ISAR-homepage-logo

The Animal Rights Law Reporter – It All Started Here!

i Apr 16th

We are pleased to announce that the Animal Rights Law Reporter, – founded
and edited by Professor Henry Mark Holzer, and published by International Society for Animal Rights – is now part of the online collection of the Animal Legal and Historical Center at Michigan State University College of Law.

The area of animal law as a distinct legal practice in the United States was conceived by
ISAR’s chairman, Professor Henry Mark Holzer in the 1970s. Since that beginning, the interest of lawyers, law schools and the legal profession in animal law has burgeoned.

Animal law did not exist as a separate legal specialty until 1973, when Henry Mark Holzer, filed the landmark lawsuit Jones v. Butz, which advocated for the animals’ interest in challenging an exception under the federal Humane Methods of Livestock Slaughter Act of 1958.

Professor Holzer’s lawsuit is credited with being the opening salvo in what is still the emerging field of animal law, which he actively promoted through outreach and by establishing a professional publication, the Animal Rights Law Reporter (ARLR).

The Animal Rights Law Reporter was published quarterly from 1980 – 1983. Each issue began with a segment entitled, “In the Courts,” which outlined significant court cases involving animals. The issues also contained a section for “In the Legislatures,” where recent animal-related legislation was discussed. “In the Legal Literature” gave updates on pertinent legal articles in the field. Finally, the Reporter provided a quarterly “Bulletin Board,” “Available Resources,” and “Editor’s Comment” from Professor Holzer.

The Animal Rights Law Reporter communicated developments in animal rights law, and kept its readers abreast of all current pending federal legislation which affected animal rights, as well as state legislation.

In the debut January 1980 issue of the Animal Rights Law Reporter, Professor Henry Mark Holzer commented:

“For this first issue, it seems most fitting to comment not so much on what appears, but on that it appears. No one reading the REPORTER needs to be told that, not long ago, the idea of animal rights law was viewed as absurd by all but a handful of people. Yet, in only the past few years, the idea has grown to the point where it is possible – indeed, necessary – to publish this Animal Rights Law Reporter. Consider fully the significance of being able to publish information about animal rights law in legal literature, in legislatures, and in courts. About the availability of legal pleadings, briefs, model laws – all in the cause of legal rights for animals.

Quite beyond the content of any specific piece of information in this, the first issue of the Animal Rights Law Reporter, its real accomplishment is that it has come into being. Hopefully, its existence signals a new chapter in the struggle for animal rights through law.”

You can read more about Professor Holzer’s vision for using the law on behalf of animals at ISAR’s blogspot.com – Another Milestone For Animal Rights Law.

ISAR FILES ANIMAL RIGHTS “FRIEND-OF-THE-COURT” BRIEF IN SUPREME COURT

i Jul 29th

Several hours ago, in furtherance of its mission to use law and legislation to protect and advance animal rights, ISAR filed a “friend-of-the-court” brief in the Supreme Court of the United States urging that body to accept a First Amendment case whose outcome will affect the wellbeing of animals.

As ISAR’s supporters know, we engage in extensive public education, including the creation and dissemination of monographs and other material dealing with animal rights: Newsletters, interviews, billboards, observances, seminars, blogs, websites, speeches, courses, articles, reports, memoranda, radio shows, and public service announcements.

A Texas statute suppresses the pure speech of veterinarians, and thus constitutes a grave danger to animals.

You can read the entire brief submitted by ISAR to the Supreme Court of the United States HERE.

Reporting to the Federal Bureau of Investigation any information that comes your way in any manner concerning “Crush Videos.”

i Jul 1st

 

HOW YOU CAN HELP ANIMALS! 

By reporting to the Federal Bureau of Investigation any information that comes your way via the Internet, Email, or in any other manner concerning “Crush Videos.”

In April 2010 the Supreme Court of the United States, by a vote of 8-1, in the case of United States v. Stevens, held unconstitutional the federal statute (18 U.S.C. Section 48) which made it a crime to knowingly create, sell, or possess “a depiction of animal cruelty.”

ISAR had submitted an amicus curiae (“friend-of-the-Court”) brief in the case and our Chairman, Professor Henry Mark Holzer, presented two audio commentaries about it—one after our brief was filed and the other following oral argument.

The Court’s eight member majority ruled that the statute was “overbroad,” meaning that the law could be interpreted to suppress speech of activities involving animals which, though distasteful to many (like hunting), were legal. In other words, the Court objected to the potentially broad sweep of the statute, not its laudable intention to protect animals from certain forms of unquestionable cruelty by suppressing depictions of that cruelty.

