, followed by Justice William Brennan on the Supreme Court. Prior to his appointment to the district court in 2000, Judge Lynch was a law professor at Columbia, worked in private practice (at a firm that would later become part of Covington & Burling), and served as an assistant U.S. attorney in the legendary U.S. Attorney’s Office for the Southern District. In September 2009, Judge Lynch was confirmed to the Second Circuit by a vote of 94-3. He was the first Obama appointee to be confirmed to a circuit court.

The issue was decided on a narrow legal basis rather than as a court constructed policy decision. The background is convoluted but linear. In 1977 the FDA approved the use of antibiotics in animal feed and proposed to hold hearing about the effects of such use. The agency never held these hearing.  Several groups over time beginning in March 9, 1999 petitioned the FDA to withdraw approval of the drug use to no avail. The FDA, in time, asked for voluntary restraint by industry. Guidance for Industry #152 (October 23, 2003) was one such effort. When the litigation began neither the citizen petitions had been addressed nor had the Guidance to Industry been moved from “proposed” to “final.”  President Obama’s FDA responded to the lawsuits by (1) denying the citizen petitions, (2) declining to undertake a drug by drug withdrawal of approvals, and(3) formally withdrew the 1977 Notice of Opportunity for a Hearing upon which the petitions and the lawsuit were based. These steps by the FDA effectively mooted the lawsuit and the claims made. So, the advocates amended to assert the only remaining claim available – that the FDA decision to undertake 1,2, and 3 above was in itself arbitrary and capricious (in effect, the agency did it to kill the lawsuit and not for any policy reasons).

The Second Circuit reviews rulings on Summary Judgment as if for the first time ( de novo) and may make its own findings of fact in support of its decision.  In this case the Second Circuit simply disagreed with the District Court judge on the issue of whether the agency needed to provide more than the skinniest reasons for its administrative decisions in order to rise above the “arbitrary and capricious” standard of judicial review of administrative decisions. In the judicial system – a great deal of respect and deference is show to agencies when the agency is acting within its area of Congressional charge.  The decision was interesting in as much as the Second Circuit granted the agency’s Motion for Summary Judgment instead (180 degrees opposite to the District Court) and ordered the case dismissed (rather than merely remanded for further proceedings).  That was a much more conclusory decision than what usually comes from the appellate panel review. So the record must have been very thin in favor of the citizen advocates.

The dissent, penned by Chief Judge Robert Katzmann is a full throated roar about agency duplicity and the failure to give meaning to the Congressional mandate.  As an appointee of the first President Bush (#41) he is a tribute to the profession. He became Chief Judge on September 1, 2013. At his appointment in 1999, he was Walsh Professor of Government, Professor of Law and Professor of Public Policy at Georgetown University; a Fellow of the Governmental Studies Program of the Brookings Institution; and president of the Governance Institute. A lawyer and political scientist by training, Judge Katzmann received his A.B. (summa cum laude) from Columbia College, A.M. and Ph.D in government from Harvard University, and a J.D. from the Yale Law School, where he was an Article and Book Review Editor of the Yale Law Journal. After clerking on the U.S. Court of Appeals for the First Circuit, he joined the Brookings Institution, where he was a research associate, senior fellow, visiting fellow, and acting program director. His books include: Regulatory Bureaucracy: The Federal Trade Commission and Antitrust Policy; Institutional Disability; Courts and Congress; editor and project director of The Law Firm and the Public Good; co-editor of Managing Appeals in Federal Court; editor and contributing author of Daniel Patrick Moynihan: The Intellectual in Public Life; and editor and contributing author of Judges and Legislators. He currently chairs the U.S. Judicial Conference Committee on the Judicial Branch. His dissection of the conduct of the agency raises the question for the political cognoscenti whether the change of the leader in the White House actually changes the direction of agencies captive to the regulated community.  The dissent points to a straight line of poor policy making (though consistently pro-industry) from 1977 through the current administration.  It is worth reading for the education it provides as to what agencies should do as opposed to what these agencies appear to be doing without regard to the rhetoric coming from the Chief Executive.

