By Jordan Fowler
, a 2017 Judge K.K. Legett Fellow at Washington Legal Foundation who will be entering her third year at Texas Tech University School of Law in the fall.
You can sue your grocer, you can sue your policeman, you can even sue your neighbor John, but can you sue neighbor John’s dog? In May, the US Court of Appeals for the Eleventh Circuit firmly answered that question: no. In Jones v. Fransen it held that a plaintiff could not sue a police dog for excessive force due to constraints in statutory language and practical problems. This holding is notable beyond its unusual facts: it demonstrates that although many plaintiffs’ attorneys creatively seek new clients, the impracticalities of suing a dog demonstrate why an attorney also cannot represent a dog—or any other animal—as a plaintiff in an animal rights lawsuit.
In Jones, Randall Kevin Jones sought to recover damages from a police dog named Draco. The Gwinnett County Police Department received a phone call from Jones’s ex-girlfriend reporting that Jones had entered her apartment and stolen her television. After searching for Jones to no avail, the police released Draco, their K-9 helper. Shortly thereafter, an officer spotted Jones hiding in a nearby ravine, but the pureblooded seeker had already found Jones and bitten his arm.
The panel dismissed the suit against Draco, making light of the fact that he was now part of the infamous line of “Draco” villains next to the Greek legislator (famous for the eponymous code) and Harry Potter’s nemesis, Draco Lucius Malfoy. The court noted that the practical problems with suing a dog are virtually endless. How could a court conclude whether the dog was properly served with process? How would it determine the dog’s qualified immunity? Was the dog intentional in his actions? Are his prior actions inadmissible? The courtroom is not the proper venue for these issues.
The court also relied on a prior decision in the Seventh Circuit in Dye v. Wargo, which held that a civil action could not be brought against a police dog (Wargo was the officer; the dog, Frei, was also named in the suit) because the relevant statutes only allow claims against “persons,” which inherently excludes dogs. Thus, that court affirmed the district court’s dismissal of the suit.
While Judge Easterbrook limited his opinion to analyzing the complications of bringing a lawsuit against a dog, its reasoning also applies to dogs as plaintiffs. For example, if Draco wanted to file a counterclaim against Jones, or file a separate civil action of his own, there would be several procedural and practical problems.
First, dogs lack Article III standing to bring a claim. Article III requires that the plaintiff show: (1) injury in fact; (2) a causal relationship between the injury and the conduct of the defendant; and (3) that the injury is likely to be remedied by a favorable decision. The plaintiff has the burden of showing a concrete and particularized invasion of a legally protected interest. Dogs are property under the law. A minority of courts allow an individual to recover noneconomic damages for a dog’s death, but only because the owner has standing and is bringing the suit in an individual capacity—not on behalf of the dog. Because standing is a threshold requirement of any suit, a canine’s cause of action cannot survive.
Second, there would be significant problems concerning damage calculations and awards. Just like the difficulties in determining a dog’s culpability the Eleventh Circuit outlined, it would be practically impossible to determine a dog’s recovery. A dog cannot answer discovery requests, deposition questions, or take the stand to explain how he endured pain, suffered emotional anguish, or should be otherwise compensated. Dogs cannot conceptualize or utilize money. If a dog won a case, and the judge or jury awarded damages, who would accept the damages on the dog’s behalf? Does the collateral source rule apply to vet bills? How would a court guarantee that the money is spent according to the dog’s best interest? If the dog lost the suit, and owed money to the court or the defendant, how would the dog pay? It seems unlikely that Poindexter would guarantee a supersedeas bond on the dog’s behalf.
Third, if a dog could bring a claim on its own, then presumably an entire class of canines could. The class-certification process is already difficult and time consuming for courts when dealing with a class of human beings. It would be, er, impawsible for a canine to meet the prerequisites under Federal Rule of Civil Procedure 23(a). Any attempt to certify a class of canines would exhaust judicial resources without moving the squeaky ball forward.
Dogs are amazing companions; they make excellent pets and trained canine units provide valuable assistance to law enforcement. However, like other animals, they simply cannot be parties to lawsuits. Permitting a pooch to file suit would provide a windfall to the plaintiff’s attorney, the dog’s owner, or both. There is no reliable way to fetch and present evidence for the trial, and the cases would clog up the court system with procedural dead ends. Allowing a plaintiff’s attorney to Slytherin to court with a canine client such as Draco would undermine the legitimacy of the entire system and waste scarce judicial resources.