Wink Wink

August 21, 2010

Some days I think most people lack a basic understanding of the concept of property and of ownership.  Today, I’m sure of it.  We’ve been chatting here about the Gracias and how the HSPCA and others simply trampled all over their real estate.  The claim was that the property and the animals appeared to be “abandoned” but today I want to talk about something even more fundamental and that’s how words like that are being used and twisted to ignore the simple concept of ownership.

Historically and currently, animals are property.  It’s that plain and simple.  Animals have a value to their owners and, because they do and can also be a pain and hazard to the public, societies have had local pounds for centuries.  A local pound is a place where the animals can be confined in a secure location until claimed by their owners who are usually fined some amount for letting them get loose and shifting the burden of care to the community.

If you search for “dog pound” on Wikipedia, you will be redirected to the “Animal Shelter” entry which states in part: “Animal control agencies, also known as municipal shelters (or "dog pounds"), are usually nonprofit organizations that are contracted by cities to enforce animal-related ordinances, and to provide animal-related services.”  That’s just crap and some of the most blatant revisionist historian work I’ve ever seen.  Animal control agencies are government agencies and most governmental entities are still running their own pounds although there is a shift to contracting with NPOs going on as well.

Personally, I think we need to get back to calling the pounds, pounds.  The government needs to protect the public and, if it comes into possession of an animal in that process of protecting, it has an obligation to impound it so the owner has the opportunity to retrieve it.  However, such a facility is/should be (based on fiscal responsibility with tax dollars) quite basic.  If the animal isn’t claimed in a reasonable amount of time, then some other disposition may be reasonable but there’s a problem with that because animals ARE property so they may belong to someone out there somewhere.

To deal with this, there are laws dealing with “estrays”.  In Texas, “estray” includes only stray livestock, exotic livestock, and exotic fowl and, for those animals, we have an entire chapter of laws specifying how they are to be handled.  We also have laws dealing with wildlife (which essentially belong to the public under the care and protection of the government).  Pets are essentially covered by Title 10 of the Texas Health and Safety Code.  That title deals with the disposition of some animals (cruelly treated, dangerous) and it specifies how impounded animals are to be tended but noticeable absent is any general provision for the disposition of animals that go unclaimed by their owners.

Here’s where we start slipping in words like “abandoned” or something like the 72 hour rule to justify doing something with the animal.  However, a very basic principle of property and ownership is that one can only transfer the rights one has.  If one is a mere custodian (which is what the government picking up a stray is), then one can’t transfer ownership unless there is some law permitting it to do so.  For whatever reason, it doesn’t appear Texas has such a law for pet animals so they would fall under the general property laws.

Tangible personal property is generally, legally presumed abandoned after 3 years.  Texas Property Code Sec. 72.101.  During that 3 years, if one has possession of property that belongs to another, one is a mere “holder” of that property and “shall preserve the property and may not at any time, by any procedure, including a deduction for service, maintenance, or other charge, transfer or convert to the profits or assets of the holder or otherwise reduce the value of the property”.  Texas Property Code Sec. 72.103. 

If you want to “save” or “rescue” that dog or cat you find along the roadside in Texas, that’s wonderful but you are taking on the obligations without the benefit or rights of ownership.  In addition, when property becomes “abandoned” at the end of 3 years, one MUST turn it over to the State of Texas and it STILL belongs to the original owner.  Legal title passes to the State for management but the original owner continues to have the right to reclaim the property or the proceeds from its sale.  Nice slide show in it and the statutes are in Texas Property Code Chapter 71.

All of that kind of leaves Texas animals in a pretty sucky spot, doesn’t it?  How many of you want to do rescues if you never have legal ownership for the effort, if the original owner can turn up and say “hand over my dog/cat”?

A couple of months ago, there was some uproar in the rescue communities about this: “This ordinance adds Section 7-4.12 to the Dallas City Code and makes it an offense if a person takes possession of a stray dog”  While I fully understand the good intentions behind not trusting this ordinance (DAS, the City of Dallas, etc.), being in possession of a stray animal and not attempting to return it to its rightful owner amounts to theft.  Yes, I know, even some of my friends are seeing red right now.  I didn’t make the laws.  I’m just trying to point out what it currently is.

