When Activists Come Calling: Know Your Rights


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  • No attorney-client privilege Every person in this room has different facts and circumstances surrounding their farm operation.
  • 24 states have this approachMajority of states have this approachJurisdictions with this approach may still regulate humane societies in their other functions such as the types of chemicals used in the euthanasia of animals. See e.g., CO ST § 12-22-304.
  • For instance, Colorado has a Bureau of Animal Protection with a commissioner who can appoint agents to assist law enforcement. These agents are not necessarily chosen from humane societies but they are still specialized individuals who handle animal cruelty cases. North Carolina and North Dakota have a similar process in which agents are appointed, regardless of whether they are from a humane society. Illinois requires the humane society to endorse an appointment but the agent does not have to be a member of the humane society. Some states have full-time animal cruelty officers who are government employees. - TexasTherefore, these states may not necessarily need the humane societies to help enforce animal cruelty laws.
  • For instance, any duly authorized officer or employee of a humane society can seize any animal that is sick or disabled due to neglect or abuse in Alabama. However, these humane society employees still must satisfy certain due process protections such as written notice to the animal’s owner and do not have any additional police powers. Minnesota is unique because their Code allows humane society agents to investigate animal cruelty but then the agent must seek a police officer’s assistance to actually enforce the animal cruelty laws.
  • For instance, Kentucky gives humane society agents all “the powers of peace officers, except arrest, to enforce animal cruelty provisions.” The humane society agent has to request an actual peace officer to arrest the offender.
  • Many states that use this approach maintain detailed regulatory systems to monitor and train agents. For instance, Pennsylvania devotes a whole chapter of their Code to humane society agents with regulations ranging from appointment, qualifications, training, and powers. Likewise, California’s regulatory regime is complex enough to designate two levels of humane society agents.
  • The humane officer is required to attend humane society meetings and report monthly. [19] Thus, the humane officer is an extension of the humane society while still remaining an active duty police officer. In addition, the humane officer is entitled to the same amount of pay as a regular police officer.
  • In California and Pennsylvania, two of the most comprehensive systems, the courts appoint humane society agents and oversee matters dealing with the agent’s certification and behavior. In contrast, the governor in Oregon grants police powers to “special agents.” Moreover, some states rely on administrative bodies. For instance, Connecticut requires the Commissioner of Public Safety to appoint the agent. [23]Occasionally, a state legislature will even defer to local governing bodies to appoint and monitor humane society agents. For example, Louisiana requires the mayor to appoint a humane society agent. North Carolina relies on county commissioners. New Hampshire requires the sheriff’s approval. [24] Florida uses a hybrid approach that requires approval from several government entities to appoint a humane society agent. The mayor must approve all agents within a city while a circuit court judge must approve agents within the county but outside the city. In addition, county commissioners must approve all agents within the county regardless of whether they will enforce animal cruelty laws in or outside a city.In summary, there is hardly a uniform governmental entity, if an entity is even designated at all, among the states for the appointment and monitoring of humane society agents. Similarly, states vary on whether the appointing governmental entity should be from the state or local level.
  • However, states that vest significant police powers to humane societies are more likely require comprehensive training. For instance, Pennsylvania and California list the subject matters that must be covered in the training. [25] In contrast, Ohio relies on the “peace officer training commission” to develop a program for humane society agents. [26] In New York, the State Division of Criminal Justice Services is designated to administer the certification program. [27]States using the law enforcement approach are likely to allow humane society agents to carry firearms in the performance of their duties. Besides specialized training to combat animal cruelty, additional training is often required for agents authorized to carry firearms. Firearm training is typically continuous throughout the agent’s tenure. For example, California requires agents authorized to carry firearms to complete training for the initial appointment and ongoing weapons training and range qualifications every six months thereafter. [28]
  • Class A Misdemeanor – up to one year in jailCaselaw in New York defines “sustenance” People v. Mahoney, 804 N.Y.W.2d 535 (App. Term 2005).Based upon the moral standards of the communityMust prove beyond a reasonable doubt (criminal)All animals
  • Do not have to be owner – can simply be caring for animals
  • Make sure that the livestock have adequate food and water during the winter
  • Fulton CountyEmaciated – extremely thinLook at the BIG picture- do you have several problem animals or just one?
