Facing Criminal Charges for Saving Animals, Part I: Open Rescue

DxE activists with rescued birds. Image courtesy Indybay.

Hello, friends! I’m writing this from the Harvard Animal Law Policy Program, where I am a Visiting Fellow this fall. My plan for this fellowship is to examine the intersection of criminal justice, social movements, and animal rights–in other words, what happens when animal rights activists engaging in open rescue are criminally charged for their actions?

A brief primer: the conditions of confinement experienced by animals–cows, pigs, chickens, turkeys, and others–in factory farms are beyond atrocious, and this is true not only for conventional farms, but also for so-called “humane” or “cage-free” facilities. I have seen footage that has torn my heart apart. In one video, from a chicken farm, I saw emaciated and sick chickens, some of which were barely moving and clearly close to death. The animals trampled upon each other to breathe and carcasses of trampled chickens were clearly visible on the ground. Parts of the animals’ bodies were torn, likely by other animals trying to push through to obtain food and air. There were some indications that the animals, starving and parched, had turned to cannibalizing each other.

These are difficult things to see and experience, partly because opening our eyes and hearts to animal suffering requires seriously reconsidering our consumption habits that contribute to this cruelty. But the first step is, of course, to raise public awareness to these conditions, and there are very few legal avenues to doing so. Because of that, activist organizations turn to a technique called open rescue.

The Animals and Society Institute defines open rescue as “[t]he process of giving aid, rescue, and veterinary treatment to animals confined in typical factory farm living conditions. The immediate aim of the rescuers, who identify themselves even when trespass is necessary, is to save lives, while documenting the animal suffering inherent in large-scale industrialized food production.” This definition has several important components.

First, it is a “rescue” mission, and therefore often involves not only documenting conditions at the farm, but also removing sick and endangered animals. The activists I spoke to explained that they seek to identify animals that might imminently die or suffer irreparable harm unless they are removed from the facility (this, in itself, requires them to do some selection, because all animals subject to factory farm lives are in dire circumstances.) They also do this because working for animal rights can be emotionally devastating and demoralizing, and rescuing animals provides an optimistic element to the experience.

Second, open rescue is “open”. In an article about the need for solidarity and cooperation in the animal rights movement, Taimie Bryant quotes Paul Shapiro, formerly of Compassion over Killing, who explains that, by contrast to other animal liberation actions in which participants “go to great lengths to conceal their identities”, the point of open rescue is to rescue the animals “completely openly… you videotape yourself doing it, you take full responsibility for the fact that you did it and you openly publicize the fact that you did it.” Shapiro argues that the overt nature of the action garners much more sympathy for the activists and focuses attention away from the morality of their own actions (“should we treat them like orderly criminals, or like political prisoners?”) and toward the conditions suffered by the animals.


–> But, as it turns out, you can’t really avoid the question of how to treat the people, even in the face of the serious question how to treat the animals. Entering factory farms to document conditions does not only violate garden-variety penal code provisions against trespass (and, if animals are rescued, larceny), but also a slew of ag-gag laws–laws lobbied for by the agricultural industry prohibiting entry to, and documentation of, animal factory farms.

As an aside, saving animals turns out to be a fairly dangerous proposition in general. During Hurricane Katrina, the Animal Legal Defense Fund composed a memo offering legal guidance for the brave people who broke into abandoned, flooded homes to rescue animals left behind. Even in the face of the heartbreaking story of Snowball— reportedly, the inspiration behind legislation requiring states to come up with animal rescue planning as a condition for FEMA assistance–the law offered (and still offers) little to no protection even for people who rescue the most sympathetic animals of all: domestic pets. Good Samaritan Laws, which protect emergency rescuers from criminal and/or civil liability, either do not refer explicitly to animals or explicitly use the term “person.” Local animal cruelty laws do not go as far as offer coverage for rescuers.

This is especially true for farmed animals: as reported by the Animal Welfare Institute, several states explicitly exclude farmed animals from the definition of “animal” in their animal cruelty laws, so that these laws do not apply to them. Moreover, the aforementioned ag-gag laws were designed specifically to protect agricultural interests, as exemplified in this Intercept story by Glenn Greenwald. So, from the perspective of the farmers, the legislature, and the prosecutors, open rescuers are trespassers (when they step on the premises) and thieves (when they remove animals from the premises.)

My project involves a study of an organization called Direct Action Everywhere (DxE) which, among other avenues, pursues open rescue and documentations. DxE activists use sophisticated technology–drones, virtual reality filming–to present the horrors of factory farms to the public. And, the organization often rescues animals, whom they name and care for with the help of vets and sanctuaries. Such acts have resulted in several criminal cases against activists. Some of these have been dismissed (such as the case against a woman who gave water to thirsty pigs on their way to slaughter) but some are still pending, in California (Sonoma County), Utah, and North Carolina.

The activists facing trial have, so far, declined plea bargains in favor of jury trials, and they plan to argue for a necessity defense.

The next installment in this blog post series will examine the elements and feasibility of relying on a necessity defense in open rescue cases.

Part II
Part III
Part IV
Part V