Dog Bites, Custody Battles and Access to Justice

Kristina Bergsten has always loved animals, but she didn’t expect to build her legal career around them. After graduating from law school at Ohio State University, she moved to Philadelphia and started working for a family law firm. The attorneys there asked if there were any other areas of law she was interested in exploring.

“I cannot tell you why I said ‘animal law,’” Bergsten said. “But we put it on the website. And then, all of a sudden, our phone was going crazy with people calling because their neighbor stole their dog and they’re getting into fistfights.”

She later moved to Colorado, intending to work for a tax resolution company while she networked and transferred her law license. The job didn’t work out, but an acquaintance offered to rent her an office at a price she couldn’t refuse, so she decided to start her own practice.

Bergsten planned to practice criminal defense, but she advertised her animal law experience as well and “started getting calls left and right” from people seeking animal-related advice. “I should have realized that Colorado is really dog-friendly,” she said, recalling her surprise at the amount of interest. She eventually dropped criminal law and started focusing exclusively on animal issues. Her Denver firm, The Animal Law Firm, opened in 2017.

But what, exactly, is animal law? For Bergsten, it’s a lot of dog bite defense, which she estimates makes up about 60% of her cases. Pet custody cases account for another 30%, she says, and the rest is a mix of service animal representation, homeowners’ association issues, veterinary malpractice and breeder contract disputes.

Alexa Carreno and Jeremy Mckay of the non-profit firm Environmental and Animal Defense say “dangerous dog” challenges are also the most frequent type of animal case they see, at least at the state level. But their work runs the gamut from Endangered Species Act cases to veterinary malpractice to helping shelters recover foster animals when caretakers don’t want to give them back.

“It means we practice a lot of different areas and a lot of different fields of law,” Mckay said. One day it could be transactional work on contracts for an animal rescue and the next day it might be Clean Air Act litigation at an appellate court. “You never know what to expect, and you kind of have to be ready for everything.”

Animals, Money and Access

Mckay and Carreno met at the University of Denver Sturm College of Law, where they were enrolled in an LLM program in environmental and natural resources law and policy. They both participated in the school’s environmental law clinic and worked on an Endangered Species Act case together. After graduation, they teamed up to start a non-profit firm in Denver.

One of the key principles behind Environmental and Animal Defense is access to justice. The organization is supported in part by donations and offers sliding-scale, flat-fee and unbundled services to those who qualify. The firm aims to serve people who can’t afford full-priced legal services but don’t qualify for free legal aid.

“There is this gap where there’s a lot of lower middle-class people who really love their dogs and pets, they’re facing impoundment and they want to fight for them,” Carreno said. “But they just don’t have the budget to pay a traditionally priced attorney and also wouldn’t qualify for a public defender.”

It’s not just human pet owners who face an access to justice problem, Carreno added. There’s also a justice gap when it comes to which types of animals and cases get representation. Environmental and animal non-profits usually work on the issues that garner the most public support, which often means saving the elephants or banning puppy mills. Meanwhile, Carreno said, “your average pit bull in Aurora” won’t attract the attention of a high-profile, well-funded organization.

According to Mckay, legal nonprofits that focus on animal advocacy typically do so at the national policy level. “You’re not focusing on individual animals. You’re focusing on species and ecosystems and natural habitat and oil spills,” he said. “We wanted to contribute in a way that wasn’t redundant or superfluous to what everyone was already doing,” he added, so they differentiated themselves by advocating for one dog, cat or chicken at a time.

But their unique approach comes with difficulties, namely money. “Money is a big challenge for us. It’s hard to solicit donations,” Mckay said. Even though their work overlaps with several issues people care about, including the environment and criminal justice, many prefer to donate to bigger, better-known organizations. Plus, Mckay added, defending dangerous dogs isn’t the sexiest work. “The optics of it are not terrific for criminal defense work, and it’s hard to make that pitch to a lot of people,” he said, adding that the time they must spend asking for money or applying for grants is time they can’t spend representing clients.

Limits of the Law

Another challenge of animal law, according to Bergsten, is that the laws weren’t necessarily written with animals or animal behavior in mind. But that’s also part of what makes it rewarding.

