North Carolina’s three-year-old law permitting owners to collect monetary damages from individuals for “exceeding the scope of authorized access to property” was always expected to be the subject of judicial review.
The question has been whether it should get an immediate review on its merits or wait until a property owner with real-life circumstances uses the law.
A federal court in North Carolina last year decided against the immediate review. This week, a 3-judge panel from U.S. Court of Appeals for the 4th Circuit reversed that District Court decision and remanded the case back to the trial court.
It was a victory for a long list of activists involving animal, food, and media interests including lawyers representing the Animal Legal Defense Fund (ALDF). In a series of district and appellate court decisions, state statutes with the same purpose as North Carolina’s were found unconstitutional after ALDF challenges.
State laws to protect animal agriculture from unwanted entries are usually called “ag-gag” statutes or sometimes “anti-Sunshine” laws. The ones knocked down as unconstitutional to date relied for the most part on state police powers. In other words, state criminal laws complete with the potential for arrest, incarceration, and fines, and criminal records were involved.
North Carolina’s law is a different animal. It only includes civil remedies. It grants an additional cause of action in civil litigation to recover damages for exceeding the scope of authorized access to the property. For example, an employer could recover monetary damages from an employee who steals company information or plants surveillance devices on company property outside of areas where the employee is authorized.
If a property violation is ongoing, judges may award up to $5,000 per day.
The lawsuit will now return to the District Court unless North Carolina files for rehearing by the Circuit Court. Named Defendants are North Carolina Attorney General Josh Stein and University of North Carolina-Chapel Hill Chancellor Carol Folt. In an opinion that does not set a binding precedent for the Fourth Circuit, the 3-judge panel said the lawsuit was a “pre-enforcement” challenge to the North Carolina Property Protection Act.
In the panel’s unpublished opinion, it says the Plaintiffs had plans for undercover investigations of “unethical and illegal” animal practices at government facilities. They claimed the North Carolina law was interfering with those plans. Court documents do not name the government facilities for future investigations. The Plaintiffs claim to have recruited “qualified persons” to secure employment in these facilities and “have reason to believe” acts of animal cruelty are occurring.
PETA, the lead plaintiff, was credible with the appellate judges because of its undercover work 15-17 years ago to disclose abuses at UNC-Chapel Hill animal testing laboratories.
Appeals Judges William Byrd Traxler, 70; Henry Franklin Floyd, 70; and Dennis Shedd, 65, were also in agreement that PETA wants to conduct future investigations in North Carolina “but it has been deterred from doing so for fear of being sued for damages under the Act.”
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