Facing Criminal Charges to Save Animals, Part III: Planning Open Rescue in the Shadow of the Law

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Arrest during a protest in Petaluma. Photo credit: DxE.

Whether or not the necessity defense applies, or should apply, to open rescue, is a doctrinal legal question. As a law and society scholar, I ask myself questions about the interaction of the law with people, institutions, and movements. Because I have a special interest in social movements, I ask myself: How do animal rights activists understand and perceive the role of the criminal process in their lives? The extent to which the law is present in people’s lives is its own field of study, known as legal consciousness. 

Part I
Part II

In their classic book The Common Place of Law Patricia Ewick and Susan Silbey present three schemas of relating to the law in everyday lives: before the law, with the law, and against the law. People’s experience of the law extends farther than their involvement in official legal institutions, such as calling the police on someone, visiting a courtroom, or hiring a lawyer. While some scholars have supported the idea that the law is present everywhere in everyday lives (see Austin Sarat’s study of the welfare poor) others have found people so busy surviving that they are not even conscious of the law or so skilled and privileged that they can structure even oppressive legal experiences, such as incarceration, as “games”, “experiments”, or “educational experiences”, outside of the legal framework.

But what about social movements? An entire area of study is devoted to this question, looking at the way advocates and activists perceive the law. Idit Kostiner, who studied social justice activists, found that they see the law’s value through three main schemas: instrumental (obtaining rights), political (galvanizing activists and organizing) and cultural (relying on the law to change perceptions.) In expanding the understanding of legal consciousness beyond merely obtaining rights, she follows Michael McCann, who argues that legal mobilization helps social movements even if they don’t get exactly what they advocate for, because it provides them with a framework that is helpful for advancing their cause.

How do animal rights activists map onto all this? The animal rights movement operates within the constraints of a legal order that completely ignores, or negates, what the movement believes in. The law sees animals as property, and much of our economic system is structured around the exploitation of animals (often in conjunction with the exploitation of others.) This could make the activists very cynical about the law. Indeed, a beautiful interview-based study conducted by Erik Fritsvold found that radical environmental activists tend to perceive their relationship to the law as “under the law” and their primary engagement with it through lawbreaking.

Fritsvold’s subjects and mine are not that different from each other. The activists he studies also define their actions as direct action, which, according to Noel Sturgeon, is “a series of ‘actions’ engaged in by groups that organize themselves in a decentralized, nonhierarchical manner . . . which use a participatory, democratic, decision-making process . . . and which prefer direct action to institutionalized, electoral, or interest-group politics. Frequently, such groups are involved in civil disobedience, that is, the principled breaking of the law in the process of political protest.”

For direct action environmentalists, the law is an instrument of injustice to fight against. This schema differs from Ewick and Silbey’s category of “against the law”, because to the activists, “the law veils the illegitimacy of the existing social order and actively represses dissent. Against the Law observes that the law often fails as an asset to achieve justice; Under the Law views this failing as intentional and perceives law as an active agent of injustice.”

Nonetheless, it seems that animal rights activists in general, and DxE activists in particular, somewhat differ from Fritsvold’s interviewees. Helena Silverstein’s wonderful 1996 book Unleashing Rights about animal rights activism shows that, despite thorny philosophical difficulties with the concept of “rights”, which activists saw as anthropocentric, they did not shy from employing this concept when it served their purpose–or from hiding it from sight when it did not. Indeed, my own subjects, when planning open rescues, display some important markers of legal sophistication. Until fairly recently, DxE was led by Wayne Hsiung, an attorney and former legal academic, who is very well-versed in the legal status of animal rights nationally and internationally. Other members of DxE are lawyers, law students, or aspiring law students, and very well aware of the role the law plays in their activism.

Important questions regarding DxE’s legal consciousness involve how open rescue operations are planned. In anticipation of a direct action, do activists reach out to legal authorities to report animal cruelty? Do they expect the authorities to intervene, and on whose behalf? When entering the facility, do activists try to seek detection, avoid detection, or a mix of both? If and when they encounter the facility owners or workers, do they attempt to alert the media or resolve things quietly? When encountering law enforcement in the field, how do they interact with them?

Answers to these questions are strategically tricky, because there are two different legal outcomes looming ahead: the short-term one consists of a possible arrest of the activists, perhaps followed later by a court case. The long-term outcome consists of changing the laws of the animal products industry and, perhaps in our lifetime, even eradicating it. What activists might do to promote one of these outcomes could harm the other, and requires careful thinking ahead. It is also the case that, even with carefully planned actions, unexpected circumstances can change the nature of the encounter and enhance, or diminish, the clash with law enforcement. I plan to look at these questions as well.

The next post in the series will address preparations and strategies for criminal trials, involving both strategic and tactical considerations.

Part IV
Part V

Facing Criminal Charges for Saving Animals, Part II: The Necessity Defense

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Activist rescuing pigs. Photo courtesy DxE.