In its opinion, the Supreme Court very nearly invited Congress to craft a statute narrowly reflecting the federal legislature’s substantial interest in curbing cruelty to animals that took the form of crush videos–a statute which would not be overbroad, but targeted more specifically to the goal that all members of the Court shared: ending the scourge of crush videos (and dog fighting, and similar barbaric conduct).

Accepting that invitation, effective December 9, 2010, Congress promptly reenacted Section 48 as the Animal Crush Video Prohibition Act of 2010. In essence, the statute now criminalizes knowing conduct that creates, sells, markets, advertises, exchanges, or distributes an animal crush video that:

  1. Depicts actual conduct in which one or more non-human animals is intentionally crushed, burned, drowned, suffocated, impaled, or otherwise subjected to serious bodily harm, and
  2. Is obscene. [Section 48 is actually more detailed than this. For example it specifies not only “non-human animals,” but also “birds, reptiles, or amphibians.” The entire statute appear below.1]

We’ll spare you the gruesome details of why Ashley Nicole Richards and Brent Justice, who made crush videos, were indicted in the United States District Court, Southern District of Texas, on (1) four counts of creation and one count of distribution of animal crush videos in violation of 18 U.S.C. Section 48, (2) one count of engaging in the business of selling or transferring obscene matter in violation of 18 U.S.C. 1466(a), and (3) one count of production of transportation of obscene matters for sale or distribution in violation of 18 U.S.C. Section 1465.

Taking a page from the defense’s playbook in the Stevens case, in the federal trial court Richards and Justice asked the judge to dismiss the indictment because Section was an unconstitutional abridgement of their “free speech.”

The federal district judge agreed, primarily because the defendants’ “free speech” was not of a type the courts have considered unprotected, such as obscenity and speech incidental to criminal conduct.

On appeal, to its credit the government argued that as written new Section 48 punished only the type of speech that is unprotected and thus the law was not overbroad, as had been the prior Section 48 ruled unconstitutional in the Stevens case.

On June 13, 2014, a three-judge panel of the United States Court of Appeals for the Fifth Circuit unanimously reversed the district court.

The court began its analysis by observing that for new Section 48(a) (2) to apply animal crush videos must be “obscene,” a crucial element of the crime but not one defined in the statute itself.

To provide that definition, the Court of Appeals accepted the one articulated by the United States Supreme Court in the 1973 obscenity case of Miller v. California.

Under that test, the Court of Appeals ruled that the requisite “obscene” element of the statute would be satisfied by “the [defendants’] wanton torture and killing that, as demonstrated by federal and state animal cruelty laws, society has deemed worthy of criminal sanction.”

The court’s reversal sent the case back to the federal district court for trial, which is yet to occur.

Under the facts, the defendants should be convicted. If they are–either by trial or plea–they should be sentenced to the maximum 7 years imprisonment on the Section 48 counts alone, with further punishment imposed on the two obscenity counts of the indictment. Fines should be imposed at the maximum amount allowed by law.

It should be noted that in upholding Section 48–thus condemning wanton torture and killing of animals, and speaking approvingly of federal and state animal cruelty laws–the Court of Appeals has struck a significant blow for animal rights, albeit in the limited arena of unspeakable human conduct.



[1] 18. U.S.C. Section 48 (2010)
 
(a) Definition.–In this section the term “animal crush video” means any photograph, motion-picture film, video or digital recording, or electronic image that–
(1) depicts actual conduct in which 1 or more living non-human mammals, birds, reptiles, or amphibians is intentionally crushed, burned, drowned, suffocated, impaled, or otherwise subjected to serious bodily injury (as defined in section 1365 and including conduct that, if committed against a person and in the special maritime and territorial jurisdiction of the United States, would violate section 2241 or 2242); and
(2) is obscene. 
 
