Hounded, Cowed, & Badgered

Cts in January: PETA workers littered; horse slaughter ban valid

Two PETA workers were prosecuted in North Carolina for cruelty, obtaining property by false pretenses, and littering. They admittedly killed dogs and cats and disposed of the bodies as part of the organization's animal control project. Animal users and their mouthpieces, like the misleadingly named Center for Consumer Freedom (which offered the most complete coverage at PETA Kills Animals) thumbed through thesauruses for different ways to say "hypocrites!" The cruelty case had no legs--the workers injected the animals with sodium pentobarbital, which is frequently used by vets--and the workers eventually were only found guilty of littering for disposing of the bodies in a dumpster. The fact that this was a selective, political prosecution should not deter PETA members (present company included) from questioning why the organization is in the euthanizing business in the first place.

Animal rescue Farm Sanctuary lacks standing to sue a pork producer for its use of confining crates, a California appellate court held. The unpublished opinion is titled Farm Sanctuary, Inc. v. Corcpork, Inc. (pdf, html cache). The decision hinges on a relatively straightforward reading of a law that limits the pool of consumer fraud plaintiffs to anyone "who has suffered injury in fact and has lost money or property as a result of such unfair competition." As we've noted before, after the passage of Proposition 64, which imposed this requirement, animal advocates have been recruiting those hyped "conscious" animal product consumers as plaintiffs. More evidence that, for the purposes of standing, vegans make bad plaintiffs.

An Indiana appellate court upheld the state's hunter harassment law. Shuger v. Indiana (pdf, html cache). The law, Indiana Code 14-22-37, prohibits a variety of nonviolent but possibly annoying activities intended "to prevent or hinder the legal taking" of a game animal.  The defendants, who noisily drove by some hunters, argued the law hindered their First Amendment rights. The court found that the law was tailored (sometimes "narrowly," sometimes "sufficiently") to the State's interests in hunter and protester safety and game population management. The court relied heavily on Hill v. Colorado, a U.S. Supreme Court case which okayed a Colorado law aimed at anti-abortion activists.

Texas's (unenforced) ban on selling horsemeat for human consumption is valid,the Fifth Circuit U.S. Court of Appeals held. Empacadora de Carnes de Fresnillo v. Curry (pdf, html cache) (hat tip: An Animal-Friendly Life). The court found that the law was not implicitly repealed, preempted by the Federal Meat Inspection Act, or in conflict with dormant commerce clause cases. If this law is enforced, it would leave Illinois's Cavel International as the only slaughterhouse that kills horses for food in the U.S. If the Illinois legislature can distract its attention from such nonissues as Internet hunting, maybe the states can end this practice. The U.S. Congress has been singularly inept at doing so; put "horse slaughter" in the search box to the right and follow the trail of failure....

The owner and employees of an Ohio hog farm were charged with cruelty, and pled not guilty. This is news because prosecutors rarely charge people for abuse of animals used for food and courts and legislators have excepted agricultural practices from the scope of cruelty laws. (Ohio law, for instance, requires a confined animal be given shelter, but excludes animals "impounded or confined prior to slaughter." Ohio R.C. 959.13.) According to an article in the Columbus Dispatch (link above), the farm owner and employees are charged with cruelty for both negligent and intentional conduct. The Humane Farming Association drew attention to the abuses at the Wiles Farm, including a pig killed by hanging. The defendants face only misdemeanor charges, because Ohio's felony law applies only to people who repeatedly commit the worst acts of cruelty ("torture, torment," etc.) against companion animals.

A Washington court okayed charges for cops in Taser killing of a calf. As a quote from local hero Adam Karp notes, this is a rare prosecution because it involves a police officer killing an animal and because it was initiated by a citizen complaint and opposed by prosecutors. The prosecutor's office is challenging the citizen complaint law as invading executive prerogative.

