PROPERTY STATUS OF ANIMALS  
                                                                          Material on this page © The Animal Council 2006 - 2014

New, January 29, 2007

BACKGROUND:

Owners of animals have both legal rights and limitations related to their animals' legal status as tangible
personal property.  These rights include right to
due process, to recover the actual value of the animal and
related economic damages in civil lawsuits as part of the right to enjoy property.  Liabilities include being
responsible for damages to others caused by owned animals and local, state and federal laws related to owning
animals.  A workable system of property law is a cornerstone of developed countries, securing the economy's
value through a framework of enforceable law as a reliable basis for commercial transactions and asset value.   
Within this system, changing the property status of animals has extensive ramifications with uncertainty for
individuals, society and the future existence of animals.  

Advocates of eliminating the property status of animals argue that this would "elevate the status" of animals to
that near or equal to humans by requiring better treatment through elimination of economic value in favor of
intrinsic, personal value to themselves.  The colloquial expression is "shifting the paradigm" of the role of
animals in society and using the existing law creatively in this movement commonly but not exclusively called
animal "rights".  

In 1977, a law student “Comment” at 14 San Diego Law Review 484, “Rights for Nonhuman Animals: A
Guardianship Model, for Dogs and Cats” introduced the "guardian" term to animal terminology.  The sentence,
“The idea that nonhuman animals should have rights is amusing to many people” remains true but now has
acquired sinister undertones.  The comment continued, “chief obstacle to recognizing legal rights for
nonhumans has been the difficulty of delineating logical boundaries.” and concluded that nonhumans should be
“recognized as holders of legal rights” and went on to propose that existing guardianship laws providing formal
legal protection for incompetent or human minors be the basis for protecting rights of animals.  The comment
cited the advantages of well-established basic principles based on care and compassion “and an acceptance of
responsibility for both the physical and mental well-being of the ward.” concluding that “It is time for a drastic
reevaluation of their present status in our legal system.”    

LITIGATION BASED ON PROPERTY INTEREST THEORIES           NEW 4/26/08

The property status of animals is a double-edged sword in the legal system.  It does provide a minimal legal
framework for minimal legal protection of owner's rights and the entailed welfare of owned animals, but it also  
lays bare all rights and welfare interests to the nearly omnipotent "police power" of government.  The 1897
United States Supreme Court case,
Sentell v. New Orleans & C. R. Co. upheld a state statute that barred
recovery for loss of a dog not issued a local dog tag.  The case held, "There is nothing in this law that is not
within the police power, or of which the plaintiff has a right to complain..." and is still cited for this principle that
creates a high barrier to constitutional challenges to ordinances and statutes infringing on property interests of
owners.  This central legal theory, often combined with lesser legal theories have been largely unsuccessful in
challenging infringing laws from
numerical limits, breed specific and other prohibitions and restrictions, more
recently including reproductive issues and the inherent property interest in an animal's reproductive capability.
For additional information on property i
nterest case law and related theories                        

USE AND LEGISLATED USE OF "GUARDIAN" INSTEAD OF OWNER

In the 1980's, animal rights activists began using the term "guardian" instead of owner.  When the San Mateo
County "moratorium" on breeding dogs and cats emerged in 1990, proponents exclusively used "guardian" in
place of owner, forever linking its meaning to taking away legal property-based rights of individuals.  Later in the
1990's eliminating the property status of animals became a campaign of In Defense of Animals beginning with
local efforts to legislate substitution of "guardian" for owner.  Initial efforts in Marin and San Francisco counties
in 1999 were unsuccessful, but in 2000 Boulder, Colorado became the first United States jurisdiction to include a
"guardian" term in amendments to its animal ordinance.  That summer, the CBS Evening News featured the topic
in its
Eye on America segment aired on August 7, 2000.  While this and, so far, all the "guardian" laws use the
term as the legal equivalent of owner, proponents claim that its
use means and will hold owners to a higher,
fiduciary standard
of conduct toward their animals thereby reducing "cruelty".   We hold this to be untrue,
counter-productive and meaningless; rather, property rights are imperative to protect animals and fiduciaries do
not have personal rights.  
Guardian Opposition Talking Points, 2000

The extremely liberal cities of Berkeley and West Hollywood, California quickly followed in early 2001 with the
state of Rhode Island being the first and only state to legislate the "guardian" term in its animal statutes and
Sherwood, Arkansas the final enactment of that year.  However, the usually liberal City of Santa Cruz, California
became the first outright rejection on a City Council vote.  The next year, 2002, only Amherst, Massachusetts and
Menomonee Falls, Wisconsin enacted these ordinances.  Individuals and organizations involved in any way with
animals began to realize the "guardian" term is meaningless in improving the lives of animals and lessens rather
than enhances their legal protections.  The City of Los Angeles City Attorney
letter to the City Council helped to
derail the proposal there where policy and litigation history have dictated stringent review and narrow tailoring
of ordinance amendments.  

Opposing
analysis, policy papers, talking points and brochures emerged, but the San Francisco guardian
ordinance finally slipped through in early 2003 despite opposition from key politicians and veterinary groups.  
Later in 2003, Marin County and its incorporated cities, Sebastopol (a liberal bastian in Sonoma County,
California) and Woodstock, New York followed.  However, proposals in liberal
Santa Monica and Pasadena (Los
Angeles County cities) were ultimately
rejected by early 2004.  But unnoticed guardian ordinances were enacted
in 2004 in St. Louis, Missouri; Albany (adjacent to Berkeley), California; Wanaque, New Jersey; and Windsor,
Ontario and in 2005, only Bloomington, Indiana.   
American Veterinary Medical Association opposition policy
statement, adopted June 2005 marked entry of major national organizations as opposition.  