(b) Prohibitions.–
(1) Creation of animal crush videos.–It shall be unlawful for any person to knowingly create an animal crush video, if–
(A) the person intends or has reason to know that the animal crush video will be distributed in, or using a means or facility of, interstate or foreign commerce; or
(B) the animal crush video is distributed in, or using a means or facility of, interstate or foreign commerce. 
(2) Distribution of animal crush videos.–It shall be unlawful for any person to knowingly sell, market, advertise, exchange, or distribute an animal crush video in, or using a means or facility of, interstate or foreign commerce.
(c) Extraterritorial application.–Subsection (b) shall apply to the knowing sale, marketing, advertising, exchange, distribution, or creation of an animal crush video outside of the United States, if–
(1) the person engaging in such conduct intends or has reason to know that the animal crush video will be transported into the United States or its territories or possessions; or
(2) the animal crush video is transported into the United States or its territories or possessions.
(d) Penalty.–Any person who violates subsection (b) shall be fined under this title, imprisoned for not more than 7 years, or both.
(e) Exceptions.
(1) In general.–This section shall not apply with regard to any visual depiction of–
(A) customary and normal veterinary or agricultural husbandry practices;
(B) the slaughter of animals for food; or
(C) hunting, trapping, or fishing.
(2) Good-faith distribution.–This section shall not apply to the good-faith distribution of an animal crush video to–
(A) a law enforcement agency; or
(B) a third party for the sole purpose of analysis to determine if referral to a law enforcement agency is appropriate.
(f) No preemption.–Nothing in this section shall be construed to preempt the law of any State or local subdivision thereof to protect animals.

  

Do Not Fear That Animal Protection Legislation Will Be Ruled Unconstitutional

i Mar 14th

HOW YOU CAN HELP ANIMALS!

Do Not Fear That Animal Protection Legislation Will Be Ruled Unconstitutional

 

ISAR often hears that animal protection organizations are contemplating the preparation and introduction of pro-animal legislation, but fear that courts may rule that the bills won’t pass constitutional muster.

They worry unnecessarily.

The fact is that except for the most egregious bills (e.g., imposition of a $10,000 tax per animal levied on the custodians of companion animals), animal protection laws will be upheld against constitutional challenges. Doubters should consider what has become of other constitutional challenges to various animal protection laws.

For example, various levels of government throughout the United States are increasingly enacting laws that severely restrict, or even prohibit, the breeding and owning of cats and dogs; some of these laws are breed-specific, some apply generally.

There is, of course, substantial opposition to these types of laws, especially from organizations such as the American Kennel Club, which have a huge financial stake in the breeding of dogs. Among their many other arguments against anti-breeding laws, their opponents claim they are unconstitutional.

They are not.

Let’s examine anti-breeding laws and constitutional law to illustrate why.

The core of a typical anti-breeding law is its “findings,” which usually contain statements such as:

  • The euthanasia of unwanted cats and dogs is rampant, with totals annually in the millions of animals;
  • The destruction of these animals, though necessary, is immoral and not befitting a humane society;
  • The practice is not cost effective;
  • The root cause of this mass killing is the problem of overpopulation, which causes social and other problems beyond those created by mass euthanasia.

Based on findings like these, some laws provide for a moratorium on the breeding of cats and dogs. If the overpopulation problem in that jurisdiction isn’t reduced, then a mandatory spaying and neutering program is often provided as Plan “B.”

Equally important is the “Declaration of Intent” found in typical anti-breeding laws. For example:

The Board of Supervisors of the Town of Wherever hereby finds and declares that it intends to provide for the public health safety, and welfare, through a moratorium on the breeding of cats and dogs owned, harbored, or kept in this municipality in order to bring the population of abandoned and stray animals to an acceptable level for protection of the public health, safety, and welfare.

To understand why anti-breeding laws will be held constitutional if defended properly, as will mandatory spay/neuter and other animal protection laws, it is necessary first to understand something about the American system of government.

When the United States was founded, the Constitution created a new federal government possessing substantial power. Concern was expressed about whether any power was left to the states. To address that concern, the Tenth Amendment to the federal Constitution reserved to the states what is commonly referred to as the “police power” — not in the sense of law enforcement, but rather the power to legislate for the public’s health, safety, welfare and morals.

All state constitutions, in turn, delegate its police power from the state to various municipalities — e.g., cities, counties, towns, villages — which gives the latter power to pass laws related to the public health, safety, welfare and morals.

But those laws, like all legislative enactments made at every level of government must pass the test of constitutionality.

Laws affecting rights so fundamental that they are expressly protected by the federal and state constitutions — e.g., speech, press, religion — are tested by a very strict standard. In effect, laws affecting these kinds of fundamental rights (e.g., censoring media reporting, regulating church services) must advance an extremely important (i.e., “compelling”) governmental interest (e.g., not exposing to our enemies plans for the coming D-Day invasion), and be virtually the only way to accomplish that goal.

On the other hand, laws not affecting such fundamental rights are measured for constitutionality by a much less demanding test: Is there a problem properly within the government’s area of concern (e.g. teenage driving), and is the enacted law (e.g. requiring twenty-hours of classes and road testing) a rational way to deal with that problem? Put another way, it is a matter of legitimate “ends” and reasonable “means.”