Congress bolsters anti-activist law

According to Will Potter at Green Is The New Red, the Animal Enterprise Terrorism Act has passed the House. The bill expands and increases the penalties for "animal enterprise terrorism," a federal offense created to protect institutional animal users. It passed the Senate at the end of September, and since then most major animal advocacy groups (including the ASPCA!) have been lobbying against its passage by the House.

Potter runs through the short debate that occurred in the House, including dissenting words by Rep. Dennis Kucinich and the shocking statement by one representative that the ACLU has approved the bill. This letter from the legislative office of the ACLU confirms that it has backed away from its earlier, sound criticism of the bill. The ACLU's proposed "minor changes," which waltz around the viewpoint discrimination implicit in the bill, do not befit the organization's hard-core free speech principles. We are mortified.

We've noted before on this site the changes in the new law, e.g., useless First Amendment disclaimers, an expanded list of protected institutional "victims," but Potter says it much better than we could, and also notes some other problems at his analysis of the original bill and as it passed the Senate. For instance, the legislation now criminalizes actions which "instill in another the reasonable fear of serious bodily injury or death." It used to be that you needed to cause economic damage or hurt a person.

One odd thing that we hadn't noticed was a clerical amendment which, to some extent undercuts the hysteria (unreasonable fear?) used to pass this bill. As noted above, the section heading for the offense used to be called "Animal enterprise terroism" but is now  "Force, violence, and threats involving animal enterprises." We'd like to read this is as a tacit acknowledgment that (with very, very few exceptions) even the most radical AR activists in this country cannot credibly be called terrorists.

Update: The bill was passed by voice vote. The brief debate, as recorded in the Congressional Record starts at H8590.

In da courts, in da statehouses, in da papers (catching up edition)

Since the posting pace has slackened, HC&B has no doubt missed much. To round out 5766, a rundown of recent animal law stories. It's a hodgepodge.

• (Anti-)circus news: S. 2699, a bill which would ban circuses (but not zoos) from using on elephants either 1) items which "may reasonably result in harm," harm being defined fairly expansively to include items which "pinch", or 2) restraining chains, has passed the Massachusetts Senate and is making its ways through committees in the House. One wonders whether circuses can control/exploit these animals without hurting them. Also, advocates in San Jose can protest Ringling Bros. outside the HP Pavilion. (Hat tip: An Animal-Friendly Life.)
• Experts on animal custody disputes post-Katrina: Steven Wise in the Austin American-Statesman: "The argument that the dogs have been abused is, at its heart, an argument about class and racism." Also, David Favre, quoted in the Concord Monitor: "The law is absolutely muddled."
• Into the mainstream ... The New York Times discovers animal law (reprinted at Book of Joe). Despite some missteps--an emphasis on the quirky, the idea that pets are not considered property in some states--this is a decent introduction to the issues involved in companion animal law practices. Also animal lawyers come in #9 on the "10 Hot Jobs for 2007."
• A grand jury refused to indict under a NY aggravated cruelty statute criminalizing "intentionally caus[ing] serious physical injury" when defendants allegedly slit a dog's throat and threw him out the window of a car.
• A bill has passed the California Legislature which would let the department of consumer affairs regulate pet stores. (Hat tip: GEARI.) Per the Bee, the legislation which passed was a compromise with pet stores, which "prefer to negotiate the specifics with a regulatory agency instead of the Legislature." Sweet capture.
• Michigan's first vet mal case (and some legislative reform brewing).

3 of SHAC 6 sentenced

The three members of the SHAC 6 facing the most jail time have been sentenced today to between four and six years in prison for their roles in a website which which advocated harassing Huntingdon Life Sciences and its employees (Hat tip: SuperVegan) (Background: the conviction, Huntingdon cruelty). Word after conviction was that some defendants faced up to 23 years. Given that no one was seriously injured (or injured at all?) by the criminal acts purportedly caused by the defendants, each would be facing up to three years for each count of animal enterprise terrorism, 18 U.S.C. 43(b)(2), five years for each count of interstate stalking, 18 U.S.C. 2261A, 2261(b)(5), and two for each count of telephone harassment, 47 U.S.C. 223(a). The sentences handed down seem shrewd, in that they are punitive enough to scare future activists, but not so harsh as to create the impression that the federal government is throwing away the key on folks whose crime was maintaining a website against a politically powerful corporation. They may not be throwing away the key, but any jail time on these charges is bogus.