This is am important public health issue for those who care  about 2075, grand children, and the world we leave for the future generations.  Antibiotics are compounds that can kill or interfere with the growth of microorganisms such as bacteria or viruses. Because antibiotics are often used unnecessarily or incorrectly, microorganisms have been able to adapt and survive. This is called antibiotic resistance.  The Journal of the American Medical Association discussed the challenge in a May 14, 2014 article.  http://jama.jamanetwork.com/article.aspx?articleid=1851734

One way this happens is genetic mutations, which are random changes in genetic material that can be passed on from one virus or bacterium to successive generations. For example, penicillin is one of the oldest and most commonly used antibiotics. Some bacteria have developed an enzyme or protein that changes the structure of penicillin and prevents it from killing bacteria. http://jama.jamanetwork.com/article.aspx?articleid=1391920

The Threat Report 2013 from the Centers for Disease Control and Prevention,  described that antibiotic resistance threats in the United States  in a first- ever snapshot of the burden and threats posed by the antibiotic-resistant germs having the most impact on human health.  Each year in the United States, at least 2 million people become infected with bacteria that are resistant to antibiotics and at least 23,000 people die each year as a direct result of these infections. Many more people die from other conditions that were complicated by an antibiotic-resistant infection. Antibiotic-resistant infections can happen anywhere. Data show that most happen in the general community; however, most deaths related to antibiotic resistance happen in healthcare settings such as hospitals and nursing homes. http://www.cdc.gov/drugresistance/threat-report-2013/

The American Medical Association, in June 2010 testified to the  U.S. House of Representatives Subcommittee on Health of the Energy and Commerce Committee, that Antibiotic resistance has been a major public health concern for many years and continues to grow. Due to improper use and abuse of antibiotics, strains of bacteria that infect the human body have become resistant to antibiotics. The  American Medical Association (AMA) outlined, in testimony, a multi-faceted approach to help combat antibiotic resistance. “Antibiotics are important drugs used to treat a variety of illnesses, and the problem of increasing antibiotic resistance is a public health concern that needs to be addressed,” said Sandra Fryhofer, M.D., a member of the AMA Council on Science and Public Health and an internist in Atlanta. “It is critical we manage the problem of resistance collaboratively across all health care professions and settings and consider all possible areas for intervention.”

The AMA proposes a multi-faceted approach to combating antibiotic resistance that includes:
•Reducing the inappropriate use of existing antibiotics to preserve their effectiveness
•Incentivizing research and development to create novel antibiotics for clinical use
•Developing and implementing alternative interventions to reduce dependence on antibiotics.  http://www.ama-assn.org/ama/pub/news/news/antibiotic-resistance-public-health.page

By November 2012 over 26 diverse interest groups had banded together to call for action. Antibiotic resistance has been a growing health concern for decades. But 26 organizations are joining together to highlight the increasing urgency of the problem and protect the effectiveness of antibiotics for future generations.  The Centers for Disease Control and Prevention, American Academy of Pediatrics, Robert Wood Johnson Foundation and Center for Disease Dynamics, Economics & Policy are among the 26 organizations that announced the effort on Nov. 13. By signing a joint statement, the groups agreed to better coordinate efforts to fight antibiotic resistance, support related research, improve surveillance and raise awareness.  Antibiotic resistance is making some of the most common infections difficult to treat, said Clara Filice, MD, MPH, MHS, pediatric environmental health and food policy fellow with the AAP. A lot of the pathogens that cause infections — such as ear and skin infections — have become resistant to commonly used antibiotics. “It is a growing public health crisis,” she said. “It’s something that most, if not all, physicians who are practicing are experiencing.” More than 70% of bacteria that cause hospital-acquired infections are resistant to one or more antibiotics used to treat them, according to the National Institute of Allergies and Infectious Diseases. http://www.amednews.com/article/20121126/profession/311269933/6/

Despite all of this advocacy the FDA has failed or refused to adopt rules which may anger the regulated community. In light of the Congressional balance of power, the coming election cycles, and the uncertainty of any agency budget surviving the axe, it is understandable that the career civil servants have piloted the agency only in the deepest and safest channel of the river on this issue since 1977.  On a personal note – I yet again have contracted South African Tick Bite Fever – and this time the “cycline” therapy failed to work. I had to resort to the “big guns” of our remaining antibiotic arsenal. This is not to say that big agricultural has been feeding the ticks antibiotics directly but the indirect introduction through livestock feed may well be the reason my own parasitical infection did not succumb to a decades old therapy. If this were some more virulent and deadly infection then I may well not be writing this article now.  We all need to consider this type of fact when we tuck our children in bed or kiss a loved one (of any age).

