A United Front against Ag Gag
Posted by Stephen Wells, ALDF Executive Director on May 8, 2014
What issue holds the power to unite a coalition as broad ranging as animal protection organizations, labor unions, civil rights groups, journalists, and environmental watchdogs? The legal work the Animal Legal Defense Fund does on behalf of animals brings together those who stand up to injustice anywhere—and so-called “ag gag” laws are truly an affront to justice everywhere.
In the last two weeks, the AFL-CIO, the Government Accountability Project, and many journalist organizations—including National Public Radio—led by the Reporters Committee for Freedom of the Press, submitted legal briefs in support of ALDF’s lawsuit against the state of Idaho for its controversial and unconstitutional ag gag law (and its recent attempt to have our lawsuit thrown out of court). In the lawsuit itself, ALDF is joined by the ACLU, Center for Food Safety, and People for the Ethical Treatment of Animals (PETA) in challenging the state’s attempt to criminalize whistle-blowers who might expose cruel, unsafe, or illegal activities on factory farms.
ALDF, PETA, the ACLU, and Center for Food Safety, are also representing Farm Sanctuary, Farm Forward, Idaho Concerned Area Residents for the Environment, the Idaho Hispanic Caucus Institute for Research and Education, River’s Wish Sanctuary, Sandpoint Vegetarians, Western Watersheds Project, journalist Will Potter, undercover investigations consultant Daniel Hauff, investigator Monte Hickman, professor James McWilliams, investigative journalist Blair Koch, and the political journal CounterPunch. ALDF’s similar lawsuit against the state of Utah for its unconstitutional ag gag statute has also received immense support from constitutional law experts and the Association of Prosecuting Attorneys.
To put it plainly, lobbyists for industrial agriculture, like the Idaho Dairymen’s Association, are attempting to write their own laws—laws that sacrifice our constitutional rights to pad their profits. But the tide is turning and most recent ag gag bills have failed. Why? Because people are uniting against corporate ag’s attempt to “gag” whistle-blowers who expose the truth. And this type of coalition and bridge-building is exactly what will help us protect animals, people, and our planet.
Factory farming is not only the largest contributor to animal cruelty—with billions of animals brutalized each year—but is one of the top contributors to climate change and presents ongoing violations of environmental laws and worker safety laws, health hazards, food safety recalls, and challenges to our rights to freedom of press.
For this reason, animal organizations like ALDF are working with environmentalists, journalists, law enforcement, civil rights advocates, and labor unionists. And the Animal Legal Defense is one of the forefront national nonprofits pulling together these groups by taking on the serious problems raised by industrial agriculture. “With much of the conversation rightly focused on animal welfare, we want Idahoans and the court to also understand that this law has the potential to imperil workers, and infringes on workers’ rights to a safe workplace,” said Rian Van Leuven, President of the Idaho State AFL-CIO. “If a worker wanted to demonstrate that worker safety was being jeopardized by unsafe conditions—such as an unventilated manure pit, broken equipment, or an electrocution hazard—and they took a photo of such conditions, they’d be subject to criminal penalties. That runs against everything we stand for.”
In so many ways, factory farming runs against everything most of us stand for.
Reporting from the 4th National Animal Cruelty Prosecution Conference of the Association of Prosecuting Attorneys
Posted by Lora Dunn, Staff Attorney on May 5, 2014
The 4th National Animal Cruelty Prosecution Conference has officially come to a close! What an incredible three days learning from the best of the best in law enforcement, prosecution, and veterinary medicine on how to get the best possible outcomes in animal cruelty cases—from crime scene to courtroom. We heard exciting news about a new campaign to spot and prevent animal abuse, Atlanta’s new requirement that police officers receive training in animal cruelty laws, and an FBI proposal to track animal crimes nationwide.
The Association of Prosecuting Attorneys (APA) honored ALDF’s Scott Heiser, Virginia Assistant Attorney General Michelle Welch, and Los Angeles Supervising City Attorney Donald Cocek for their incredible advancements in the field. On the last day attendees put their new knowledge to work in breakout sessions on investigator testimony, veterinarian and other expert witnesses, and jury selection. Participants can now take this new knowledge home to their departments and communities—and work toward a better place for animals.
ALDF was honored to sponsor this event this year, hosted by the Georgia Prosecuting Attorneys’ Council. Animal cruelty experts from around the country convened in Atlanta, GA to share their expertise on ensuring justice for victim animals in the criminal system—from prosecutors and law enforcement to veterinarians and forensic evidence professionals.
Speakers included APA President David LaBahn, John Thompson of the National Sheriff’s Association, Dr. Maya Gupta, PhD on the Link between animal and human crimes, Madeline Bernstein of spcaLA on hoarding and puppy mills, and Dr. Melinda Merck, DVM on veterinary forensics. We also heard from ALDF’s own Scott Heiser and Diane Balkin of the Criminal Justice Program, Chris Green of our Legislative Affairs Program, and speakers from HSUS, ASPCA, and AWI! Looking forward to next year!
Citizen Canine: Our Evolving Relationship with Cats and Dogs
Posted by Jennifer Molidor, ALDF Staff Writer on May 2, 2014
This week, ALDF’s Animal Book Club reads David Grimm’s new book Citizen Canine: Our Evolving Relationship with Cats and Dogs. David’s book is a consideration of the legal implications of the changing place of animals in society. “The public isn’t aware of the legal status of animals,” David says. “There is really no other book for a broad audience that brings this awareness like Citizen Canine.”