Since, for example, anti-breeding — and mandatory spay/neuter and other animal protection laws — do not affect any fundamental rights, they would be tested by this lesser standard.

Clearly, following this example, the number of unwanted cats and dogs causes significant social problems: senseless killing, health risks, wasted taxes, and more. Clearly, these problems raise important issues of public health, safety, welfare — and even morals. In other words, the “end” of mandatory spay/neuter and anti-breeding laws is entirely legitimate constitutionally.

Thus, the next (and last) question is one of “means”: Are anti-breeding and mandatory spay/neuter laws a reasonable way to deal with the problem? The “practical” answer is obvious: If there are too many unwanted cats and dogs, it’s certainly reasonable to prevent the breeding of any more in order to prevent the population from growing, allowing normal attrition to reduce the existing population.

The more basic answer is that the overpopulation problem is a moral outrage. Government has the constitutional power and the moral duty to solve it — to alleviate, if not eliminate, visiting the sins of irresponsible owners and breeders on innocent animals. When it comes to anti-breeding and mandatory spay/neuter laws, the end justifies the means –constitutionally and morally. The same can be said for most other proposed animal protection legislation. As the Supreme Judicial Court of Massachusetts opined in 1931, “[t]he natural, essential, and unalienable rights of men to acquire, possess and protect property are subject to reasonable regulation in the interest of public health, safety and morals.”

Indeed, a wide variety of statutes and ordinances affecting animals have been upheld against constitutional challenge. Some examples in the federal, state and other courts appear HERE.

Earlier this month, the United States Court of Appeals for the 6th Circuit affirmed a federal district court ruling that a recent Ohio statute limiting the private ownership of exotic animals easily passed constitutional muster.

Just as the State of Ohio was not intimidated by predictions that the proposed legislation would be ruled unconstitutional, no animal protection activists should fear unfavorable rulings — not if proposed animal protection bills are carefully drafted, and defended by competent constitutional lawyers.

ISAR’S MODEL SPAY/NEUTER TAX DEDUCTION STATUTE (PART II)

i Nov 15th

 

 HOW YOU CAN HELP ANIMALS!

ISAR’S MODEL SPAY/NEUTER TAX DEDUCTION STATUTE (PART II)

In our Blog of October 5, 2009 we wrote the following:[1]

About a decade ago [in about 1999], again ahead of the curve, ISAR came up with the suggestion that Congress amend the Internal Revenue Code to provide a tax deduction for the cost of spay/neuter. (A copy of ISAR’s Model Statute can be found HERE.) In the introduction to ISAR’s Model Statute we set forth the policy reasons for the deduction, and argued that it’s a “win-win” situation, as indeed it is.

Sadly, nothing came of ISAR’s groundbreaking idea — until now [in 2009].

A few months ago, Representative McCotter introduced H.R. 3501 (the “Humanity and Pets Partnered Through the Years (‘HAPPY’) Act”), entitled “A bill to amend the Internal Revenue Code of 1986 to allow a deduction for pet care expenses.” The Bill has been referred to the House Committee on Ways and Means.

[Apparently drawing its inspiration from ISAR’s Model Statute], [t]he Bill recites that Congress finds “63 percent of United States households own a pet” and that “the Human-Animal bond has been shown to have positive effects upon people’s emotional and physical well-being.”

Accordingly, the IRC amendment would allow a “deduction for the taxable year an amount equal to the qualified pet care expenses[2] of the taxpayer during the taxable year for any qualified pet of the taxpayer,” limited to $3,500. (The statute goes on to define “qualified pet care expenses” and “qualified pet.”)

Because ISAR is a tax-exempt 501(c)(3) organization we can’t lobby for legislation, but we certainly can observe that, given our Model Spay/Neuter Tax Deduction Statute, H.R. 3501 is a welcome development — but for one problem. Had ISAR’s input been sought in the drafting of H.R. 3501, we would have suggested that the deductible “qualified pet care expenses” mandatorily include spay/neuter. In other words, no reimbursement for any expenses unless included in them was the cost of spay/neuter.

Perhaps Representative McCotter, or his co-sponsors will see fit to amend their amendment.

Although ISAR considered the bill a “welcome development,” we noted that a weakness was its failure to include in “qualified pet care expenses” mandatory spay/neuter.

Regrettably, the bill went nowhere, perhaps for this reason or because it included too much in “qualified pet care expenses.” No such bill has been enacted by Congress since.

In our recent Blog of November 1, 2013 — ISAR’s Model Spay/Neuter Tax Deduction Statute (Part I) we revisited the subject of a tax deduction for spaying/neutering dogs and cats, making the point that the Internal Revenue Code implements social policy by its myriad allowable exemptions and deductions, that spay/neuter of pet dogs and cats serves several important public interests, and that a tax deduction on a federal and/or state level would greatly foster those interests.

