What is animal law? To be sure, the goals of the field are debated, but at a level of generality there is consensus that improving the status of animals in the law is a common objective. But when laws are written, enforced, and revised by humans and largely for human ends, it is hardly surprising that questions about how best to advance the interests of animals in law are debated. The efforts to define the contours of this nascent field of law have, to my eye, historically been both over-and-under-inclusive.
On the one hand, considerable focus has been placed on projects that arguably might not advance the interests of animals in a particularly useful or non-anthropocentric manner. For example, I have previously argued that carceral animal law projects not only fail to materially advance the goals of systemic animal protection, but may ultimately distract resources and attention toward one-off, rogue bad actors (Palliative Animal Law). Along with Lori Gruen, I have posited that a law and order orientation that borrows from the logics of victims’ rights and tough on crime ideologies has no home in a burgeoning civil rights movement (Carceral Logics). These expensive and expansive ventures into the realm of carceral animal law might offer little more than a set of symbolic victories, because they tend to either offer no real solution to animal suffering, or to be a solution to a problem that does not exist. For example, animal advocates championed the 2019 enactment of the federal PACT Act, but so far as researchers can tell, there was not a single example of a real case that was identified where the new law would apply and existing state or federal laws did not already apply.
On the other hand, voices within animal law have also sought to circumscribe the boundaries of the field in ways that arbitrarily narrow and undermine efforts to combat systemic animal suffering. Consider for example that early in the litigation against so-called Ag-Gag laws, some skeptics worried that those cases were more “civil rights” matters than animal law. And occasionally, there is debate about whether issues relating to wild animals or climate change are too far afield to fairly be considered core aspects of animal law. In a recent essay that I co-authored, I make an even more controversial claim to expand the boundaries of animal law. Along with my co-authors, we tread close to the line of arguing that, as Angela Fernandez once flagged for me was made poignantly in a book by Canadian journalist Charlotte Montgomery, maybe we need persons to be breaking the law in order to make the law.[1] Perhaps only through actions of “outlaws” can we make material progress in-law (and policy). We ought to take this claim seriously and consider the possibility that civil disobedience or law breaking alone, while historically celebrated, may have a considerably amplified effect when it comes to the criminal trials of such law-breakers. The criminal courtroom, it turns out, may provide the most salient hook for media coverage and public interest in some of the grossest, common abuses of animals.
In what follows, I offer a very brief summary of the full essay that I co-authored, which can be found here (Voluntary Prosecution). The point is not that lawbreaking should always be encouraged, that all law breaking is legally effective, and certainly not that by engaging in illegal conduct one will not be punished and that the legal standing of animals will always be advanced. There are no such bold predictions or promises. The claim is a much more modest one: legal advocacy in support of activists facing criminal or civil liability is animal law, i.e. it is part of the field and raises issues with which animal lawyers should be familiar and concerned.[2] For too long it has been assumed that all criminal prosecutions for animal abuse (even when there is no demonstrable, empirical benefit to animals) is animal law, but the criminal defense of persons who directly rescue animals who are suffering to death is not animal law. At the University of Denver, we have started an Animal Activist Defense Clinic (the Animal Activist Legal Defense Project), and we are litigating cases that argue that animals are more than property (tantamount to personhood), that the persons who rescue suffering animals are entitled to legal protections (such as a defense of others), and that the corporate abusers of animals should be held accountable.
Working Outside the Law: What is Open Rescue?
Gone are the days of concealment, secret communication networks, and the ever present risk of FBI infiltration of animal activism. Instead, modern animal rescue efforts in the United States are not only entirely non-violent, without a single case of human injury, but they are completely open and notorious. Activists have traded ski masks for the livestreaming of rescues, and they have substituted years of secrecy for New York Times coverage.
As we put it in the essay, during “an open rescue, animal activists enter an animal abusing facility—usually a factory farm—document its deplorable conditions via photos and videos, and rescue a small number of sick and dying animals,”[3] and in so doing we assert that the “Open rescues perform the legal right demanded—namely, the right to rescue.”[4] Unlike defacing a piece of art or chaining oneself to a tree, or even prosecuting a case of animal neglect that has resulted in a death, the act of open rescue directly saves the lives of animals. These animals are typically brought to sanctuaries where they live out their lives in safety and with dignity. The persons who rescue these animals save a life, and animal law needs to develop a specialized practice area that can assist in the skilled defense of the activists who take these actions. It may not be enough to simply recruit pro bono defense counsel because the goals of the activists facing trial will often require lawyering skills that are at once more deferential to the activists, and lawyers who are uniquely adept at conceiving of legal challenges to the prosecutions that often follow.
There have been several high-profile open rescues in recent years. The University of Denver’s Animal Activist Legal Defense Project has been involved in a number of these cases, including a case in California that resulted in the stunning acquittal of Alicia Santurio and Alexandra Paul who rescued two chickens from a massive truck that was just minutes away from a slaughterhouse. Another prominent example of an open rescue resulted in the so-called Smithfield Trial, which was widely covered by the media and grew out of the 2017 rescue of two piglets from what is believed to be the largest pig farm in the United States. As we write in the essay,
“No one disputes that the pigs would have died if they had not been taken by the activists and given immediate veterinary care. And no one disputes that the entry and the removal of the piglets was done entirely without consent from Smithfield. However, the pig production facility was so large, with approximately 1.2 million pigs raised every year, that the removal of the pigs was not noticed until the activists released footage of their rescue to the New York Times, which ran a feature story on the conditions of the pig farm and the animals’ rescue. The work of these activists served the goal of promoting transparency by showing that the largest pig production company in the world was breaking a pledge it had made ten years earlier to phase out the use of so-called gestation crates, two-by-seven-foot cages where mother pigs live for up to seven years with severely limited freedom of movement.”[5]
Open Rescue and Animal Law
One might fairly applaud (or condemn) the practice of open rescue, and still reply, “what does that have to do with the law?” The key point here is that “Open rescues . . . invite prosecution,”[6] and these prosecutions provide an unprecedented platform for acknowledging and challenging the failures of our legal system to protect animals, especially those raised for food on factory farms. More generally, the vigorous defense of these cases through motions (and eventually appeals) relies on and may expand many of the canonical aspects of animal law – theories of legal personhood, the importance of understanding animals as beings who can be victimized, the legal relevance of corporate deceptions regarding the well-being of animals used for food, the absence of legal protections for farmed animals, and the impotence of legal frameworks like the Animal Welfare Act when it comes to animals used for food. Often the most creative legal work of animal lawyers is mired in procedural hurdles such as standing or the absence of a private right of action, but analogous legal claims do not face these same barriers when they are raised in defense of an animal rescuer.