A science buff and animal lover, David considered becoming a veterinarian but instead completed a doctoral degree in genetics. Yet he also pursued a career in journalism and has been the online news editor of Science for ten years. In Citizen Canine, he dedicates an important section to the Animal Legal Defense Fund and its formative role in the animal protection movement. The groundbreaking efforts of ALDF founder Joyce Tischler, as well as a number of influential and passionate staff, feature in the book. As David points out, “the animal law movement continues to grow.”
As a journalist, David says he works hard not to advance a particular viewpoint, and in his research he spoke to people from all sides of the aisle. For example, the American Veterinary Medical Association has opposed personhood rights for companion animals. “Vets are in a tricky situation,” David explains. Veterinarians benefit from the fact that people are willing to spend whatever it takes on the health of their companion animals. “It’s what allows the profession to exist, this relationship people have with animals,” he says. “But that stops in the courtroom.” Veterinarians argue that malpractice suits would be costly if animals were valued beyond the price of their purchase.
For example, in 2013 Citizen Canine explains, the Texas Supreme Court decided a case “involving the accidental euthanasia of a dog at an animal control facility.” Even though “the owners weren’t asking for anything close to personhood; they just wanted to recover damages for the sentimental value of their dog… But even that was a bridge too far for the AVMA, whose amicus heavily influenced the judges to deny the claim. As the law now stands in Texas, you can recover more money if someone destroys a picture of your dog than if they destroy the dog itself.”
A fundamental problem for companion animals is that they are considered property under the law, but this wasn’t always the case. “A hundred years ago cats and dogs were not property,” David says. “Only economically viable animals like farmed animals were considered property.” And yet, he says, the way the law treats animals—both now and then—is out of step with reality. “Only 1% of pet owners consider their pets to be property.” In reality, our love of cats and dogs blurs the boundary between companion and property. David explains that cases involving animal custody, emotional distress, and felony anti-cruelty laws mean considering what is in the best interest of animals.
Companion animals also “keep us anchored to the real world.” It’s only in the last decades that companion animals have become like family members, David writes in Citizen Canine. Technological developments have changed our lives and our relationships. But with animal companions, “we have to engage. They are a living breathing loving presence in our lives. Companion animals bring us back down to earth in the physical world.” And that is why, David agrees, the work ALDF does is so important—to make sure these companions are provided the legal protections they deserve.
Enter to win—two lucky winners will be chosen to receive a free copy of David Grimm’s Citizen Canine.
Interview with David LaBahn
Posted by Jennifer Molidor, ALDF Staff Writer on May 1, 2014
ALDF is excited to be the exclusive sponsor of the upcoming 4th National Animal Cruelty Prosecution Conference scheduled for May 5-7 in Atlanta, Georgia. Recently, ALDF spoke with David LaBahn—who is president and CEO of the Association of Prosecuting Attorneys (APA), a national association that serves as an advocate for prosecutors on emerging issues and the administration of justice. And that’s why the APA is hosting this conference, which is dedicated to the topic of fighting animal cruelty. David explains, “The reason animal abuse is a priority is the link between interpersonal and animal violence.”
This established link—between, for example, domestic violence and cruelty to animals—has become widely accepted by law enforcement and other reporting agencies. As a result, “Many prosecutor offices are moving from being reactive case processors to being proactive and looking at crime prevention. In fact, the mission of APA is to support prosecutors in their efforts to create safer communities. Any efforts to reduce violence must address all forms of violent crime—including animal abuse.” Like ALDF, the APA takes violence against animals seriously.
But fighting animal cruelty is not an easy task for anyone. That’s why working together, and uniting agencies is crucial in this endeavor. “One of the key challenges is building local task forces so that from the crime scene to the courtroom it is a unified effort,” David says. “It does not matter to prosecutors who the investigating agency or department is in any community. Instead, the concern is whether the investigators or officers are properly trained and have the necessary support and resources to do a complete investigation.” Working with the APA, ALDF offers these resources, training, and support.
And prosecutors—the district attorneys who bring criminal cases before the courts—are not the only important players in securing justice for animals. Medical experts, veterinarians, and witnesses are also key players in establishing compelling cases. As David explains, “The next issue is competent medical evidence and whether the veterinarian or other expert is willing and able to testify.” An equally important step is “educating judges and probations as to the importance of the cases.”
That’s why this event can make lasting change—by making needed connections and spreading awareness of these important pieces of the process. “Thanks to the sponsorship of ALDF, we are able to have our 4th National Animal Cruelty Prosecution Conference. This is an opportunity to bring the national experts together to address the issues facing investigators, prosecutors, and advocates so that cases are properly investigated and prosecuted and all involved are trained.” Conferences like these, David says, “are key to bringing folks together and letting them meet and work through the current issues. These introductions will be incredibly helpful as folks return to their home jurisdictions and then have an issue where they need help.”
Reaching out to individuals and organizations is also crucial. That’s why ALDF is here to help in every step of criminal prosecution. “Not only has ALDF helped by sponsoring this conference, they are available to assist prosecutors and investigators with both technical assistance as well as financial support. When I started this program in 2009, Scott Heiser was my first contact at ALDF. Scott is not only an experienced prosecutor, but he was also an elected district attorney, so he understands the issues facing many of our prosecutors. In addition to Scott, Diane Balkin joined the ALDF team and was a chief deputy in Denver for a number of years and knows what it is like to build a program in a major jurisdiction. Finally, I want to also mention Chris Green and the legislative efforts he brings into the equation. While I do not know whether the fight is tougher in the courtrooms or the capitols, this is something we work together to get good laws that can be enforced.”
