19.1 Introduction

In 2018, the Animal Legal Defense Fund and an equine rescue organization filed suit on behalf of a neglected horse against its past owner seeking monetary damages to cover the costs of the animal’s rehabilitation and care, as well as compensation for the animal’s pain and suffering. Departing from the ordinary practice of bringing suit in their own right as animal protection organizations, the two groups sought to name the horse directly as a plaintiff with standing to assert its own legal rights. The animal, an American quarter horse previously known as Shadow but renamed Justice following its rescue, had been badly neglected by its prior owner, Gwendolyn Vercher. At the urging of a neighbor, Vercher surrendered the emaciated horse to a rescue organization. She later pled guilty to criminal animal neglect under Oregon’s anticruelty statute. Justice’s civil lawsuit sought monetary damages to establish a trust fund in hopes that the financial support might enable the horse to be adopted by a new owner.

After a trial judge dismissed Justice’s complaint, the animal organizations appealed. An amicus brief authored by leading animal law experts supported Justice’s quest for legal standing, arguing that “he has a right to sue in civil court in order to recover damages in Oregon.”Footnote ¹ The brief detailed a variety of ways in which nonhuman animals already hold special status under the law as living beings entitled to be treated as more than mere property. In particular, because Oregon’s criminal anticruelty statute expressly recognizes animals as the recipients of legal protection, the scholars argued that allowing an animal victim to sue its abuser directly for civil remedies would be a “straightforward” proposition:

As of this writing, the appeal in Justice’s case was still pending, and the possibility that nonhuman animals might bring their own civil lawsuits in the United States remains an imaginative exercise only.

This chapter takes up the imaginative exercise by asking what it would look like if nonhuman animals were allowed to bring false imprisonment claims to challenge their captivity. The Anglo-American legal tradition includes a civil tort of “false” imprisonment, whereby one who acts intending to confine another without justification within fixed boundaries may be held liable, so long as the other is conscious of or harmed by the confinement. This cause of action is distinct from the criminal and constitutional law framework that governs the authority of the state to detain, investigate, or imprison. At the heart of that framework in the Anglo-American legal tradition lies the writ of habeas corpus—the so-called Great Writ that was considered by Jessica Eisen in the previous chapter along with the legal campaign to extend its protection to nonhuman animals. Like habeas corpus, the false imprisonment tort encompasses concerns regarding government overreach,Footnote ³ but also extends to confinement that is wrongfully – that is, “falsely” – imposed by nongovernmental actors. Victims of such conduct are afforded a right of civil redress against their captors, with remedies available including compensatory, nominal, and punitive damages. Thus, while the habeas corpus writ stands as a constitutional check on the state’s infringement of bodily autonomy, the tort of false imprisonment offers a common law cause of action against wrongful detention by any actor, public or private.

This chapter considers how a false imprisonment action might unfold if it were pursued by a nonhuman animal held in captivity. The exercise has the dual purpose of (1) learning how existing false imprisonment doctrine might apply to nonhuman animals if they were given standing to bring civil actions; and (2) exploring what might be learned about the current application of false imprisonment law to human plaintiffs when we engage in such an effort to “think with animals.”Footnote ⁴ As will be argued, envisioning the false imprisonment claim of nonhuman animals reveals fissures and tensions within the doctrine that go to the very foundation of legal and political organization.

19.2 The Tort of False Imprisonment

The false imprisonment tort offers a civil remedy to individuals who have been intentionally and wrongfully confined by another actor. The rationale behind the tort of false imprisonment is to recognize the plaintiff’s right to be free from unwanted, intentional interference with freedom of movement, which in the liberal legal tradition is taken to be bound up with a person’s fundamental interest in autonomy. Like other intentional torts such as battery and assault, the false imprisonment tort has deep historical roots in the common law and is considered one of the basic legal measures of protection for the plaintiff’s bodily integrity, peace of mind, and essential dignity.Footnote ⁵ As two leading American tort theorists note, “[i]f battery promises to shield individuals from being wrongfully targeted for contact by others, false imprisonment promises to free them from others’ efforts to keep them located in a particular space.”Footnote ⁶

The basic doctrinal elements of the false imprisonment tort in the United States are summarized in the American Law Institute’s Restatement (Third) of Torts:

The most interesting aspect of the false imprisonment tort for purposes of this chapter is the requirement that the plaintiff must either be conscious of the confinement or physically harmed by it. That requirement appears to set up both a subjective and an objective path to recovery for the complainant.