  • Mental culpabilityMensrea(compare to acusrea)
  • Misdemeanor
  • Use of smooth materials for the interior;Abrasive materials on floor to prevent skidding;Sufficient apertures to maintain adequate ventilation;Sufficient insulation to maintain an adequate temperature; Partitions shall be placed a maximum of 10 ft apartmentDoorways shall be of sufficient height to allow safe ingress and egress of each horse contained in the compartmentEach compartment shall be of such height so as to allow sufficient clearance above the poll and withers of each horseRamps sufficient for loading/unloading horses shall be provided if the vertical distance from the floor of the compartment containing horses to the ground is greater than fifteen inchesThere shall be at least two doorways
  • Beef Quality Assurance Training?
  • New York is on the forefront for trusting SPCA
  • Fourth Am right to be free of unreasonable searches & seizures Bill of Rights
  • Does the Fourth Amendment Apply?Government conductReasonable expectation of privacy
  • No right to privacy with:the style of your handwriting (handwriting samples)paint on your carsound of your voice (voice exemplars) account records held by a bank monitoring the location of your car in the street or on the highwayodors from luggage or car-> dog can sniff car garbage left out on the curb (any discarded property)abandoned property electronic tracking device on cars so P/O can track b/c no expectation of privacy on public streets anything that can be seen across the open fields areas outside home (“curtilage”-> dwelling place) or related buildings (e.g., barn, shed)includes aerial photography of outdoor areas of industrial complexes that are fenced off from the publicpolice can observe growing marijuana plants -> discernable to the naked eye within public navigable airspace impermissible if highly sophisticated surveillance equipment was used anything that can be seen by flying over 
  • P-Probable cause: Something less than beyond a reasonable doubt but more than a mere suspicion or hunchAguilar-Spinelli Test:MBE-> 2 prong test PLUS totality of the circumstances MBE: allows for good faith reliance NY: no good faith reliance NY-> Anguilar 2prong test only Credible information as to the evidence of crime soughtReliable informant -> previously used informant (proven providing fresh personal knowledge) Use of informers NY:2 part test: veracity & reliability Aff’d must set forth sufficient facts and circumstances to let the magistrate know how they got their information Support the reliability and the credibility of the informer (not MBE) Wiretapping requirements:Probable causeSuspected persons are namedThe warrant must particularly describe the conversations intended to be heardThe durational period of the wiretap must be short Termination must be provided for Court must be given a transcript of the intercepted conversations A- Oath or Affirmation->From a P/O for presentation to the magistrate  M- Neutral & detached Magistrate issued warrant:  P-The warrant must be precise on its face (specificity)State with particularity the place to be searched and the things to be seized Court clerks can give warrants for violations of city ordinancesNY: For video surveillance & wiretapping, must also name suspects expected to be overheard & particularity to conversations
  • Other examplesS-Stop and FriskReasonable suspicion -> articulable reason to stop an individual Weapons: always admissible so long as the stopping was reasonable Where P/O forms a reasonable belief that the individual is armed and dangerous“pat down” of outer garmetsNonweapons: Did it look or feel like contraband? Plain Feel TestH- Hot pursuit of Evanescent EvidenceIt might go away if you take the time to get a warrantWhile you are waiting to get the warrant the person might go wash their hands Scope of search is held to include whatever is reasonably necessary to keep the felon from evading captureContraband or mere evidence Factors:PAGEP- Clear showing of probable causeA- where suspect was armedG- gravity of the offenseE-likelihood the suspect will escape  Example:Saw somebody rob ATM and chased him-> can seize the money Search incident to a lawful arrest:GR: The person and his wingspan can be searched for contraband and weaponsEverything in car but not trunk Need probable cause for arrest and search Must be contemporaneous w/ arrestIf arresting officer believes that accomplices are present then they can make a protective sweep of the area beyond the wingspan  Rationale: Prevents the destruction of evidence  Examples:Person arrested under a bed in a hotel room-> P/O can search the area around the under the bed as being within the “wingspan” of the suspect  NY: arrest must be made firstPackages found w/in wingspan cannot be searched, only seized UNLESSthere is either probable cause to search or a suspicion that the Δ or a package contains a weapon Even if there is probable cause or a suspicion that it contains a weapon, it cannot be searched IF:The package is securely fastened so it cannot be opened quickly, ORThe arrestee makes it clear that he will not reach for the contents, ORThe package is too small to contain a weapon or