So, right at a year ago, I picked up a large dog near my home that was in pretty poor shape.  She’s big and black and unspayed.  I took her to the vet the next morning and she’s HW+ and has other parasites and she’s 62 pounds when she should be 85-90.  She had an old, ill fitted collar but no ID of any kind.  She was desperately hungry but fearful.  A pretty typical stray that appeared to have been “abandoned”.  I took her home, of course I did.  And there’s no pound or other shelter in the county where I live and where she was found.

I put up fliers near where I found her and took out an ad in the local paper and I posted her information on several websites where I thought the owner might find her and I called the nearest animal control agency (who wasn’t very interested).  Everywhere that I posted, I also indicated that the owner need not reclaim but formal “surrender” would be appreciated.  I did all this because I knew this dog simply wasn’t mine and the owner had rights; clearly she had been owned at some point from her demeanor.  I had not researched the above laws at that time but this just represents how I was raised and that I have no sense of having rights to what is not mine simply by putting my hands on it.

What do you do when you find a purse that is not yours? What do you do when you find a cell phone or iPod? What do you do when you find cash? Your answer should be the same in all three circumstances.”  Yes the answer is simple; give it back, turn it in.  It is NOT yours to keep and Finders, Keepers is not the law in most jurisdictions.  When it comes to mislaid or abandoned property, “The general rule attaching to the three types of property may be summarized as: A finder of property acquires no rights in mislaid property, is entitled to possession of lost property against everyone except the true owner, and is entitled to keep abandoned property.”  In Texas, that rule has been reduced to the first phrase, period.  Wherever you live, you should certainly find out what the law is before deciding to keep what does not belong to you because keeping what isn’t yours may well be a form of theft.  (That found property becomes yours simply by waiting some brief period is almost always an urban myth.)

Finder’s keepers doesn’t apply to lost pets… my friends at work wanted to assist in placing into a new home. I am thrilled they are all so happy to help an animal in need; but as good as these intentions are, they are also unlawful… not just hold true for dogs and cats. All pet animals that are found “stray” should be turned over to a shelter. That means rabbits, snakes, iguanas, exotic birds, etc. The “finders keepers” rule didn’t work in kindergarten and it doesn’t work now.”  I agree but I also know there isn’t always a shelter or pound that has the responsibility of returning animals AND I know there are BIG issues with animal control agencies/facilities.  Yes, I know!

But animals are property, they are owned by someone.  Problem is they aren’t like a purse or an iPod, you can’t just toss them on a shelf and wait for someone to come claim them – someday; hold them for over 3 years and then auction them off, holding the proceeds for the owner to claim.  If livestock are worthy of an entire chapter in the Texas code to deal with estrays, certainly our pets are worthy of a chapter of their own to ensure we get them back and to set forth an organized system for that; and to deal with those animals that go unclaimed.  SURELY, they are worthy of that because what has evolved in the meantime is quite disturbing.

It all seems to have started with the very fact that pet animals are unique, they have regular and immediate needs so can’t just be shelved and warehoused like other found property.  No matter what owners do, sometimes animals get loose but most of us want them back so animal control and pounds developed.  As a practical matter, they aren’t going to keep those animals in the pound forever so a 72 hour rule of thumb has developed in places that don’t have more formal rules.  After that 72 hours, most pounds feel free to pass the animals along or kill them.  As far as I can tell, at least in Texas, they have no such rights.  They can’t transfer anything but custodianship and, as holders of mislaid property, they have an obligation to maintain it for at least 3 years once they have taken on that obligation by taking the animal under their control.  They have no right to kill them in the streets unless they are truly a hazard to the public because they ARE someone’s property and have value to that person.  Other than that, I can’t find anything that would give the government the right to destroy, kill, valuable personal property at all.

As governmental agencies took it upon themselves to dispose of property without regard to owner’s rights, a general disregard for owner’s rights has developed as well and others have adopted this Finder’s Keepers attitude – I found it and I can do as I please with it.  In recent years, I hear this being justified by statements like “Well, if they were ‘responsible’ owners, the animal wouldn’t have gotten loose in the first place.”  Now that attitude really tends to tick me off because the person finding animals can’t possibly know the circumstances of how it got loose.  It could have been from digging or climbing or the utility guys opening a gate; from backing out of a collar when startled to an owner having tripped and fallen while carrying a pet to the car.