Part I here

The necessity defense is recognized in common law as a situation in which a person violates the law in order to prevent or mitigate harm. One way to understand the principle behind necessity is to think of a car swerving off the road to avoid an accident and then running into someone’s fence. Ordinarily, the driver would be responsible for the damage to property, but because she caused it in order to avoid a greater harm, we do not hold her responsible. Necessity belongs to a family of affirmative defenses known as “justifications”: rather than merely excusing an individual for a particular set of circumstances that absolve them of responsibility (because they are insane, too young, or intoxicated, for example), a justification applies more universally, and might be regarded as a legal statement that, when faced with these circumstances, the law wants people to choose the lesser harm.

As Jenni James explains in this excellent article, the necessity defense can be elusive, because over the years judges have narrowed its scope. Most states do not even have it codified into their penal code: for example, to find California’s necessity defense, you’d have to recur to the California jury instructions. The elements vary somewhat across jurisdictions, but for the most part they conform to some general principles:

  1. Serious harm (in CA, defendants have to prove that they acted “in an emergency to prevent a significant bodily harm or evil to (himself/herself/ [or] someone else)”
  2. No adequate legal alternative.
  3. Proportionality between the harm committed and the harm avoided ( in CA, “[t]he defendant’s acts did not create a greater danger than the one avoided). In other words, the opposite of what the Cowboy Fireman did in this terrific Faith Petric song.
  4. A genuine, subjective belief that the act was necessary to prevent the threatened harm or evil.
  5. Objective support for the subjective belief: In other words, that “a reasonable person would also have believed that the act was necessary under the circumstances.
  6. Lack of culpability on the part of the defendant for the emergency in the first place (CA law requires that the defendant “did not substantially contribute to the emergency.”)

As James argues in her article, the ability to even present the necessity defense in court depends on judicial discretion (typically exercised in the context of a motion in limine to prevent the presentation of the defense.) In one decision, U.S. v. Schoon, the Ninth Circuit held that the necessity defense will only be available to activists who engage in “direct civil disobedience”–that is, directly challenging the rules they protest–and not “indirect civil disobedience” activists, who violate a law that is “not, in itself, the object of protest.” As James explains, open rescuers engage in both forms of civil disobedience, because they challenge both the exploitation and cruelty of the animal industry (indirect) AND ag-gag laws (direct.) But the upshot of the decision was that protesters, by definition, were to be denied the necessity defense–even though lower courts sill allow it on occasion. And of course, as James points out, the necessity defense can be a poor fit for these premeditated and planned operations, because by its very nature it is designed to address emergencies.

This means that activists encounter some serious hurdles in presenting the defense. The first and foremost issue that might come up is the big question whether the suffering of animals constitutes “serious harm,” and also, a harm that is proportional to the harm they cause when they enter the facility or remove an animal. Part of this debate is factual: the activists would have to prove the imminent harm to the animals, and to come up with a way to show that this harm is equal or greater to the harm that their actions caused to the farmers. Video evidence showing sick or dying animals might prove their marginal monetary worth to the farmers as well as the harm and suffering to them (but requires, of course, that activists engage with the legal framework that sees animals as property.) As to how harm and suffering are to be measured, one thing I plan to look at is the extent to which potential jurors are open to considering evidence of animal emotions and theories of animal personhood.

I’m reading Frans de Waal’s Mama’s Last Hug, whose point of departure is the animal behaviorist’s skepticism about proof. De Waal argues that we can, and should, be able to assess and measure animal emotions, which human and nonhuman animals can both exhibit and control. The examples he provides show nonhuman animals as imbued with a sophisticated understanding of their social world, as well as a sense of justice, as well as fairness. Larry Carbone’s interesting What Animals Want, which is set at a lab, raises important questions about assessing physical suffering of animals held in labs for experimentation. My hope is to expand my reading on animal emotion, feelings, and suffering, and think about which theory of animal agency would be persuasive to a jury.

Then, there are questions about the subjective and objective intents of the activists, as well as the extent to which they recurred to legal means before taking illegal action (reports to the police, etc.) – this element can be difficult to handle, because often one can know of the specific harms that are occurring only via illegal means. In short, as James argues in her article, “[j]udges seldom have to overtly pit commercial privacy interests against an animal’s right not to suffer. Instead, judges often assume the practice causing the animal’s suffering was legal and thus not harmful for purposes of the necessity defense balancing of harms. Rescuers who wish to remove animals from industrial facilities, then, should be careful to select only animals suffering from clearly illegal activity, which, ideally, should also be documented. However, to avoid the appearance of vigilantism, rescuers might consider using this documentation sparingly and perhaps even sharing it with law enforcement promptly.”

But that raises other questions, which are a proper subject for ethnographic research: How do animal rights activists relate to the law, and to the prospect of criminal justice in their activities? More on that in Part III.

Part III
Part IV
Part V