Hounded, Cowed, & Badgered

Crush videos banned (again)

President Obama has signed a bill banning crush videos. As noted a few posts down, a prior ban was struck as unconstitutional in United States v. Stevens. The enacted version follows the original Senate version of the bill (see comparison), in that it covers a broader definition of abuse, one partially rooted in federal criminal statutes involving human victims. In addition, the ban does not repeat the mistake of the pre-Stevens statute, which required an additional state or federal statutory violation. The Stevens court didn't like the possibility that state law violations, especially those for noncruel acts, could be "exported" to other states.

The only difference I can find between the original Senate version and the one what is now law has to do with inchoate offenses, i.e., acts falling short of commission of an act. The law does not expressly prohibit conspiracies or attempts to create, distribute, etc., the videos. There was some fear that the stripping of inchoate offenses might doom the bill, at least in the short term, but the bill passed in that form.

A Stevens-proof ban on crush videos?

In April, the Supreme Court decided United States v. Stevens, its biggest animal law case since the Lukumi decision in 1993. The case involved a First Amendment challenge to a federal law designed to stop crush videos, pornography showing small animals being crushed to death. The government in Stevens ran with the statute and prosecuted a seller of dog fighting videos. The Supreme Court, on an 8-1 vote, held the statute was constitutionally overbroad.

The majority opinion faulted the law for reaching animal-related acts that are not defined  as "cruel." The law, as written, required use of a depiction of "animal cruelty," but defined cruelty to include any wounding or killing of an animal that violated federal or state law. The court imagined various scenarios where a depiction of a purportedly uncruel act (e.g., hunting without a license) would nonetheless violate the law. It found particularly troubling that a person could be convicted of possessing a video showing violence against an animal that was not in fact illegal in the possessor's state.

The Stevens court held out the possibility that a more targeted law--one "limited to crush videos or other depictions of extreme animal cruelty"--could pass constitutional muster. Now comes news that the House and Senate have passed bills aimed at crush videos that ... actually target crush videos.

I've put together a table comparing the language in the statue now, in the Senate bill, and in the House bill. The full texts of both versions are at Govtrack.us. Both bills do a better job of defining the depictions being banned, though the Senate does a better job still by not requiring the depicted abuse to also be a state or federal crime. Both contain findings that draw parallels to caselaw on obscenity and child pornography. Both in fact require the depiction to be obscene; given the descriptions in the case, I'd hope all crush videos would qualify.

I personally find it difficult to get excited about these bills. They target a tiny segment of the pornography market and a miniscule portion of the animal abuse in this country. How little Congress cares about animals is evident in one change between the House and the Senate bills. The House bill recognizes a compelling interest in "preventing animal cruelty," a good policy goal, if one rarely acted on. The Senate bill, however, finds a compelling interest only in "intentional acts of extreme animal cruelty." What of "mere" animal cruelty? Well, some arguably cruel practices are expressly excluded from the statute's reach by an exception for depictions (even obscene ones!) involving hunting, fishing, and agriculture.

The one bright spot I see in the legislation is in the Senate's definition of the offense. It criminalizes the sale, distribution, etc., of depictions of animals being abused in several specific ways (e.g., drowning, suffocation), but also includes a catchall for depictions of severe bodily injury against animals. Severe bodily injury is defines not once but twice in reference to existing laws against humans. The law incorporates the definition in 18 U.S.C. § 1365(h)(3), which contemplates the injury of "another person" and "any individual." Most strikingly, the Senate bill defines severe bodily injury to include "conduct that, if committed against a person and in the special maritime and territorial jurisdiction of the United States, would violate section 2241 or 2242." As the links show, these statutes define the federal crimes of aggravated and simple sexual abuse. The Senate bill thus implicitly recognizes that harm to nonhumans is of a similar kind as harm to humans.

The Senate bill is also notable for its definition of the animal being depicted. While the current law and the House bill cover "living animals," the Senate covers "non-human mammals, birds, reptiles, or amphibians." On the one hand, this definition excludes insects and fish; on the other, it acknowledges frankly that humans are animals of a sort. This language parallels some state definitions of "animal" which expressly exclude human beings. See this Maine statute.

