Detailed Discussion of State Animal "Terrorism"/Animal Enterprise Interference Laws

Cynthia F. Hodges Place of Publication: Michigan State University College of Law Publish Year: 2011 Primary Citation: Animal Legal & Historical Center 1 Country of Origin: United States

Summary:

State animal terrorism laws have been enacted to protect agricultural research and production. The laws prohibit acts that obstruct, impede, or disrupt agricultural operations, research, or experimentation conducted at an animal facility. A person who violates a state animal terrorism law may be charged with a misdemeanor or a felony, face a stiff fine and prison term, and may be required to pay restitution. Opponents of such laws argue that they may violate state and federal constitutional rights.

I. INTRODUCTION

The state legislatures of approximately 28 states, such as Arkansas and Kentucky , have found that the breeding, selling, and use of “animals in research, testing, and education represent vital segments of the economy.” 1 They are worried about the increasing number of illegal acts targeted at farm animal and research facilities, acts that may involve injury or loss of life to people and animals, criminal trespass, and property damage. 2 When activists free research animals, for example, this may hurt the public interest by disrupting and damaging publicly funded research, causing the loss of physical and intellectual property, and jeopardize "crucial scientific, biomedical, or agricultural research or production.” 3 When activists stage protests outside of research facilities, their actions may threaten the public safety by creating traffic hazards. 4

In response to such activism, legislators have enacted state animal enterprise interference laws, aka "animal terrorism" laws or "Ag-gag laws," with Minnesota being the first to do so in 1988. 5 Many of these state laws have come in the wake of the federal Animal Enterprise Terrorism Act (AETA), which was enacted in 2006 to "provide the Department of Justice the necessary authority to apprehend, prosecute, and convict individuals committing animal enterprise terror." (For more on the AETA, click here ).

Animal terrorism laws generally forbid entering an animal facility with the intent to commit a prohibited act. 6 An “animal facility” is typically any location where an animal is kept for agricultural production, or for educational or scientific purposes. 7 This could be a pasture or a pen, a laboratory, or a vehicle or pond where an animal is kept, shown, bred, used in research, testing, or for food or fiber production. 8 Examples include livestock markets, zoos, rodeos, circuses, amusement parks, hunting preserves, horse and dog show grounds, research facilities, and veterinary clinics. 9 A building used to store supplies, records, data, or equipment relating to animal research, testing, production, or education or an organization with the primary purpose of promoting or marketing livestock or livestock products could also qualify as an “animal facility.” 10

Prohibited acts under the animal terrorism laws typically involve injury or loss of life to people and animals, criminal trespass, and property damage if the intent is to obstruct, impede, or disrupt operations, agricultural research, or experimentation conducted at an animal facility or deter any person from participating in a lawful activity that involves the use of animals. 11

A person who is charged under a state animal terrorism statute may be charged with a misdemeanor or a felony, depending on the act and amount of damages. A conviction may result in a hefty fine and a prison sentence. In a minority of jurisdictions, the crime may be enhanced because an animal enterprise was involved. A perpetrator may also be ordered to pay restitution to the victim for damages.

As with AETA , which has been criticized for chilling free speech and labeling animal welfare activists as "terrorists," state laws may face constitutional challenges for violations of free speech and equal protection rights.

II. PROHIBITED ACTS

Under many state animal terrorism laws, a person commits an offense if he or she enters, remains or conceals him- or herself in an animal facility that was closed to the public, if he or she has the intent to commit a prohibited act. 12 Prohibited acts are typically those that disrupt operations, research, or experimentation, or cause physical damage to the property of an animal enterprise. 13 An “animal enterprise” is defined as a facility used for agricultural operations, such as the production of livestock products, research or testing, and may include an entity that operates a zoo, aquarium, circus, rodeo, or competitive event. 14 The entry must be without the consent, permission, or authorization of the facility’s owner or agent. 15 This may involve gaining entry by misrepresentation or false pretenses. 16 In Oklahoma and Iowa , the person committing the act is in violation if he or she knew or should have known that the facility was closed, or that entry was forbidden (being told to leave, for ex.). 17

Under the animal terrorism laws, it is an offense to damage or destroy an animal facility, or to exercise control over it. 18 Property at the facility, including animals, records, and equipment, is also protected under the laws. 19 Many states make it a crime to vandalize, deface, mark, steal, damage or destroy any property. 20 An example of a violation might be if a person entered a factory farm without permission and spray-painted "free the animals" on a wall. The criminal code of Maryland makes it illegal to damage, deface, destroy, remove, or alter research property specifically. 21 An example of this might be if someone entered an animal research laboratory without permission and freed a lab rat from its cage.