contraband A-Automobile Exception2 Types:Protective Sweep Search:When the P/O forms the belief that the motorist is armed or that there is a weapon in the vehicle he may ask the person to step out of the car and do a patdown of the person as in stop and frisk and do a wingspan protective search of the passenger compartment of the car Can’t search trunk or search ashtrays Probable Cause For Search:can search entire car-> trunk, containers, packagesmust have probable cause to believe the vehicle contains contrand or evidence of a crimemay be done at the time of the stop or the police may tow the vehicle to the station and search at a later time Administrative Searches:There are times where a search may only be conducted at certain times and it would be impossible and administratively unfeasible to expect the police or government agent to get a warrant every time they need to conduct a search  Requires-> reasonable grounds School searches:Warrant or probable cause is not required for searches conducted by public school officials -> only reasonable grounds for the search is necessary E.g., principal calls P/O to do a search when he had reasonable suspicion that student had drugs  Border searches:Can even be conducted inland -> P/O can follow the care from the border to a town in Mexico and then search trunk   
  • Custody:Not free to leaveDoesn’t include routine traffic stopsNot enough that a P/O merely ordered the person to stopRequires physical application of force or a submission to a P/O show of force InterrogationWhen P/O knew that they might give damaging statementIf Δ “blurts” or makes a spontaneous statement then not interrogationMiranda does not apply to spontaneous voluntary statements of the Δ made w/o verbal or physical prompting by the police at any point b/f or during the interrogation if Δ states a desire to remain silent, all question of that particular crime must ceaseWaiver:can waive Miranda but State must C/W must prove that waiver was knowing, voluntary, and intelligentcan’t waive by silence or shoulder shruggingRight to attorneywaiver must be made knowingly, intelligently & involuntaryLook at the totality of the circumstances including age, education, etc. to see if free choice was impaired in any way Ex: 15 yr old was badgered for 2 hours -> waive was not effective 
  • Exceptions (When Government Breaks Chain and “tainted” evidence may be purged) SIKAS- Evidence obtained from a source independentof the original illegality Evidence will be admissible if prosecution can show that the evidence was gained from a source independent of the illegality Ex: first officer kicked the door down thinking they would escape and seeing the contraband on the table and nobody was home, waited for the second officer  I- Inevitable discoveryAdmissible if the prosecution can show by a preponderance of the evidence that the tainted evidence would have been otherwise discovered despite the illegal searchProcess of discovery must have already been in motion K- Violations of Knock and Announce A- Intervening acts of free will by ΔIf following the illegal search, the Δ voluntarily acknowledges the otherwise illegal evidence, the taint will be removed and the evidence will be admissible Ex: Δ is arrested pursuant to an illegal search but is released on bail. The following day, Δ voluntarily returned to the police and confessed to the crime. Subsequent voluntary confession purged the taint of the illegal searchLimitations: Doesn’t Apply To: (Miranda’s CI2G2)M- MirandaC- Civil Proceedings & Parole Evidence Revocation ProceedingsIf in violation of internal agency rules I- ImpeachmentOnly ΔEvidence can be used to impeach Δ if he takes the stand to impeach his credibility  I-In-court identificationA W’s in-court identification of the Δ will not be excluded as a poisonous fruit of an unlawful detention if the W’s knowledge of the Δ’s identity was acquired prior to the illegality Ex: Δ arrested for armed robbery -> illegal search; V ID’s Δ as the perpetrator; the ID stands despite illegal search  G- Grand JuriesUnless, violation of federal wiretappingCan be used as a basis for the return of a grand jury indictment against the Δ unless obtained in violation of federal wiretapping rulesNY: one can only indict on evidence that is legally sufficient and corroborated  G- Good Faith Defense Won’t exclude evidence when P/O relies on:Caselaw (later Δed)Statute (later declared unconstitutional)Defective Search Warrant (NY: Not recognized) Good Faith Reasonable beliefOn appeal, may look into the probable causeNY: Must also have probable cause at the time the warrant was issuedExceptions-> won’t apply and evidence won’t be excluded if the defective search warrant was issued based on:Misleading affidavits to the issuing magistrateInadequate affidavitsFactually deficient warrantRubber stamping magistrate who “wholly abandoned his judicial role”Harmless Error Doctrine: Δ may assert that the evidence should be excluded pursuant to the exclusionary ruleJ may decide that the evidence should not be excluded.