These attitudes have spun so far out of control that a licensed veterinarian speaks of fostering a dog “liberated from a backyard by a client whose neighbor had been neglecting her”.  Translation: I’m in possession of stolen property, know it, proud of it, gonna keep it and give it away someday; even going to brag about it on my blog but I’ll tuck that theft away under the guise of “liberated”.  But, oh, just wait, there’s one better than that.

How about a licensed veterinarian in possession of stray livestock and a stray dog who, when confronted by the Sheriff about the illegality of harboring stray livestock “suggested a compromise. Maybe the whole problem could be avoided, she offered, if the goat was relocated (wink, wink) to another county before deputies arrived.”  WHAT???  A Great Dane and a goat are found and land at “the animal hospital and nonprofit rescue shelter” and word spreads.  Did they attempt to find the owners?  I don’t really know.  “Dallas County sheriff's deputy who called her office to say it was illegal to harbor stray livestock.”  “Dr. Karen Fling, owner of the East Lake Pet Orphanage” claims she didn’t know the law.

There’s that old adage about ignorance of the law being no excuse but I won’t lean on that.  We’re talking about a veterinarian who has been licensed in Texas for 23 years.  You’d think she’d have a passing familiarity with animal law, at least ownership or how could she know who has the right to have an animal treated?  Just take anyone’s money and provide services?  (I do indeed suspect that’s the concept many veterinarians are operating under.)  We’re talking about a woman that runs an animal orphanage that recently had its 9th annual wine gathering fundraiser so it certainly isn’t a newbie organization run by high school dropouts.  She speaks of the greatness of a nation being dependent upon how its animals are treated.

One of the most important things to keep in mind when you have found an animal is that no matter what condition the animal is in, or how scared it may be, it should never be assumed that someone does not want or “deserve” to get the animal back. A fearful animal is not one necessarily one that has been abused—this could simply be a lost pet that is terrified at being in unfamiliar surroundings. Also, a lost animal may not have easy access to food and/or water or may be too scared to eat/drink and can lose weight or become dehydrated. It is not uncommon for a lost pet to become injured or ill while it is loose because it is actually a pampered pet that doesn’t have the skills to survive on the streets. NEVER assume that a lost pet has been dumped or abandoned until after you have exhausted all efforts to find the original owner. What looks like a homeless stray to you could be a treasured pet with a heartbroken owner desperately trying to find it.”

Wow, the East Lake Pet Orphanage (ELPO) has a rather detailed page on lost/found animals!  I’m thinking maybe this isn’t the first time Dr. Fling has thought about animal ownership.  And yet, “The animals we rescue and rehabilitate come from many different locations. Some are found as strays…”  So I guess she considers it OK to sell other people’s animals.  Is that really indicative of a great nation?

In this particular case, they got enough media coverage that the owner came forward to surrender these 2 animals and a third one but I can’t get past my initial reaction that a professional veterinarian who runs an animal shelter that takes in strays and sells them is claiming ignorance of the law as her excuse AND asks a law enforcement officer to (wink, wink) look away, essentially become a conspirator, in her illegal actions.  To secret these animals away to another county is just too much.

Texas Penal Code “Sec. 31.03.  THEFT.  (a)  A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of property.  (b)  Appropriation of property is unlawful if: (1)  it is without the owner's effective consent”.  Whether or not this was Dr. Fling’s original intent and not knowing what, if any, attempts she made to find the owners prior to being made aware of her crime, it is rather clear that secreting the animals off to another county would have effectively deprived the owners of reclaiming the animals; certainly would not have been in accord with the mandated provisions for livestock which are State mandated so it didn’t matter what county they were in.  It is rather incredible to me that the media is touting her under these circumstances.

At any rate, Dr. Fling is simply oozing that “rescue arrogance”; that attitude of demanding to do what she wanted regardless of existing laws, regardless of the rights of the owners, and despite at least having a passing idea that she shouldn’t presume the animals were abandoned or dumped; their owners unworthy.

