When Activists Come Calling – Know Your Rights

Animal Agriculture Alliance11th Annual Stakeholders Summit

“Real Farmers Real Food: Celebrating Tradition and Technology”

May 3, 2012By Cari B. Rincker

Like Any Good Lawyer, I Have A Disclaimer

• I am an attorney but may not be your attorney unless you have signed a retainer with Rincker Law, PLLC– No attorney-client relationship

• This presentation is for informational purposes only and should not be construed as legal advice– If you have questions relating to your particular

livestock operation, you are highly encouraged to consult an attorney licensed in your jurisdiction

Overview of Discussion

• 5 State Law Approaches• Oversight of Humane

Societies• Example Regime: New York• The Problem: Discussion• Cowboy Crim Pro• Ag Gag Legislation• Get a Plan

5 Different State Approaches

5 State Law Approaches

• Ordinary Rights• Animal Rescue• Limited Law

Enforcement• Law Enforcement• Community Policing

Ordinary Rights Approach

• Humane societies operate animal shelters and educate community about animal abuse– No police power

Ordinary Rights Approach

States with this approach– Alaska, Arizona,

Arkansas, Colorado, Georgia, Idaho, Illinois, Iowa, Maine, Mississippi, Missouri, Montana, Nebraska, New Mexico, North Carolina, North Dakota, Oklahoma, Texas, Utah, West Virginia, Wisconsin and Wyoming

Ordinary Rights Approach• States with this approach may have a separate

enforcement regime– Government entity• Colorado Bureau of Animal Protection

– Appointment of individuals • North Carolina• North Dakota• Illinois

– Government animal cruelty “officers”• Texas

Animal Rescue Approach• Humane societies

representatives serve a role at the “crime scene” by seizing allegedly abused animals and providing treatment

• Limited police Power– May also investigate

animal cruelty– Unable to obtain search

warrants

Animal Rescue Approach

States with this approach include:– Alabama, Florida,

Kansas, Minnesota, and New Hampshire

Limited Law Enforcement Approach

• Humane societies are allowed to investigate animal cruelty, seize animals, and conduct searches.

• Police power still limited– Typically, no firearms – Cannot arrest

without permission

Limited Law Enforcement

• States with this approach include Kentucky, Nevada, South Carolina, Tennessee, Vermont, Virginia, and Washington

Law Enforcement Approach

• Humane societies are granted all police powers including seizing animals, investigating animal abuse, executing search warrants, issuing citations, and arresting offenders– Usually have the right to

carry a firearm

Law Enforcement Approach

States with this approach include– Hawaii, California,

New Jersey, Pennsylvania, Rhode Island, New York

Community Policing Approach

• Designates an active police officer to serve as the humane officer who will work with the humane society

• Humane officer retains all police powers but investigates animal cruelty violations and enforces animal cruelty laws

• State using this Approach:– Indiana

Oversight of Humane Societies

Governmental Oversight• A few states give humane

societies full discretion with appointment of humane officers and enforcement of laws

• Majority of states appoint government entities for oversight– How much and the type

of oversight varies from state-to-state

Agent Training• Most states do not

require training for humane society agents in their statutes– However, states that

vest more police power to humane societies are more likely to require comprehensive training

– Firearm training may be required

Example Regime: New York

New York Animal Cruelty Law

• Applicable Statute: N.Y. Agri. & Mkts Law § 350 et seq.– “Torture” or “cruelty”

including an action, omission to act, or neglect where “unjustifiable physical pain, suffering or death is caused . . .” Id. at § 350(2).

Misdemeanor Animal Cruelty

• Section 353 proscribes:– Overdriving, overloading, unjustifiable maiming,

mutilation or killing any animal– Depriving any animal of “necessary sustenance,

food or drink . . .”• “Sustenance” includes shelter and veterinary care to

maintain health and comfort.