Records, data, materials, and equipment at animal facilities are also protected. The animal terrorism laws make it a crime to destroy, damage, alter, duplicate or obtain unauthorized possession of these items, such as by theft or deception. 22 It is also a violation in Louisiana , Alabama , and Oregon to possess or use such items knowing or reasonably believing them to have been obtained without the facility’s authorization. 23 For example, it would be a violation if a person entered a zoo without permission and made copies of veterinary records for an elephant that had been abused in captivity.

As animals are considered to be property, the state animal terrorism laws protect the owners’ interests in them. The laws typically make it a crime to kill, injure, damage, destroy, or otherwise cause bodily injury to an animal at a facility. 24 Such an act would be an aggravated misdemeanor in Iowa . It is also illegal to steal, acquire, exercise control over, conceal, abandon, free, release, or otherwise deprive the owner of an animal. 25 For example, a person who enters a farm without permission to liberate veal calves from their crates would be committing a class D felony in Iowa .

In Pennsylvania , New Hampshire , and Florida , it is an offense to prevent an individual at an animal facility from lawfully participating in an animal activity through intimidation or coercion, or by intentionally causing bodily injury. 26 For example, it would be a violation if a person entered a slaughterhouse without permission and tried to prevent the slaughter of horses by threatening a worker with a shovel. If a person causes serious bodily injury to another or economic loss in excess of $10,000, the crime is a felony in New Hampshire and Florida .

Taking photographs or shooting videos at an animal facility is illegal in Kansas and Montana if the person has illegally entered with the intent to commit criminal defamation. In North Dakota , it is a a class B misdemeanor to do so even without the intent of committing criminal defamation. 27 Therefore, in North Dakota , entering a farm and videotaping the electrocution of goats without permission would be illegal absent any intent of using the footage for defamatory purposes.

Few courts have considered constitutional challenges to these laws, but opponents argue that they infringe protected activities. They argue that certain provisions may violate the U.S. Constitution and/or respective state constitutions for violating equal protection rights and free speech rights. For example, the court in State v. Borowski, 231 Or.App. 511 (2009) found an Oregon animal interference statute to be unconstitutional. In this case, the defendants were convicted of interfering with agricultural operations (a Class A misdemeanor) under O.R.S. § 164.887. This statute provides an exception to the offense of interference with agricultural operations if the person is involved in a labor dispute. The Court of Appeals held that the statute violated the defendants' equal protection rights under the Fourteenth Amendment to the U.S. Constitution because it created a labor/non-labor distinction that was not rationally related to any legitimate state interest.

Although California does not have animal terrorism laws per se, the reasoning in Kuba v. 1-A Agr. Ass'n , 387 F.3d 850 (2004) could apply to animal terrorism laws in other states. In this case, an appellate court considered a challenge to a state rule that limited demonstrations to “free expression zones." The court held that the animal facility’s parking lots and walkways were public forums under the California Constitution, and thus time, place and manner restrictions on speech had to be content-neutral and narrowly tailored to serve an important state interest. The Court held that the state did not have a significant interest in restricting protestors to demonstration zones in the absence of evidence that demonstrations were a threat to the facility's financial success. The rule was not narrowly tailored enough to promote the state's interest in preventing traffic congestion and promoting driver and pedestrian safety, and restricted much more speech than was necessary. Therefore, the rule unduly infringed free speech on its face under the California Constitution.

Despite these constitutional challenges, states have categorized the prohibited acts under these laws as misdemeanors or felonies depending on the act or amount of damage. Acts that involve violence or destruction to property in significant damage amount may constitute felonies with stiff fines or even imprisonment. More benign actions such as entering a facility to take photographs without setting free any animals or vandalizing the property are often classified as misdemeanors. Often, it is the level of damage that determines the penalty.

III. PENALTIES

The penalties imposed for violations of animal terrorism laws may be stringent. If a perpetrator is convicted of a misdemeanor or a felony, he or she may be punished by a fine and/or imprisonment. Felonies are generally punished more harshly than misdemeanors.

