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The asymmetry of animal rights fines

U.S. prosecutors have charged more penalties for activists revealing blatant animal mistreatment than they have charged factory farms with committing it. This trend is a glaring miscarriage of justice, and it must be reversed.


This piece by Stable Planet Alliance advisor and ethics scholar Carter Dillard was originally published under a different title 20 Dec 2023 in Law360, and later here in LA Progressive. We've republished it because a continued stable state on planet Earth needs to be a much more ecocentric one, in which we understand that cruelty, greed, racism, human supremacy, and other forms of predatory exploitation are all symptoms of the same problems driving ecological overshoot: our numbers, our appetites, and our mindsets.


Photo credit: Beth Schlanker, The Press Democrat

Here’s a disturbing fact: Prosecutors in the United States charge more penalties for the activists who reveal animal cruelty crimes than they do for the factory farms that commit them. This trend is a glaring miscarriage of justice, and it must be reversed.


And here’s the latest miscarriage, involving a high-profile activist: On November 2, 2023, Wayne Hsiung, an attorney, animal rights activist, and founder of the animal rights nonprofit Direct Action Everywhere (DxE), was found guilty of felony conspiracy and two misdemeanor charges for rescuing mistreated animals from Sunrise Farms and Reichardt Duck Farm, two factory farms in Sonoma County, California, known to activists for breaking animal cruelty laws for many years.


Hsiung and his fellow activists at DxE use a well-known tactic known as “open rescue,” in which concerned citizens enter farms and physically remove animals who show signs of injury or distress in order to save their lives. The tactic is used in businesses that operate in blatant violation of animal cruelty laws.


This is a story that can compel good people who respect the rule of law and true justice over the power of money to do the right thing.


A Flashpoint in the Next Frontier?


Hsiung’s trial and conviction are part of a crucial story within the animal rights movement. This story ranges back well before his recent acquittal in Utah, covered in a New York Times op-ed. But what happened in Sonoma—and also in stories about other animal abuse cases in the county showing local corruption—are part of a much bigger story about corruption, social justice, and the rule of law as bottom-up justice over top-down power.


Knowing that what activists are doing to help animals is just, juries in cases such as Hsiung’s will often acquit. Most people recognize that nonhuman animals are not mere property; if a business or other owner mistreats them, good-hearted individuals may feel that they have a right—perhaps even a duty—to rescue them. This legal concept is known as the “doctrine of necessity.”


In a 2014 paper published in the Stanford Journal of Animal Law & Policy, attorney and animal rights advocate Jenni James explains the doctrine: “The necessity defense encourages citizens faced with untenable options to choose the action that generates the greatest social utility, even when that act is illegal.”


In Hsiung’s trial, the judge kept crucial evidence from the jury and made other questionable decisions, such as preventing a discussion of Hsiung’s belief that the doctrine of necessity permitted his conduct. The jury did not acquit. Hsiung faces up to three years in prison.

If true justice prevails and a broken system is exposed, then “official” authority is undermined. This lack of legal enforcement of animal welfare and cruelty laws would create a vacuum, inviting animal activists to step in to fill the gap. These actions could develop into a populist revolution meant to protect a truly voiceless segment of individuals who feel pain: nonhuman animals.


In 2019, Emily Atkin of the New Republic wrote the excellent article “Why Animal Rights Is the Next Frontier for the Left,” in which she explained that “as the left hardens its commitment to fighting climate change, social injustice, and rampant capitalism, the question of what to do about animals will become inescapable.”


The conviction of Hsuing could be a flashpoint in this “next frontier.” Because it shows just how broken the legal system is, his story could help advance the development of a grassroots movement to liberate nonhuman animals. It also presents us with a choice: Live in a system where the government ignores animal cruelty laws—or save the animals those laws were meant to protect.


This is an area ripe for populism because it confronts an industry that has significant influence over governmental regulations, politics, and the legal system—an influence that results in billions of animals being tortured and killed yearly, as well as a poisoned environment.