Laws That Protect Animal and Human “Workers”
Posted by Daniel Lutz, ALDF Litigation Fellow on May 1, 2014
On October 5, 2013, an employee at the G.W. Exotic Animal Park in Wynnewood, Oklahoma suffered serious injuries when a tiger nearly ripped off her arm.
Following the tiger attack, ALDF and other organizations submitted complaints to the Occupational Safety and Health Administration (OSHA) in December 2013. OSHA responded with gusto, initiating an investigation only two days after receiving ALDF’s complaint. The four-month investigation led to a citation for numerous violations of the Occupational Safety and Health Act’s “general duty clause.” OSHA found that G.W. Exotics creates risk of death or serious physical harm by exposing human employees to contact with wild animals. The agency proposed a $5,200 fine (now negotiated to $2,400) for failing to protect employees, via protective barriers, from contact with wild animals.
Often, when it comes to abuses at zoos and other captive animal entertainment facilities, the harmed “employees” are not workers but rather captive animals. For example, over twenty tigers recently died at G.W. Exotics. When animals are injured or killed by captivity conditions, OSHA cannot investigate what went wrong and enforce the law. Instead, the USDA’s Animal and Plant Health Inspection Service (APHIS) has jurisdiction, under the Animal Welfare Act.
Captive animal abuses—even clear Animal Welfare Act violations—rarely lead to more than a slap on the wrist. In a 2010 internal audit, the USDA itself said, “In 1995 and again in 2005, we reported that the monetary penalties were often so low that violators regarded them as a cost of business and that APHIS reduced the stipulations by making them basically meaningless. In our current audit, we found that this problem has not yet been corrected.”
So how encouraging, then, to learn that OSHA responded quickly to the G.W. Exotics attack! While “general duty clause” enforcement is not a sufficient replacement for an industry-wide rule requiring a permanent physical barrier between employees and animals—for which ALDF has petitioned—OSHA’s enforcement actions were noteworthy for three reasons.
- OSHA found that G.W. Exotics “did not adequately protect employees” because it had failed to erect protective barriers separating the employees from dangerous wild animals. Being struck, mauled or bitten by such animals is now a recognized industry hazard.
- OSHA’s enforcement against animal entertainment facilities like G.W. Exotics was recently buoyed by a decision of the D.C. Circuit Court of Appeals. In that case, OSHA similarly issued a “general duty clause” citation to SeaWorld for the death of an orca trainer. Over SeaWorld’s objections that human interaction with orcas does not pose a “hazard,” the Court scoffed. Writing for the majority, Judge Judith Rogers wrote, “The nature of SeaWorld’s workplace and the unusual nature of the hazard to its employees performing in close physical contact with killer whales do not remove SeaWorld from its obligation under the General Duty Clause to protect its employees from recognized hazards.”
- On top of the penalty, OSHA required “abatement,” or that G.W. Exotics take steps to remove the dangerous animal hazard. OSHA specifically suggested that G.W. Exotics follow safety standards set by the Global Federation of Animal Sanctuaries (GFAS), the preeminent certification body for animal sanctuaries and rescue facilities.
OSHA deserves kudos for its attention to human-wild animal interactions at decrepit, dangerous animal exhibitor facilities. An industry-wide permanent barrier rule would best protect employees and animals alike at facilities across the nation. But at least in the case of G.W. Exotics, the agency has indirectly yet powerfully encouraged the humane, responsible care of captive animals through its emphasis on employee safety.
Judge Orders NYPD to Provide Records on Carriage Horses to ALDF
Posted by Jennifer Molidor, ALDF Staff Writer on April 28, 2014
More great news for animals—in a hearing today, the New York Supreme Court sided with ALDF in an important case for New York’s carriage horses. Last fall, after being denied access to public records by the New York Police Department (NYPD) for over a year and a half, ALDF petitioned the New York Supreme Court to force NYPD to turn over public records regarding the horse-drawn carriage industry.
In today’s hearing, Judge Shlomo Hagler agreed with ALDF regarding our right to public records under New York’s Freedom of Information Law (FOIL, which is similar to the federal Freedom of Information Act or FOIA), and reminded New York’s finest that transparency and an open government are values to be taken seriously. The judge was emphatic about the validity of ALDF’s concern about the treatment (and mistreatment) of horses in the carriage industry. NYPD was instructed to comply with the request in the broad terms it was written.
In fact, the judge ordered the NYPD to produce the documents within 45 days. The court indicated that NYPD’s position—first that they had no records, then that they had records but couldn’t share them with us, and today that they had records and could share them but ALDF had phrased our request poorly—was questionable. NYPD argued that they had no records because a horse getting hit by a car didn’t pertain to horse safety and welfare, but only to the car’s injuries. Like ALDF, the judge disagreed.
“If there was a phone call of abuse of a [carriage horse] then I believe it’s your duty to give that record over,” said Manhattan Supreme Justice Shlomo Hagler to the NYPD.
For more information, read about ALDF’s call to shut down New York’s carriage-horse industry.