Δ can appealOn appeal, if the prosecution can prove beyond a reasonable doubt that the conviction would have occurred even w/o the illegally obtained evidence, the evidence will be deemed harmlesserror and the conviction will stand Procedure:Determination made by the J as a matter of law on the admissibility of the evidence“motion to suppress” can only be made a/f arraignment NY: must be made w/in 45 d of arraignment (omnibus motion) NY Omnibus Motions:Motion to inspect & dismiss or inspect & reduce Motion to suppressWade Motion: suppress P/O’s identificationHuntley Motion: suppress any statementsMapp Motion: suppress physical evidence Sandoval Motion i.e., Δ will more to prevent the prosecution from using specific instances of prior criminal conductPrior Bad Acts:Δ moves that the prosecution come forth w/ any evidence it intends to bring of prior bad acts of the Δ that the Δ would not know about Hearing:Hearing in front of a judge regarding the probative alue and prejudice of the prior bad actsany testimony by Δ on a motion to suppress may not be used as a subsequent determination of guiltBOP is on prosecution to prove the admissibility of contested evidence by a preponderance of the evidence 
  • Under the Supremacy Clause of the Constitution, federal legislationmay preempt state law. Congress may express an intent to preempt inthe federal statute. An intent to preempt may also be implied, forexample, when federal and state laws directly conflict, when state lawstands as an obstacle to accomplishing the purposes of federallaw, or when federal law is so pervasive that it reflects an intent tooccupy a regulatoryfield.Here are some cases: NATIONAL MEAT ASSOCIATION v. HARRIS (U.S. No.10-224) http://www.supremecourt.gov/opinions/11pdf/10-224.pdf (holdingthat California cannot regulate their meat inspection different fromFMIA because the statute completely regulates field); Taub v. State,463 A. 2d 819 (1983), (held by Maryland Court that state animalcruelty laws are preempted by the Animal Welfare Act)There are two big federal schemes for biosecurity in animal facilitiesthat I see#1 Animal Health Protection Act (AHPA, 7 U.S.C. 8301 et seq.), -- USDAAnimal and Plant Health Inspection Service (APHIS)#2 Food, Drug and Cosmetic Act (21 U.S.C. 301 et seq.). -- FDAThere are additional sources where wildlife or aquaculture areinvolved, but you seem to be dealing with equine, porcine, bovine,poultry, other traditional livestock.There seems to be significant amounts of federal enforcement going onat APHIS, suggesting substantial pre-emption..http://www.aphis.usda.gov/newsroom/2011/11/enforcement_actions_oct.shtmlSo what happens when another agency wants to search a facility withbiosecurity issues?What I found so far is that the FDA defers to APHIS and statedepartment of health Animal Vector Control Units.  The concernexpressed in the agency manual was along the lines that I wasdiscussing on the telephone.  The inspectors are (and should be)concern about zoogenic contagion.http://www.fda.gov/ICECI/Inspections/IOM/ucm122530.htm#5.2.10the EPA echoes this concern:http://www.epa.gov/oecaagct/biosecurity.pdfThe USDA advice seems to be that facilities which implement high-levelbiosecurity measures should, in fact, coordinate AHEAD OF TIME withlocal law enforcement ona) Response times in the event of unanticipated adverse events or intrusionsb) Having local law enforcement be aware of the suspected securitythreats and the potential public health impacts (severity andlikelihood)c) To the extent that federal preemption/coordination with regionalUSDA may be a factor,  having local law enforcement assist withinter-agency issues is helpful.http://www.ocio.usda.gov/directives/doc/DM9610-001.htm
  •  1. Ask for Identification. The New York SPCA has similar authority with the search and seizure of farm animals in New York as police officers. Members from other animal societies may not have this same authority.  2. Ask for the Warrant. If the visitors to your property do not have a warrant then you have the right to ask them to leave. If they do not cooperate then you may contact your local law enforcement.  3. Read the Warrant. If the visitors have a warrant then please take time to carefully read the warrant. Pay special attention to the scope of the warrant. For example, if the warrant is to investigate potentially abused dogs in the backyard then the peace officers should not investigate horses in your barn.  4. Ask if the Visitor Has Camera/Video Equipment. If you decide to let a visitor on your property without a warrant, ask if the visitors have camera/video equipment, including but not limited to, smartphones. Peace officers do have the ability to use camera/video equipment during their search. If the visitors do not have a warrant then you have a right to ask them to leave all cameras and phone equipment in their vehicle. 5. Take Notes During the Farm Inspection. Write down the date, time, names of the visitors, whether there was a warrant, what was inspected, and when the visitors left. Note whether there were any changes or damages made to the property (e.g., feed pans knocked over, livestock locked away from access to water) and the condition of the animals that were inspected (e.g., visual indicators of sickness, approximate body condition score, signs of heat or stress).