Exceptions: properly conducted scientific tests, experiments, and/or investigations approved by New York Commissioner of Health

Case Illustration

People v. Arcidicono, 360 N.Y.2d 156 (App. Term 1974) (where the defendant was in charge of feeding gelding for three months, was aware of his loss of weight, and when it was returned to its owner the gelding was in such a state of malnutrition that it was mercifully destroyed).

Case Illustration

Mudge v. State, 45 N.Y.S.2d 896 (Ct. Cl. 1944) (where state trooper inspected a barn and found the main door so frost swollen that it could not be closed; livestock were found shivering in 1-2ft of manure without bedding, feed, drinkable water).

Case Illustration

People v. Bowe, 876 N.Y.S.2d 762 (Third Dep’t 2009) (where police discovered 15 horses on property – some which were dead while others were severely emaciated)

Case Illustration

• People v. O’Rourke, 369 N.Y.S.2d 335 (N.Y. City Crim. Ct. 1975) (where court held that an owner of a horse and hansom cab that permitted a horse which was limping to continue to work without supplying necessary medical attention constituted neglect under statute).– Owner of horse was obligated to

call a veterinarian upon receiving notice of horse’s lameness

Felony Animal Cruelty (aka “Buster’s Law”)

• Section 353-a proscribes aggravated animal cruelty to a companion animal– No justifiable purpose– Intentionally kills or causes serious

physical injury• Intended to cause extreme physical

pain; or• Especially depraved or sadistic

• Exceptions: hunting, trapping, fishing, dispatch of rabid/diseased animals, or properly conducted scientific tests

Aggravated Animal Cruelty: Case Examples

• People v. Degiorgio, 827 N.Y.S.2d 511 (Third Dep’t 2007) (where defendant kicked dog while wearing boots and killed the dog by picking up dog by its neck and shook it, banged dog’s head against the door, and threw dog down basement stairs until it hit the cement floor).

Abandonment of Animals

Section 355 proscribes an owner/possessor/bailor of an animal: – from leaving it to die in

a public place; or– Leaving an animal in a

public place for more than three hours after he receives notice that he is left disabled

Transportation of Farm Animals• “28-Hour Law”: When

transporting livestock animals for more than 28 hrs, section 359 requires that animals be given 5 consecutive hours of rest along with available food and water– Exception: prevented by

storm or inevitable accident• Section 359-a(1) enumerates

specific requirements for every vehicle utilized to transport more than six horses.

Poisoning Animals

• Section 360 indicates that poisoning farm animals is a misdemeanor– Don’t need to know the

substance is poisonous so long as he/she intends that livestock animal be exposed to the substance

– Includes toxic levels of drugs

Seizure of Farm Animals

Pursuant to Section 373, any police officer or officer of a duly incorporated society for the prevention of cruelty to animals with a valid warrant may lawfully take possession of any animal that for more than 12 successive hours has been confined or kept in unhealthy conditions without necessary sustenance, food or drink

Duty to Cooperate With Farm Search

Section 369 proscribes the interference or obstruction of a search by a police officer or duly incorporated society for the prevention of cruelty to animals with a valid warrant– Misdemeanor

“Peace Officers” in New York

• Duly incorporated societies for the prevention of cruelty to animals CPL 2.10(7)

• “Confidential investigators and inspectors” as designated by the NYS Dept. of Agric. & Mkts CPL 2.10(6)

• Policemen for “horse racing” CPL 2.10(29)

Issuance of Warrants

• Pursuant to Section 372, police officers and authorized animal societies (“peace officers”) can obtain warrants to search farms upon showing a magistrate that there is reasonable cause animal cruelty – Can use (video) cameras. Anderson v. WHEC-TV,

461 N.Y.S.2d 607 (Fourth Dep’t 1983).– Informants can be used– Warrants must be precise

The Problem: Discussion

See Elizabeth R. Rumley & Rusty Rumley, “Enforcing Animal Welfare Statutes: In Many States, It’s Still the Wild West”

Cowboy “Crim Pro”

Fourth Amendment• Fourth Amendment offers protection from

unreasonable searches and seizures from the Government– “The right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Does the Fourth Amendment Apply?