ALDF Urges the U.S. to Promote Animal and Consumer Safety in Trade Negotiations
Posted by The Stanford Law School Student Animal Legal Defense Fund on April 25, 2014
What do international trade negotiations have to do with the way animals are treated? More than you might suspect. The federal government is currently in the middle of talks with Europe aimed at forming a sweeping new trade agreement. The goal of an eventual agreement, which will be called the Transatlantic Trade and Investment Partnership (TTIP), is to boost trade between the U.S. and Europe. One way of increasing trade may be to revamp regulations—in particular, food regulations—so that more food can be imported on both sides. For example, Europe doesn’t allow as many antibiotics in its meat as the U.S. and so meat produced here often can’t be sold in Europe. Therefore, one result of an agreement may be that food regulations in the U.S. and Europe become more uniform.
This could be a good thing. If Europe agrees to adopt our best practices, and we agree to adopt Europe’s best practices, then consumers and animals on both sides of the Atlantic will win. That’s the position ALDF and 28 other animal rights, environmental, and consumer groups took in a recent letter to the U.S. Trade Representative, who speaks for the President in these negotiations. But if the meat industry gets its way, just the opposite will happen: food safety and animal welfare regulations will weaken on a host of issues. Here are a few of the main issues at stake, which ALDF has asked the federal government to take a stand on:
Decreasing antibiotics use in meat production. As ALDF has noted in its petition to the USDA, excessive use of antibiotics in animals raised for food (to promote rapid animal growth using less feed) is a major contributor to antibiotic-resistant bacterial infections that are estimated to kill more than 23,000 people each year in the U.S. alone. The federal government should tighten regulations on antibiotic use at home, rather than ask European nations to loosen the safety regulations they already have in place.
Banning the animal feed additive “ractopamine.” Europe doesn’t allow the use of ractopamine in meat production or import meat from animals that have been treated with it. That’s because animals treated with ractopamine can suffer serious health problems, and there have never been conclusive, comprehensive studies on the drug’s effects on humans. As ALDF has long argued, in partnership with the Center for Food Safety, U.S. should follow Europe’s lead and ban the drug.
Playing it safe on “mad cow” disease. The U.S. bans the import of feed ingredients that could be contaminated with mad cow disease. Yet the European meat industry is seeking to overturn this ban, even while the E.U. is considering relaxing its own internal preventative measures. Mad cow disease, which affects a cow’s nervous system, destroys the animal’s brain and spinal cord. The fact that incidents of the disease have fallen dramatically in recent years is a sign that existing regulations work, not that they should be weakened.
Defending Country-of-Origin Labeling. The U.S. requires clear labeling that shows where food comes from, which helps consumers make informed decisions. The federal government should stand fast in requiring such labeling, and encourage other nations to take similar steps. In this way, consumers can make informed choices about animal welfare and their diets, both here and abroad.
Every Animal Matters: the 4th National Animal Cruelty Prosecution Conference
Posted by Stephen Wells, ALDF Executive Director on April 24, 2014
The Animal Legal Defense Fund is proud to be the exclusive sponsor of the 4th National Animal Cruelty Prosecution Conference—to be held May 5-7 in Atlanta, in partnership with the Association of Prosecuting Attorneys (APA). Working behind the scenes with law enforcement, ALDF has secured justice for animal victims in countless cases across the nation. Recently, for example, an ALDF reward helped convict a Brooklyn man responsible for setting a cat on fire. Our million-member strong Abuse an Animal, Go to Jail! campaign also highlights ALDF’s hard work on critical issues of criminal justice for animals.
Right now, ALDF is at the cutting edge of animal law in a precedent-setting criminal case in Oregon known as State v. Nix. In 2012, an abuser was convicted of neglect for the mistreatment of 20 individual starving horses. However, the trial court ruled that the defendant had to only pay one fine and serve one term for one conviction—rather than 20. At the request of the state, ALDF filed a friend of the court brief along with the appeal, and the trial court’s decision was reversed, employing several arguments ALDF made in its brief, ultimately concluding that the horses qualified as individual victims for purposes of sentencing. Following on the heels of Nix (which is pending review by the Oregon Supreme Court), the Legislature enacted SB 6 that made this legislative finding:
- Animals are sentient beings capable of experiencing pain, stress and fear;
- Animals should be cared for in ways that minimize pain, stress, fear and suffering;
Despite these gains in Oregon, and elsewhere, the prosecution of these important cases remains difficult for many jurisdictions. Far too many courts and prosecutor’s offices are under-funded and overwhelmed with casework. Further, it is a prosecutor’s ethical duty only to file charges in cases they feel they can win; if a case is poorly investigated, it can’t be won. Moreover, if animal cruelty is seen as a low priority, prosecutors may overlook these cases. Finally, a case of animal abuse may simply lack the evidence needed to prove that the perpetrator is guilty.
And that’s why ALDF makes it a priority to assist in criminal animal abuse cases by supporting conferences like these and by providing the expertise prosecutors need to put abusers behind bars. Criminal justice is a vital part of the legal process, not only to ensure justice for animals already harmed, but to deter animal abuse in the future by making it clear it will be treated as a serious crime.
At this National Animal Cruelty Prosecution Conference, some of the brightest stars in the field will be sharing their expertise. In attendance will be ALDF’s veteran prosecutors Scott Heiser and Diane Balkin, and ALDF’s legislative expert Chris Green. Vic Reynolds, Cobb County, Georgia district attorney, will be the keynote speaker. Vic was recently honored by ALDF as one of the nation’s Top Ten Animal Defenders during National Justice for Animals Week 2014. APA president David LaBahn—who was also honored as a top animal defender—will discuss legislative policies to help animals. Check out the full agenda for this outstanding conference.