The Scientist notes a related development, the introduction of a compromise bill (S. 3880) on tertiary targeting (background). As the article points out, the law excludes from its definition of "economic damage" "any lawful economic disruption (including a lawful boycott) that results from lawful public, governmental, or business reaction to the disclosure of information about an animal enterprise." As with another "exception" in the Pennsylvania anti-activist law, this provision is more rhetorical than substantive. Whew, "lawful" disruption, boycotts, and reactions are not illegal.

The account in the Times (linked above) notes that one of the three defendants sentenced today, Lauren Gazzola, intends to be a lawyer. The animal law bar welcomes her! Well, we do.

Mass. court strikes down pro-dog initiative

In a recent opinion, the Massachusetts Supreme Court rejected the state attorney general's approval of an initiative which would have increased penalties for offenders who injure certain working dogs, expanded the ability of officers to seize dogs used in fighting, and banned dog racing in the state. (Hat tip: Joyrati). You may recall supporters of a ban were outspent in a previous attempt to ban dog racing. The court's decision in Carney v. Attorney General accepted the racetrack's claim that the initiative violated a provision of the state constitution which limits initiatives to subjects "which are related or which are mutually dependent."

The court devotes more of its analysis to recounting the stirring story of how the relatedness language was enacted in 1918 than it does looking at the initiative before it. Although some parts of the history support the 2006 court's conclusion, e.g., a lone comment by the clause's sponsor indicating the language was meant to combat the "hitching" of less popular provisions below more popular ones, some of the history cuts the other way, namely comments indicating that the relatedness clause was mean to combat "well-financed" special interests. Although the racing industry has relatively less political and financial power than other animal abusers, the plaintiffs, as noted above, are much better financed than anti-racing advocates. Grey2K is surely not the sort of big business lobbyist whose influence the language was intended to fight.

When it finally gets to the initiative itself, the court's analysis is lean, imagining a hypothetical voter who would support increased penalties for animal abuse but not a ban on dog racing, and a voter whose opinions run vice versa. In doing so, the court does not pay even lip service to the claim that dog racing is bad for dogs (it is), instead highlighting the industry's "legitimacy" and alleged economic benefits. Why stop there? Isn't it possible to imagine a law-and-order type who thinks it is important to increase penalties for abuse of police dogs but not service dogs? A court can imagine a voter with any preferences, but doing so strays from precedent that an initiative should be upheld if the subjects are "reasonably be said to be germane" to one common purpose. It is, of course, line-drawing, but it doesn't seem unreasonable to us to group these subjects together.

The court further notes, without authority, that the initiative impermissibly mixes civil and criminal matters.  Anyone who studies animal law knows that the law of animals in the U.S. is fragmented. A dog may be covered by legislation involving torts, licensing, trusts, zoning, and criminal laws, to name a few. In the absence of a comprehensive solution to animal abuse (say, abolition of the use of animals), why should animal advocates' hands be tied by a court that refuses to see the common purpose of reform in this fragmented legal landscape?

Louisiana limits whistleblower remedies, may end lab investigation

Louisiana governor Kathleen Babineaux Blanco has signed into law H.B. 311 [pdf], which would prevent the state's board of ethics from taking action in whistleblower cases when a lawsuit is pending. (Hat tip: Project R&R.)  As the Animal Protection Institute's action alert notes, the board filed a charge last year against the head of the "animal resources" department of a state research center regarding allegations of retaliation against Narriman Fakier. According to this filing, Fakier was forced to resign after objecting to a variety of abusive acts in the agency, including refusal to provide information to prosecute an employee who had burned a chimpanzee, isolating young chimps, and housing monkeys outside, which led to several deaths by exposure.