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Court of Appeals: Admitting Dog’s Medical Records Violates Defendant’s Fourth Amendment

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By: Stacy A. McKerlie

An individual had become concerned when she suspected her neighbor, defendant Amanda Newcomb, was mistreating a dog. Defendant had been failing to provide food, attention, and was seen striking the dog. The concerned citizen made a report, which prompted a police officer to investigate. The police officer arrived and was allowed inside, where he saw, in plain view, the dog in a malnourished condition. When the officer inquired as to the dog’s weight, the defendant claimed she was out of dog food. The police officer asked the defendant if she would sign a medical release for her dog, but she refused. The officer seized the dog and took it to a veterinarian, who confirmed that the cause of sickness was lack of food, and that the dog was healthy otherwise. The officer did not request a warrant for the dog’s vital information that the veterinarian would obtain in the course of treatment.

The Fourth Amendment of the Constitution gives people protection against unreasonable searches and seizures of their persons, houses, papers, and effects. Warrants shall only be issued based on probable cause supported by particularity describing the place to be searched or person/thing to be seized. Animals, including pets such as dogs and cats, are currently legally classified as a person’s “thing” or “effect”. Warrantless searches and seizures are unreasonable unless they are considered an exception. Some of these exceptions include exigent circumstances, hot pursuit, and plain view.

In the trial court, the defendant argued the evidence should be suppressed because her privacy of her personal property (her dog) had been violated by the tests and measures taken pertaining to the dog’s health and vitals. The trial court stated the police officer acted lawfully in seizing the dog under the plain view exception to the fourth amendment’s right to search and seizure. The court also decided that defendant’s motion to suppress the evidence should be denied because the officer had probable cause to believe the dog was being abused/neglected, and therefore didn’t need a warrant.

However, the appellate court reversed that decision, stating that although the dog was lawfully seized under the “plain view” exception, the additional information gained through the veterinarian’s actions was an unlawful search. The officer had not been granted a warrant to obtain the dog’s health records, and admitting that evidence would violate defendant Newcomb’s right under the Fourth Amendment. The court ruled that the plain view exception did not apply to the tests the veterinarian administered. A dog could be underweight due to some kind of disease or genetic predisposition. Only a veterinarian’s expert opinion can reveal that a dog’s illness is due to a lack of food.

Last year, defendant Fessenden was charged with animal neglect for failing to feed her horse. Similarly, a police officer received a call from a concerned neighbor. When the officer arrived at the property, he witnessed a very emaciated horse that appeared to be near death. He seized the horse (without a warrant and without Fessenden’s consent) and brought it to a veterinarian, who provided treatment.

The Court of Appeals decided in State v. Fessenden that “the societal interest in protecting nonhuman animals from unnecessary pain, injury, trauma, and cruel death can justify — at least in some circumstances — a warrantless search or seizure aimed at preventing or alleviating that suffering”. Thus, the court acknowledged an exception to the warrant requirement: the “emergency aid” exception. This exception allows police to search/seize property without a warrant if the officer reasonably believes (based on articulable facts) that the animal is at risk for serious injury or death, and needs “emergency aid”.

It is interesting that the court found a societal interest in providing aid to animals in Fessenden but not in Newcomb. Both cases involve a police officer finding an animal experiencing starvation directly resulting from an owner’s neglect. In Newcomb, the court mentions it is possible to make room for more exceptions to warrantless searches and seizures. Although the state argued there should be a novel exception to the warrant requirement that would apply here, that argument was “not developed on appeal, nor presented in trial court”. In addition, the state did not argue an “emergency aid” exception to the warrant requirement in this case. Finally, and perhaps most importantly, the state did not dispute the long-standing premise that the dog was simply the defendant’s “personal property” or “effect”.

You can read the entire court opinion here: http://www.publications.ojd.state.or.us/docs/A149495.pdf.

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Idaho’s New “ag-gag” Bill Passes House and Senate, May Become Law

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By: Stacy McKerlie, Esq.

Idaho’s Senate Bill 1337, introduced on February 10, 2014 by Senator Jim Patrick, makes it a crime to interfere with the “production of agricultural production.” The bill’s stated purpose is, “to protect agricultural production facilities from interference by wrongful conduct.” Such “wrongful conduct” includes trespassing onto facilities in order to record instances of animal abuse. Similar “ag-gag” laws have been passed in Utah and Iowa, and are criticized for silencing potential whistleblowers in the industry. These types of bills are called “ag-gag” bills because of the “gag”-order effect on reporting conditions of agricultural (“ag”) facilities.