The True Cost of Ignoring Animal Cruelty Laws


As a former federal prosecutor and animal rights lawyer, I learned that animal cruelty laws are almost worthless—almost never being enforced when the industry is doing the abuse. Instead of enforcing these laws, officials more often target those who reveal that animal welfare crimes are being committed. And often, local economics are the reason.


In my experience, local prosecutors (and some judges) often act not as public servants, but as servants to industries. They consistently ignore animal cruelty laws in the name of corporate profit and choose business over people.


But what is the true cost? Not complying with the law has already led to direct democracy, with a series of populist ballot measures and lawsuits going all the way the Supreme Court—moves that would cost taxpayers millions. Instead, businesses should comply with the law. Law enforcement officials, regulators, and prosecutors should enforce it.


In the early 2000s, I urged California prosecutors to enforce the state’s explicit prohibition of the intensive confinement of animals. They refused because compliance with the law would incur a cost to businesses—businesses that influence elections.


After that, I spent years urging prosecutors in Sullivan County, New York, to shut down the only major foie gras farm in the United States because it violated animal cruelty law in the state by torturing millions of animals. Instead, they defended the lawbreakers and prosecuted the whistleblowers.


From 2010 to 2021, I served in senior management at the Animal Legal Defense Fund (ALDF), running their undercover operations and reviewing dozens of cases of shocking animal cruelty, including in Sonoma County. This is the county where Ruby the horse died a slow and painful death because officials deemed that she was merely “property.”


I found cruelty in almost every investigation performed, but as a matter of practice, we rarely presented cases against industry because we knew the prosecutors would ignore them, and for other reasons that showed a failure of the rule of law. The officials would ignore them as a matter of course.


And yet, like other large animal law nonprofits, we simultaneously benefitted from the work done by these groups while refusing to help them and even privately condemning them. While we raised money on the evidence, the activists risked prison time. We never secured a conviction against a company.


Regarding Hsiung’s trial, the main investigator officer at Sunrise Farms said to the farm owner, “We’re on your side here.” A chapter of Hsiung’s cross-examination specifically addressed this: Before law enforcement knew anything about what was happening, why Hsiung was there in the first place or investigated any allegations of animal cruelty (for which they never fulfilled their promise to do so), they chose a side.


This is further supported by law enforcement commenting to each other they would just merely be “checking a box,” indicating no animal cruelty without conducting any investigation.


Follow the Money: Law Enforcement Sides With Corporations


After DxE’s demonstration against McCoy Poultry Services in Petaluma, California, in September 2018, where activists attempted to give aid to dying animals, the local sheriff arrested the activists, seized nine living birds out of the activists’ hands, and delivered them to Sonoma Animal Control. Per its report, Animal Control subsequently found that all nine birds were in extreme distress, including one with necrotic wounds so large that his bone and muscle tissue were exposed. Animal Control listed the farm owner as a suspect for animal cruelty.


That report was forwarded to the district attorney, who then charged the activists with multiple felonies for that demonstration and the earlier demonstration at Sunrise Farms in May 2018.


Deputy District Attorney Bob Waner subsequently dropped all charges against the activists relating to McCoy’s and made a motion in limine to exclude all mention of that action at trial, which the judge granted, notwithstanding that case law is clear that after-the-fact actions are relevant to intent. The design of that action was very similar to the Sunrise action (for which Wayne, the sole remaining defendant, is being charged).


In October 2018, the Sonoma sheriff district attorney attended an invite-only event with the Sonoma Farm Bureau called “Beyond the Fence Line,” which purported to teach attendees “how to prepare for and manage activists.”


According to attendee Doug Moeller, who supports activists, Troye Schaffer, then the chief deputy district attorney and now a Sonoma judge, told attendees that the Farm Bureau was “revising” and “working to repeal” Penal Code Section 597e, which the activists argued was being violated by the commercial animal exploitation facilities and gave the activists the right to enter to provide animals aid.


