Acquittal, Nullification, and Winning by Losing: Poultry Edition
My latest Verdict column juxtaposes two recent criminal verdicts: the acquittal of Sean Dunn for throwing a Subway turkey sandwich at a Customs and Border Patrol agent sent by Donald Trump to make a show of fighting a nonexistent crime wave in the District of Columbia; and the conviction of animal rights activist Zoe Rosenberg for rescuing chickens from miserable conditions and imminent death at a slaughterhouse in Sonoma County, California. Each defendant engaged in conduct that they argued was harmless; each did so to make a political point. What explains the different results?
In my column, I point to two main factors. First, the trial judge in Rosenberg's case did not allow her to present a necessity defense or evidence of the cruel conditions at the slaughterhouse, whereas the D.C. jurors were surely aware (from the video and because they live in D.C.) that Dunn was engaged in a form of protest. Second a great many D.C. residents, including jurors, would have shared Dunn's views (even if they themselves would not throw sandwiches), whereas without learning about how chickens and other animals raised for food are actually treated, jurors who eat the products of slaughterhouses (including turkey sandwiches from Subway) would have had a difficult time feeling sympathy for Rosenberg.
Readers interested in a deeper look are advised to click over to the Verdict column. In the balance of this accompanying essay, I want to consider the tactics of Rosenberg and the organization of which she is a part, Direct Action Everywhere (DxE), which has pioneered the kind of "open rescue" that led to Rosenberg's trial and conviction. In an open rescue, activists enter farms, slaughterhouses, or laboratories, find and video-record animals in miserable conditions, and rescue a handful of those animals, bringing them to sanctuaries. The rescues are open in the sense that DxE typically video-records not only the conditions of the animals but themselves--undisguised--and publicizes the footage via their website and social media. Here's a good explainer from DxE's YouTube channel.
If you watched that video, you'll have noticed that it makes a claim about existing law and positions that claim relative to a larger strategy to change hearts and minds. The legal claim is that just as some states recognize a right of third parties to do property damage to a car in order to rescue a pet dog trapped within that car, so it recognizes--or should be construed to recognize--a right to enter and do minor damage to property to rescue pigs, chickens, and other sick animals from the equally bad or worse conditions in which they are found.
By denying Rosenberg the ability to present a necessity defense, the judge in her case was effectively denying that chickens at a slaughterhouse are comparable to pets in cars. California does have a law that permits the rescue of overheated and oxygen-starved animals. Interestingly, it refers to "animals" rather than some narrower category like "companion animals," "pets," or "dogs and cats." However, by its terms, the law provides for immunization from criminal liability for rescuing from an "unattended motor vehicle" rather than any and all locations. That's why Rosenberg's lawyers wanted to rely on the more generic necessity defense, but, as noted above, the judge rejected that as well.
In a case in Utah that I discuss in the Verdict column, DxE rescuers were acquitted on charges arising out of an open rescue of two piglets. There too, the judge excluded most of the evidence of the horrific conditions in which the animals were kept. Nonetheless, the DxE YouTube video I linked above touts that case as an important step towards establishing a general right to rescue that extends to farms, slaughterhouses, and laboratories. To the extent that the Utah case was the result of jury nullification, however, that's true only if one can count on such nullification more broadly. Something like a consistent pattern of nullification at the grand jury level is emerging in DC in response to attempted indictments arising out of resistance to Trump's occupying force, but no such consistent pattern of nullification can be seen with respect to open rescue, at least not yet.
Of course, DxE conducts its open rescues mostly to generate publicity for the cause. For that purpose, a conviction isn't much worse than an acquittal--so long as there is no shortage of DxE members willing to risk going to prison. Even if the jurors don't get to see the suffering of the animals, those members of the public who learn about the animals' treatment do. In these cases, it is possible to win by losing.
Whether DxE open rescues will lead to truly radical change remains to be seen. Open rescuers typically argue that the animals they rescue were being subject to illegal animal cruelty. I don't doubt that's true in many instances--but the larger goal of DxE is not simply to expose "bad apples"--perpetrators of animal cruelty who can be demonized, thereby reassuring the rest of the animal-eating population that cruelty to animals is deviant wrongdoing. The long-term goal is to end animal agriculture. The illegal animal cruelty is terrible, but the larger point (with which I agree) is that animal agriculture is inherently cruel.
Put differently, animal agriculture is a bit like the corruption in our political system. It's shocking when a U.S. Senator illegally takes bribes in the form of gold bars. It's equally or even more shocking how easy it is for moneyed interests to legally obtain political favors.
Accordingly, I can imagine a sympathetic judge in some future case against an animal rights activist allowing a necessity defense where the activist exposed illegal animal cruelty. It's harder to imagine a judge allowing such a defense in a case in which the cruel treatment of the animals was in accordance with industry standards and thus legal. In cases like that, the defendant-activists will need to rely on nullification or expect to go to prison.
Fortunately for DxE and the broader animal rights movement, there appear to be quite a large number of activists willing to risk imprisonment for the cause. At a time when so many powerful institutions (including my own) are capitulating to the Trump administration to avoid the worst consequences of its unjust and unlawful pressure tactics, it is inspiring to see relatively powerless activists risking grave personal consequences to combat injustice.
-- Michael C. Dorf