ALDF is pleased to continue to develop our collaboration with the Association of Prosecuting Attorneys in recognition of the importance of aggressively prosecuting animal cruelty. These cases must be a top priority for all law enforcement officials. For more details about the conference, visit APAInc.org and register online.
One Step Forward, Two Steps Back—Damage Control in the Wake of State v. Newcomb
Posted by Scott Heiser, Senior Attorney and Director, Criminal Justice Program on April 23, 2014
The same three-judge panel of the Oregon Court of Appeals that issued a favorable ruling in Fessenden/Dicke(a 2013 case holding that the emergency aid exception to the warrant requirement applies to animals) just ruled, in State v. Newcomb, that an Oregon Humane Society (OHS) veterinarian’s blood test of a starving dog that was otherwise lawfully seized should be suppressed as a warrantless “search” under the Oregon Constitution. The Court expressly rejected the argument that when law enforcement lawfully seizes an animal owned by the suspect, the suspect’s privacy rights must yield to the animal’s right to veterinary care. In rejecting this perfectly reasonable analysis, the Court wrote, “the veterinarian, acting on behalf of the state, conducted a warrantless search of the dog by extracting and testing its blood—an act that constituted a physical invasion of defendant’s property [see ORS 609.020] and exposed otherwise concealed information about the dog that served as evidence of a crime.” The Court treated the starving dog as if it were a “closed container” that did not announce its contents, making any further “invasive” inspection unlawful without a warrant. Also at issue were questions about testing feces samples and tracking weight gain with regular feeding. The Court held that tracking weight gain is not a search, but remanded the case back to the trial court to make factual findings on the circumstances of the veterinarian’s feces sample collection and testing.
The facts in Newcomb are not complicated. In response to a tip, an OHS investigator went to the defendant’s house to investigate a complaint of dog neglect. The investigator arrived to find a dog in a near-emaciated condition; the dog was eating random items in the yard and was ill—vomiting without disgorging any stomach contents. The investigator interviewed the defendant owner, who said she had run out of dog food but was going to get more food later that evening. The defendant refused to sign a release that would allow the investigator to take the dog in for medical treatment.
The investigator, who had probable cause to believe the dog was the victim of criminal neglect, then seized the dog under the plain view exception to the warrant requirement. Back at OHS, the veterinarian collected and tested blood and feces samples from the dog and charted the dog’s food intake and weight gain. Unfortunately, the record from the hearing on the defendant’s motion to suppress appears to be a bit thin in articulating the compelling need for such testing—namely, the need to render medical care to the ill dog. The Court of Appeals used this deficiency in the record against the State to imply, without deciding, that the blood test was motivated, at least in part, by the desire to collect incriminating evidence against the offender. That implication made it all the easier for the Court to conclude that the blood draw was a “search” subject to exclusion.
This is a bad ruling on multiple levels but I have every confidence that we can get it corrected. However, until then, here are some tips to contain the damage:
- This is a decision applying Article I, section 9 of the Oregon Constitution and it does not apply outside of Oregon. It most certainly does not influence Fourth Amendment analysis in other jurisdictions because the Oregon Constitutional test for what constitutes a “search” is decidedly different than the test used under the Fourth Amendment:
Oregon Constitutional Test: A “search” occurs when a government agent intrudes upon a person’s protected privacy interests. State v. Wacker, 317 Or 419, 425 (1993); State v. Rhodes, 315 Or 191, 196 (1992). In determining whether a “search” occurred, two issues have to be addressed: (1) Does a constitutionally protected privacy interest exist in the area or object? and (2) Did the police conduct intrude upon that interest?
Fourth Amendment Test: A “search” occurs when government officials invade a defendant’s “legitimate expectation of privacy.” Oliver v. United States, 466 US 170, 177-78 (1984); Katz v. United States, 389 US 347 (1967). This rule has been carved into two pieces: (1) Does the individual have an actual subjective expectation of privacy? and (2) Is society prepared to recognize that expectation as objectively reasonable?
Given the radically divergent approaches to defining a “search,” Fourth Amendment jurisdictions should not be impacted by this Oregon ruling.
- As to those of us who practice in Oregon:
a. This ruling does not apply to veterinarians in private practice who are not acting at the direction of law enforcement as there is no “state action” and absent that, the defendant may not invoke the exclusionary rule. A prudent prosecutor will carefully develop the record on this point in future cases.b. In subsequent litigation of this issue in warrantless cases, make a bombproof record on the medical necessity for why these tests (such as blood and feces) are needed, and how the veterinarian and seizing agency are required by law to provide “minimum care” as defined in ORS 167.310(9)(d).
c. In all subsequent warrantless impound cases, secure a search warrant for any and all post-seizure vet care, at least until the Oregon Supreme Court addresses this matter.
d. When drafting a search warrant prior to an impound in any animal cruelty case, be sure to including precise language expressly articulating the medical need for these tests and include language in the draft warrant expressly authorizing diagnostic testing and confirmatory laboratory work.
e. Under NO CIRCUMSTANCES should any competent prosecutor tolerate this case being cited for the proposition that the entity impounding a victim animal cannot provide veterinary care. To do so is to expose the impounding entity to criminal neglect charges for failing to provide minimum care.