That law subsequently was changed via Farm Bureau lobbying under the guise of being a non-substantive, “technical” change. At another “Beyond the Fence Line” event in 2019, the sheriff and district attorney’s joint presentation advised attendees to “[w]ork with Farm Bureau to make sure good legislation is in place for you.”


In sum, instead of advising the commercial facilities not to abuse animals, the sheriff and district attorney advised them to change the law to make it easier to abuse animals and prevent activists from intervening legally to help animals.


Revealing Animal Cruelty, Recommending Charges—Still No Action


In August 2014, Mercy for Animals (MFA), an animal rights nonprofit, released a horrific investigation of Reichardt Duck Farm. A review of the footage by four veterinarians concluded that severe animal cruelty was occurring. In response, the sheriff conducted an “investigation” of Reichardt in October 2014, which included Dr. Armaiti May, one of the veterinarians who reviewed the MFA footage. May concluded that there was “severe neglect and abuse of the birds” and recommended that criminal charges be brought.


An industry vet who also accompanied the sheriff, Dr. David Rupiper, wrote a concise but glowing review [see page 18 here], though May notes that he spoke with the owner the whole time and didn’t even inspect the birds. The sheriff ultimately sided with Rupiper, even faulting May for not “praising” the facility and dismissing her report as “an emotional response of the injured ducks and not an overall assessment of the farm’s management.”


In the Sonoma rescue trial, deputy district attorney Waner filed a motion in limine to exclude that investigation and represented to the court that it found “no criminal animal cruelty.”

A March 2019 investigation by DxE revealed the very same abusive conditions as revealed by MFA. The district attorney is in possession of all of it, as well as FOIA evidence of Reichardt scalding ducks alive (shockingly, in the presence of U.S. Department of Agriculture inspectors) and fabricating E. coli records. Yet no action has been taken.


Risk Profiling: Lip Service From Animal Rights Groups


Those of us who served at ALDF—and raised money on a system that did more to harm activists than protect animals—were hardly alone. Most national animal protection organizations raise money on the presence of animal protection measures they know will not be enforced. (This makes some logical sense, if unethical: If you’re raising money on a problem and the problem goes away, so does the money.) They talk of a paradigm shift and go home. Hsuing actually acted on the paradigm shift—refusing to treat animals as property—and that terrifies those who might be asked to deliver on their stated commitment to animal rights and their stated mission to help animals in need.


So we are left with a terrible system.


The story of Hudson Valley Foie Gras is a grand example of how little animal cruelty laws are worth when that cruelty is profitable. A well-known national animal protection organization in New York, with hundreds of millions of dollars in its coffers, has allowed the nation’s only foie gras facility to operate with impunity less than 100 miles away. This, despite having assessed that the facility, which is the site of millions of animals tortured every year—violates state cruelty law. Why? Doing so is risky for fundraising. Addressing foie gras cruelty head-on could anger wealthy funders who enjoy the product.


The strategy is that it is better to have an unenforced law than no law at all. But as years of nonenforcement (and the moral hazard of rent-seeking on the illusion of the functional system) build-up, the strategy is proving to be a failure. At organizations I’ve worked with, raising funds on a system you know does not work is acceptable under what some managers call “risk profiling”: the idea that the organization must grow more to be in a position to one day help animals. That day often never comes.


Moral Hazard: Animal Rights Lawyers


Animal rights lawyers face a unique moral hazard here: Like all lawyers, they have an understanding of and access to the legal system that all people need and rely on at a fundamental level. Animal lawyers’ identity is often based on their privileged position in that system, and they may be unlikely to recognize and admit system failure and the disappearance of the rule of law, even when it’s clear. They (law professors, especially) may prefer to maintain their esteemed social rank than admit the truth.


