Hounded, Cowed, & Badgered

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.

Recent cases distinguish among "pests," acts of violence

This is no way to increase this blog's readership, but I wanted to note two recent cases on animal-related classifications. Compared to some other topics (dogfighting! whales!), definitions are a pretty boring topic, but they are the starting point for a lot of animal law discussions. I won't attempt to synthesize the cases, except to point out that poisoning of rodents is mentioned in both. One gets the sense that if, in several thousand years, animal law develops such that legislatures or courts are doing away with animal use, lethal "pest control" will be the last practice to go.

Last month, the Ninth Circuit In Merrifield v. Lockyer invalidated a statute that required a pest control license for people who deal with mice, rats, or pigeons, but not those who deal with other animals. The case involves an exemption to an exception, which makes the equal protection analysis a bit hard to follow. Although all pest control practitioners who used pesticides must obtain a license, the licensing for those who forgo the use of poison depends on which animal is being targeted. (It is not clear to what extent the practitioners who forgo pesticides otherwise use nonlethal means, though they appear to be have a wider range of tools than spray-to-kill.) The plaintiff alleged that the licensing for more common "pests" was irrational and designed only to stifle fair competition, and the court agreed:

[T]he licensing scheme in this case specifically singles out pest controllers like Merrifield in the exemption legislation. Needless to say, this type of singling out, in connection with a rationale so weak that it undercuts the principle of non-contradiction, fails to meet the relatively easy standard of rational basis review. Indeed, the record highlights that the irrational singling out of three types of vertebrate pests from all other vertebrate animals was designed to favor economically certain constituents at the expense of others similarly situated, such as Merrifield.

The court did not consider in its analysis (and the plaintiff apparently did not raise) the additional exclusion from licensing of practicioners who use nonpesticide means to control bees and wasps. Libertarian coverage is at Volokh Conspiracy, Positive Liberty, and plaintiff counsel's Freespace blog.

The other definitions/rodent case is the New Hampshire Supreme Court decision in State v. Pratte. The question was whether the defendant's bow and arrow qualified as a "deadly weapon" under a law banning felons from possessing a deadly weapon. A weapon is considered "deadly" if it is  "capable of producing death or serious bodily injury." The prosecution claimed this was proved because the defendant had previously used the bow and arrow to kill a porcupine. The court rejected this claim as rendering that language unconstitutionally vague:

Taking the State’s interpretation to its logical conclusion, any “substance or thing” used to produce the death of any living thing is a deadly weapon under RSA 625:11, V.For example, a person using poison to rid his residence of rodents or some other pest has clearly used a substance to produce a death. Under the State’s interpretation, he or she would be in possession of a deadly weapon and, with the requisite underlying conviction, may be convicted of being a felon in possession of a deadly weapon.... Reading RSA 625:11, V with an ordinary level of common sense, we cannot conclude that an ordinary person would understand this statute to mean that the use of such an item would constitute possession of a deadly weapon.

The dissent draws a connection between physical violence against humans and violence against nonhumans: "Had a human being been in the porcupine’s place, the human being would at least have suffered a serious bodily injury." Its measuring stick though is still harm to humans (as the legislature no doubt intended). Like the majority, it can't resist a reference to pest control--it finds a mouse trap would not qualify as a deadly weapon.

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.

Fish as companion animals

For the purposes of an anti-cruelty statute, a fish is a "companional animal," an appellate court in New York held last week. The NY statute defines companion animal, in relevant part, as "[a] domesticated animal normally maintained in or near [a caretaker's] household." The defendant in People v. Garcia, 2006 NY Slip Op 02315, had argued a "fish is not a companion animal because it is not domesticated and because there is no reciprocity or mutuality of feeling between a fish and its owner," but to no avail. The court relies on the common understanding of the term "domesticated" and notes the lack of support for a reciprocity requirement in the statute, thus de-emphasizing the human-animal bond. The basis for the conviction was Garcia's stomping of his girlfriend's son's fish, apparently as part of a pattern of abuse. This case is yet another example of the need for broad protection of all survivors of domestic violence (see the post below).

The effect of calling pets "companion animals"

At Prawfsblog, Dave Fagundes has a thoughtful discussion of legal efforts to replace the term "owner" with "guardian" and to classify animals as "companions." Fagundes questions the effectiveness of such a change absent substantive reforms and concludes that changing the legal terms for animals are "a step in the right direction, if only a marginal one." The most interesting part of the post is the discussion of why there is opposition to such in-name-only reforms, which Fagundes locates in the symbolic threat of such changes to privileged groups. Although such groups are unnamed, we imagine it would encompass most all of the human population of this country. If people don't have anxiety over our treatment of animals, they should.

Status anxiety explains how some responses to relatively minor legislative reform of anticruelty or animal welfare laws (and almost all such laws are minor), are as hysterical as those of some gay rights opponents. While anticruelty legislation was being debated in Utah, legislation which only would make it a felony to torture an animal and excludes accepted rodeo practices, the Salt Lake Tribune reported some legislators' reasons for opposing the legislation, including fear of a scenario where "a limping calf [is] carried out on a stretcher at a rodeo." This fear of boundaries coming down would explain why, as Darian Ibrahim's article recently pointed out (one post down), animal advocacy groups often need to reassure the public that a given law will not threaten other forms of exploitation.

Family keeping deer survives SJ

Mike Miller of the Capital Times (Madison, WI) reports that the Wisconsin Department of Natural Resources recently lost a summary judgment motion in its attempt to take a deer away from a family which has rehabilated an the deer from a serious injury and kept her as a companion. The court decided that there were still factual disputes as to whether the deer, named Bambi, was a wild or domestic animal. This is not a new area of the law. The Animal Law casebook (2d ed.) cites cases  which rely on a variety of sources to determine whether an animal is wild or domestic, including the animal's status at common law, current usage of statutory terms, historical treatment as part of human household, and statutory definitions. All of these approaches are categorical, i.e., an animal can be ajudicated "wild" or "domestic" based solely on its species (or other common classification).

Some of the cases cited consider whether otherwise wild animals have been domesticated on a case-by-case basis. This appears to be the approach adopted in Bambi's case; otherwise the court could have decided the matter on a purely legal basis on summary judgment. Although the operative statute was almost certainly different, it is worth noting that the Wisconsin Supreme Court adopted a categorical approach in Hudson v. Janesville Conservation Club, 168 Wisc. 2d 436 (1992), cited in Animal Law, at 68, where it found that a wild male deer was held to be "wild" regarldess of whether it was in human captivity.