By EVAN GAHR

He's eliminated the squeegee men from city streets, ousted the mob from the Fulton Fish Market and stamped out countless other threats to law-abiding New Yorkers. But even Mayor Rudolph Giuliani can't rid New York of pit bulls.

When pit bulls attacked an elderly man and a police officer last year, the city had little recourse. A state court had earlier declared unconstitutional a ban on pit bulls, which account for approximately 30 dog-bite incidents every month. New York officials could only rely on a general dangerous-dog law, which, says a city lawyer using an unfortunate metaphor, "has no teeth." The Giuliani administration hopes to tighten the law but it is likely to face opposition from animal lovers and their attorneys.

This isn't an "only in New York" story. Courts in several states have invalidated breed-specific bans on grounds that they are unconstitutionally vague and deny pit bull lovers equal protection and due process. Congress is considering legislation that would force cities to allow pets in public housing--a boneheaded proposal given that pit bulls have seriously injured a number of residents and are a weapon of choice among drug dealers.

Welcome to the brave new world of pet owner rights, a little-noticed manifestation of the litigation explosion. Lawyers now specialize in everything from winning damage awards for aggrieved pet owners to filing endless appeals that prevent municipalities from exercising their long-standing authority to send vicious dogs to the big kennel in the sky.

This new breed of lawyers has a huge potential client base; the American Bar Association Journal recently noted that 33.9 million households own dogs or cats. And these lawyers are quite candid about their determination to use existing laws and court decisions to manufacture new rights for pet owners.

That's no mean feat. For hundreds of years, courts viewed animals as property, for which damages in negligence cases should be limited to fair market value. But armed with psychological studies and poignant tales, lawyers lately have had some success in convincing courts that animals should be viewed as more than property--essentially accorded quasihuman status for the purposes of assessing negligence awards against vets and kennels and deciding when local authorities can put vicious dogs to sleep.

In order to circumvent the law and award damages well beyond market value, courts employ such nebulous concepts as a pet's "intrinsic value" to its owner. In a 1995 New York University law review article, pet-owner-rights advocate Debra Squires Lee boasts that courts have either "refused to recognize animals as property or have used subterfuge to increase damages beyond market value."

That's happening with growing frequency all across the country. "We may be on the verge of a [litigation] explosion," says Gerald Tannenbaum, a professor at Tufts University Veterinary School who is an expert on veterinary and animal law.

In Kentucky, lawyer Katie Brophy last year won $15,000 in a negligence suit on behalf of a woman whose German shepherd died at a veterinary hospital where it was taken for surgical sterilization. The money was awarded in part for loss of companionship. In California, attorney Michael Rotsten won a $30,000 award against a security company for mistakenly shooting a German shepherd. These awards mark a turning point, according to legal experts and pet advocates.

Animal Legal Defense Fund head Joyce Tischler says that when she started taking vet malpractice cases the "nuisance value"--or amount insurance companies would pay to settle without a trial--was $200 or $250. Today, Ms. Tischler is pleased to report that the "nuisance value" of vet malpractice lawsuits is between $2,000 and $4,000.

Meanwhile, vets are running scared, says Prof. Tannenbaum. Insurance premiums have traditionally been quite low, in part because damages were limited to market value. But if lawsuits increase, so will insurance rates. That means higher fees for pet owners, which could push some services beyond their reach.

It's not just vets who should be worried. When communities try to use vicious dog laws to euthanize a dangerous animal, they now face lawyers with the time and money to drag out the proceedings.

California lawyer Mr. Rotsten even employs animal behaviorists to argue that the dog in question is really a misunderstood pooch. Appeals often start before town magistrates and end up in state appellate courts--as lawyers file endless claims disputing evidence, arguing the minutiae of the law and citing such constitutional claims as the denial of property without due process.

These arguments take considerable time and money and many small communities have grown weary of fighting pet owners' lawyers. In a case that dragged out for eight months and finally ended up on appeal in the Massachusetts Superior Court, animal-rights attorney Steven Wise argued that a St. Bernard accused of mauling a Lincoln, Mass., resident was just a "good dog having a bad day."

Sounds silly, but Mr. Wise won his case. In another case, Mr. Wise even called "character witnesses" to testify on behalf of a German shepherd accused of biting five people.

Rutgers University law professor Gary Francione made an even bolder argument when he represented the owners of a 110-pound New Jersey dog that was sentenced to death for biting a small girl. Stymied in numerous court appeals in a case that dragged on for three years and cost the town of Haworth $60,000, Prof. Francione eventually asked Gov. Christine Todd Whitman for clemency: "We didn't regard the dog as a simple property issue; we thought there was a moral issue: the state's procedures for dealing with canine family members was objectionable." Yes, "canine family members."

Gov. Whitman in 1994 signed an executive order saving the dog but ordering it out of state. And sure enough, like many celebrity miscreants, Taro basked in the limelight after the trial--complete with an offered movie deal, party and police escort. Taro was sent to New York--but left a considerable legal legacy. New Jersey revised its law to allow for consideration of whether dogs are "provoked" before they bite and maul. In New Jersey, mad dogs can now avail themselves of the canine-rage defense.

Attorney Steven Wise, who back in 1991 attracted attention with a lawsuit that aimed to keep the New England Aquarium from moving a dolphin, hopes that the pet-owner-rights cases will lay the intellectual groundwork for achieving full legal rights for "non-human animals." Mr. Wise's bark could prove almost as bad as his bite.

Mr. Gahr writes for The American Enterprise magazine.

Copyright © 1998 Dow Jones & Company, Inc. All Rights Reserved.

6 April, 1998