But animal law and personhood is the highest ideal—an obligation to protect the most vulnerable. While it may be permissible to negotiate away certain tactics, goals, and or even timing, we should not cloud that ideal or move the goalposts (as is being done with climate baselines). Hsiung has shown that the system does not work. We are far from the ideal.


This is undoubtedly the case when it comes to the climate crisis, and its erosion of the facade of a system of cost and benefit (including the benefit of being a lawyer) is now likely to lead to the deaths of millions of innocent persons and billions of animals.


Almost every lawyer and animal lawyer I know went quietly along with a racist and ecocidal system that is eradicating the nonhuman world at a macro level, undoing benefits for animals, cementing massive inequity, degrading democracy, and ensuring the continuation of the climate crisis.


The reasons for this are similar to why they avoid backing an organization like DxE. They get the benefit of being lauded, of being included in a system that seems noble—but without having to pay the costs or take the risks. Perhaps they are burned out and prefer to avoid the real challenges of taking on a corrupt, unethical, and broken legal system. Perhaps they believe that liberating nonhumans or saving future generations is infeasible.


None of these are good reasons, and we can identify and lean on these people by identifying claims they have made about victories and commitment to animal personhood that are undermined by the reality of their resignation and reliance on a broken system.

I have lived all of these lies and know what they look like.


To admit that DxE is necessary to treat animals fairly is to accept that the system on which much of the prestige and livelihoods of attorneys and law professors rests is broken.


Yes, prosecutors will occasionally run high-profile prosecutions of individuals who abused a dog or a cat. But that amounts to low-impact window dressing relative to factory farming and other industries that torture billions of animals yearly. But if the target is a business, and that business can afford good counsel, and that business employs locals and maybe even supports local officials, prosecutors generally look the other way.


The Illusion of Protection Forestalls Positive Change


This is a systemic problem, proven by the pivot of the animal rights movement toward veganism, toward market-based solutions to a problem the law cannot fix. It’s a problem the law may exacerbate, creating an illusion of protection that forestalls change.


In 2021, I made the conscious decision to abandon the systems of “top-down power” to instead support organizations of “bottom-up justice,” like DxE and other organizations that further intergenerational justice for the most numerous and vulnerable entities of all.


Grassroots activism is a systemic reaction to this corruption—a refusal to just rely on the consumerism of veganism as a band-aid solution to a political system that allows the torture of animals because the industry is above the law.


Unlike plant-based industries as the sole solution, this way enables animal rights to lock arms with other social justice movements (like Black Lives Matter), movements that are well aware of the systemic corruption of our political and legal systems.


Right to Rescue: An Ethical Solution in a Broken System


The common focus here is on system failure and the notion of a “right to rescue”—a key move that DxE is urging—is a systemic solution to an animal law system that does not work. Animal law as an effective system of top-down power and enforcement is a scam, akin to what organizations do when they ignore the way the child welfare and family policies are too controversial for them to touch and undo the work they claim to do.


Climate change may prove a wildcard factor in all of this. Prosecutors protecting factory farms in their hometowns are backing an industry whose methane and other contributions to the climate crisis are massive. That makes them complicit in an industry that could not exist if animal cruelty laws were enforced, and that is likely to kill millions of humans.


That raises the stakes of what it means to be an activist because one would be saving humans and nonhuman animals by taking drastic action. The hundreds of DxE activists who march on factory farms could become thousands. This could be joined with an open call for animal organizations to back a right to rescue so that they live the values they profess, including urging law enforcement to deputize citizens with the authority to do so.


Climate change demands mutual liberation of humans and nonhumans through fundamental bottom-up empowerment—not just the façade of consistently unenforced government regulation or ecocidal alternative protein markets based on unsustainable growth that does more harm to animals than vegan food does good.


Wildcard: Rural America


There is another wildcard involving a possible moveable middle on the political right: rural Americans who are keenly aware that our government is disenfranchising them in favor of large companies, often with deep ties to China. A sense of this was captured in Elizabeth Barber’s essay on DxE’s work in Iowa, constitutional attempts to limit Big Ag in Nebraska and numerous other stories of good-hearted citizens doing the right thing.