On the subjective path, courts are quite clear that a false imprisonment claim may be pursued even though the confinement does not cause bodily injury, pain and suffering, emotional harm, or loss of opportunity.Footnote ⁸ Indeed, a plaintiff need not prove that she would have chosen to leave the area of confinement had she not been confined. Nor does the plaintiff need to show that she understood the confinement to be wrongful.Footnote ⁹ The nonconsequentialist underpinnings of this path to liability are strong. Even if a defendant believes that the confinement is in the best interests of the plaintiff or that the plaintiff will or should welcome the confinement, the actor is subject to liability if the confinement is not consented to or does not fall within a recognized defense. The essence of the wrong from this perspective seems to be the plaintiff’s cognitive experience of the sensation of being trapped, much as the essence of the wrong for an assault is the plaintiff’s visceral feeling of nearly being physically struck.Footnote ¹⁰

When a plaintiff is not conscious of being confined, they may still recover if they are “harmed” by the confinement. American tort law owes this path of false imprisonment liability to the influential scholar William Prosser, who authored a short article in 1955 arguing that even unaware plaintiffs ought to recover when a defendant confines them without permission. In Prosser’s view, through their confinement alone, “a tort of real gravity has occurred” against such plaintiffs.Footnote ¹¹ Some prior authorities had declined to recognize liability in these circumstances, apparently believing that relaxing the consciousness requirement altogether would lead to situations in which the strong medicine of intentional tort liability would be invoked for relatively trivial invasions. Yet, as Prosser noted, cases also could be found in which infants or adults with mental disability recovered for false imprisonment despite being arguably unaware of their detainment.Footnote ¹² The line, therefore, did not appear insuperable.

The Restatement (Second) of Torts, for which Prosser served as the chief architect, balanced these various positions by expanding liability beyond cases of conscious confinement but only if the plaintiff suffers actual harm from the restriction,Footnote ¹³ a compromise approach that, as noted above, continues in the more recent Restatement (Third) of Torts. Courts have not been entirely clear in specifying what kinds of “harm” qualify for liability under this alternative doctrinal path to recovery. The obvious cases for liability include physical harms such as malnutrition or medical deterioration during a period of unaware confinement.Footnote ¹⁴ Conversely, many authorities contend that an unaware plaintiff cannot recover if they suffer only emotional, economic, relationship, or dignitary harm as a result of the confinement.Footnote ¹⁵ As the Restatement (Third) of Torts puts it, the policy considerations in favor of recovery are weaker in the case of “someone who does not subjectively experience the loss of freedom at the time when she might have exercised it,”Footnote ¹⁶ and who does not otherwise suffer physical harm. The relative weakness of the deprivation in such circumstances becomes outweighed by tort law’s general interest in avoiding adjudication of what are deemed to be minor social disputes that could be resolved outside the courtroom.

Commentators have long questioned whether Prosser’s more liberal approach of abandoning the consciousness requirement altogether should have been adopted, with the answer hinging in part on how one conceives of the interest being protected by the tort. The essential question seems to be whether, in the words of three leading torts scholars, “false imprisonment is a tort protecting a psychological perception of autonomy and not simply the denial of personal autonomy.”Footnote ¹⁷ Writing in 1957, a New York state judge reasoned that:

This basic distinction – between a tort designed to protect one’s actual freedom from confinement and a tort designed to protect one’s sense of being free from confinement – has rarely been broached in case law. Only very unusual factual circumstances or limited categories of plaintiff victims are likely to present the case of a confinee who is both unaware and unharmed.