In concluding, we wrote that:

ISAR is making this project — obtaining tax relief for persons who spay/neuter their dogs and cats — a priority.

Immediately below is the outline of an off-the-shelf bill that can be used for introduction into any state legislature and/or Congress.

As a 501(c)(3) organization, ISAR’s ability to lobby for the introduction and enactment of legislation is limited. We need volunteers to carry the ball for us, and for the animals.

ISAR’s proposal for a spay/neuter tax deduction is so simple, and could make such an impact on the overpopulation problem, that there should be no lack of animal advocates who are willing to find a sympathetic legislator willing to carry ISAR’s proposed statute, or something similar, in his or her legislative body or administrative agency.

Often, there is an idea whose time has come. We believe that for this idea — ISAR’s “Model Spay/Neuter Tax Deduction Statute” — the time has surely come.

But we cannot do this alone. Please help.

One response to our November 1, 2013, Blog informed us that on January 18, 2010 two West Virginia legislators had introduced a bill “relating to creating a personal income tax credit for persons who may choose to spay or neuter their pets.” Because it went nowhere, Senators Laird and Snyder will reintroduce it in the next session of the West Virginia Legislature.

By itself, this is good news.

Even better is that their bill is taken almost verbatim from the Model Statute ISAR promulgated more than 20 years ago.

To repeat: “. . . we cannot do this alone. Please help.” To see how easy it is to introduce ISAR’s Model Spay/Neuter Tax Deduction Statute (and other of our Model Laws) click HERE.

[1] Material in brackets has been added.

[2] Emphasis added.

ISAR’s Model Spay/Neuter Tax Deduction Statute

i Nov 1st

 

HOW YOU CAN HELP ANIMALS!

ISAR’s MODEL SPAY/NEUTER TAX DEDUCTION STATUTE

 

Most knowledgeable people understand that the American system of income taxation, both federal and state, is only secondarily concerned with raising revenue. Compared to all revenue raised by taxation, income taxes account for only a small percentage. Indeed estimates are that in 2003 roughly 40% of Americans pay no income tax at all. The fundamental purpose of income taxes is to stimulate certain activities (and discourage others).

For example, the federal tax code long encouraged oil and gas exploration through depletion allowances. Business is helped through write-offs for equipment purchase and depreciation; even by the deductibility of many entertainment expenses. Charitable giving–contributions to ISAR, for example–is fostered by tax deductibility. Home ownership is assisted greatly by deductions for real estate taxes and mortgage interest. Other activities, not favored by the government, are discouraged through taxation. Gambling losses, for example, are not tax deductible. Taxes on tobacco are high. In other words, much of the federal tax code is driven by social policy.

In the states, the same is true. Tax codes encourage and reward certain activities with tax breaks, and discourage and penalize others with higher tax rates and non-deductibility.

As ISAR’s supporters know, as part of our legal and humane education programs, for decades we have promoted the important social policy of spay/neuter as a powerful weapon in the problem of dog and cat overpopulation.

ISAR can promote that important social policy of reducing dog and cat overpopulation by enlisting in our cause every American who files a federal and/or state income tax return.

The taxpayers will benefit themselves, their intact dogs and cats, and strike an important blow for spay/neuter and against dog and cat overpopulation.

How? Like most important ideas, ISAR’s is simple……

Congress and/or the state legislatures should allow a tax deduction for the spaying/neutering of taxpayers’ pet dogs and cats.

Granted, obtaining such legislation from the federal House Ways and Means Committee, which writes national tax laws, or the IRS, which regulates the taxation of income, might be problematic. But not impossible.

On the other hand the situation at the state level is much different. There, legislators are much closer, and typically respond more readily, to their constituents–as many animal rights activists already know from their efforts to obtain the enactment of other pro-animal legislation.

ISAR’s proposed legislation is a win-win proposition; there’s something in it for everyone.

First, countless animals would be spayed and neutered who would otherwise might not be, and countless unwanted births would be avoided.

Although there would be a minuscule drop in tax revenues, there would be a concomitant savings of considerable taxpayer dollars that are now spent on catching, briefly maintaining, killing, and disposing of millions of unwanted dogs and cats.

Fewer unwanted dogs and cats and dogs means more time available to shelters and humane societies for more productive work, e.g.: cruelty investigations, public education, adoption programs.