In 2006 only 2 jurisdictions, both in California, enacted guardian ordinances.  In Imperial Beach (San Diego
County) the veterinarian husband of a City Council member had the home town advantage with flip flops
defeating out-of-town opposition in suits by unanimous council vote.  In Santa Clara County, then Supervisor Jim
Beall (pronounced "Bell" and elected to the California Assembly in 2006) finally overcame longstanding
opposition to pass a guardian ordinance in a 3-2 vote.    

As of January, 2007 the above jurisdictions are the only ones to have deliberately enacted "guardian" term
legislation, and these merely equate owners with guardians either in the alternative or by substitution.  There
are no other specific provisions, so far, imposing a legal "guardianship" or fiduciary models on animals.  The
American Society for the Prevention of Cruelty to Animals (ASPCA) published a position statement advocating  
the term despite stating, "While the legal status of animals remains to be resolved, the ASPCA recognizes that
the cultural and social relationship that humans have with animals clearly transcends that of property, and is
better reflected by the term “guardian” than by the term “owner.”  Ignoring how the legal status might be
resolved and the consequences, possibly detrimental to animals, is incomprehensible other than an ideological
progression from the previous APSCA term, "pet parent".  But parents do have far more and greater rights than
do legal guardians of human beings who lack legal capacity.  

Also, because local lawmakers often enact legislation carelessly copied from other jurisdictions without careful
reading or analysis by anyone, there are now other "accidental" guardian ordinances. Thesse result from
copying unrelated provisions containing the "guardian" term from other jurisdictions without completely
conforming these to existing law being amended.  The result is a superfluous and undefined term lurking like a
latent virus with the potential to erode and diminish owner rights to both the economic value of the animal and
control of its welfare.  

Updated 5/12/08 The City of Fort Lauderdale, Florida City Commission considered an ordinance amendment to
redefine "owner" to add "including a guardian" and adding "and/or guardianship" following "ownership" to be
indicated by a commercial kennel operator involved in breeding.  
Staff Report   Staff Memo   At its 4/1/08
(
minutes extract) meeting, the Commission approved the change by 3-2 vote, but at its 4/15/08 meeting, rejected
this unanimously.  4/15 Minutes extract summarizing discussion rejecting proposal.  

New 1/30/09  Ukiah (Mendocino County), California staff, as directed by the City Council, has returned a draft
proposal -- "substitution format" to create a definition for "guardian" equivalent to owner and substitute the
new "guardian" term for owner throughout the municipal animal ordinance -- for consideration and possible
introduction at the
2/4/09 City Council meeting.  2/5/09 2/4/09 City Council, 3-2 vote directed re-drafted proposed
ordinance using alternate term format, i.e. "owner/guardian".  Matter will return to City Council.   2/15/09 Agenda
Item 10.b., 2/18/09 City Council meeting presents alternatives to the Council: a revised draft ordinance including
a statement of intent and "owner/guardian" term or a mere resolution encouraging use of the "guardian" term
but not changing the ordinance.  If the Council elects to proceed with an ordinance amendment, they would vote
only to introduce.  
3/3/09 Council opted for resolution but substituted "caretaker" for "guardian".   4/5/09 2/18/09
confirming
minutes rejecting ordinance amendment, adopting resolution using "caretaker" instead of guardian.

11/20/09 Beverly Hills, California 12/08 enacted extensive revisions to its Animal Ordinance including a provision
that all instances of "owner" or person 'having charge, care, custody or control of any animal" mean "guardian" -
one cares for a domestic pet.  This is the only reference to "guardian" in the ordinance, including the recent
feral cat ordinance enacted 9/09.  (Note, dog breeding is prohibited in Beverly Hills.)  

NON-ECONOMIC DAMAGES

Non-economic damages are a related concept being used to shift the owned animal paradigm.  These are the
court award of damages for pain and suffering, loss of companionship or emotional distress resulting from injury
to or death of an owned animal.  Current law only allows actual damages for replacement cost or other directly
consequential damages.  Some courts have permitted some additional recovery which can be appealing in
egregious factual cases despite the dangerous precedent.   Issues include whether the animal itself or a legal
guardian of the animal's interests or the legal owner should have standing to sue for injury to or death of the
animal and for what type of damages including pain and suffering of the animal or emotional distress to the
owner.  The property status of animals contradicts these possibilities, so that legislative and judicial approaches
must be used to "shift the paradigm."  Specific legislation has been drafted to allow recovery, often limited by
dollar amount, based on defined criteria (eg. crime, gross negligence, ordinary negligence) with express
exemptions such as veterinarians or others and providing for specific use of damages such as allocation to an
organization rather than the owner.  Veterinary and animal health and product organizations typically oppose
such measures as detrimental to animal welfare in general.  

CALIFORNIA CIVIL CODE SECTION 3340 provides:  "For wrongful injuries to animals being subjects of property,
committed willfully or by gross negligence, in disregard of humanity,
exemplary damages may be given."

ILLINOIS
510 ILCS 70/16.3, punitive/exemplary damages, capped.                     New 2/15/09
TENNESSEE CODE SECTION 44-17-403 (2005) General Patton Action of 2003  Non-economic damages.