With the warning that we don't know Louisiana and/or administrative law, it appears the board can impose some relief similar to the sort of relief sought in wrongful termination cases, like back pay. R.S. 42:1169(C)(2). A typical wrongful termination lawsuit, however, does not directly seek adverse workplace actions (firing, demotion, etc.) against the whistleblower's boss. The board, however, has this power. R.S. 42:1153. Stopping an agency investigation while a case makes its (often excruciatingly slow) way through the courts would delay effective (relatively quick) relief within this narrow scope, namely the firing of the public official who retaliated against a whistleblower.

The spin from the legislators, reports the Times-Picayune, is that the bill is not in response to the Fakier case and may or may not affect that case. The bill says it is effective immediately. If the board decides to end its investigation, this could mean justice delayed for several thousand primates in Lousiana.

New scholarship by Taimie L. Bryant

June promises an abundance of scholarly articles on animals and the law. A new issue of Animal Law Review and the first Journal of Animal Law and Ethics should ship, with a new Journal of Animal Law to follow shortly thereafter. Plus, we anticipate provocative student notes and comments from law reviews and specialty journals across the country.

Law professors Taimie L. Bryant and Darian M. Ibrahim are two scholars who are publishing all over the place this summer, and doing so from an abolitionist perspective that is lacking in much animal law scholarship. (Shout out, Gary L. Francione!) We've enjoyed reading early drafts of two Ibrahim articles (on the weakness of anticruelty laws and the failure of the Three Rs of animal research) and look forward to reading a forthcoming piece on corporate ownership of animals. We're embarrassed to say, however, that we somehow missed the ascension of another star in Bryant. (For earlier animal-related work, check out Bryant on the Animal Voices show [mp3] with Francione and as a speaker on this Animal Law Review superstar panel [pdf].)

Bryant has drafts for four articles on animal law and advocacy coming out soon and all are great reads. (Each can be downloaded from her UCLA bibliography.) "Trauma, Law, and Advocacy for Animals" outlines the posttraumatic stress advocates may endure after repeated exposure to legally sanctioned violence against animals and proposes areas of legislative reform and legal representation which may counter the effects of this trauma. "Animals Unmodified: Defining Animals/Defining Human Obligations to Animals" argues that reform efforts should permit animals to live their lives on their own terms by examining the interests of those who would use animals and impose duties on them. In a similar vein, "Similarity or Difference as a Basis for Justice: Must Animals be Like Humans to be Legally Protected from Humans?" embraces an antidiscrimination approach to reform, as opposed to one predicated on the similarity of nonhumans to humans.  And "Mythic Non-violence" contrasts the rhetorical "violence" attributed to animal activists with the actual violence that the law permits against animals.

One of the most powerful threads in Bryant's work is her preference for policies which place the burden on animal users to justify their conduct. While acknowledging that the Animal Welfare Act does not impose any meaningful burden of justification on those it regulates, Bryant points to other duty-based laws, like NEPA, which could serve as models, as well as policies like wildlife corridors which already benefit animals. She also cites the Family and Medical Leave Act and the Americans with Disabilities Act as good, albeit imperfect, examples of laws which make institutions change, rather than forcing individuals to obtain relief on an individual level. At the same time, Bryant acknowledges the usefulness of weaker, even symbolic, legislation, like "guardian" language and Spay Days, as a way to educate the public.

Bryant's analysis can lead to some shocking places. We found ourselves reading some parts of "Animals Unmodified" defensively. Why should our duties to animals not extend to the bacteria we kill every day by washing our hands (or, say, beyond animals to plants), she asks? Our knee-jerk response: Why should they? We confess to lacking the imagination to envision a world where human interests were but one of many to be furthered. But the hard cases are important ones to think about.

Bryant approaches her case studies with a nuanced, detailed understanding of the dynamics of advocacy and the facts of the given situation, something she shares with professor Ibrahim. She is also able to link a fairly radical theoretical stance with concrete legislative proposals and analyses, and, importantly for us, she never throws up her hands and says "Legal change? Forget it!" One cannot read about the institutional abuse of animals without realizing the tremendous political and economic power wielded by institutions which use animals. It is noteworthy then that, after reading through hundreds of Bryant's pages on how the law fails animals, each of her pieces has a kernel of hope that the project of pro-animal law is a worthy one.