This is a key threat to animal industries’ grip on local law enforcement, and it was the basis for a key and rare corporate prosecution in 2005. Locals often know the system is rigged, and the trick is to find the ones who have had enough and are prepared to act.


Oddly enough, the informal justice practiced by DxE resonates on the opposite side of the political continuum, with the effective boycotts the right often dismiss as identity politics and “cancel culture.” That culture is well aware that the formal legal system often fails to hold concentrations of wealth and power accountable, so they simply appeal to the market vulnerability of companies.


They appeal to good people with a sense of justice. For many on the left who see system failure—whether it comes to Black men dying in the street or women abused in the workplace—direct animal action and a fundamental right to rescue holds great promise. We must recognize that all systems of oppression are similar. Joining forces makes theoretical and practical sense.


If animal activists can reach these disparate audiences with stories of basic decency as they engage in rescues and other acts of defiance, they may find ways to run enforcement-minded opposition candidates in rural district attorney races, which are relatively inexpensive.

All of this may seem complex, but in truth, it is simple. Nonhuman animals have no power.


Whatever the legal system is, the laws have been proven not to work. The powerful who exploit nonhuman animals will generally prevail—unless something fundamental changes.


What Hsiung and DxE are doing could be that change. They could stimulate the power of the masses—motivated by the harsh truth uncovered by whistleblowers and open rescue activists—into the equation. There is undoubtedly a moveable middle towards the right and left who are well aware of corruption in government and might respect what these activists do.


Centering Animal Rights Within Human Rights


All of this raises the question of whether Hsiung should be considered a political prisoner or prisoner of conscience. The standard seems to have been met, given all of the above. He has demonstrated that the system designed to protect animals is not only corrupt but also that revealing this truth amounts to a criminal offense.


What is the value of that designation? It moves animal rights—and the human right or duty to rescue—into the center of human rights and away from the margins of social justice.

Given the current human rights movement’s total failure to prevent the climate crisis (partly because it treated the nonhuman world as human property), that is an important move. Other organizations are following DxE’s lead towards treating nonhumans as more than property, some at a macro level and in ways that seek total liberation for humans and nonhumans.


“The movement has a unique opportunity to use the great evidence gathered by DXE in civil litigation to stop cruelty in factory farms and elsewhere,” said Jessica Blome, a partner at the Greenfire law firm.


“It’s unfair to abandon the activists who are risking their freedom to gather this footage and then tell them to litigate the case themselves,” said Blome, who is responsible for some of the most significant animal law precedent ever set, including liability of road-side zoos for violations of the Endangered Species Act.


“When they sue in their own names, they risk cross-claims for trespass damages and fee shifting if they lose. That isn’t a risk we should ask them to bear, as they simultaneously defend against criminal charges in these various jurisdictions across the country.”


The rise of activism is the fault of prosecutors like me to ensure the rule of law. With the climate crisis as a brutal catalyst to change an exploitative system that never really protected the most vulnerable, true justice could unfold as the chickens come home to roost.


 

Tags: Activism, Animal Rights, Law, Politics, Opinion, North America/United States of America


This article was originally produced by Earth | Food | Life, a project of the Independent Media Institute. The opinions expressed here are solely the author's and do not reflect the opinions or beliefs of the LA Progressive, or necessarily of all members of the Stable Planet Alliance.


Stable Planet Alliance advisor Carter Dillard is the founder of HavingKids.org. He served as an Honors Program Attorney at the United States Department of Justice and served with a national security law agency before developing a comprehensive account of reforming family planning for the Yale Human Rights and Development Law Journal. He has begun to implement the transition to child-centric “Fair Start” family planning, both as a member of the Steering Committee of the Population Ethics and Policy Research Project, and as a visiting scholar of the Uehiro Center, both at the University of Oxford.







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