The modest tax relief which, though not large, would probably reduce or even eliminate the charge for spaying/neutering. This, in turn, would create more paying business for veterinarians, who could then, it is hoped, afford to provide more pro bono or low-cost spay/neuter services to the truly needy custodians of dogs and cats.

An indirect, but nonetheless important, benefit of reducing the number of unwanted cats and dogs are the public health and policy aspects, e.g.: at minimum, reduction of the overpopulation problem, with the attendant consequences.

ISAR is making this project–obtaining tax relief for persons who spay/neuter their dogs and cats–a priority.

Immediately below is the outline of an off-the-shelf bill that can be used for introduction into any state legislature and/or Congress.

As a 501(c)(3) organization, ISAR’s ability to lobby for the introduction and enactment of legislation is limited. We need volunteers to carry the ball for us, and for the animals.

ISAR’s proposal for a spay/neuter tax deduction is so simple, and could make such an impact on the overpopulation problem, that there should be no lack of animal advocates who are willing to find a sympathetic legislator willing to carry ISAR’s proposed statute, or something similar, in his or her legislative body or administrative agency.

Often, there is an idea whose time has come. We believe that for this idea–ISAR’s “Model Spay/Neuter Tax Deduction Statute”–the time has surely come.

But we cannot do this alone. Please help.

“Model Spay/Neuter Tax Deduction Statute”

  1. Allowance of deduction.

Subject to the limitations provided in paragraph 2 hereof, there shall be allowed as a one-time deduction against adjusted gross income amounts paid by the taxpayer for the spaying and neutering of each dog and cat which is maintained as a pet in the taxpayer’s household.

  1. Limitations.

a.) The deduction herein provided shall be allowable only as to sums which have actually been expended.

b.) The spay or neuter surgical procedure shall have been performed by a duly licensed veterinarian on a live dog or cat.

c.) The amount of deduction for each cat or dog which shall have been spayed or neutered may not exceed the reasonable cost of the spay and neuter procedure in the geographical location where the surgery was performed.

d.) The deduction herein provided shall be limited to no more than three companion animals (i.e. dogs and cats) per household in any taxable year.

WANTED – VOLUNTEER LAWYERS FOR ISAR’s AMICUS CURIAE BRIEF PROGRAM

i Jan 4th

ISAR has long used the legal system in behalf of animal rights.

The first federal case ever to use the phrase “animal rights” was Jones v. Butz, 374 F.Supp. 1284 (SDNY, three-judge court, 1974). ISAR’s chairman, Professor Henry Mark Holzer,[1] on behalf of a wide-range of plaintiffs challenged sections of the federal Humane Methods of Livestock Slaughter Act on the ground that its religious exemption — which effectively nullified the act’s protection for countless livestock animals -violated the First Amendment of the United States Constitution.

The first state case ever to use the phrase “animal rights” was Jones v. Beame, 45 N.Y.2d 402 (1978). Professor Holzer on behalf of ISAR’s then-president, Helen Jones, and ISAR itself sued to close the Central Park zoo in New York City on the ground that the treatment of the animals confined there violated the anti-cruelty statutes of the State of New York.

As long ago as the early 1970’s ISAR sued the United States government to stop the slaughter of millions of blackbirds.

In the decades since, Professor Holzer has provided tactical and strategic legal advice to a wide range of animal rights/welfare organizations and their lawyers in cases involving the protection and advancement of animal rights. As of the beginning of January 2013 ISAR has begun offering strategic and tactical advice to a California law firm in connection with its case seeking to reform an animal shelter.

We’ve filed amicus curiae briefs in state and federal courts, for example:

  • O’Sullivan v. City of San Diego, 2007 WL 2570783 (2007) — a case that sought to protect the federal recognized seal rookery at Casa Beach in La Jolla, California, from depredation by swimmers and fishermen. Professor Holzer on behalf of ISAR and several other animal protection organizations consulted with the lawyers for the plaintiffs and submitted amicus curiae briefs in the California Court of Appeal and the Supreme Court of the State of California.
  • Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, Florida, 508 U.S. 520 (1993), in which Professor Holzer on behalf of ISAR and eleven other animal protection organizations filed amicus curiae briefs in the Supreme Court of the United States in support of Hialeah’s ordinance that prohibited the Santeria cult from sacrificing animals as part of an alleged religious ceremony.
  • United States v. Stevens, 559 U.S. ___, 130 S.Ct. 1577 (2010) in which ISAR and Professor Holzer (together with Lance Gotko, Esq. of the New York City law firm Friedman Kaplan Siler & Adelman) filed an amicus curiae brief in support of the government’s argument that the federal statute criminalizing the making, selling or possessing depictions of “crush videos” and other torture and killing of animals was constitutional.