  • The agriculture community has faced problems with animal welfare organizations using undercover videos that are sensationalizing alleged acts of animal cruelty on livestock operations. Larger livestock farmers using conventional production practices and concentrated animal feeding operations are at greater risk. Due to the media attention from these undercover videos, several states have developed animal terrorism legislation aimed to proscribe undercover video surveillance on farms (referred to as “ag gag” laws by opponents). This type of legislation has been controversial in the American public and have raised constitutional questions.
  • Enacted in 1990
  • To illustrate, in the book Eating Animals, the author broke into a poultry barn and notes his detest that the barn doors were locked. Locking the barn door would likely constitute adequate notice under this Kansas statute that visitors from the public were forbidden. See Jonathan SafranFoer, Eating Animals (2009).
  • Importantly, the criminal statute does not apply to “lawful activities of any governmental agency or employees or agents thereof carrying out their duties under law.” K.S.A. § 47-1827(h).
  • Both enacted in 1991
  • Currently, the Panel is investigating a video of a swine operation in Iowa released in February 2012 by Compassion Over Killing includes Dr. Temple Grandin (Colorado State University), Candace Crone (Purdue University) and Tom Burkgren (American Association of Swine Veterinarians). After reviewing the footage, the experts determined that video illustrated (1) primarily generally accepted production practices (including castration, farrowing, “back feeding” (2) no abusive practices, and (3) well-trained employees; however, the experts also noted that there might have been a need for hoof-trimming but needed to observe more video footage to determine if there was a lameness issue. Compassion Over Killing refused to submit additional video footage to CFI despite repeated requests.  It would be idea for the Panel to review unedited video so that the expert may evaluate the alleged acts of livestock animal cruelty in context.
  • Have a clear understanding from APHIS as to the public health riskand the escalation protocol when a visitor (including quasi-policeASPCA members) refuses to abide by the protocol.
  • Build a paper historyWhat experts will testify for you at trial? Build a relationship with those people nowKnow how much you are supposed to feedFollow veterinary recommendations – VERY importantWho is feeding?Genetic defects does not necessarily mean there is animal abuseLet science dictate what is necessary food, drink, shelter and veterinary careThese are the types of things that I advise my clients
  • Broken windows- things you see all the time but never noticeInvestigation starts when someone drives up to the property- looking at land, resources, livestockIf there is just one thin horse then something might be wrong with a horse- if there are several thin horses then there might be a management problemGenetic defects do not necessarily mean there is animal abuse- however, what would a lay person think? Do you think you could prove in court that the animal had a genetic defect? (vet records)Judicially decide what animals should be kept vs. harvested- cists, abscesses, eyes, If somebody was going to stop by your property tomorrow, what would they see? (e.g., hip lift?)
  • When Activists Come Calling: Know Your Rights

    1. 1. When Activists Come Calling – Know Your Rights Animal Agriculture Alliance 11th Annual Stakeholders Summit “Real Farmers Real Food: Celebrating Tradition and Technology” May 3, 2012 By Cari B. Rincker
    2. 2. 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
    3. 3. 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
    4. 4. 5 Different State Approaches
    5. 5. 5 State Law Approaches• Ordinary Rights• Animal Rescue• Limited Law Enforcement• Law Enforcement• Community Policing
    6. 6. Ordinary Rights Approach• Humane societies operate animal shelters and educate community about animal abuse – No police power
    7. 7. Ordinary Rights ApproachStates 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
    8. 8. 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
    9. 9. 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
    10. 10. Animal Rescue ApproachStates with thisapproach include: – Alabama, Florida, Kansas, Minnesota, and New Hampshire
    11. 11. 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
    12. 12. Limited Law Enforcement• States with this approach include Kentucky, Nevada, South Carolina, Tennessee, Vermont, Virginia, and Washington
    13. 13. 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
    14. 14. Law Enforcement ApproachStates with thisapproach include – Hawaii, California, New Jersey, Pennsylvania, Rhode Island, New York
    15. 15. 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
    16. 16. Oversight of Humane Societies
    17. 17. 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
    18. 18. 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
    19. 19. Example Regime: New York
    20. 20. 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).