It is a shame that the Court, in this context, is treating a starving animal like a film canister or Crown Royal bag—as a “closed container” that does not “announce its contents.” More to the point, this opinion conflicts with State v. Langevin, 84 Or App 376, 383 (1987) affirmed, 304 Or 674 (1988) holding that testing of a suspect’s lawfully seized blood by the crime lab to confirm the presence of alcohol is not a search. If one lawfully seizes a victim dog, does not one also lawfully seize the dog’s fur, bones, and blood? And if testing a human suspect’s lawfully seized blood is not search, it simply does not follow that testing the blood of a suspect’s lawfully seized dog is a search. However, until Newcomb gets reversed, please heed the advice we offer above.
Happy Earth Day!
Posted by Jennifer Molidor, ALDF Staff Writer on April 22, 2014
April 22, 2014 is recognized around the world as “Earth Day”—a day that reminds us to care for Mother Nature and the planet on which we reside.
Why should animal lovers care about Earth Day? Here are 5 reasons why:
- Animal Agriculture Is Harming Our Planet – The farming of nonhuman animals not only harms the billions of animals we slaughter annually in the U.S. alone, and frequently leads to violations of federal and state anticruelty and environmental laws, but it is also one of the top contributors to climate change. Cutting animals out of your diet can help save the planet too.
- Predators Are Crucial to Ecosystems – Wolf hunting and coyote killing contests hurt more than just the individuals shot as “trophies.” Removing a large number of pack-members and destroying extended family systems drastically disrupts the entire region and that’s why you can take action here to help protect the Gray Wolf.
- Dolphin Safe Tuna Isn’t Safe for Anyone – Commercial fishing destroys marine ecology. Even tuna companies that claim to use “sustainable” fishing practices are still killing not only tuna but dolphins and countless non-target animals including whales and endangered turtles. You can sign ALDF’s petition to boycott tuna producers here.
- Animal Rights Make a Healthy Planet – Protecting the interests of nonhuman animals means setting a standard of care for their environment, and ours! Protecting animals means we must also protect the earth.
- Coalitions Build Better Bridges for the Future – Joining forces with groups like the Center for Food Safety and the Center for Biological Diversity mean uniting our purposes, strengthening our resolve, and working together to make a difference.
And that’s why we urge all animal lovers to celebrate Earth Day by connecting the health of our planet with the wellbeing of all animals, human and nonhuman.
What will you do to help celebrate Earth Day?
World Week for Animals in Laboratories
Posted by Mark Hawthorne, ALDF Guest Blogger on April 21, 2014
They are hidden from view, but animals in labs suffer by the millions each year, and we can all do something about it. This week is World Week for Animals in Laboratories. Built around World Day for Animals in Laboratories (April 24), this is an international movement of protests, rallies, demonstrations, marches, candlelight vigils, and media events to raise awareness about animal testing. An estimated 100 million animals suffer in laboratory research—with little to no regulatory oversight. Legal requirements for painkillers are often overridden by claiming “scientific necessity” and 95% of these animals are unprotected by the federal Animal Welfare Act. See ALDF’s “Animal Testing and the Law.”
Animals in laboratories are beaten, burned, and blinded. They are nailed down, tied up, and sliced open. They are starved, suffocated, shaken, and shot. Their organs are pulverized, their limbs are severed, their bodies are irradiated, and their spirits are broken. They are forced to drink alcohol, inhale tobacco smoke, and consume a variety of highly dangerous narcotics, including heroin. Name a modern disease, and they’ve been infected with it. Imagine a torment, and they’ve suffered it.
Whether it’s called animal testing, animal research, animal studies, animal experimentation, or vivisection, the exploitation of animals in labs occurs throughout the world over three broad categories:
- In biomedical research, by far the largest use, animals are used as models of people to study human health, disease, and injury. Examples of study targets include clues to the mechanisms of heart conditions and potential drugs to treat illness. This category also includes testing drugs to determine their toxicity (how poisonous they are). Research is generally a precursor to clinical trials using humans.
- In product testing, scientists conduct toxicity tests on animals to discover how cleansers, food additives, pesticides, cosmetics, tobacco, and a broad assortment of industrial and consumer goods might affect human beings and the environment. For example, typical tests measure the level of skin irritancy and eye tissue damage a substance causes.
- In education, animals are used in training medical, veterinary, and other health professionals or in teaching basic biology, such as anatomy. Dissecting frogs in high school is a common example most of us are probably familiar with.
The good news is that alternatives to animal-based models are making headway and show great promise for one day replacing animals altogether. These include In vitro (“in glass”) studies on human cells and tissues; computer modeling; machines that screen chemicals for toxicity; clinical research, which entails observing and analyzing illnesses in human patients; and a humane alternative for HIV/AIDS research called the Modular Immune In vitro Construct (MIMIC), which uses human cells to create a surrogate human immune system. Unfortunately, fully implementing these compassionate options will be a long process. In the meantime, please speak out for animals in labs this week. Here are some things you can do:
- Never purchase products tested on animals. Read labels and look for language that indicates the product is free of animal testing. You can also check for the Leaping Bunny logo.
- Write a letter to the editor of your local paper urging that society abandon animal testing. Although animal testing is currently required before drugs go to market, no U.S. law dictates that animals should be subjected to torture to test the safety of household products. (Even a letter that doesn’t get published is a force for positive change.)
- Do not donate to charities that test on animals.
- Become part of an organized event. To find something in your area, simply go to Facebook and type “World Week for Animals in Laboratories” in the search field at the top.
- Add a message to your voice mail or email signature that speaks up for animals in labs.
- Download a copy of ALDF’s brochure “Animal Testing and the Law” to learn why animal research is nothing short of legal torture.