Dogfighting and deterrence

USA Today has a profile of a project by animal advocates to teach inner city kids not to put their dogs in fights. Programs like these are an important corollary (or corrective) to the push for harsher sentences for animal cruelty offenders. As the article points out, a huge portion of dogfighters are kids. It's difficult to imagine a 10-year old being deterred by, say, a cruelty offense being elevated from a misdemeanor to a felony. And high profile convictions don't do much either:

The [Michael] Vick case hasn't deterred young urban tough guys. "It actually generated more interest among urban youth," Grim says. Suddenly, kids who had believed dogfighting was only a ghetto or rural Southern sport saw rich role models were involved. "They thought, if (Vick) does it, it's cool."

The fact that Vick got prison time and that dogfighting is a felony doesn't stop them because they reject both as establishment punishment leveled against the disenfranchised, Grim says.

One problem with our cruelty laws is that they, like the rest of our criminal laws, are more likely to be enforced against disempowered individuals (poor folks, especially poor people of color) than against large-scale animal users, whose practices are shielded by weak cruelty statutes or lack of prosecutorial interest. These programs look to be a better way of dealing with the problem than harsher sentences, especially for juveniles. When cases are prosecuted, judges should consider effective anti-dogfighting programs as a condition of probation or supervision.

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.

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).

In da courts, in brief

There is mostly bad news for the citizens of Prairie Grove, Arkansas who have sued corporations running poultry factory farms and feed producers, alleging that chicken litter from nearby farms is responsible for the high cancer rate in the area. The claims against the Big Poultry defendants in the case were dismissed at summary judgment. The plaintiffs did win two pretrial motions against the remaining defendants, which manufacture the feed that allegedly is responsible for the high level of arsenic in the area soil.

In Pennsylvania, a groundbreaking animal cruelty case against a 170,000-hen factory farm is ... up in the air. After testimony by a "poultry science" expert, the government and the defendant have been encouraged to settle. The defendants' mouthpiece, as quoted here, is correct that state cruelty law expressly excludes otherwise cruel acts "undertaken in normal agricultural operation." Although the government expert testified that the conditions--impaled, dirty chickens, packed so tightly they can't move--are way below the industry standard, one wonders how far this scientific ideal is from the reality of how the average (large) chicken farm is run. See, e.g., Wegmans Cruelty.

News off the farm: Dog breeders in Albuquerque, chafing from the regulation of the city's great new ordinance, are suing. A federal court has stopped the U.S. Fish & Wildlife Service's plans to kill "problem" gray wolves in Wisconsin, holding "the recovery of the gray wolf is not supported by killing 43 gray wolves."

The perks of misdemeanor anti-cruelty laws

Two recent cases show how the law can treat cruelty to animals lightly and severely at the same time. (There is no novel law in either case, but the law cited got us thinking.) In Chambers v. Justice Court Precinct One, No. 05-05-01232-CV (Tex. Ct. App. 5/30/06) the court straightforwardly applies a provision denying the right to appeal the forfeiture of an abused animal. In an unpublished, otherwise non-animal case, the Supreme Court of Washington notes that animal cruelty laws going back to 1893 create an exception to the usual rule that police can only arrest someone who commits a misdemeanor without a warrant if they witness the offense. (They can arrest someone for a felony even when it was not committed in an officer's presence.)

First, the light part--the cases point to laws which punish cruelty and animals as something less than a felony-grade offense. Of the many strains in the debate of reform of anti-cruelty laws--see Stephan K. Otto on "next generation" of animal protection laws (pdf)--one is the importance of punishing abusers as felons. The notion that increasing punishment will deter cruelty is embodied in the ALDF's slogan "Abuse an animal, go to jail!" The statutes mentioned in the above cases cover misdemeanors, and, apparently in Texas, conduct which would not even give rise to a misdemeanor prosecution. Misdemeanors theoretically mean jail but not prison and, in practice, often mean neither.

