After 2010, animal agriculture turned to state criminal law to stop activists from entering private property to collect evidence of animal abuse. This involved increasing penalties for trespass, making it a crime to lie on employment applications or make video or audio recordings without permission from the owner or property manager.
The media quickly labeled these as “ag-gag” laws. They were not always artfully drawn, especially early on. For example, a Utah city policeman arrested a young woman for taking photographs of an animal facility from public property. She was quickly released,
Others dropped the use of criminal law entirely and crafted civil law measures to achieve the same goals. Over several years, however, some of the country’s most skilled animal rights attorneys knocked down almost all of the “ag-gag” laws.
They won their challenges to these state laws in the District Courts and then had their victories upheld on appeal by multiple Circuit Courts.
While all this litigation was occurring, there seemed to be less undercover work by animal activists. That seems to have picked up in recent months. And now an incident that may tell what’s in the future has been playing out.
“Right to rescue” is a theory by Direct Action Everywhere, or DxE. Wayne Hsiung, a 42-year-old lawyer from San Francisco, is the co-founder of DxE.
If a dog was in the backseat of a locked car without water on a hot day, would you have the “right” to break in and save the animal? That’s the concept behind the “right to rescue.”
That’s the crux of the argument that Hsiung will make as he appeals his jail sentence for felony trespassing at chicken, duck, and other farms in Petaluma, CA, in 2018 and 2019.
His sentencing on Nov 30 might be viewed as light for a felony conviction; he got 90 days in jail and two years probation. His law license is not necessarily at risk, and his conviction and sentence appeal are an opportunity to argue that people can enter the property and remove exploited or distressed animals.
On May 29, 2018, at Sunrise Farms and on June 3, 2019, at Richard Duck Farm, Hsiang led activists in chaining themselves and shutting down farm operations.
In a statement issued at sentencing, Sonoma County District Attorney Carla Rodriguez said: “The First Amendment is not a license to commit crime. Mr. Hsiung went beyond mere activism and decided to engage in unlawful, reckless, and potentially dangerous behavior, putting farmers, their employees, and flocks of birds at risk of harm by his conduct.”
DxE removed birds from both locations and made a video, which the jury did not see because the Court ruled it was prejudicial. Farm owners testified that their birds are humanely raised and slaughtered.
Hsiang claimed that authorities ignored DxE reports of inhumane practices at the two farms.
“Ag-gag” laws did not pass Constitutional muster because of the First Amendment. Whether a “Right to Rescue” exists remains to be seen.
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