“What looks like a homeless stray to you could be a treasured pet with a heartbroken owner desperately trying to find it.”  This concept is blithely ignored by all too many who call themselves “rescuers” as does ELPO.  ELPO also holds itself out as a No Kill shelter.  I rather like the “no kill” concept but I haven’t made up my mind about Nathan Winograd although I do regularly run across quotes from him that I am fond of.  I became more inclined toward Nathan Winograd when I ran across this and read it more closely:

How many dogs and cats enter shelters annually? 8 million. (Some put it as low as 6 million, but I am going to use a “worst case” scenario.)”  “How many need to find new homes? If shelters are doing their jobs comprehensively, just over 2 million (3 million on the high end). The remainder should be increased reclaims or in the case of feral cats, TNR’d.”  Well, WOW, and yet 4 million are actually being placed and 3 million killed of that total 8 million.  That means about 5 million animals who have owners are being taken and sold by shelters or just plain killed; all for no good reason at all.  OK, so let’s say it’s just 3 million reclaimed, well that would get us to NO savable animals killed right there and the only reason it isn’t being done is because of an arrogant presumptive attitude by “rescuers”?  So it appears.

“increased reclaims” links to here:  “One of the most overlooked areas for reducing killing in animal control shelters is ‘owner’ reclaims.”  That “owner” is in quotes makes me unhappy but Kat Albrecht does go on to explain where the warped concept that owners don’t deserve to get their animals back comes from and explains how that is KILLING animals.  Albrecht is promoting MAR, Missing Animal Response, to increase the number of animals returned to owners and reduce the number of animals killed in shelters.  Why on earth am I not tripping over this on every single “No Kill” website?  Why is it not even mentioned in the No kill shelter article on Wikipedia?  Because of that arrogant attitude?  That’s more important than saving animal lives?  And one dares call oneself a “rescuer” and animal lover while maintaining that arrogant attitude?  REALLY?

“What looks like a homeless stray to you could be a treasured pet with a heartbroken owner desperately trying to find it.”  Yes and one more little issue I haven’t run across in “No Kill” so far is what of those grieving owners?  In my experience, they don’t go running out for a replacement pet so that’s another pet home that isn’t available at least temporarily.  If we could get pets back to their owners, there might actually be a shortage of pets in shelters if I’m reading Winograd’s numbers correctly.  Now wouldn’t that be incredible?

I see Winograd speaks of owner reclaims again on May 19, 2010, and I see he will be in Austin, TX, next month.  Personally, I’ll be praying that PUSHING owner reclaims and crushing arrogant attitudes against owner reclaims is front and center of the discussions.  In the meantime, I have a proposal for a new chapter in the Texas statutes.

Animals are property and mine are certainly worth at least the equivalent of a cow.  I want them back if they escape.  I want them treated for return to me at least as well as livestock would have to be treated.  In fact, I want them treated better than that and I want adequate time to reclaim them and an adequate process for finding them.  I want any “holder” of MY property to be required to report their possession of MY property to a single location with an adequate description and pictures within 12 hours of taking hold of MY property.  Looks to me like the basic structure for that is already set up through the USDA with the Missing Pet Network (MPN).  (It is utterly absurd in this age of technology for animal owners to have to hunt down every animal shelter and rescue person or group in a 50+ mile radius and then go to many of them daily in an attempt to find their beloved pet because so many of these places can’t even correctly guess the obvious breeds, let alone correctly describe the animals hair color!) 

I want a MINIMUM hold period of 72 hours that doesn’t start running until the animal is fully posted in that central database and I want that hold period tolled if the central database isn’t functional for more than 30 minutes during 24 hours.  If the 72 hours ends when the animal is not available for reclamation because the pound/shelter is closed, I want that time period tolled until at least 2 hours after they open.

Because public pounds operate on tax dollars, I don’t expect them to provide more than the very basics of shelter, food, water, safety and be clean enough to prevent disease.  If NPOs want to shelter animals, they should certainly be held to a higher standard than the average owner and they should be held to all other laws.

I want all pounds and other organized animal shelters mandated to scan for chips, check for tattoos, look for ID of any kind on the animal and to follow up any found indications of ownership.