Mark Hawthorne is the author of Bleating Hearts: The Hidden World of Animal Suffering and Striking at the Roots: A Practical Guide to Animal Activism (both from Changemakers Books). You’ll find him tweeting @markhawthorne
Our Hollywood Screening of The Ghosts in Our Machine
Posted by Stefanie Wilson, SALDF Chapter Regional Representative for Los Angeles on April 11, 2014
ALDF is now expanding its presence in the greater Los Angeles region with ALDF-LA. By doing so, this regional attorney network will advance ALDF’s mission to protect the lives and advance the interests of animals through the legal system by hosting local events, offering CLE activities and speaking engagements, collaborating with local animal protection organizations, and providing legal expertise to strengthen laws for animals.
One such local event was the April 3rd screening of the film, The Ghosts in Our Machine, where ALDF gathered in Hollywood, California with local attorneys, SALDF chapter members, and local supporters. The screening celebrated the partnership between ALDF and Ghosts to mutually promote the film and ALDF’s Animal Bill of Rights.
There was a festive atmosphere at the welcome reception, where attendees quickly discovered mutual connections over delicious vegan appetizers and drinks. A shoe-in for ALDF’s Parent of the Year Award (if there was such a thing), a mother came with her ten- and thirteen-year-old sons, proudly introducing them as animal rights advocates. She told me that, next month, her thirteen-year-old will be giving a presentation on animal rights at his bar mitzvah.
After the film, ALDF hosted a Q&A session with Jo-Anne McArthur, the human protagonist in Ghosts. Questions ranged from, “how do you stay sane?” to “how can I do more for animals?” At times, audience members chimed in to add their thoughts and reflections from their own experiences as animal advocates.
Ghosts follows photo-journalist Jo-Anne McArthur as she travels across the world to photograph animals in captivity for her We Animals book and project. The film is perfect for people who have never heard of animal liberation as well as seasoned animal activists. For the uninitiated, Ghosts is a “gentle” animal rights film. The viewer is so caught up with Jo-Anne’s story and her poignant photographs that they barely notice that their eyes being opened to the Brave New World of animal exploitation that is too often hidden from sight.
For the animal advocates, we find solidarity with Jo-Anne’s experience in the first half of the film. We know her frustration all too well when she faces rejection from a mainstream agency because they can’t sell her photographs to the big publishers. Our hearts ache with hers when she must leave the animals behind and thinks of the ones that cannot be saved. But towards the end of Ghosts, Jo-Anne delivers an important message for all of us in this field—despite everything that she has seen and documented, she still has hope. She still believes that humans are innately compassionate. “I’m trying to save the world,” she whispers, as if the thought is too radical to say out loud. We are with you Jo-Anne. We are trying to save the world too.
To make sure you get updates about other ALDF-LA local events, be sure to sign up. ALDF is planning a special CLE event for law students and attorneys on September 27, 2014 at Loyola Law School.
Building Bridges: Animals, the Environment, and Fighting Climate Change
Posted by Stephen Wells, ALDF Executive Director on April 10, 2014
Animal agriculture is harming our planet. This point is highlighted in a recently released report from the United Nations Intergovernmental Panel on Climate Change (IPCC), which carries far-reaching implications about the impact of animal agriculture on greenhouse gas emissions. The fact is, our industrial-scale consumption of animals is one of the leading contributors to climate change.
Unlike previous reports, the IPCC assessment provides little reason to believe we can any longer prevent significant impacts from climate change. In the report, the authors describe a 2 degree Celsius rise in global temperatures within two to three decades. By midcentury crop losses of up to 25% will be standard. Systemically, infrastructures will be in jeopardy, our food systems will be unstable, and our ecosystems irreparably damaged. Furthermore, by 2030, nations will surpass the safety threshold for clean air standards, because while most acknowledge that climate change is a real threat they yet have not put in place the systematic changes needed to minimize its damage.
The fundamental changes we need to mitigate the effects of climate change mean seriously addressing the intersection of animal protection and environmental health. Many advocate for clean energy and transportation policies without addressing the more significant impacts of raising animals for food. Industrial animal agriculture or “factory farms” account for nearly 20% of greenhouse gas emissions. Each year, ten billion animals are exploited in industrial agriculture in the U.S. alone. Fossil fuels, used in intensive animal agriculture, emit 90 million tons of C02 annually around the globe. Deforestation for animal grazing and feed crops emits another 2.4 billion tons of C02. Factory farms release potentially fatal compounds such as hydrogen sulfide, ammonia, and methane into the air we breathe. Yet even in a weak economy and with dire warnings about climate change, factory farms are growing exponentially.
It is impossible to tackle the environmental concerns of climate change while continuing to contribute to the industry of consuming animals. I came to the animal protection field from the environmental movement because I knew the change we need isn’t superficial but structural—the challenges of animal welfare and environmental protection are two pieces of the greater whole, and we must address them together. Weak environmental laws and a lack of farmed animal protection laws are connected. Both facilitate the continuation of the destructive factory farming industry. By joining forces, the environmental and animal protection movements can build legal bridges into the future.
Earth Day—April 22—marks the anniversary of the modern environmental movement and an emerging consciousness that puts the health of our planet front and center. But it is in animal law we find the bringing together of related and overlapping policy changes. Protection of the planet without addressing core issues regarding animals cannot fully tackle the global problems that threaten us. In discussing the IPCC report, the chairman said “nobody on this planet is going to be untouched by the impacts of climate change.” We need a new direction rooted in our concern for the well-being of all life on earth, not just humans.