Entering an animal facility in Kentucky , South Carolina , or Louisiana with the intent to disrupt the enterprise or deprive the owner of propertycould result in a fine of $5,000 and imprisonment for up to one year (with or without hard labor in Louisiana ). In Mississippi , Oklahoma and Georgia such acts could result in a fine of up to $10,000 and/or imprisonment for up to three years. In Idaho , one could be imprisoned for up to 20 years for an act of interference with agricultural research .

Acts of animal terrorism may be considered misdemeanors or felonies, often depending on the amount of damage the person caused. The acts are considered misdemeanors if the damage amount remains below $250 in Alabama , $300 in Missouri , $500 in North Dakota , Oklahoma , Georgia , and Tennessee , $1,000 in Kansas and Iowa , and $2,500 in Oregon . 28 If the damage is above that amount, then the acts are considered to be felonies.

If a person takes pictures or video at an animal facility with the intent to commit criminal defamation in Montana , then he or she faces punishment that depends on the amount of damage. If the act results in $500 or less in damage, then the perpetrator faces a fine of up to $500 and/or imprisonment up to 6 months in county jail. If damages are more than $500, then the fine could be up to $50,000, and the prison term could be up to 10 years in the state prison.

The penalties for ecoterrorism are enhanced in Utah and Pennsylvania if the defendant caused damage to property or interfered with the operation of an animal enterprise. 29 Typically, an offense is classified one degree higher than the classification of the specified offense against property. 30

In Pennsylvania , a person is guilty of animal terrorism and subject to enhanced penalties if he or she commits a specified offense against property intending to intimidate, coerce, prevent or obstruct an individual who is lawfully participating in an activity using animals. The crime is elevated one level for involving animals. For example, If the offense against property is a summary offense, then the crime is a misdemeanor of the third degree. 31 If the specified offense against property is a misdemeanor or a felony of the third or second degree, an offense is classified one degree higher than the classification of the specified offense against property. If the specified offense against property is a felony of the first degree, a person convicted of an offense will be sentenced to a term of imprisonment of up to 40 years and may be sentenced to pay a fine of up to $100,000.

In Utah , a person who commits any criminal offense with the intent to halt, impede, obstruct, or interfere with the lawful operation of an animal enterprise or to damage, take, or cause the loss of any property owned by, used by, or in the possession of a lawful animal enterprise, is also subject to an enhanced penalty. For example, a class A misdemeanor would become a third degree felony with a fine of not less than $5,000 if animal terrorism were involved. 32 A class B misdemeanor would become a class A misdemeanor with a fine of not less than $2,500. 33 A class C misdemeanor would become a class B misdemeanor with a mandatory fine of at least $1,000. 34

Not only do these law provide sometimes severe criminal penalties that may include prison terms, but many states have also included a mechansim for injured parties to recoup damages. In about 10 states, the injured party may recover actual and consequential damages, punitive damages, reasonable attorneys' fees and court costs from the guilty party.

IV. CIVIL LIABILITY

In states such as Washington , Pennsylvania , and Minnesota , courts are directed to award the plaintiff all costs of the litigation. 35 This may include court costs, reasonable attorney fees, investigation costs, and even punitive damages. 36 For example, Washington may impose on the liable party a civil fine of up to $100,000. 37 The guilty party may also be required to pay restitution for the damage to real and personal property he or she caused. 38

The injured party may recover all actual and consequential damages in states such as Missouri , Georgia , Pennsylvania , and Tennessee . 39 Actual and consequential damages include production, research, testing, and animal development costs, as well as replacement costs of damaged or lost materials, data, equipment, animals, and records. 40 In Florida , recovery may be made for the loss of food production or farm income reasonably attributable to the offense. 41 The cost of repeating an experiment that has been interrupted or invalidated as a result of the violation may be recoverable, as well as the cost of restoring an animal to confinement and to its level of health prior to the offense. 42

In New York , the offender will be held to account for the value of the damages sustained as a result of the violation or fifty dollars, whichever is greater. 43 Idaho and Alabama demand restitution in twice the amount of the market value of the animal or equipment damaged or destroyed. 44 In Iowa , Kansas , North Dakota , Pennsylvania , and Montana , the restitution demanded is three times the amount of all actual and consequential damages. 45 In Minnesota , an injured party is entitled to recover three times the actual damages or $5,000, whichever is greater. 46

V. CONCLUSION

Since Minnesota enacted the first animal terrorism law in 1988, many state legislators have followed suit. They have responded to an increasing number of illegal acts directed at farm animal and research facilities by passing animal terrorism laws. The aim is to protect the public safety and the public interest in agricultural research and production. The laws have been criticized for violating citizens' state and federal constitutional rights, however.

