Monday, October 8, 2012

One Lawyer's Perspective: Dog Owner vs. Dog Guardian

Recently, the term “dog guardian” has increased in popularity, presumably to encourage a more responsible and loving relationship between humans and the animals they share their homes with. However, there are a variety of issues, both legal and ethical, relating to the use of these terms. As an attorney, I’m going to focus mostly on the legal issues associated with these terms and explain why I favor the term owner over dog guardian.
To understand this issue, it’s important to go over a bit of the history giving rise to “guardian” terminology. The Cat Fancier’s Association gave a decent summary of this history:
In the late 1970s animal “rights” advocates began to argue that animals should be equal to humans. Peter Singer in his 1977 book, Animal Liberation”, claimed that “to discriminate against beings solely on account of their species is a form of prejudice, immoral and indefensible……” A law student in 1977 proposed the idea of recognizing legal rights for “nonhumans”. She proposed existing guardianship laws, which are for protection of incompetent or human minors, as the model for protection of the rights of dogs and cats. By the early 1980’s animal rights activists started using the term “guardian” instead of “owner” and in the 90’s the meaning of “guardian” became linked with taking away legal property rights of pet owners.
The American Veterinary Medical Association weighed in on this topic in April 2010, unequivocally stating its preference for the term “owner, as follows:
The American Veterinary Medical Association promotes the optimal health and welfare of animals. Further, the AVMA recognizes the role of responsible owners in providing for their animals' care. Any change in terminology describing the relationship between animals and owners, including “guardian,” does not strengthen this relationship and may, in fact, harm it. Such changes in terminology may adversely affect the ability of society to obtain and deliver animal services and, ultimately, result in animal suffering.
Extreme animal rights organizations, such as PETA, promote the term “guardian” over “owner.” On its Website, PETA has an article titled, “What Does It Mean to Be a Good Animal Guardian?” But these extreme animal rights groups generally see pet ownership as akin to slavery. PETA members have even gone so far as to pull dogs from shelters only to kill them instead of adopting them out as pets.
Extreme animal rights groups would like to end all pet ownership, and advocating a change in terminology can be the first step toward accomplishing such a goal. Words have power and, in some cases, words can directly affect legal rights.
PETA founder Ingrid Newkirk even advocates outright Pit Bull bans and supports shelter policies mandating the euthanasia of all Pit Bulls. She has published her opinion in several forums, the most prominent being in 2005 on SFGate, as follows:
Most people have no idea that at many animal shelters across the country, any pit bull that comes through the front door doesn't go out the back door alive. From California to New York, many shelters have enacted policies requiring the automatic destruction of the huge and ever-growing number of "pits" they encounter. This news shocks and outrages the compassionate dog-lover.
Here's another shocker: People for the Ethical Treatment of Animals, the very organization that is trying to get you to denounce the killing of chickens for the table, foxes for fur or frogs for dissection, supports the shelters' pit-bull policy, albeit with reluctance. We further encourage a ban on breeding pit bulls.
The pit bull's ancestor, the Staffordshire terrier, is a human concoction, bred in my native England, I'm ashamed to say, as a weapon.
Newkirk advocates that Pit Bulls be killed and eventually exterminated completely. If you own a Pit Bull or are concerned about the plight of Pit Bulls or other often malinged breeds currently in shelters and rescues, Newkirk's words should concern you.
Many misguided advocates of the term “guardian” believe using this term promotes more responsible pet ownership and can put law enforcement in a better position to seize dogs that are being abused or neglected.
However, strong animal cruelty laws are the best tools for saving animals from irresponsible owners. Of course, animal control officers can intervene when a dog is starved, abused, or otherwise neglected, but currently, animal control agencies are understaffed and it’s often hard for them to respond to all reports. That being said, focusing on making animal control more effective without allowing such agencies to trample the rights of responsible, loving dog owners is the best way to help all animals.
The primary difference between the term owner and guardian, from a legal standpoint, has to do with the United States Constitution. Nowhere does the U.S. Constitution protect or even recognize rights of “guardians.”     
However, the U.S. Constitution gives several protections to property owners. For example, the Fourth Amendment on search and seizure provides, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
While the Fifth Amendment explains that no person can “be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
Finally, the Fourteenth Amendment to the United States Constitution provides that no State shall “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Together, these amendments provide owners certain protections. Law enforcement can’t simply seize anything you legally own without a solid legal basis. They must obtain a warrant, in most cases, to enter your home or seize your property.
These Constitutional protections become very important where breed specific legislation arises. These protections help responsible, loving dog owners because animal control must abide by the U.S. Constitution in order to seize and kill an owner’s animal. Furthermore, the animal owner is entitled to due process, which means a Constitutionally mandated hearing and the ability to appeal before the agency is allowed to kill the seized dog.
When dog owners give up ownership rights, they give much of their ability to protect their dogs.
Nowhere does the U.S. Constitution say that those who are animal guardians are entitled to such due process. A legal guardian is a person who has the legal authority (and the corresponding duty) to care for the personal and property interests of another. In fact, the very notion of guardianship flies in the face of due process because a guardian, in the traditional legal sense, if overseen by a Court of Law. The Court can decide that someone else would make a better guardian—for example, someone with more money; someone who owns his or her home rather than rents; or someone who stays home rather than works full-time.
Author with service dog
Then there is the issue of service, therapy, and search dogs. If we own dogs, we can train them and use them to help us if we become disabled. Laws grant disabled persons the right to be accompanied by service dogs. Dogs guide persons with visual impairments, for example, and help pick up dropped items for those confined to wheelchairs. Presumably, if we are mere guardians of our dogs, we cannot force them to perform tasks for our benefit, including search and rescue work. Therefore, we risk seeing the complete extinction of service, therapy, and search and rescue dogs. As guardians, we exist solely to benefit our dogs. In effect, we become their servants.
 While many of us already do feel like servants to our dogs and, even more so, to our cats, there’s a very real difference between being a servant in the legal sense and being a servant in the practical sense. Yes, we provide them with food, shelter, vet care, toys, their own beds, and even throw them birthday parties, but we still own them. We have the right to decide what food to feed them (kibble, raw, or home made, for example) or what type of vaccinations to give them (other than the legally required Rabies vaccination, of course). Since overvaccination is becoming a real topic of discussion in veterinary circles, this alone is an important discretionary issues for dog owners.
Important decisions about a dog’s care, feeding, and training are best left to dog owners, not courts. For example, people have strong feelings about feeding kibble versus raw. Some people believe kibble is ultimately harmful to dogs, containing low quality ingredients and, in some cases, toxins. Others believe feeding a raw diet exposes dogs to too many dangers from bacteria and bones.
When we are guardians, those decisions are no longer our own. They are subject to control and oversight by the state or a court. Because I want the United States Constituion behind me when I fight for my dog’s life, should it ever come to that, I prefer the term “owner."