Missouri Sues California over Promoting Animal Welfare
Posted by Kelsey McLean, ALDF Guest Blogger on April 9, 2014
Over three years ago, California voters spoke loud and clear about their position on animal welfare and food safety. Californians voted to pass the Prevention of Farmed Animal Cruelty Act, which bans any farmed animal from being kept in a confined space without room to stand up, turn around and fully extend their limbs. One of the problems targeted by this new law is the egg industry’s use of battery cages. A traditional battery cage can contain up to 11 birds, each spending their entire lives with less individual space than a sheet of printer paper. The cages are so cramped that hens often get trapped or impaled by the cage wire. Also, without the ability to move freely or extend their wings for months or years, the birds’ bones and muscles deteriorate.
Although the suffering that battery-cage chickens experience is troubling enough, it is only part of the problem. Studies have shown that eggs are the most common host of salmonella, and battery-cage eggs have an overwhelmingly higher rate of salmonella contamination than eggs produced more humanely. The California legislature, fulfilling its duty to protect its citizens from these dangers, extended the ban on the sale of battery-cage eggs to include those coming from both California producers and out-of-state producers.
Fast forward to February of 2014; Missouri Attorney General Chris Koster has filed a lawsuit against the State of California. He says that banning the sale of battery-cage eggs violates the Commerce Clause, a Constitutional provision that essentially prohibits states from unfairly burdening interstate commerce by giving advantages to in-state producers that disadvantage those out of state. Missouri has an industrialized system for egg production that utilizes battery cages. Missouri also exports approximately one-third of its eggs to California. Now, Alabama, Iowa, Kentucky, Nebraska and Oklahoma have joined Koster’s lawsuit, deciding that factory farming profits hold a higher value than human health and animal welfare.
California is no stranger to these types of lawsuits. Courts have upheld California’s right to ban the sale of shark fins and to enforce stricter emission standards on cars, both of which would affect out-of-state parties. Agricultural producers also recently challenged California’s ban on the production and sale of foie gras, arguing that the foie gras ban violated the Commerce Clause. The Ninth Circuit disagreed and upheld the ban, saying that California held a legitimate interest in banning the sale of foie gras, and that the ban applied equally to all states, giving California no economic advantage over any other state. This is the exact situation that Attorney General Koster is up against in the current lawsuit. It seems difficult to see how Missouri, or any other state, can prove that the ban treats its egg producers any differently than California’s producers. Under the traditional authority of state law, California also has a legitimate interest in ensuring the safety of its residents by reducing the risk of food borne illnesses.
Instead of encouraging Missouri egg farmers to meet these basic welfare standards, Koster has chosen to spend taxpayer money to attack the California law. Let’s hope that the federal courts will continue to allow California to lead the way in animal protection.
Animal Abandonment is a Crime
Posted by Ian Elwood, ALDF Online Editor on April 8, 2014
Abandoning a domesticated animal isn’t just a cruel thing to do, in many states it’s a crime. The Animal Legal Defense Fund sorts through thousands of messages a week. Emails, tweets, messages, phone calls—the stories of animals being abused, abandoned, and neglected are heartbreaking. So when an email came in recently about a group of chickens abandoned at a local park, we were excited to hear that Hen Harbor sanctuary had space to take them in. They just needed rescue and transport.
Unfortunately, this type of scenario is all too common. Many people buy chickens without realizing that caring for them is a real responsibility—they aren’t simply egg-laying machines. Around Easter time, many people buy baby chicks and rabbits on impulse, and often abandon them without any consideration for the animal, or the law. Because of the intense selective breeding done by the poultry industry, today’s chicken has no better chance of surviving in the woods than a human child. Knowing this, and the fact that these birds had someone able to provide life-long care for them, we drove out to attempt a rescue.
We arrived after dark and saw three chickens perched high in a tree. Sadly, three others had already been killed by predators. After climbing up, I was able to reach out and quickly grab the first one. He perched on my hand while flapping as I guided him to my chest and zipped him safely inside my jacket. I climbed down and put him into a large pet carrier.
The next one flapped gracefully to the ground as I approached him, and another rescuer was able to scoop him up. The third was in another tree, so I shimmied up and got him into the carrier using the same method as the first.
We drove to Hen Harbor sanctuary the next day after providing food, water, and rest to the chickens. Opening the door to the carrier and watching the three birds hop out onto the straw floor of a predator-proof barn was very rewarding. It was good to know that these three individuals would be safe.
Thinking about how much time and energy it takes to rescue three chickens makes you think about how many others are not rescued, cared for, or even provided the smallest amount of compassion during their short lives. Chickens are used for meat, eggs, cockfighting, and are harmed in countless other ways. Attempts to pass even modest animal protection laws are fought tooth and nail by those who stand to gain from harming chickens.
ALDF is hard at work every day, but a stronger legal framework for chickens—and all animals—will take time to build. In the meantime, you can help chickens by avoiding eggs, adopting rescued chickens, supporting animal sanctuaries, and by becoming a Partner in Protection with the Animal Legal Defense Fund.
The law has a long way to go before chickens are treated with the dignity and respect they deserve, so we all need to do our part. That is why the attorneys at ALDF work so hard to enforce existing animal protection laws, and to advocate for new ones. With your support, someday all chickens will have the protection they deserve, not just the lucky few.
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