The animal terrorism laws prohibit acts that involve injury or loss of life to people and animals, criminal trespass, and property damage if the intent is to obstruct, impede, or disrupt operations, agricultural research, or experimentation conducted at an animal facility.

A person who violates a state animal terrorism statute may be charged with a misdemeanor or a felony, depending on the state and the act involved. In a minority of jurisdictions, a crime may be subject to a penalty enhancement if an animal enterprise is involved. In such a case, the crime level is raised one degree.

The punishment for a misdemeanor act of animal terrorism varies by state. Fines range from $50 in Montana to $10,000 in South Carolina and Mississippi . Prison sentences range from up to three months in Montana to three years in South Carolina .

Felony acts of animal terrorism carry fines ranging from $5,000 in Maryland to $100,000 in Pennsylvania . The prison term may be up to three years in Georgia , Mississippi , and Oklahoma and up to 40 years in Pennsylvania .

In some states, the guilty party may be ordered to pay restitution for the damage to property he or she caused. The injured party may also be able to recover actual and consequential damages, punitive damages, reasonable attorneys' fees and court costs.

State animal terrorism laws may face an increasing number of constitutional challenges under both the U.S. and state constitutions for violating defendants' equal protection and free speech rights. However, animal rights activists fear these "Ag-gag" laws will continue to multiply, as more and more states seek to prevent whistle-blowers from exposing abuses in agribusiness, and may even become more draconian. For example, a Minnesota bill (House File No. 1369) (.pdf - 979.52 KB) introduced in April 2011 seeks to make it a felony to disrupt operations at factory farms. The proposed legislation would make it a gross misdemeanor to document an “image or sound” of animal suffering at an animal facility, punishing both videographers and distributors of such videos ( Iowa (.pdf - 60.47 KB) and Florida (.pdf - 84.95 KB) have also considered such amendments).

FOOTNOTES

1 AR ST § 5-62-201(a)(1 ); KY ST 437.415 .

2 IL ST CH 720 215/2 § 2 ; AL ST 13A-11-150 ; KY ST 437.415 ; AR ST § 5-62-201(a)(3) .

3 IL ST CH 720 215/2 § 2 ; AL ST 13A-11-150 ; AR ST § 5-62-201(b), (c) ; KY ST 437.415 .

4 IL ST CH 720 215/2 § 2 ; AR ST § 5-62-201(b), (c ); AL ST 13A-11-150 ; KY ST 437.415 .

5 M.S.A. § 346.56 . The names of the acts vary by state. In Florida , for example, it is known as the Animal Enterprise Protection Act. In Illinois , it is called “The Animal Research and Production Facilities Protection Act.” In Montana , South Carolina , and Tennessee , the law is known as “Farm Animal and Research Facilities Protection Act.” Mississippi’s law is a variation on a theme, entitled, “Animal Research or Exhibiting Facilities Protection Act.” Finally, in Oklahoma and Georgia , it is named the “Farm Animal, Crop, and Research Facilities Protection Act.”

6 OH ST § 2923.31(M), (O) (“animal activity” includes hunting, fishing, trapping, traveling, camping, the production, preparation, or processing of food or food products, clothing or garment manufacturing, medical research, other research, entertainment, recreation, agriculture, biotechnology, or service activity that involves the use of animals or animal parts).

7 IA ST 717A.1(4)(a), (b) ; MO ST 578.405(2) ; AL ST § 13A-11-152(2) . See also IL ST CH 720 215/3(c) .

8 MS ST § 69-29-301(c ); MD CRIM LAW § 6-208(a)(4) ; AR ST § 5-62-202(2) ; MT ST 81-30-102(2) ; KS ST 47-1826(b) ; ND ST § 12.1-21.1-01 2 ; NH ST 644:8-e (b) ; KY ST 437.410(2) ; OH ST § 2923.31(N) . See also AL ST § 13A-11-152(2) ; TN ST § 39-14-802(3) ; 2 Okl. St. Ann. § 5-104.3 ; GA ST § 4-11-31(3) .