In the case of Scofield v. Critical Air Medicine, California courts faced a near example when presented with a false imprisonment claim brought on behalf of minor children who were seriously injured in an automobile accident in Baja, Mexico, that also killed their mother.Footnote ¹⁹ Upon learning of the accident and the extent of their injuries, which were too significant to be handled by the local Mexican medical facility, the children’s father directed that they be transported to a US hospital by a specific emergency medical air transport carrier. Instead, an opportunistic third-party carrier swept in and took off with the children by representing that they were the authorized company. Although the plaintiffs were unable to demonstrate any actual physical harm to the children or awareness by the children that they were traveling in an unauthorized emergency vehicle, the court nonetheless accepted testimony by the plaintiffs’ experts that the event was actually harmful to the children because their trust in authority was irrevocably shaken upon later learning that they had been airlifted illicitly. With respect to consciousness of confinement, the court concluded that false imprisonment requires only “knowledge of the restraint or confinement at some time, whether contemporaneous or subsequent, and resulting harm or damage,”Footnote ²⁰ a holding that departed from other authorities.Footnote ²¹ It appears significant to the court’s holding that the plaintiffs’ status as injured minors rendered the simultaneous consciousness of confinement requirement inapposite, given that they lacked the information or capacity to know at the time of being airlifted that they were being wrongfully transported. What should stand in place of that requirement, however, remains unclear given that courts do not appear ready to accept Prosser’s recommendation of fully abandoning the consciousness test. The Third Restatement of Torts, despite disapproving of the Scofield result and retaining the “sensible bright-line rule” of “either contemporaneous awareness or consequent bodily harm,” nevertheless equivocates while doing so: “if compelling cases arise in the future in which the cautious approach of this Restatement proves to be inadequate, courts have the ability to develop a more expansive liability rule.”Footnote ²² The remaining sections of this chapter explore one such compelling case.

19.3 Animals Imprisoned

To shed further light on the false imprisonment tort and the particular case of the involuntary but unaware prisoner, one might look to the case of nonhuman animal confinement. Billions of animals are held captive throughout the world in farms, zoos, aquaria, research labs, and other facilities,Footnote ²³ often in conditions that “cause inescapable physical or psychological suffering.”Footnote ²⁴ Except perhaps in the case of companion animals,Footnote ²⁵ no claim could plausibly be made that the animals have consented to their confinement, whether because they are deemed to lack capacity to consent or because their behavior reveals a rather strong objection to confinement.Footnote ²⁶ Nor is there doubt that the animals’ captors have confined them intentionally. Thus, if nonhuman animals were given standing to assert civil law claims on their own behalf in accord with the legal scholars’ brief in support of Justice the horse, the only potential barrier to false imprisonment recovery for captive animals would be whether they can demonstrate either consciousness of confinement or bodily harm.

The question of whether nonhuman animals have consciousness has been given extensive scientific and philosophical inquiry. In 2012, a group of international scientific experts sought to settle that question once and for all by issuing the Cambridge Declaration on Consciousness, which stated:

Other scientists and philosophers remain unconvinced,Footnote ²⁸ in part because the nature of consciousness itself – in human or nonhuman animals – remains imperfectly understood.Footnote ²⁹ Does consciousness merely indicate the status of being awake as opposed to being asleep or in a coma? Does it indicate the sensation of having mental states like pain or pleasure, fear or hunger, desire or disgust? Does it require a thicker phenomenological experience of being subjectively aware of one’s inner mental life? Does it require coupling that awareness with an even thicker conception of one’s self as the entity holding the awareness? It is one thing to debate whether studies on animal perception, memory, categorization, communication, self-recognition, and so on constitute evidence of animal cognition.Footnote ³⁰ It is quite another to grapple with the problem of other minds in other beings, as speculation about animal consciousness requires.Footnote ³¹

Perhaps the basic question of whether nonhuman animals have consciousness can be bracketed for the false imprisonment thought exercise: even if they can have consciousness, they may not be capable of having consciousness of their confinement. That is, they may not have subjective awareness of confinement in the sense of possessing a concept of confinement and an ability to fit their perception and experience of being restricted in movement with that concept. This line of questioning requires one first to be clear on what would constitute an adequate concept of confinement. Philosophers have helpfully distinguished between (1) a comparative conception of confinement which is “focuse[d] on the size relations between the area left accessible to the individual and the area rendered inaccessible to the individual,” and (2) an agential conception of confinement which “incorporates the purposes of the agent doing the confining.”Footnote ³² By focusing on the “additional exercise of dominion over the individual” which distinguishes captivity from confinement,Footnote ³³ one might helpfully isolate what is especially psychologically troubling about the subjective awareness of being imprisoned. The essence of the wrong from this perspective is the confined individual’s awareness of the denial of her status as a coequal being with rights of self-determination, including the freedom of movement.