Increasingly, there are animal-related cases in appellate courts all over the country, involving experimentation, hunting, farming, sport, education, spay/neuter, and more — cases needing amicus curiae briefs from a pro-animal perspective.

There’s a lot of appellate work for lawyers who would use the legal system in behalf of animal rights. Unfortunately, virtually all of it is pro bono publico.

Lawyers interested in volunteering to work with Professor Holzer and ISAR to perform amicus curiae appellate services in aid of animal rights are encouraged to contact ISAR via email (contact@isaronline.org), phone (570-586-2200), fax (570-586-9580) or through the USPS at ISAR, P.O. Box F, Clarks Summit, PA 18411, and provide us with the following information:

  1. Name.
  2. Firm name.
  3. Office address.
  4. Telephone and fax number(s).
  5. Email address.
  6. Year(s) admitted to practice, and jurisdiction(s).
  7. Specialization(s), if any.
  8. Post-law school judicial clerkship(s).
  9. Judicial experience.
  10. Experience with animal-related cases.
  11. Amount of time available annually.
  12. Whether you and/or your firm has a formal pro bono program.

Although at the initial stages of the amicus curiae brief process — issue analysis, research, tactics and strategy — Professor Holzer will be involved and will be named on the brief with volunteer counsel, the work product will be entirely theirs. (It will be the responsibility of volunteers to obtain permission to file the brief, and for filing it. ISAR will pay printing and filing costs.)

Thank you.

[Please forward this request to any lawyer(s) who might be interested in participating].

***

[1] In The Birth of Animal Rights Law: The Role of Lawyers in the Animal Rights/Protection Movement from 1972-1987, Joyce Tischler, Esq., founder and president of Animal Legal Defense Fund, set out to “explore the roots of a large scale, organized movement, which started in the early 1970s in the United States, spearheaded by attorneys and law students with the express purpose of filing lawsuits to protect animals and establish the concept of their legal rights, regardless of the species of the animals or the ownership interest of humans.”

In that article, Ms. Tischler graciously names as “the first animal rights lawyer” ISAR’s chairman, Henry Mark Holzer, professor emeritus at Brooklyn Law School.

She credits Professor Holzer, then a practicing attorney professionally associated with ISAR, with three accomplishments crucial to establishing the field of what today is known as “animal rights law”: with ISAR, having brought the first federal and first state lawsuit to invoke the moral concept of “animal rights”; with ISAR, having founded the Animal Rights Law Reporter, which became “the legal clearinghouse for animal rights law information”; and, again with ISAR, having organized the “First National Conference on Animal Rights Law”-an undertaking, in Ms. Tischler’s words, “[t]he significance of which cannot be overstated.”

 

The People v. Keith Chung, Revisited

i Jun 21st

More on the Chung case:

Professor Holzer comments on the court’s opinion.

The People v. Keith Chung, Revisited

Search Warrants In Animal Protection Cases

i Jun 14th

The California Court of Appeal, in a recent important decision (People v. Keith Chung), has joined a few other jurisdictions in applying to the protection of animals an important exception to the requirement of a search warrant.

In general, both the federal Bill of Rights and comparable constitutional provisions in the states require that before a search (or seizure) can be made by government officials, a search warrant must be obtained from a judicial officer. It takes “probable cause” that a crime has been, or is being, committed to support the issuance of a warrant.

As with most legal doctrines, there are exceptions. For example, if a weapon reasonably believed to have been used in a bank robbery is seen lying on the sidewalk–that is, “in plain view”–the police don’t need a warrant to seize it.

Another exception, relevant to the Chung case, is the “exigency” exception, which the court explained this way:

The exigent circumstances exception to the Fourth Amendment has been defined to include an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property. . . . The action must be prompted by the motive of preserving life or property and [must] reasonably appear to the actor to be necessary for that purpose. * * * There is no ready litmus test for determining whether such circumstances exist, and in each case the claim of an extraordinary situation must be measured by the facts known to the officers. An action is reasonable under the Fourth Amendment, regardless of the individual officer’s state of mind, as long as the circumstances, viewed objectively, justify [the] action. The officer’s subjective motivation is irrelevant. * * * The touchstone of all Fourth Amendment determinations is reasonableness. (Citations and inner quotation marks deleted.)

Thus, the question for the California Court of Appeal in the Chung case was whether there were “exigent circumstances” presented to the responding police officers.