9 OH ST § 2923.31(N) ; MO ST 578.405(2) ; AL ST § 13A-11-152(2) ; IA ST 717A.1(4)(b), (c) .

10 MO ST 578.405(2) ; AL ST § 13A-11-152(2) . See also IL ST CH 720 215/3(c) . An “animal research facility” is more narrowly defined to mean any place, such as a laboratory or teaching institution, where scientific research, testing, experimenting, or teaching involving animals is conducted. ND ST § 12.1-21.1-01(2), (7) ; MT ST 81-30-102(2), (10) ; KS ST 47-1826(b), (i) ; OR ST 167.312(2) ; LA R.S. 14:228 § 228 B(1) ; MD CRIM LAW § 6-208(a)(4) ; TN ST § 39-14-802(3) ; 2 Okl. St. Ann. § 5-104.3 ; GA ST § 4-11-31(3) ; AR ST § 5-62-202(2) ; NH ST 644:8-e(b) ; KY ST 437.410(2) ; OH ST § 2923.31(N) .

11 OH ST § 2923.31(M), (O) (“animal activity” includes hunting, fishing, trapping, traveling, camping, the production, preparation, or processing of food or food products, clothing or garment manufacturing, medical research, other research, entertainment, recreation, agriculture, biotechnology, or service activity that involves the use of animals or animal parts).

12 MT ST 81-30-103(2)(b)-(d), (f) ; ND ST § 12.1-21.1-02(3)-(6), § 12.1-21.1-03 ; KY ST 437.420(3), (4) ; SC ST § 47-21-50(1)-(3), § 47-21-60 ; KS ST 47-1827(c)(1)-(4), (d)(1) ; AR ST § 5-62-203(a)(3), (c)(1)-(3), (d)(1)(A) ; MS ST § 69-29-309(a)-(c), § 69-29-311(1) ; AL ST §13A-11-153(4), (7) ; MO ST 578.407(4), (6) ; IL ST CH 720 215/4(3), (4), (6) ; LA R.S. 14:228 § 228 A(4), (5) ; MD CRIM LAW § 6-208(b) ; 2 Okl. St. Ann. § 5-105C1 ; IA ST 717A.2(1)(c) ; GA ST § 4-11-32(c)(1) ; TN ST § 39-14-803(c)(1) . See also OR ST 167.312(1)(c) .

13 AR ST § 5-62-203 (a)(2), (b)(1), (c), (d)(1) ; MT ST 81-30-103(1), (2) ; KS ST 47-1827(b), (c), (d)(1) ; ND ST § 12.1-21.1-02(1), (2), § 12.1-21.1-03 ; MS ST § 69-29-305, § 69-29-307, § 69-29-309, § 69-29-311(1) ; SC ST § 47-21-30, § 47-21-40, § 47-21-50, § 47-21-60 ; 2 Okl. St. Ann. § 5-105(A)(1), (B)(1), (C)(1) ; GA ST § 4-11-32(a)(1), (b)(1), (c)(1) ; KY ST 437.420(1)-(4) ; TN ST § 39-14-803(a)-(c)(1) ; IA ST 717A.2(1)(c)(1) (if the operations directly relate to agricultural production, animal maintenance, educational or scientific purposes, or veterinary care); ID ST § 18-7040(1)(a)-(c) ; FL ST 828.42(1) .

14 UT ST § 76-6-110(1)(a)(i)-(iv) ; FL ST 828.41(1)(a)-(c) . In Ohio, an animal enterprise can also be a fair or similar event intended to advance agricultural arts and sciences, and include illicit as well as licit enterprises. OH ST § 2923.31(C) .

15 ID ST § 18-7037(1), § 18-7040(1)(e) ; MT ST 81-30-103(2)(b)-(d) ; ND ST § 12.1-21.1-02(3)-(5), § 12.1-21.1-03 ; KY ST 437.420(1)-(4) ; SC ST § 47-21-30, § 47-21-40, § 47-21-50(1)-(3), (6), § 47-21-60 ; KS ST 47-1827(b)(c)(1)-(3), (d)(1) ; AR ST § 5-62-203(a)(3), (b), (c)(1)-(3), (d)(1) ; MS ST § 69-29-305, § 69-29-307, § 69-29-309(a)-(c), § 69-29-311(1) ; AL ST § 13A-11-153(1), (7) ; MO ST 578.407(6) ; IL ST CH 720 215/4(3), (6) ; LA R.S. 14:228 § 228 A(5) ; 2 Okl. St. Ann. § 5-105(A)(1), (B)(1), (C)(1) ; IA ST 717A.2(1) ; MD CRIM LAW § 6-208(b) ; GA ST § 4-11-32(a)(1), (b)(1), (2), (c)(1) ; TN ST § 39-14-803(a), (b), (c)(1) .