    21. 21. 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/orinvestigations approved by New York Commissioner of Health
    22. 22. Case IllustrationPeople v. Arcidicono, 360 N.Y.2d156 (App. Term 1974) (where thedefendant was in charge offeeding gelding for three months,was aware of his loss of weight,and when it was returned to itsowner the gelding was in such astate of malnutrition that it wasmercifully destroyed).
    23. 23. Case IllustrationMudge v. State, 45 N.Y.S.2d 896 (Ct. Cl.1944) (where state trooper inspecteda barn and found the main door sofrost swollen that it could not beclosed; livestock were found shiveringin 1-2ft of manure without bedding,feed, drinkable water).
    24. 24. Case IllustrationPeople v. Bowe, 876 N.Y.S.2d762 (Third Dep’t 2009) (wherepolice discovered 15 horses onproperty – some which weredead while others wereseverely emaciated)
    25. 25. 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
    26. 26. 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
    27. 27. 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).
    28. 28. Abandonment of AnimalsSection 355 proscribesanowner/possessor/bailorof 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
    29. 29. 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.
    30. 30. 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
    31. 31. Seizure of Farm AnimalsPursuant to Section 373,any police officer or officerof a duly incorporatedsociety for the preventionof cruelty to animals with avalid warrant may lawfullytake possession of anyanimal that for more than12 successive hours hasbeen confined or kept inunhealthy conditionswithout necessarysustenance, food or drink
    32. 32. Duty to Cooperate With Farm SearchSection 369 proscribesthe interference orobstruction of a searchby a police officer orduly incorporatedsociety for theprevention of cruelty toanimals with a validwarrant – Misdemeanor
    33. 33. “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)
    34. 34. 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
    35. 35. The Problem: DiscussionSee Elizabeth R. Rumley& Rusty Rumley,“Enforcing AnimalWelfare Statutes: InMany States, It’s Still theWild West”
    36. 36. Cowboy “Crim Pro”
    37. 37. 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.”
    38. 38. 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
    39. 39. 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
    40. 40. 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
    41. 41. 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)
    42. 42. 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
    43. 43. 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
    44. 44. 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
    45. 45. Exclusionary RuleFruit 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
    46. 46. 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?
    47. 47. 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
    48. 48. Overview of “Ag Gag” Law
    49. 49. States That Currently Prohibit Undercover Video Surveillance• Kansas• Montana• North Dakota• Iowa• Utah
    50. 50. 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).
    51. 51. 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).
    52. 52. Kansas• K.S.A. § 47-1828 setsforth a civil cause ofaction• The plaintiff may beentitled to “three timesall actual and consequential damages. . .” (includingproduction, research, testing, replacement andcrop/animal development), court costs andreasonable attorneys fees.
    53. 53. 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”
    54. 54. IowaA “person is guilty of animalproduction facility fraud” if they(1) obtain access to an agricultureproduction facility under falsepretenses, or (2) make a falsestatement on an employmentapplication with the intent tocommit an act that is knowinglyprohibited by the owner of theagricultural facility. See section717A.3A(3).
    55. 55. UtahAlso prohibits farmemployees and criminaltrespassers to takeunauthorized photographs,videos and sound.See U.C.A. § 76-6-112(c)-(d).
    56. 56. States with Proposed “Ag Gag” Bills• Illinois• Indiana• Minnesota• Nebraska• Tennessee• New York• Florida (died in budget)
    57. 57. 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
    58. 58. 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
    59. 59. 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
    60. 60. Recommendations for Livestock Producers
    61. 61. 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)?
    62. 62. Discuss With Your AttorneySpeak to him/her aboutconcerns specific to youroperation – Special biosecurity concerns? – Have a protocol for visitors and law enforcementFormulate a defense strategy for your farmwith the advice of counsel
    63. 63. 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
    64. 64. Start Building a Defense• Have a relationship with industry experts – Veterinarian – Nutritionists – Cooperative Extension Specialists• Keep records of visits/recommendation s• Keep records of noted improvements/complia nce with said recommendations
    65. 65. Start Building a Defense• Maintain feeding, breeding, and health records• Record body condition scores• Take photographs• Keep diaries• Build written record
    66. 66. Know Who You Hire• Background checks• Recommendations• Smartphones• Supervision• Employment/• Independent Contractor Contract• Animal Handling Training – Certification?
    67. 67. 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)
    68. 68. 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
    69. 69. 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
    70. 70. Some Final ThoughtsShould we bepolicing ourselves?Fighting for change?Is it “us” vs. “them?”
    71. 71. 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
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