Committing this crime means receiving up to one year in jail, and/or a fine of $5000. The bill also permits the “victim” (agricultural production facility) to seek restitution against the person(s) committing the crime.

Those in support of the bill say there is no free speech issue, because anyone can still report on the conditions in a lawful manner (one that does not involve trespassing or misrepresentation, for instance). Supporters claim to have a hotline at the Idaho State Department of Agriculture, where individuals can voice their concerns.

Opponents argue the bill will obscure transparency in an industry where maintaining established standards has been problematic. In order for individuals to be able to report on the conditions within these facilities, they must be able to observe them. Forbidding public vigilance may lessen accountability within the industry. Is it realistic to expect facilities to allow reporters unrestricted access? The bill’s proposed regulations would largely keep the public in the dark when it comes to what’s happening behind closed doors in the agricultural industry.

Defining the facilities as “victims” creates an interesting debate. Many of those interested in animal rights would argue that the real “victims” in this situation are the animals. In the past, videos and photos taken in similar facilities have revealed unfit conditions and inhumane acts perpetrated against the animals there. These revelations had led to public outcry for a minimum standard of animal welfare. Because of that concern, reporters felt obligated to check up on these facilities to gain information. The intent of the reporters seems to be benevolent in that it promotes an increased awareness of the conditions these animals experience.

Those concerned with the safety and welfare of the animals in these agricultural facilities have a tough choice: waiting patiently while stricter accountability laws are proposed, or risking their safety and freedom to gain concrete facts through first-hand experience or videos/photos. If SB 1337 becomes law, animal advocates will inevitably have to choose the former.

The text of the original bill can be found here: http://legislature.idaho.gov/legislation/2014/S1337.pdf

Idaho statutes already have restrictions on how animals can be treated. But are they strict enough to stop animal abuse?

In Idaho, it is a misdemeanor to commit acts of animal abuse. However, certain acts are exempt—this includes “exhibitions, competitions, activities, practices or procedures normally or commonly considered acceptable.” (Idaho Statute 25-3514). If an agricultural facility engages in such commonly-accepted practices, these practices, procedures and activities “shall not be construed to be cruel nor shall they be defined as cruelty to animals, nor shall any person engaged in these practices, procedures or activities be charged with cruelty to animals.” (Idaho Statute 25-3514).  In other words, facilities that abuse animals cannot be charged with abuse, so long as the abuse is widely recognized as an industry norm.

Furthermore, there are laws concerning the authority to enter premises to examine animals. Idaho law states that:

“Representatives of the division [Idaho’s Division of Animal Industries, consisting of the Dairy/CAFO Bureau, Animal Health and Livestock Bureau and the Rangeland Management Program] are authorized…to enter any field, pasture…or other premises…where animals are kept, during normal operating hours, when probable cause exists, with the permission of the owner, to investigate alleged violations of the provisions of this chapter. If permission is not granted, said representatives shall be empowered to call on sheriffs, constables and peace officers to assist them in the discharge of their duties…” (Idaho Statute 25-3519).

If SB 1337 becomes law, animal activists will face another set of challenges in stopping animal abuse. Activists will either need to focus on amending the existing Idaho laws, or they will need to find another way to show the public what these facilities are doing behind closed doors. SB 1337, however, may raise suspicions that these facilities have something to hide- and these suspicions may hurt the entire agricultural industry in Idaho.

To view the original Idaho statutes, see code Title 25, Section 35, Title 25 “Animals” http://legislature.idaho.gov/idstat/Title25/T25.htm.

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Grass Fed Beef Processor Closed in Petaluma California

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By: Robert S Simon
February 22, 2014

8.7 Million pounds of grass fed and organic beef were recalled by the Rancho Feedng Corp slaughterhouse on February 8, 2014 and the operations ceased completely on February 14, 2014 leaving Petaluma California small ranchers without access to market and processing facilities within a radius of approximately 150 miles of the town.

Rancho Feeding Corp., a slaughterhouse in Petaluma, California, issued a recall notice for ALL of the beef it processed in 2013 on February 8, 2014, and ceased operations on February 14, 2014.  Read more about this in Food Safety News…. http://www.foodsafetynews.com/2014/02/bay-areas-last-major-slaughterhouse-struggles-with-recall-closures/#.UwmsJ7mYa1s .