Showing consciousness of confinement in this sense – that is, awareness of being intentionally detained by the will of a dominating power – would require first showing that nonhuman animals have a theory of mind with which they can attribute mental states such as intentionality to other individuals. A long line of research has attempted to address this question, with debate continuing over whether the findings demonstrate that animals make actual inferences about others’ mental states or simply respond to observed behaviors.Footnote ³⁴ Again, though, the debate can be put aside for purposes of the false imprisonment tort analysis because the tort only requires consciousness of confinement in the weaker, comparative sense. That is, as noted above, the false imprisonment plaintiff does not need to demonstrate awareness of the wrongfulness of her confinement. While knowingly being confined by a dominating agent (i.e., held captive) may be more psychologically troubling than merely being confined, tort law regards the latter awareness as adequate to state a false imprisonment claim.Footnote ³⁵

Can nonhuman animals have consciousness of their confinement in this weaker sense? Undoubtedly, confinement causes behavioral and physiological responses in nonhuman animals. Whether those responses also indicate conscious awareness of confinement seems less certain and may collapse back onto the more fundamental question of whether nonhuman animals have consciousness. That question in turn depends on how demanding one makes the definition of consciousness and the standard of proof required for demonstrating it. In the extreme, even the consciousness of other humans remains an unknowable phenomenon that enters our mental life in ways that are indistinguishable from dreams. Yet most of us do not embrace solipsism; instead, we live with the working assumption that others do have consciousness. That working assumption enables us to regard those others as beings with “values, preferences, aims, principles, autonomy, and personal beliefs.”Footnote ³⁶ That regard in turn enables us to see them as subjects who matter, who hold interests, and who can make a claim on us to treat them accordingly. It is curious that this working assumption is not generally extended to nonhuman animals, as evidenced both by the philosophical tradition of mechanism that extends from Descartes to today’s laboratories and industrial farms, and in the Anglo-American legal tradition that generally regards nonhuman animals as mere objects of possession, rather than as subjects with interests and entitlements. This is not to suggest that nonhuman animals lack consciousness as an actual fact, but rather that – for purposes of legal analysis – the deck is stacked against that conclusion.

One area in which the law has evolved to offer greater protection for nonhuman animals is in the area of anticruelty statutes, such as the Oregon laws that were used to prosecute Gwendolyn Vercher.Footnote ³⁷ Whether these laws unequivocally recognize nonhuman animals as subjects with their own entitlements is historically debatable and still varies from jurisdiction to jurisdiction.Footnote ³⁸ In many cases, the laws seem animated by a concern over how animal cruelty impacts humans and the manner in which humans treat one another, rather than with interests of the nonhuman animals for their own sake.Footnote ³⁹ Nevertheless, the focus of such laws is on the treatment and well-being of nonhuman animals, which suggests that a more sure route to recovery for the nonhuman false imprisonment claimant may be to focus on physical harm, rather than on consciousness of confinement. After all, ample scientific evidence establishes that negative welfare effects occur in animals from being confined depending on the species involved and the conditions of confinement. Even without overtly inflicted pain such as through vivisection or animal husbandry practices, harm may still result through confinement alone in the form of weight loss, chronic stress, lethargy, aggression, compulsive pacing, self-mutilation, and so on. Such harms typically do not suffice to establish an animal-cruelty violation in the case of animals confined for agriculture, research, or entertainment, either because the relevant statute exempts such animals entirely from coverage or because the harms would not be considered “unnecessary” in light of the benefits to humans generated from the confinement and use.Footnote ⁴⁰ For the false imprisonment tort – assuming it was made available to nonhuman animals – no such exemptions would be available to the defendant. Intentional confinement that results in bodily harm alone would suffice to establish liability and no amount of offsetting benefit could excuse the violation. Because “keeping animals in actual captive conditions often causes them to suffer injuries and other physical harms,”Footnote ⁴¹ it would seem initially that a great many captive animals could successfully press their false imprisonment claims. For instance, consider the case of a cetacean stolen from the wild and forced into a decades-long life of isolation and confinement for the amusement of aquarium visitors. That scientists may advise against releasing her into the wild following her lengthy incarcerationFootnote ⁴² should not detract from the fact that her particular life course has been irreparably altered and harmed due to her confinement.