I want those who don’t report animals they find held accountable as thieves.  In fact, any who doesn’t make a reasonable attempt to return an animal now should be held accountable as a thief.

I do NOT want owners divested of ownership until 6 months after the animal has been posted to the centralized database and I want animals maintained in that database for public access for that 6 months and archived for 5 years after being removed from public access.  I heard that gasp over “6 months” out there.  WELL, even that would be a serious departure from traditional property concepts and I’m not entirely comfortable with it.  My preference would be that ownership NEVER transfers.  If one wants to “save” an animal and the system is working correctly, the chances of an owner showing up after transfer to a new “holder” should be darned slim to none and one interested in saving animals should be willing to take that minor risk.

I’ve been thinking VERY carefully about this part for the last few months.

You see, shortly after that big black dog showed up near my home, a Shiba Inu landed in a small City shelter, east of Dallas.  I adopted her and, of course, have become quite close to and protect of her over these past months and she has settled in as a member of our family.  However, I just feel certain there is a grieving owner out there somewhere who simply wasn’t able for some reason to negotiate the maze and find her.  She’s 7 or 8 years old, well trained, well mannered, accustomed to being mistress of the roost.  She was HW- in Texas which would indicate she hadn’t been out on her own for long and had likely been on oral pesticides.  The shelter had no scanner, no vet to check her over.  She had some intestinal worms that were quickly resolved and was otherwise in decent, actually excellent, shape according to my veterinarian.  Perhaps some owner who couldn’t afford her let her loose but I have my doubts and I won’t make the presumption she was voluntarily abandoned.

After I adopted her, I let the city shelter know that they could pass along my contact information should her original owner turn up.  As with the big black dog, I listed her on a number of lost/found websites.  I even set up a dogster page for her which is still up.  You see, 15 years ago, when I first became ill, my first Lab went to stay with a friend and she got away from him and he couldn’t find her and didn’t tell me for 2 weeks.  I understand what it is to not know, to never know, to grieve a lost pet for years and wonder.  I had not confirmed the laws about ownership when this Shiba came into my life but trying to find her owner just seemed like, felt like, the right thing to do.  All these months later and it STILL feels like that would be the right and correct result if it can be accomplished.  In fact, it feels MORE right now that I know the shelter didn’t own this dog so I don’t either.  The owner is out there somewhere…

It would be incredibly painful to send her home now but I truly, firmly, deeply believe in rescuing animals and part of that, a BIG part of that, is getting them back to their owners.  I would hope that her owner would stay in touch after a return but I have no right to demand that or reimbursement for costs I’ve paid for her although I would certainly offer to pay for such if the situation were reversed.  I have done my good deed in saving her from near certain death at the shelter and will continue to consider her “mine” until the owner surfaces, for the rest of her life if that never happens.  But legally and, in my opinion, morally she is not mine (although it makes me weep just to put that in print).  Practicing what we preach, what we believe is not always easy.

I was thinking about it again recently.  “Chuck Hoage’s dog Annie went missing in Nipomo in June and ended up in the county animal shelter a week later. A new owner adopted him.”  I have no idea what the property laws are in San Luis Obispo but I always wonder when they say “new owner” if it really is an owner at all.  Annie is an 8 year old Australian shepherd who bolted at a sudden loud sound, was held by someone for a week before being turned in to the shelter, then held a week and adopted out.  It seems that in Annie’s case, the decision is being left to the shelter geeks.  Forgive me but I doubt they’ve ever spent 2 seconds considering property law and who owns dogs; grown accustomed to selling them whether they have ownership to sell or not.

Animals are property and the best way to protect them, to show they have value, is to protect their owner’s rights.  We do all animals and owners a disservice by simply declaring animals up for grabs and that is where we are now.  From those who find an animal and quietly keep it without attempting to get it home to pounds/shelters who effectively do the same due to the current haphazard system and then sell or kill the animals (assuming the rights of ownership to which they have NO rights), to NPOs and governments who snatch up animals on mere allegations of “cruelty” or by alleging they are “abandoned” when the circumstances don’t come close to legal abandonment.