The amount recalled was 8.7 million pounds. According to the USDA’ s Food Safety and Inspection Service, Rancho issued the recall after FSIS inspectors determined that it had “processed diseased and unsound animals and carried out these activities without the benefit or full benefit of federal inspection.” It was a Class I recall, which means the FSIS considered it “a health hazard situation where there is a reasonable probability that the use of the product will cause serious, adverse health consequences or death.” Read more about this event in Mother Jones. http://www.motherjones.com/blue-marble/2014/02/rancho-beef-recall-hot-pockets .

Rancho was the only USDA approved slaughterhouse within approximately 150 miles of Petaluma California (Northern California’s small ranch heartland). Read more about the Northern California cattle challenges presented in the Marin News….   http://www.marinij.com/marinnews/ci_25128414/petaluma-slaughterhouse-closure-double-whammy-marin-ranchers .  Small cap ranchers now must bring cattle to market at greater distances and at higher unit costs during the height of the well publicized California drought of 2013-14.

The closure brings sharp focus on the issues of food sanitation, the role of USDA Inspector Corps, the consolidation of slaughter operations, and the adverse effects these factors have on small organic and artisan beef producers who are already struggling with the drought.
•    Read more about the large reductions in force at the Food Safety Inspection Service as a result of the last rounds of federal budget deals.  USDA cut a total of 259 offices, facilities and labs in both the United States and in seven foreign countries. http://www.foodsafetynews.com/2012/01/usda-plans-to-close-five-fsis-district-offices-1/#.Uwmu77mYa1s .
•    Read more about the small farmer implications of the recall at Sott.Net….  http://www.sott.net/article/274046-USDA-takes-aim-at-small-farms-Rancho-recalls-a-years-worth-of-meat .
•    Read more about the California drought and the effects rendered on small ranchers at the U.S. Drought Portal information collection site.  http://drought.gov/drought/news/drought-taking-toll-cattle-industry

Marin Sun founder and CEO David Evans said he has a deal in escrow to purchase the plant and will expand operations to slaughter species other than cattle and process organic-certified meat. Read more about this in the local broadcast news reports… http://www.ktvu.com/news/news/health-med-fit-science/california-rancher-buy-closed-slaughterhouse/ndXpT/ .

Rancho’s co-owner Robert Singleton is reported to have both denied the USDA recall basis allegations, and has stated to the local media that Rancho never harvested an animal without a USDA Inspector on premises. The typically grass fed beef found its way into Nestle’s “Hot Pockets” and into national chains such as Kroger, Walmart, and Food 4 Less according to the local media reports.

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Breed-specific Dog Laws Are Ineffective, Discriminatory

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Published January 19, 2014 by the Medford Mail Tribune


By Lisa Frost

In August, the White House issued a statement against breed discrimination. The statement issued was an adoption of the Centers for Disease Control and Prevention’s community-based approach to prevent dog bites: Research shows that bans on certain types of dogs are ineffective and a waste of public resources.

In 2000, the CDC looked at 20 years of data about dog bites and human fatalities in the U.S. They found that fatal attacks represent a very small proportion of dog bite injuries to people, and that it’s impossible to calculate bite rates for specific breeds.

The CDC noted that the types of people who exploit dogs aren’t deterred by breed regulations. Dogs of any breed can become dangerous when they’re intentionally or unintentionally raised to be aggressive. For all those reasons, the CDC officially recommends against breed-specific legislation, which they call inappropriate.

The American Bar Association issued a resolution in 2012 urging all governmental agencies to adopt comprehensive breed-neutral, dangerous dog and reckless owner laws that ensure due process protections for owners, encourage responsible pet ownership and focus on the behavior of both dog owners and dogs, and to repeal any breed discriminatory or breed specific provisions.

Breed-discriminatory laws are often proposed and passed by local governments in response to well-publicized, sensationalized, media-biased and emotional dog bite incidents in the community, and are best described as “panic policymaking.” These breed-specific measures distinguish dogs of one or more specific breeds, along with dogs presumed to be mixes of those breeds, as inherently dangerous because of the dog’s physical appearance. Breed discriminatory legislation often vaguely defines the targeted breed. At issue in Jackson County, and Medford specifically, is legislating what appears to be a pit bull-type dog. A “type” is not a breed.

Pit bull-types are often categorized as dogs with short fur and a boxy head. There are over 20 breeds of dogs that fit this description, including the American bulldog, boxer, American Staffordshire terrier, bull terrier, bull mastiff, American pit bull terrier, dogo Argentino, Staffordshire bull terrier, dogue de Bordeaux, presa canario, cane corso and others.