A potential problem for some classes of nonhuman claimants may be that the harm-based branch of false imprisonment liability is amenable to different accounts of the relevant baseline of well-being.Footnote ⁴³ On many of these accounts, despite suffering harm through captivity, the animal may still appear to be better off overall, giving rise to what Lori Gruen aptly terms “dilemmas of captivity:”

Although some criticize this “wilderness baseline view” as setting “an implausibly low standard,”Footnote ⁴⁵ it is not hard to imagine a court finding refuge in its logic when faced with a false imprisonment claim on behalf of zoo, sanctuary, or companion animals. For instance, an analysis of more than fifty mammal species found that 84 percent lived longer in zoos than in the wild, a disparity the researchers attributed to protection against disease, competition, and predation afforded by zoos.Footnote ⁴⁶ A court might easily cite such research as evidence that confinement, at least in certain facilities such as zoos, does not lead to a welfare detriment over existence in the wild. Even for those species that would have lived longer or more fulsome lives had they been born outside of captivity, there remains the problem of adaptation: for captive-bred animals, release into the wild may not be beneficial to their particular life courses, even if a wild existence would have been preferable in the abstract.Footnote ⁴⁷ Unlike the cetacean referenced above who was caught from the wild, the captive-bred animal does not have ready recourse to a counterfactual life of nonconfinement. Their counterfactual instead is one of nonexistence. Similarly, when presented with the claims of domesticated farm animals, it is hard not to see a court cabining the harm analysis by noting that the animals would not exist at all but for their domestication, confinement, and use by humans. From that perspective, it would seem that – so long as their lives are minimally worth living – such animals have not been harmed in a causal sense by being bred into a confined existence. Confinement is their existence.

Are the lives of captive-bred animals minimally worth living – not for us, but for them? The question throws us back into the vagaries of consciousness and the dilemma of whether we can ever know what it is like to be a Milking Shorthorn.Footnote ⁴⁸ When we regard the lives of animals on industrial farms as miserable and perhaps not worth living, we do so inevitably through our subjective viewpoint and without direct access to theirs. To be sure, the practices of industrial animal agriculture are sufficiently brutal as to make compelling the thought that many livestock animals would be better off dead, whether or not we can inhabit their consciousness when facing the question. But in the analogous context of “wrongful life” claims brought by human plaintiffs, where a physician’s negligence is alleged to have caused a parent to lose the opportunity to terminate a pregnancy that results in a severely disabled child being born, courts have shown great reluctance to engage the question of whether the child is worse off for having been born. Such claims, which are brought in the name of an infant for its own alleged damages, require courts to “compare the value of nonexistence – the state that [a child] would have been in but for defendants’ alleged negligence – and the value of his life with [a condition or disability].”Footnote ⁴⁹ Courts routinely decline to engage in such searching philosophical analysis: “[s]imply put, as a matter of law, that comparison is impossible to make.”Footnote ⁵⁰ Given such reticence in the human “wrongful life” context, one suspects that courts would likewise balk in the nonhuman context and instead simply hold that captive-bred animals have not been harmed so long as their captors comply with minimum applicable animal protection statutes and regulations. Especially considering the vast economic and political stakes involved in deeming industrial animal agriculture tortious, the tendency of courts to outsource decision-making responsibility to the other branches of government in such a manner would be great.Footnote ⁵¹

