Oregon Court Orders Debarking Surgery for Dogs

Oregon Court Orders Debarking Surgery for Dogs.

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An incessantly barking dog can certainly be an annoyance. But can a court order surgery to prevent a dog from barking? A recent decision from the Oregon Court of Appeals upholds a trial-court order that does just that—requires the defendant’s dogs to undergo debarking surgery to prevent future barking.[1]

The trial court order arose in a nuisance suit between neighbors. The defendants, Karen Szewc and Jon Updergraff, began breeding Tibetan Mastiffs in 2002 and claimed that they operated a farm where the dogs were used to protect the sheep. The plaintiffs, Dale and Debra Krein, filed suit in 2012, alleging that the dogs barked incessantly for extended periods of time, typically when Szewc and Updergraff were absent from the premises.[2] The Kreins claimed that the barking routinely woke them, discouraged friends and relatives from visiting, and upset their children.[3] The nuisance suit sought damages for extreme nuisance from 2002 to 2012 and an injunction preventing the defendants from keeping dogs that bark and disturb their neighbors. After the defendants’ farm-use defense was rejected, the jury awarded the Kreins $238,942 in damages and the trial court issued an injunction requiring that all of the dogs on the defendants’ property, both at present and in the future, undergo “total devocalization by board certified veterinarian surgeons.”[4]

The defendants appealed the injunction on multiple grounds, including an argument that the award of damages showed that the Kreins had an adequate remedy at law and therefore were not entitled to the injunction. In its recent opinion, the court of appeals explained that the damages addressed the past nuisance but were not an adequate legal remedy to ensure the elimination of future barking. Because the defendants failed to adequately address the dogs’ barking in the past, the court upheld the injunction as a necessary measure.[5] It is not yet known whether the defendants will appeal to the Oregon Supreme Court.[6]

Although the defendants’ appeal did not specifically attack the appropriateness of debarking as a remedy, animal rights groups have expressed concern over the court of appeals’ decision.[7] Debarking, or devocalization, is a “surgical procedure in which parts of a dog’s vocal cords are cut out in an effort to lower the volume of its barks or, more severely, to eliminate the dog’s ability to bark altogether….”[8] The American Society for the Prevention of Cruelty to Animals opposes the procedure and gave a statement that it does not condone exposing pets to unnecessary discomfort and risk to circumvent behavioral issues.[9]  The Oregon chapter of the Humane Society of the United States was surprised by the ruling and stressed that there are other remedies, such as sprays, to address nuisance barking.[10] A few years ago, the organization supported a state bill to ban debarking surgeries, but the bill was ultimately unsuccessful.[11] Six other states currently have laws that ban debarking surgery in certain contexts.[12]

For information on injunctions under Texas law, see O’Connor’s Texas Rules * Civil Trials. And for information on nuisance claims in Texas, see O’Connor’s Texas Causes of Action.

[1] Krein v. Szewc, ___ P.3d ___ (Or.Ct.App.2017) (No. 418A159610; 8-30-17).

[2] Id.

[3] Aimee Green, Owners Must Surgically ‘Debark’ Loud Dogs, Court Rules, Oregonian, Aug. 31, 2017.

[4] Krein, ___ P.3d at ___.

[5] Id.

[6] See Green, Owners Must Surgically ‘Debark’ Loud Dogs, Court Rules; Reuters, Activists Decry Oregon Court Ruling to ‘Debark’ Dogs, Aug. 31, 2017.

[7] See Travis M. Andrews, Oregon Court: Couple Must ‘Debark’ Dogs – Cut Their Vocal Cords – After Neighbors Complain, Washington Post, Aug. 31, 2017; Reuters, Activists Decry Oregon Court Ruling to ‘Debark’ Dogs; Debra Cassens Weiss, Order for Debarking Surgery in Dog Nuisance Suit is Upheld on Appeal, ABA Journal, Aug. 31, 2017.

[8] See Andrews, Oregon Court: Couple Must ‘Debark’ Dogs – Cut Their Vocal Cords – After Neighbors Complain.

[9] Reuters, Activists Decry Oregon Court Ruling to ‘Debark’ Dogs.

[10] Id.

[11] Green, Owners Must Surgically ‘Debark’ Loud Dogs, Court Rules.

[12] American Veterinary Medical Association, State Laws Governing Elective Surgical Procedures (last updated July 2017).