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 The unpublished opinion is titled Farm Sanctuary, Inc. v. Corcpork, Inc. (pdf, html cache).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.

Animal law at the polls

The Animal Protection Institute notes two animal-themed citizen initiatives to be voted on this week:

• Proposal 3 [pdf] in Michigan would establish a hunting season for mourning doves, for the first time since 1905. More info at the Committee to Keep Doves Protected.
• Proposition 24 204 in Arizona would ban veal and gestation crates, which confine animals into spaces where they cannot move. Earlier this year, animal users attempted to shift all lawmaking regarding agriculture to an administrative agency, robbing the legislature and voters of the power to regulate farms, but failed. More info at Arizonans for Humane Farms.

The API also notes Colorado Proposition 38 [pdf], which would amend the state constitution to encourage more propositions. Another citizen initiative that doesn't address animals directly, but which could have an effect on future animal law reform is Amendment 3 [pdf] to the Florida Constitution. This initiative would make it more difficult to pass future initiatives by requiring a 60% (rather than simple majority) vote to pass. The impetus for this effort, says the Orlando Sentinel, is a 2002 initiative which created article X, sec. 21 of the state constitution, banning the use of restrictive crates for pregnant sows. As with Arizona Prop. 24 204, the ban excludes the seven days preceding birth.

Also: Amendment 2 [pdf] in Georgia would give constitutional recognition to the "tradition of fishing and hunting and the taking of fish and wildlife." If this is it, then vote no. HSUS is recommending a vote against California Proposition 90 [pdf], which may make it tougher to protect wildlife. 

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.

10th Circuit upholds Utah intiative amendment

A Utah amendment which would impose a 2/3 majority requirement on the passage of wildlife-related initiatives has been upheld on appeal. The opinions in the case, Initiative and Referendum Institute v. Walker, split over two issues: whether the plaintiff animal advocacy groups have standing and whether the amendment violates plaintiffs' First Amendment rights. As the opinion explains, the amendment was passed after animal and wildlife advocates began organizing measures to protect cougars and bears.

The majority opinion holds that the plaintiffs have standing to sue but that the First Amendent was not violated. We continue to be perplexed by First Amendment jurisprudence, but will do our best to summarize the arguments on the merits. The court first rejected the claim that the amendment was political speech and thus subject to strict scrutinty, finding that such scrutiny has only been applied to restrictions on speech associated with the political process, not the political process itself. It further did not adopt the reasoning of Wirzburger v. Galvin, a recent First Circuit case where the plaintiffs successfully argued that the court should use intermediate scrutiny because the subject matter-specific limits on legislation implicate both speech and non-speech elements. The court argues that refusal to apply intermediate scrutiny is a vindication of "We the People," that, given the policy-like reasoning required in weighing a government's "substantial interest" in a piece of legislation, judicial scrutiny is inappropriate.

As the dissent in Initiative Referendum Institute points out, and as we have argued regarding measures in Arizona and Missouri, subject-specific supermajority requirements have their own "We the People" problem. Specifically, the passage of the Utah amendment (by less  of the voters than the supermajority which it imposes) means that future generations of advocates able to secure a majority in support of a wildlife measure may be stymied by the "dead hands of the past." Although it is heartening to believe that Utah hunters see the tide shifting against them, their success in passing this bill (by invoking "East Coast Special Interests") shows that belief might just be paranoia.

Also (5/23/06): The Salt Lake Tribune has a fine editorial which says it all: Stacked deck: Wildlife amendment is legal, but misguided.

Anti-activist bills pass in Arizona, Pennsylvania

HB 2130, which expands Arizona's hunter harassment offense, was recently signed into law, the Arizona Republic reports (opt out). The law before amendment broadly prohibited interference and disruption of hunting. The new law enumerates many instances of such interference, including the use of any "natural or artificial visual, aural, olfactory or physical stimuli" affecting hunted animals or hunters. This and much of the other language in the new law is from a New Jersey statute which was upheld as as constitutional in Binkowski v. State, 322 N.J. Super. 359 (App. Div. 1999) (in parts here). The new Arizona law notably does not have language prohibiting conduct "with the intent to dissuade" that has caused courts to invalidate provisions of other hunter harassment laws. It is possible that an as-applied challenge, with a helpful fact pattern, could be more successful than the facial challenge in Binkowski.