Harm in the sense of being better off not existing at all is harm of a philosophical rather than a physical character. As noted above, in all but the rarest of cases, courts have been reluctant to extend the concept of harm beyond tangible bodily injury in the false imprisonment context. Returning to the case of Scofield v. Critical Air Medicine is instructive. In that case, the court credited expert testimony that the children suffered subsequent psychological harm upon learning that their emergency medical transport was unauthorized. But this ground felt somewhat speculative,Footnote ⁵² and the court went on to note that, in California, the minor plaintiffs could recover for nominal damages even without a showing of actual harm. False imprisonment, the court stressed, is a “dignitary tort,” and the “purely nominal” harm of being denied one’s “personal interest in freedom from restraint of movement” suffices to support liability.Footnote ⁵³ Although the court did not go this far, its reasoning would seem to support recovery for the unharmed plaintiff who never becomes conscious of her confinement, whether contemporaneously or subsequently. As argued in the next section, the dignity impairment in such a case would take on a new structure, one that might be of relevance to confined nonhuman animals.

19.4 The Indignity of Confinement

The false-imprisonment tort remains inchoate and confused because it rests on a dichotomy of freedom and confinement that is inadequate to the normative task it is being invoked to resolve. The Restatement (Third) of Torts discounts the unaware victim of false imprisonment as “someone who does not subjectively experience the loss of freedom at the time when she might have exercised it.”Footnote ⁵⁴ But whether she holds a freedom of movement to exercise in the first place depends in substantial part on what forms of restraint the law will recognize as wrongful. Her lack of subjective awareness of the deprivation is made to seem more significant – and damning to her claim – because tort law has defined her experience from the outset as not being one of real deprivation. This circularity becomes unsettling when the false imprisonment doctrine is applied to those individuals who cannot be imagined ever to meet the standards of the doctrine, whether because of age, impairment, or innate characteristics. In such cases, the alterity of the other living being – and the possibility that they might flourish in ways other than standard humanistic ideals of autonomy and self-determinationFootnote ⁵⁵ – is not seriously considered. They appear to us as mere “moral patients” rather than moral agents, worthy of some “moral attention and concern”Footnote ⁵⁶ but not as fully agentic equals.

The fact that power and domination exist in the world and are used to confine living beings is unsettling, whether or not those others are aware of their treatment or are tangibly harmed by it. In his Essay Concerning Human Understanding, John Locke posed the case of someone who was carried, while deep asleep, into a room where they woke to find a person who they had longed to see and speak with, which they immediately did upon waking. Unbeknownst to the individual, the room the two were in was locked and their freedom of movement curtailed. Locke asked whether their liberty has been violated, despite their lack of awareness. His answer is telling as it focuses attention unequivocally on power and control by the confiner, rather than on the capacity and psychological awareness of the confined:

Here we learn much from thinking with animals. Even if we grant the deflationary case that animals do not have consciousness or preferences such that they can be aware of or object to confinement, and even if we accept the skeptical view that many captive animals are not harmed physically in comparison to their most likely alternative existences, we might still accept the argument made by leading animal ethics theorists that the dignity of animals is impaired when they are confined in ways that are inconsistent with their essential being.Footnote ⁵⁸ Confinement forecloses full realization of “the unique capacities that other animals possess,”Footnote ⁵⁹ depriving both the animal and the world of the fullness of their existence. The elephant born and reared in captivity may not know that her wild counterparts live a different reality, roaming many miles a day in complexly interrelated and communicative herds. But the counterfactual seems to demean her existence, whether or not she knows. The fact that she might not have lived at all but for the confinement does not forgive the insult.

