by Sherry F. Colb
In my column for this week, I discuss the case of State v. Newcomb. In this case, a police officer and cruelty investigator took a woman's dog into custody based on probable cause that she was starving the dog, and the dog was then subjected to blood tests that confirmed the neglect (by showing that no medical reason could account for the emaciated state of the animal, and starvation was therefore the remaining explanation). The woman was subsequently prosecuted, and she moved to suppress the results of the blood test, arguing that the dog was her property and that she had a right against the "search" of that property in the absence of a warrant. The Oregon Supreme Court rejected the woman's claim, in part because animals are sentient and therefore represent a different kind of property from cars and folders and in part because the dog had been temporarily removed from her at the time that the blood test was performed. In my column, I suggest that acknowledging the animal's sentience is a positive thing but that as long as animals are property (and in Oregon, the dog Juno was the property of the defendant), the exposure of the internal state of that property through a blood test does represent a "search" of the owner. I propose, however, that the search might have been a reasonable one due to exigent circumstances.
In this post, I want to suggest that thinking about dogs as "closed containers" subject to the Fourth Amendment rights of their owners against unreasonable searches and seizures helps us see how wrong it is to regard animals as property at all. There was something almost poignant about the way in which the Oregon Supreme Court attempted to handle the contradictions inherent in the way we regard animals: On the one hand, we have laws intended to protect (some) animals: "Reflected in those and other laws that govern ownership and treatment of animals is the recognition that animals 'are sentient beings capable of experiencing pain, stress and fear.'" On the other hand, explains the court, animals are not "on a par with humans." Now there is a massive understatement. Animals are not just treated in a way that is not equal to the way in which we treat humans. "Among other things," elaborates the court, "there are legally sanctioned ways for humans to kill animals, and many animals may be 'treated or mistreated' by those who own or lawfully possess them as long as their treatment is within the boundaries of 'good animal husbandry' or 'animal research.'"
What the court describes here is what Rutgers Distinguished Professor of Law Gary Francione has called "moral schizophrenia." It is a situation in which we care enough about animals to protect them in some contexts from cruelty and neglect, even when committed by their owners, but at the same time, we allow what the Oregon Supreme Court -- with refreshing candor -- acknowledges can be "mistreat"ment so long as it falls within the bounds of what is generally done to animals in the particular context (and in the food industry alone, that covers horrifying cruelty and mistreatment).
One could be critical of a dog-friendly decision like Newcomb and argue that it fetishizes dogs and other animals whom we favor but who are in no morally relevant way distinct from the animals whom we subject to astonishing degrees of violence and cruelty for no better reason than palate pleasure. I have made that argument in other contexts, and I think it is a strong one. Here, however, I want to express some hope. My hope is that people begin to develop some cognitive dissonance about the lines we draw between the favored animals and the ones subjected to immeasurable cruelty and mass slaughter. Rather than point to the irrationality of the distinction as a reason to dismiss the dog-friendly feelings, in other words, I prefer to welcome the moral outrage that people feel on behalf of dogs (whether their own or others') and express optimism that such outrage will naturally expand to include the morally equivalent (but currently disregarded) moral claims of the billions of sentient beings who need us to see them and recognize their pain as no less real and no less important than that of a dog.