“I’m applying laws that weren’t meant to address animal situations and coming up with creative ways to get the resolution my client is looking for — something that’s fair, something that’s animal-centric,” Bergsten said. “So, it’s fun because I get to be a little creative in the law, which sometimes I feel like the law doesn’t let you do.”

For example, she said, she has had success using replevin actions to get pets returned to clients. Replevin arose in medieval times to allow plaintiffs to recover property, often livestock, that had been wrongfully taken by another person. “I started using it in Philadelphia to get dogs back because they’re property,” she said, adding she sometimes has to educate judges on why the process makes sense in cases involving pets.

Bergsten said her clients have also claimed breach of contract in custody cases involving an ex-partner who arranged to share a pet after a breakup. “We’ve had some success with that, which is kind of surprising,” she said. “It’s not what these legal doctrines are created for, but it’s what we’re using them for.”

She said she enjoys her dog bite cases the most, which allow her to “work in the minutiae” of different ordinances and state statutes. But she’s not a fan of the laws themselves. “The dog laws in Colorado expect human-level understanding of a situation that a dog perceives as a threat,” Bergsten said. “And then it punishes the dog for that behavior.”

If a dog bites another dog or a human in Colorado, it’s a third-degree misdemeanor for the owner, Bergsten said, which carries up to a year in prison, though she has never seen an owner get locked up for it. “It’s a serious offense and it’s a strict liability offense,” she said. That makes it hard to get a plea deal, a “not guilty” verdict, or a dismissal of the case, she added, “Because the law, as written, is: If your dog bites, your dog is guilty.”

“My main problem with Colorado’s dog laws is that I feel like they punish the dog more than they punish the human,” Bergsten added. “And I feel like it doesn’t really provide any sort of justice — it provides revenge.”

However, when it comes to animal protection laws, Carreno noted, Colorado compares favorably to its neighbors. In 2020, the Animal Legal Defense Fund ranked Colorado fourth overall in the nation for animal protection laws. These include laws restricting an abuser’s access to animals and laws requiring veterinarians to report suspected animal cruelty.

Meanwhile, New Mexico ranked 50th on ALDF’s list. The state is one of four without a prohibition on sexual assault of animals. It also doesn’t have any statutorily authorized bans on animal possession for people convicted of animal cruelty. The other states in the Mountain West don’t fare much better. Wyoming ranked 49th, Idaho was 48th, Utah was 45th and Montana was also in the bottom tier at number 37.

“But our opinion is you could be number one and still have a lot of room for improvement,” Carreno said.

“There is no place in the United States with great laws that protect animals. They’re pretty abysmal across the board,” Mckay added. “There’s definitely a metric of comparison that suggests that Colorado is much, much better than many other states, but I don’t think that makes us great by any means.”

The attorneys said there have been some encouraging changes and trends in the law in Colorado, including the elimination of breed-specific restrictions and more opportunities for rehabilitation, rather than euthanization, for dogs that have bitten someone. Earlier this year, the Colorado legislature passed a law banning performances by certain animals, including dolphins, wild cats, non-human primates, elephants and bears in circuses or other traveling shows.

In other states, advocates have pushed for legal personhood for animals. The Nonhuman Rights Project has secured court victories in New York recognizing the rights and legal personhood of chimpanzees and elephants.

Carreno and Mckay are currently teaching a DU Sturm College of Law course on animal rights, jurisprudence and practice, which covers many of the recent changes in the law. They also contributed a chapter to the book “What Can Animal Law Learn from Environmental Law?” on a concept they developed called “animal socioequality.”

“I’m happy to be involved with the development of the philosophy and discourse around animals and the consideration of their interests, even to a small extent,” Mckay said.

Carreno added that she likes to talk with and answer questions from law students or recent graduates who are interested in animal law. “I think the field is small enough that people need direction and it can feel like it’s already saturated, even though it’s still growing.”

Reference – Dog Bites, Custody Battles and Access to Justice All in a Day’s Work for Animal Law Attorneys