The philosopher Angela Martin argues that nonhuman animals are not the kinds of beings that can be wronged in the manner just described. In order to be disrespected, she argues, someone must act toward another in a way that is inconsistent with their preferences. Because most animals are not capable of forming preferences, she asserts, they cannot be humiliated or disrespected.Footnote ⁶⁰ From this perspective, the harm that arises when nonhuman animals are placed in conditions of un-freedom might not be a harm that is personal to the individuals confined. Instead, it might be a harm that accrues to all of us from witnessing their condition of indignity. Lori Gruen’s notion of relational dignity is useful here: “Rather than focusing on the worth of individual rational agents making autonomous choices, a relational conception of dignity brings into focus both the being who is dignified and the individual or community who value the dignified in the right ways.”Footnote ⁶¹ As Gruen further observes, “[d]ignity, understood relationally, can be compromised or undermined even when the individual whose dignity is at stake does not object or complain”Footnote ⁶² – or, one might add, even when the individual does not have awareness of the treatment or condition that insults their dignity. From this perspective, the locus of concern in the case of the unaware victims of confinement may be less the harm that inures to them and more the harm that visits those of us who bear witness to their deprivation and who shoulder the responsibility of deciding their fate without recourse to familiar liberal concepts like autonomy, preference, and choice.Footnote ⁶³

In the liberal individualist tradition of the Anglo-American legal system, such relational or collective sentiments find little purchase. To illustrate how far removed mainstream legal thought is from the philosophical tributaries explored in this chapter, two closing examples from the Restatement (Third) of Torts are offered. First, in acknowledging the worrisome gap created by the false imprisonment doctrine’s requirement of either bodily injury or consciousness of confinement, the volume notes:

The use of the term “free prey” was likely innocent. But it is hard not to extend that language to, say, industrial farm animals who are indeed deemed “free prey” by the legal system so long as minimal standards of harm-prevention are maintained prior to their slaughter.Footnote ⁶⁵ Such denial of agency and personhood may be more troubling in the case of differently abled human subjects, but it does not eliminate entirely the trouble with respect to nonhuman animals. Whenever a legal system denotes living beings as “free prey,” a profound exercise of power has occurred.

Second, a hypothetical illustration from the Restatement (Third) of Torts is particularly revealing:

Edward and Peter are both human subjects. Peter may well be in danger; we do not know from the facts of the hypothetical because we are not told what other animals share the cage with Peter. But these missing facts do not matter because the law sees Edward as a complete stranger who bears no responsibility for Peter’s confinement and therefore holds no duty to assist Peter toward safety and liberation.

Putting aside the dissonance in the illustration’s failure to acknowledge the layers of human and nonhuman confinement, the hypothetical even on its own terms shows how far humans are willing to pursue the fantasy of self-determination. The maximal freedom afforded to Edward to pursue his life course without being interrupted by the needs of others apparently includes the freedom to become a moral monster, if he so chooses. Unlike the inarticulate pleas issued by encaged nonhuman animals, Peter’s call for help is unmistakable and directed personally at Edward. Still, an accommodating legal system helps exonerate Edward from responsibility by defining Peter a priori as a stranger and by viewing Peter’s act of dropping the keys as the proximate cause of his just deserts.

This airtight system of right and responsibility – a system “so perfect that no one will need to be good”Footnote ⁶⁷ – is haunted by those living beings who fail its criteria for full membership, yet whose existence still makes an undeniable claim on our concern. To identify “false” imprisonment, one might instead begin by asking what constitutes “true” or lawful imprisonment. To ask that question, though, is to raise fundamental issues regarding the state’s membership and legitimate scope of authority, including how it came to be that nonhuman animal confinement is presumed to constitute “true” imprisonment absent some extraordinary showing to the contrary. The case in favor of the existence of animal consciousness and the grave welfarist and dignitary impairments caused by animal confinement is strong, yet the legal system has ample intellectual reserves with which to parry such conclusions and to construct nonhuman animals instead as “free prey.” Whether or not they are conscious of their confinement or physically harmed by it, however, nonhuman animals are confined, and their lives are accordingly limited and directed by human power. The more pressing consideration should therefore be our consciousness of their confinement and how we choose to respond to it.

19.5 Conclusion

A central puzzle of Anglo-American false imprisonment law is how to explain why no legal recourse exists for an individual whose dignity is denied through confinement but who is neither conscious of the confinement nor harmed by it. A possible answer to that puzzle can be found in the experience of nonhuman animals and the indignity that we all experience when we contemplate seriously their lot. The fact that we cannot at present identify a legally eligible individual within which to locate the harm suffered by confined nonhuman animals should not be taken to mean that the harm is not real. Instead, it should cause us to question the reality of our framework for identifying and locating harm.