What were those circumstances? According to the court’s summary,

Chung’s neighbor, Jennifer Lee, testified she called the police in the early morning hours of July 13, 2007, and reported hearing the high pitched crying of a dog in pain in the unit above hers. Lee told the officers who responded to her call that she had heard similar sounds in the past, but this time it sounded more serious. The officers went to Chung’s door but he said he did not own any dogs. While the officers spoke to Chung, one of them heard the faint sound of a dog whimpering inside Chung’s condominium. Believing there was an animal in distress, the officers entered without a warrant after Chung refused the officers permission to enter.

The officers found an injured dog on the patio and a dead dog in the freezer section of the refrigerator. Both dogs had suffered head trauma. The live dog on the patio was euthanized by a veterinarian later that morning.

Given these facts, the Court of Appeal ruled that the requisite exigent circumstances were present, that the officers had a right to enter without first securing a warrant, and that Chung’s conviction for cruelty to animals was valid.

According to the court, criminalizing the abuse of animals had deep historical roots (as the Supreme Court of the United States recently recognized in United States v. Stevens), and California has the constitutional power to punish conduct such as Chung’s.

As to the exigent circumstances, the Court of Appeal invoked the 1999 California precedent of Broden v. Marin Humane Society. In that case,

[O]fficers conducted a warrantless entry into business premises, a pet shop, based on exigent circumstances. The officers entered the premises following reports of stench and flies at the store and found animals in distress.

Broden concluded [that] the exigent circumstances exception permits officers to make a warrantless entry when there are reasonable grounds to believe there are animals in need of immediate aid.

Broden recognized: “There is no question that law enforcement officers may make a warrantless entry of a building when there are reasonable grounds for believing that persons inside are in need of immediate aid. . . . Section 597.1 [of the California statutes] clearly contemplates that animals shall receive a similar solicitude.”

In addition, the Court of Appeal’s conclusion was supported by four cases from other jurisdictions. According to the court,

People v. Thornton an Illinois case, is directly on point. There, a police officer responded to a report of a dog barking for several days inside an apartment. The apartment manager informed the officer she previously had entered the apartment using a key after being unable to contact the resident and found a thin dog shaking and continuously whimpering and yelping in a small cage. The tenant who lived above the apartment told the officer the dog had been yelping continuously for two or three days. The officer entered the apartment to check on the well-being of the dog and found it in conditions matching those described by the manager.

Thornton found the totality of the circumstances known to the officers at the time of the entry into the apartment was sufficient to permit the officers reasonably to believe that an emergency requiring their immediate assistance was at hand. Thornton concluded the officers reasonably could have believed the dog was not merely “uncomfortable,” but was in need of immediate assistance to avoid serious injury or, possibly, death.

Thornton noted other jurisdictions also had applied the exigency exception to prevent harm to animals, citing Suss v. American Society for Prevention of Cruelty to Animals . . . [cat trapped between walls of two buildings]; Tuck v. United States . . . [rabbits in unventilated display window of a pet store suffering from extreme heat], and State v. Bauer, [distressed horses in barn].

Thus, the net result of the Chung decision is a strong plus for animal protection.

As the court said in its conclusion, “[e]xigent circumstances properly may be found when an officer reasonably believes immediate warrantless entry into a residence is required to aid a live animal in distress. Where an officer reasonably believes an animal on the property is in immediate need of aid due to injury or mistreatment, the exigent circumstances exception to the warrant requirement of the Fourth Amendment may be invoked to permit warrantless entry to aid the animal.”

ISAR anticipates that this issue will arise in other states, which will reach the same conclusion. Serious apparent danger to animals will suffice for a warrantless entry.

Keith Chung has the right to seek review in the Supreme Court of California. If he does, ISAR will be there to oppose him.

Will lack of “standing to sue” once again rear its ugly head?

i May 17th

ISAR’s supporters know that the bane of animal rights litigation has been the problem of “standing to sue”–the question of what individuals or organizations have the right to sue in behalf of animals (see, for example, Animals and “Standing to Sue” and Jones v. Butz.

Here we go again . . . perhaps.

The Gerber Animal Law Center of Raleigh, North Carolina, announced earlier this month that it has commenced a lawsuit against the county shelter. Although Gerber’s press release is sketchy on details, the case seems to be grounded in a recent North Carolina statute promoting fostering rather than euthanizing, and the shelter’s alleged failure to abide by the law.

Be that as it may–and when the complaint is available we’ll know exactly what Gerber is alleging, factually and legally–unfortunately the case’s announcement is silent about on whose behalf the lawsuit has been brought. That question is critical, because whatever the merits of Gerber’s complaint, it will go nowhere unless someone has “standing to sue.”