There is widespread public support for laws that shield from liability persons who would dare to rescue a dog or a cat from a hot car before they suffer to death from overheating or freeze to death when the temperature drops very low. This type of law emerged as a response to the public learning how many animals die in parked cars, and learning further that there may be some risk of criminal or civil liability for the good Samaritan who might intervene to rescue such an animal. Open rescue cases force a similar dialogue about an even more upside down system, one in which it is estimated that hundreds of thousands of animals suffer to death because of injuries or the inability to reach food or water at industrialized agricultural facilities, and those facilities are either de facto or de jure (or both) exempted from prosecution across the United States. While at the same time, a person who rescues such an animal might face decades in prison. Indeed, an overreaching Sonoma Prosecutor sought felony charges against those who did not even engage in the rescue but were merely accused of conspiring to do so. It is powerful for the public, even a meat-eating public, to see our legal system tolerate the sort of suffering that is commonplace on factory farms, while seeking to severely punish acts to mitigate such suffering by rescuing animals.
As explained in the essay,
“For the activists, the prosecution and eventual trial [in the Smithfield case] was the plan. It was an effort to force a legal discourse about factory-farming conditions. Indeed, the two activists who ultimately went to trial declined pleas to substantially reduced charges that would have resulted in no jail time. The activists planned to use the criminal trial as a way of exposing and challenging the prevailing legal norms toward farmed animals. It was not an act of civil disobedience; it was an attempt to make law and to focus attention on the abuse of animals. The activists used the government’s aggressive and overzealous prosecutorial tactics against them, effectively putting Smithfield –– and the law enforcement officials who did its bidding –– on trial.”[7]
Cases like this can be powerful tools in drawing attention to the reality that “those who might save animals from a cruel death are treated as criminals while the industry inflicting the suffering is protected by law.”[8] For a movement that has long emphasized the role of criminal trials in sending messages to the public about the importance of animal suffering, it would be odd to deny the role that the criminal defense of open rescue activists plays in animal law. Cases that end in losses – and there will likely be many – will give rise to appeals that allow advocates to argue for precedent recognizing animals as more than property and deserving of rescue. Optimistically, one might even hope that these cases will attract the attention of organizations like the Nonhuman Rights Project because of their potential to develop precedent recognizing animals as legal beings or persons, at least in certain limited contexts. And in trials that result in acquittals – and there will likely be even more of these – there will be an opportunity to celebrate the growing public consensus that the law as written already includes a previously under-appreciated measure of rights for animals.
There are no panaceas, no magic solutions to the diminished status of animals in the law. But as a vehicle for litigation and a platform for generating public concern, the defense of animal activists offers a welcome opportunity for animal law. Like other areas of animal law, the movement cannot take for granted that existing lawyers will be ready to fill this void. There is a need for more lawyers to take up this practice area, to engage in sustained training and funding of these efforts, and for non-profits and academics to highlight the victories and defeats as catalysts for new legislation. In the essay, this type of legal action is depicted as instrumental in challenging and reshaping societal values and legal principles towards a more humane and ethical treatment of animals. For decades the animal law field has pursued carceral animal law and situated criminal trials as prominent locations for the development of animal law. Defending activists allows the field to flip the “cultural script of trial.”[9] After all, “Criminal trials are culturally salient morality plays in which the righteous accuser singles out the villainous lawbreaker for condemnation,”[10] but the defense of open rescue “uses this cultural script by turning it on its head: the activist-defendant is unapologetic about the righteousness of their cause and effectively puts the government on trial for the failures of the legal system; the accused becomes the accuser.”[11]
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[1] Charlotte Montgomery, Blood Relations: Animals, Humans, and Politics (Toronto: Between the Lines, 2000) at 38 (arguing in a chapter called “The Outlaws” that “[t]he illegal side of the animal rights movement needs support from others who protest and campaign legally. They need donations when they are in jail and outside voices to explain why illegalities have occurred – things the illegals can’t do without being arrested. They believe they are the ones who force a largely hostile audience of industry or government to give a hearing, however grudging and limited it might be, to the issues raised by legal activists. Illegal action, with its economic costs, creates a situation that must be dealt with, and it raises public awareness. The work provides an opening for the legal groups as the less bad alternatives. The illegals argue that without them what little tolerance legal groups get would quickly disappear”).
[2] Id. at 40 (“[t]he small but important outlaw fringe is, after all, the outer limit of the animal movement”).
[3] Marceau, supra note ? at 228–229.
[4] Id. at 229.
[5] Id. at 229–230.
[6] Id. at 229.
[7] Id. at 230.
[8] Id. at 213–214.
[9] Id. at 219.
[10] Id.
[11] Id.
[12] Id.