• Government Conduct– Publically paid police officers (on or off duty)– Private individual acting at the direction of the

police– Privately paid police deputized with the power of

arrest– Humane society deputized with police powers

Does the Fourth Amendment Apply?• Person must have a “reasonable expectation

of privacy”– Automatic standing• Owner of premises• Live on premises• Overnight guests

– Sometimes have standing• Present when search took place• Own property (animals) that are being seized

– No standing• Areas outside home or barn• Aerial photography

Is there a Valid Search Warrant?SNAP– S – Warrant must be

precise on its fact (specificity)

– N – Neutral and detached magistrate

– A – Oath or Affirmation from P/O to judge

– P – Probable Cause • More than mere suspicion

Was the Warrant Executed Properly?

• Must be executed by the police or humane society with permission to search/seize

• Must be executed promptly to lessen possibility of a change in circumstances the existence of probable cause

• “Knock and Announce” before forcible entry (unless emergency)

Did the P/O Stay Within the Scope of the Warrant?

• A search warrant does not create right to search individuals on the premises

• Warrant should specifically list the evidence sought– Can go outside scope of warrant if in plain view

Some Examples When No Warrant Is Needed

• A police officer can search a property in “exigent circumstances” where there is probable cause and when evidence may be lost, destroyed, or may dissipate if a warrant is obtained– Emergency

• Consent is freely given (voluntary & intelligent)– P/O must stay within scope of consent

• If something is in plain view– P/O must already be lawfully on premises

Miranda Rights• 5th Amendment • P/O must read Miranda

Rights to a person in custody prior to interrogation– Right to counsel

• Cannot be questioned after request for attorney

• Waived if questioned by police & voluntary answer

– Right to remain silent

Exclusionary Rule

Fruit of the Poisonous Tree– Prevents the introduction

of evidence that is the fruit of violating someone’s Fourth, Fifth and Sixth amendment rights

– Exceptions/Limitations– Harmless Error Doctrine

Supremacy Clause• Federal legislation may preempt state law– Federal schemes with biosecurity • Animal Health Protection Act, 7 USC 8301 et seq.

(USDA)• Food, Drug and Cosmetic Act, 21 U.S.C. 301 et seq.

(FDA)

– Inspectors should coordinate ahead of time with local law enforcement if biosecurity is an issue

• Injunction in Federal Court?

What If A Non-Police Officer Visits Your Farm and Asks To Look Around?

• Ask for identification• Ask for the warrant• Read the warrant• Ask if the visitor has

camera/video equipment• Take notes during farm

inspection

Overview of “Ag Gag” Law

States That Currently Prohibit Undercover Video Surveillance

• Kansas• Montana• North Dakota• Iowa • Utah

Kansas• Kansas gives criminal liability to those who, absent consent

from the owner – with the intent to damage or destroy the animal facility actually

damage or destroy an animal facility (or any animal or property therein),

– exercises control over an animal facility with the intent to deprive the owner of such facility (or any animal or property therein)

– with the intent to damage or destroy the animal facility enter an animal facility and/or remain concealed with the commit or attempt an act prohibited by this statute and/or take photographs or video coverage.

See K.S.A. § 47-1827(a)-(c).

Kansas• It proscribes a person, without consent from the

owner, and with the intent to damage the enterprise conducted at the animal facility, enter and/or remain in the animal facility if the person had notice that they were forbidden or received notice but failed to leave the premises. – Both oral and written communication (e.g., signs

posted on the facility) by the owner or someone with apparent authority (e.g., employee) or fencing or some other type of enclosure by the owner constitutes “notice.”

See K.S.A. § 47-1827(d).

Kansas• K.S.A. § 47-1828 sets forth a civil cause of action• The plaintiff may be entitled to “three times all actual and consequential damages. . .” (including production, research, testing, replacement and crop/animal development), court costs and reasonable attorneys fees.

