Making A Legal Difference: Oregon v. Newcomb
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Sarah Stone, NonHuman Rights Project
July 2016

As the Newcomb Court recognized: “A person can be as cruel or abusive as she wants to her own stereo or folder, and can neglect the maintenance of a car to the point where it will not operate, without legal consequence. The same is not true of an animal that a person owns or has custody of or control over.”

On June 16, 2016, in State v. Newcomb, the Oregon Supreme Court examined a fairly common issue that most state and Federal courts have tackled: to what extent the police could seize evidence without a warrant in the course of an investigation. However, this case had a unique twist. The seized evidence at issue was Juno, a dog whom the defendant was charged with failing to adequately feed and care for; as a result, she was convicted of 2nd degree animal cruelty. At trial, Juno’s blood, drawn without a warrant, was used to show that Juno did not have a medical condition that would have accounted for his malnourished state. The defendant challenged the use of the blood, arguing that because Juno was her property she possessed a privacy interest to her blood. The Court had to wrestle with the issue of whether the “distinctive fact” that the object seized in the case was a dog— “not an inanimate object or other insentient object of some kind”—made “a legal difference.” The Court ultimately held that defendant did not have a privacy right to Juno’s blood. In reaching that conclusion, the Court recognized that animals “are sentient beings capable of experiencing pain stress and fear” and that it indeed made a legal difference that the property seized was a living thing.

malnourished dog

Just a week before the Newcomb decision, a one-year-old Labrador puppy in Glendale, Arizona, was not as lucky as Juno. As temperatures reached a record high for the day, the puppy, locked outside without shade or water on a third-floor balcony attached to an apartment building, waited for help. Concerned neighbors contacted the police, but police could not break down the door to rescue the puppy because of “privacy concerns.” Although Glendale Police did not specifically articulate those privacy concerns, presumably they were based on the same issue raised by the defendant in Newcomb; because the puppy was mere property, a warrantless intrusion into the apartment was not permitted. The law would have permitted a warrantless entry into the residence had the officers believed evidence of a crime would be destroyed (for example, someone flushing drugs down the toilet could be deemed exigent circumstances sufficient to justify entry). But a one-year-old puppy, baking to death in the intense Arizona sun, left police stymied by privacy concerns. Again, they did not articulate their reasoning but presumably the situation did not present an exigent circumstance because the evidence of cruelty—the puppy himself—would remain whether he was alive or dead. Therefore, instead of breaking down the door to help, the officers waited for firemen to arrive with a ladder to reach the balcony, but by the time they arrived, the puppy had died.

The case of the one-year old lab puppy highlights just how important the Oregon Supreme Court decision in Newcomb is to all nonhuman animals and animal advocates. As the Newcomb Court recognized: “A person can be as cruel or abusive as she wants to her own stereo or folder, and can neglect the maintenance of a car to the point where it will not operate, without legal consequence. The same is not true of an animal that a person owns or has custody of or control over.” Currently, all nonhuman animals are considered legal things. They do not count in the law, and they aren’t recognized as having the capacity for any legal rights. Unless and until courts and legislatures recognize that nonhuman animals are not mere property, they—like the Arizona puppy—will continue to exist for the purpose of legal persons—humans—and will suffer as a result. As the case of the Arizona puppy makes clear, even well-intentioned humans will lack the legal tools to help them if nonhuman animals remain legal things. The Newcomb decision is a chip in the wall of this long-held precedent.

Despite the tragic case of the Arizona puppy, there are numerous initiatives that give hope that society’s view on animals is ever changing for the better. For example, in March, Florida Governor Rick Scott signed a bill allowing good Samaritans to break into cars to save pets or vulnerable people at risk of harm. In April, Georgia’s Governor, Nathan Deal, signed legislation to require alleged animal abusers to pay for the care and rehabilitation of the animal while cruelty cases are prosecuted. In June, Louisiana’s Governor, John Bel Edwards, signed a bill prohibiting pet stores from acquiring dogs or cats from breeders with documented violations of the Animal Welfare Act in the last five years, or whose USDA license had been suspended in the last three years. And just last month, the National Aquarium in Baltimore Maryland announced it was relocating its captive dolphins to an ocean sanctuary by 2020, based on scientific research that shows they cannot fully thrive outside of their natural habitat. These are just a few of many examples that show the legal status of nonhuman animals is far from a static concept and that evolving values, scientific discovery, and human experience are giving nonhuman animals greater status than they’ve held in previous generations.

Yet, even with the examples above, while they illustrate great improvement in animal welfare, they do not change the fact that animals remain legal things, subject to the whims of humans. We at the Nonhuman Rights Project seek to take the debate about the legal status of nonhuman animals to the next level. We are unique in that we seek to persuade common law courts to change the status of at least self-aware, autonomous nonhuman animals from legal things to legal persons, capable of possessing their own fundamental rights. The path to change can be slow and frustrating, and we have yet to have a court grant this transformation from legal thing to legal person, but we are getting closer and closer as we overcome one procedural obstacle after another. While our potential plaintiffs are currently limited to great apes, elephants, dolphins, and whales, we expect that our efforts to break down the legal wall that separates humans from nonhuman animals will continue to reverberate through public discourse and the legal system in ways that will help advocates vindicate the interests of all beings.

The late great Muhammed Ali stated,

[s]ome mountains are higher than others, some roads steeper than the next. There are hardships and setbacks, but you can’t let them stop you. Even on the steepest road, you must not turn back. You must keep going up. In order to reach the top of the mountain, you have to climb every rock.

Decisions like Newcomb make clear the climb has begun, and we at NhRP will never turn back from our fight for self-aware, autonomous nonhuman animals to have the fundamental rights to which they are entitled.

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