These "weak" misdemeanor provisions, however, have advantages. Perhaps because the potential sanctions in misdemeanor cases are relatively minor, there is a sense that defendants need fewer procedural safeguards. One example of this is the right to trial by a jury, which many states do not apply to misdemeanor trials. Another is the Texas statute that denies the appeal of an animal forfeiture. Because the seizure of animal does not involve liberty rights (does it?), it can be more easily done. The upshot is that an abused animal stays away from the abusive human permanently, without the limbo that may accompany sanctions pending appeal. Cf. our argument for total exotic animal bans.

The Washington statute allowing the warrantless arrest of someone based on an alleged misdemeanor which was not observed by an officer should go the other way. If a misdemeanor is indeed less important, a defendant's liberty and privacy interests should weigh more heavily against the government's interests. Cf. Welsh v. Wisconsin. Indeed, the general rule, for which the Washington statute carves out an exception, is the police can only make warrantless arrests of people for crimes not committed in their presence when the offense is serious enough to be punished by a year in jail, i.e., felonious conduct. Nonetheless, the exception for warrantless arrests for animal cruelty shows that even this "less important" offense (notably grouped with domestic violence) is nonetheless important enough to warrant immediate action. As the concurrence in the Washington case notes, "most of the statutes creating exceptions to the misdemeanor arrest rule involve violence or the threat of violence to persons, animals, or property." Animals as distinct from property? Chalk these discrepancies up to moral schizophrenia...

In da courts, in brief

In a cruelty case involving the killing of an opposum with a BB gun, a Florida court notes the "blurred line" between hunting and animal cruelty and suggests a legislative "fix" which would add a sadistic mindset requirement to the anticruelty statute. Bartlett v. State [pdf], No. 4D05-2232 (Fla. Ct. App. May 24, 2006).

A Washington court recently allowed damages for emotional distress arising out of the malicious injury of a companion animal. Womack v. Von Rardon,  24221-8-III (Wash. Ct. App. May 25, 2006). As the AP reports, plaintiff's attorney Adam Karp sees this as step towards the recovery of such damages for negligent injury as well. (At HC&B, Karp is a local hero.)

As another AP story notes, a federal district court recently invalidated the National Marine Fisheries Service's issuance of permits to scientists seeking to study Steller sea lions. It held that the court should have prepared an environmental impact statement, given the likelihood that such research would impact sea lion populations. HSUS v. Dep't of Commerce [pdf], No. 05-1392 (D.D.C. May 26, 2006.) Plaintiff HSUS has more info on the invasive techniques proposed by scientists in this case.

In da statehouses, in brief (criminal edition)

In New Hampshire, SB 351, which would ban drowning an animal, recently failed. The reason given for the bill's death, endorsed by the local paper: it would prevent people from killing rats, and should only apply to domestic animals. As one state rep notes, however, the New Hampshire statute only applies to a "domestic animal, a household pet or a wild animal in captivity" in the first place. Status anxiety? Callousness? General legislative incompetence? At least it wasn't money this time.

A bill in Illinois (HB 2946)  heads to the governor which would require people convicted of certain crimes (violent crimes, cruelty, drugs, firearms) to spay or neuter their dogs and banning such people from keeping a dog determined to be "vicious." There is a safe harbor provision which allows an indicted person to spay or neuter the animal within seven days to avoid prosecution. We await the rational-basis challenges for the link between a dog's fertility and its keeper's conviction for treason or burglary.

A cock-fighting ban shockingly dies in Louisiana. In New Mexico, Governor Bill Richardson is  "on the fence" on the issue.

Felony anti-cruelty bill in Kansas becomes law

Buoyed by fear of serial killers and the horrendous death last summer of a dog called Magnum, Kansas has become the forty-second state to enact a felony cruelty against animals provision. Today, Governor Kathleen Sebelius signed into law a bill which would make it a felony 1) for a first time offender to intentionally and maliciously (boo!) kill, injure, maim, torture, burn, or mutilate an animal; or 2) for repeat offenders to engage in other cruel acts, e.g., intentionally failing to provide food to an animal in one's care. We don't have time to do so now (24 is on), but we'd welcome comments measuring the new legislation against the HSUS's legislative guidelines.