Property rights underpin the entire concept of the US.  Property is not to be taken away from anyone lightly or without due process and very good reasons.  Animals are living, breathing property and their owners have rights.  Animals should not be hastily snatched up and transferred to non-owners without an appropriate level of due process that respects the owners’ rights.  We already recognize this in Texas law for livestock and property generally.  There simply can be no exception to these general principles for (not so) civil seizures.

If you truly believe in saving and rescuing animals, you simply can’t get behind the concept that they have so little value that they can be snatched from one person and given to another summarily, that even livestock are not affected by such actions and all the turmoil that goes with them.  If you are amongst those who believe that animals have human like emotions, you have to know this would be traumatic and only warranted in the worst of cruelty cases; that, as we know with children, the better option is to work for changes with them in their homes rather than yanking them out and sending them to unfamiliar places and to be with unfamiliar people.  Rare is the perfect home and rarer still, perhaps non-existent, is the shelter that can claim to even be the equivalent of any kind of “home”.

We need an immediate return to the respect for fundamental property rights in this country.  No excuses, no exceptions.  Property owners have rights and animals are property.  Abide those laws and work for changes if you disagree with them.  But do not, do NOT, expect the rest of us to excuse your crimes in the meantime.  May all the thieves out there "wink, wink" themselves right into jail cells!

Go Back

I'm not really sure on Oklahoma laws, but I do know my neighbor when I lived in a different county successfully sued over a coon dog one time. He lost his dogs one night on a coon hunt. Normally when this happened these dogs would return to where they unloaded the dogs and first thing the next morning they could return and their dogs would be waiting on them. They returned and only 2 of the 3 dogs was waiting. His dogs always wore expensive collars with metal name plates with his name, address, phone number. He found the other dog's collar in the middle of the dirt road. Which could only mean someone had removed the collar. He finally found his dog but the guy claimed it wasn't his dog and wouldn't return it. Cops wouldn't do anything about it, so he sued. I don't remember all the specifics other than he got his dog back and the other guy paid all the legal costs. This was several years ago before rescues were in such great numbers and before non-profit groups were being given as much power as they are now.
I've also known of many cases where people with game chickens sued and won huge judgments against owners of dogs who killed their chickens. Of course this was before if you had game chickens they would steal them and convict you of being a cock fighter just for having possession of game cocks.

There was a point in our history where slaves were considered property. Although it was considered our right to own slaves, it was not morally right. It is not our right to own any living, thinking being...human or animal.

Mary,
It is our God given right, our constitutional right and our moral right. Comparing a HUMAN Slave to an animal proves how mentally insane you people are.

I have to agree with what Anonymous says to Mary, we have to take RESPONSIBILITY for our animals but they are not even remotely like slaves.

And Mary, you aren't getting my tomato plants, even tho they think sunny days and enough rain are wonderful! I own them and I will eat them!

I guess I'm a redneck.

Bryan Monell, the famed HSUS undercover farm guy, said at a recent animal rights conference that "these people are rednecks and we are superior."

So Mary, do you agree that you're superior to animal owners and meat eaters?
I know you agree with Hope Bohenic of In Defense of animals, who said at the same conference, "Owning animals is the equivalent of slavery."

So Mary do you also agree with Camille Hankins that because I own animals and I do own lots of animals including animals that I will eat, that you have no problem of breaking and entering and burning my buildings?

You can believe I'm a slave owner all you want, I could really care less. But what your crowd needs to understand is many of us "rednecks" and "slave owners" are not going to sit back and allow anyone to come onto our property and burn our buildings or allow you to "free" our animals.

If you people want to start another civil war, you're going to be way outnumbered as the majority of Americans own animals or in your view, "own slaves."

The good though is the more of you who make your intentions clear the more Americans that are going to catch on and the quicker all the damage you've done can start being reversed.

Knowing about what was said is in credit of Mike Barnett.

http://www.txfb.org/TxAgTalks/post/2010/08/23/Using-cruelty-to-animals-as-a-shield-animal-activists-use.aspx

Shelly, you've got it right, but the problem is that in order to reverse this thing, we've pretty much got to repeal ALL the animal laws which have been passed since the '80s. And I don't know if you've noticed, but laws are like marriage - it's really easy to pass a law, but repealing it .. ? That's a whole 'nother ball game.

And we're a long way from even getting started with the fixing :-/



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