Meanwhile Pennsylvania has recently passed an "ecoterrorism" law which enhances penalties for otherwise criminal conduct when it occurs with the intent to interfere with a lawful activity involving animals, plants, or natural resources. (Beware, shoplifters of apples.) An open letter to Governor Rendell points out that the law is viewpoint-specific, that anti-abortion graffiti would not be punished as severely as anti-meat graffiti. The ACLU argues the law "would effectively permit one side of the debate over environmental issues or animal rights issues to fight freely, while limiting those on the other side of this debate."

Perhaps in recognition of this double standard, the new law expressly immunizes individuals from prosecution when they are exercising "the right of petition or free speech under the United States Constitution or the Constitution of Pennsylvania on public property ...  where the person is peaceably demonstrating or peaceably pursuing his constitutional rights." Sec. 3311(c.1) These are empty words, because the First Amendment does not need enabling legislation by a state to apply. We can only imagine how little prosecutor's offices will feel their hands are tied by this provision.

No-go on agriculture amendment in AZ

This blawg spends a fair amount of time lamenting the power animal-exploiting industries have over their terms of business. It is thus nice to hear word that a nutty constitutional amendment which would have hurt both pigs and democratic ideals is dead. What's more, as this report notes, the killed provision was so watered down that, even if it hadn't been killed, it would have done nothing to stop its original target. On the scale of minor victories, this beats the heck out of recent bans in Mississippi and Kentucky on the extremely rare (if not nonexistent) practice of Internet hunting.
 

Fishing council OKs turtle-unfriendly fishing method

The AP reports plans by the Fishery Pacific Management Council to permit drift gillnet fishing and to study permitting longline fishing, two methods of fishing which can also snare leatherback sea turtles. (Hat tip: An Animal-Friendly Life.) The methods are also known among turtle advocates as "curtains of death" and "landmines of the sea." Now that's the way to frame the debate! Karen Ravn has more complete coverage at the Monterey County Herald, describing in detail how gillnet fishing works and precautions taken to avoid taking marine mammals. Ravn also notes the huge drop in leatherback turtle populations in the Pacific, from 91,000 in 1980 to less than 5,000 in 2002 and that the UN has banned such fishing on the high seas (200+ miles out) since 1991.

Cheney and buck fever

Well, better late that never. We'd been looking for an animal law angle to the Vice President Cheney hunting story and missed GW professor Jonathan Turley's op-ed (reprinted here (no subscription) in last Sunday's Washington Post. In its, Turley points to many examples of hunters escaping criminal liability for shooting humans because they had "buck fever." He argues:

Hunting accidents stand in sharp contrast to other types of lethal negligence. In areas ranging from vehicular accidents to corporate misconduct, individuals routinely face criminal charges for reckless conduct. In hunting, however, gross negligence is often refashioned as mere "excitement." Indeed, criminal charges can be downgraded when the killing was done in sport....

Cheney's case reflects a troubling de facto immunity given to negligent hunters. Because of our tradition of hunting, we view people who make lethal use of a firearm as less culpable than those who make lethal use of objects like cars. Texas probably won't require that Cheney take safety classes or suspend his license. The local county sheriff's office has already declared the case closed. For his part, Cheney feels no compulsion to promise that the "buck (fever) stops here" and give up hunting.

[Scoffing at pun deleted and this inserted:] So, in addition to being protected from fearsome AR protesters, hunters are protected (that is, the one's who aren't shot) from the harassment of local authorities. Just don't shoot out of season.

Extremely minor hunting wins

Kentucky lawmakers are poised to stop Internet hunting in the state before it starts. And thus join the club (pdf). A bill passes the Alabama house to ban shooting a caged animal or one tied to a tree. Plans in Pennsylvania to allow hunters to use a spear thrower hit a roadblock. Best quote: "What's next? Are we going to start stoning deer?"

MO's pro-hunting initiative

The Missouri legislature is considering a joint resolution which would place an initiative on the ballot to require all future initiatives "relating to the opportunity to harvest bird, fish, game, wildlife, or forestry resources" to pass by a 2/3 vote, instead of a simple majority.  Such "supermajority" requirements are most common in the tax context. Proponents say this will "ensure that decisions concerning wildlife and forestry management will be made on the basis of sound, scientific fact by experts," i.e., science geared towards maintaining an adequate supply of animals to hunt and kill.  Given recent legislation aimed at reversing the decline in hunters (e.g., in Wisconsin, letting eight year olds hunt), it seems more likely an attempt to head off future generations of voters, who may be less devoted to hunting. Mmm, stodgy.