Wegmans activist gets six months jail

Contrary to defense counsel's earlier predictions, animal activist Adam Durand has been sentenced to six months in jail for entering an egg facility run by Wegmans. (Hat tip: AAFL.) An account by Jim Miller of the Finger Lakes Times sketches out the sentencing pronouncement, which is replete with the sort of intemperate language appellate criminal defense lawyers like to see when reading records, but which rarely win relief. The court specifically mentions Durand's "political agenda" and likens him to Hester Prynne. (She'd face a max of 3 months. N.Y. Penal Law 255.17, 70.15.) The judge obviously didn't like the justification defense at trial and cited Durand's "arrogant and self-righteous statements" as an aggravating factor.

The court further stated that Durand should have gone to the authorities if he suspected chickens were being mistreated. Journalist Miller supplies that the D.A.'s office investigated and found no cruelty.  Surprise! The text of New York's cruelty law does not appear to prohibit factory farm conditions. Unlike many states, which explicitly exclude common agricultural practices, New York does not seem to do so. Nonetheless, confining an animal's movement and failing to take care of injured or dying animals are not within either the active prohibited conduct (overdrives, maims, etc.) or passive conduct (neglect of food or drink). Arguably, the broad equation of "torture" with suffering in the definitions section could allow a prosecution, but name the prosecutor's office that will pursue that case and we'll send them a package of Tofutti Cuties on us. No, the law does zero (or nearly zero) to protect farm animals. A call to the authorities would have been worthless.

Trial judge Kehoe also plays the hypocrisy card (or is it the terrorism one?), speculating about how Durand's entry--and the human germs he carries--could've caused "death [of hens] on a mammoth scale." The hens will be killed soon enough. We suppose this notion could be part of an "evils of the crime" analysis, but it reads more like a message from someone with a "political agenda" of his own.

No felony conviction for anti-Wegmans activist

Adam Durand, an activist featured in "Wegmans Cruelty," a half-hour documentary with footage from inside a battery egg facility, was acquitted of burglary and merely found guilty of misdemeanor criminal trespass today. As this earlier report notes, burglary requires the intent to commit a crime; the defense argued that Durand never entered with intent to take the animals he rescued, but only did so when he found many of the hens were being severely neglected. (Some statutes require intent to commit a felony or a theft; N.Y.'s is broader.) An AP article has defense counsel commenting that a jail sentence is not likely. If you haven't seen the film, click above. It shows the constriction and injury which necessarily follow from intensive egg production, and also the results of Durand's offense: rescued chickens looking healthy and enjoying their freedom of movement. Despite evidence that Durand brought along suitable materials for rescue, the jury in this case gave Durand a slap on the wrist. In place of a medal, it'll do. As SuperVegan points out, the timing was excellent.

Suit argues veganism is religion

An incarcerated animal rights activist  is claiming that his vegan diet should be protected by a federal law which prevents the government from burdening the religious practice of people in government institutions, such as prisons. (Hat tip: Religion Clause.) The only treatment of this sort of issue that we know of is a case interpreting California's Fair Employment and Housing Act which holds the veganism is not a religion. The regulation in that case protected "beliefs, observances, or practices which an individual sincerely holds and which occupy in his or her life a place of importance parallel to that of traditionally recognized religions." Friedman v. S. Calif. Permanente Med. Group, 102 Cal. App. 4th 39 (2002) (LexisOne). The test applied to this language has been criticized by Sarah Soifer as being overly deferential to institutional religions. Soifer notes that veganism both answers life's greater questions and involves a degree of discipline, namely "nearly endless formal signs of adherence." See Sarah Soifer, Vegan Discrimination: An Emerging and Difficult Dilemma, 36 Loy. LAL Rev. 1709 (2003) (pdf).