The National Canine Research Council has documented several instances where dogs involved in fatal attacks were labeled as pit bulls, even though the dogs showed no resemblance to any pit bull-type breed. In the end, neither breed nor appearance is relevant to the story. Instead, journalists should research what environment caused the attack. Was the dog abused, neglected, trained or socialized?

Media sensationalized biased reports of dog attacks of an alleged “dangerous breed” are always reported by major news organizations, while attacks perpetrated by “safe” breeds are often only picked up by one or two local media sources. This type of biased reporting misleads the public and does not increase public safety or awareness.

Often, drug dealers obtain pit bull-type dogs to use as guards. These dogs often are abused, trained as fighters and encouraged to attack anyone coming onto the property. It is the owner and the environment that these dogs are subjected to that creates their aggression. The same dog raised in a family home exhibits different behaviors then that of the drug dealer/fighter dog. Even most of Michael Vick’s abused pits were rehabilitated and adopted out to families, one even being trained as a therapy dog.

There are several published studies reflecting the ineffectiveness of breed-discriminatory laws. These studies are consistent with a 2009 article discussing the effect of the Denve, breed-discriminatory law. Twenty years after the ban was enacted, the director of Denver Animal Control admitted that he is unable to say with any certainty whether it has made Denver any safer. Labrador retrievers are the most likely dog to bite in the Denver metropolitan area.

Alternative public safety measures would target reckless owners and aggressive dogs based on behavior, regardless of breed. The focus should be on public education and stiff fines for irresponsible dog owners, and prohibiting ownership for drug dealers and animal abusers. For example, a person who commits two or more egregious animal control violations in a 24-month period can be declared a problem pet owner and forced to surrender all of his or her animals.

Breed does not cause aggression. Aggression is a behavior, and behavior exists in reaction to an environmental stimuli. It would make more sense to train animal control officers to identify aggressive behavioral traits in an animal, and not discriminate based on appearance, which is nebulous and inconsistent. Let’s move beyond the myth of breed stereotype and ineffective legislation.

Lisa A. Frost of Ashland is executive committee attorney member of the animal law section of the Oregon State Bar and the owner/guardian of two pit bull mixes.

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The New York Times Reports That Pasture Raised Pigs Are Gaining Market Share and Public Preference

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News Link: (Posted by Robert S Simon – Robert@RobertSSimon.com)

The New York Times reports that pasture raised pigs are gaining market share and public preference – (see the link for more details)


Several factors are driving the appetite for pasture-raised pork, grocers and chefs say. Consumers are increasingly aware of and concerned about the conditions under which livestock is raised, and somewhat more willing to pay higher prices for meat certified to have come from animals that were humanely raised. As much as consumers say they want their meat to come from humanely raised animals, they still resist paying higher prices for pasture-raised pork. Selling the whole hog is still a tough market for farmers raising pastured pigs. Mass pork producers ship hard-to-sell parts like hooves, kidneys and livers to China and other countries where cuisines are more accommodating, but small farmers don’t have access to such markets. Another challenge is that farmers raising pastured pigs acknowledge that pigs raised outdoors have a higher risk of coming into contact with rodents and other animals that carry the pathogen for trichinosis.

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Animal Enterprise Terrorism Act (AETA) of 2006 Faces Challenge at ABA Annual Meeting in August 2014

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Animal Enterprise Terrorism Act (AETA) of 2006 Faces Challenge at ABA Annual Meeting in August 2014
Posted by: Robert S Simon (rssimon@reginamundi.org), Animal Welfare Committee, Oregon State Bar, Animal Law Section

The Animal Enterprise Terrorism Act (AETA) of 2006 [Title 18 U.S.C.A. Section 43 (2006)] challenges the equal protection rights under the free speech and assembly clauses of the United States Constitution based on the content of the speech and assembly according to groups dedicated to its repeal . http://noaeta.org/ Many social justice activists who oppose animal related industries such as the livestock, biomedical, and pharmaceutical research and producers fear that the law restricts freedom of speech and assembly. One such group is the Equal Justice Alliance which was formed for the sole purpose of repealing the federal law. The American Bar Association has been asked to pass out a resolution in support of the repeal effort at its August 7-12, 2014 annual meeting which is held in Boston, Massachusetts (Hynes Convention Center) http://www.americanbar.org/calendar/annual.html (see link for registration details). Read the rest of this entry »

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