Montana & North Dakota

• Both states have very similar criminal and civil provisions as Kansas

• Montana exempts both government officials carrying out their duties and “humane animal treatment shelter or its employees whose primary purpose is the bona fide control or humane care of animals or the enforcement”

IowaA “person is guilty of animal production facility fraud” if they (1) obtain access to an agriculture production facility under false pretenses, or (2) make a false statement on an employment application with the intent to commit an act that is knowingly prohibited by the owner of the agricultural facility. See section 717A.3A(3).

Utah

Also prohibits farm employees and criminal trespassers to take unauthorized photographs, videos and sound. See U.C.A. § 76-6-112(c)-(d).

States with Proposed “Ag Gag” Bills

• Illinois• Indiana• Minnesota• Nebraska• Tennessee• New York• Florida (died in budget)

Will Missouri Be a Trend-Setter?

• Missouri also has pending legislations allowing “unedited surveillance” to be taken and then turned over to the police.– Trying to get away from

the “ag gag” stigma

Animal Enterprise Protection Act (“AEPA”)

• Interstate commerce• Causes “physical

disruption to the functioning of animal enterprise”– Includes farms, zoos,

aquariums, circus, rodeo, state fairs

• Aggravated Offenses for serious bodily injury or death

Center for Food Integrity’s (“CFI”)Animal Care Review Panel

• Independent review board comprised of recognized animal welfare experts including:– Animal scientist– Veterinarian– Animal ethicist

• Currently for pork only but Panel wants to work with other species

• Panel’s reviews, assessments, recommendation, and reports are not submitted to the pork industry for approval– Instead, mission is to facilitate review and release findings

Recommendations for Livestock Producers

Seek Counsel Before An Issue Arises• Find an attorney you

know and trust – Who will you want to

call in an emergency?– Understand the law in

your state– Who will file an

injunction against animal activist group (e.g., protests, harassment)?

Discuss With Your AttorneySpeak to him/her about concerns specific to your operation– Special biosecurity concerns?– Have a protocol for visitors and law

enforcement

Formulate a defense strategy for your farm with the advice of counsel

Get a Plan For Your Farm• Employment Handbook– Have animal handling policies put in place– Enumerate procedures on what to do

• Train employees on a regular basis• Participate in voluntary livestock animal

welfare programs– Example: New York State Cattle Health Assurance

Program

Start Building a Defense• Have a relationship with

industry experts– Veterinarian– Nutritionists– Cooperative Extension

Specialists• Keep records of

visits/recommendations• Keep records of noted

improvements/compliance with said recommendations

Start Building a Defense

• Maintain feeding, breeding, and health records

• Record body condition scores

• Take photographs• Keep diaries• Build written record

Know Who You Hire• Background checks• Recommendations• Smartphones• Supervision• Employment/• Independent Contractor Contract• Animal Handling Training– Certification?

Undercover Video Surveillance

• Have a work environment where employees are likely to report suspected undercover workers/visitors

• Prohibit smartphones on the phone without permission (e.g., construction company installing solar panels)

Pay Attention To Public Image• Farm website• Drive around perimeter of

property- pay attention to “broken windows”

• What would an aerial photograph show on your property?

• Pay special attention to animals with genetic defects and/or aesthetic issues

Pay Attention to Public Image• When is the last time

you ran an internet search on your farm?

• Is social media right for you?

• Farm tours?• Reputation in your community

Some Final Thoughts

Should we be policing ourselves?

Fighting for change?

Is it “us” vs. “them?”

Contact Me• Send Me Mail: 535 Fifth Avenue, 4th Floor, New York, NY

10017• Call Me: (212) 427-2049 (office)• Fax Me: (212) 202-60777• Email Me: cari@rinckerlaw.com• Read My Food & Ag Law Blog: www.rinckerlaw.com/blog• Tweet Me: @CariRincker @RinckerLaw• Facebook Me: www.facebook.com/rinckerlaw • Link to Me: http://www.linkedin.com/in/caririncker • Skype Me: Cari.Rincker