Animal Enterprise Terrorism Act

Odette J. Wilkens, Esq.Executive Director

Equal Justice Alliance

Animal Enterprise Terrorism Act

Odette J. Wilkens, Esq.Executive Director

Equal Justice Alliance

“Domestic Terrorism”“Domestic Terrorism”• USA Patriot Act - 18 USC 2331(5)• Involve acts dangerous to human life• Coerce civilian population• Affect government conduct by:

• Mass destruction• Assassination• Kidnapping

• USA Patriot Act - 18 USC 2331(5)• Involve acts dangerous to human life• Coerce civilian population• Affect government conduct by:

• Mass destruction• Assassination• Kidnapping

Animal Enterprise Terrorism Act (“AETA”) -

18 USC 43

Animal Enterprise Terrorism Act (“AETA”) -

18 USC 43• Terrorism Enhancements for:• Profit loss from Successful Boycotts• Leafletting and Demonstrating• Petty State Violations and Misdemeanors

• Trespass• Harassment• Graffiti

• Property Damage

• Terrorism Enhancements for:• Profit loss from Successful Boycotts• Leafletting and Demonstrating• Petty State Violations and Misdemeanors

• Trespass• Harassment• Graffiti

• Property Damage

AETA - The Bottom LineAETA - The Bottom Line

• Making People Liable for the Illegal Acts of Unrelated Third Parties• Guilt by Association

• Making People Liable for the Illegal Acts of Unrelated Third Parties• Guilt by Association

Animal Enterprise Terrorism Act (“AETA”)

Animal Enterprise Terrorism Act (“AETA”)• Unconstitutional• Violates Free Speech - 1st

Amendment• Violates Due Process - 5th

Amendment• Violates Right to Jury Trial - 6th

Amendment

• Unconstitutional• Violates Free Speech - 1st

Amendment• Violates Due Process - 5th

Amendment• Violates Right to Jury Trial - 6th

Amendment

AETA ElementsAETA Elements

• Facility “of” interstate commerce• Intend to “interfere” with an animal

enterprise• First Offense Prong• Cause “real or personal property” loss• Successful Boycott = 20 years in jail

• Facility “of” interstate commerce• Intend to “interfere” with an animal

enterprise• First Offense Prong• Cause “real or personal property” loss• Successful Boycott = 20 years in jail

Second Offense ProngSecond Offense Prong

• Course of Conduct: “2 or more acts evidencing a

continuity of purpose”• Targets Ideology• Bootstraps Illegal Acts to Legal Acts

• Course of Conduct: “2 or more acts evidencing a

continuity of purpose”• Targets Ideology• Bootstraps Illegal Acts to Legal Acts

“Course of Conduct”“Course of Conduct”

• Acts not illegal• Purpose not illegal• Not necessarily same person• No conspiracy • No temporal concurrence

• Acts not illegal• Purpose not illegal• Not necessarily same person• No conspiracy • No temporal concurrence

Animal Enterprise Terrorism Act

Animal Enterprise Terrorism Act

• RICO for Animal Activists• Engaged in the same enterprise /

“continuity of purpose”• No conspiracy required

• RICO for Animal Activists• Engaged in the same enterprise /

“continuity of purpose”• No conspiracy required

Violates 1st Amendment

Guilt by Association

Violates 1st Amendment

Guilt by Association• NAACP v. Claiborne Hardware, 458

US 886 (1982)• Brandenburg v. Ohio, 395 US 444

(1969)

• NAACP v. Claiborne Hardware, 458 US 886 (1982)

• Brandenburg v. Ohio, 395 US 444 (1969)

AETA’s Rules of Construction

AETA’s Rules of Construction

• Nominally Exempts:• First Amendment Activity• “Lawful Boycotts”

• Nominally Exempts:• First Amendment Activity• “Lawful Boycotts”

Excessive PenaltiesExcessive Penalties

• Up to 20 years• Exceeds 2005 Federal Sentencing

Guidelines:• Sexual Abuse = 4.5 years • Manslaughter = 3 years• Larceny = 4 months

• Up to 20 years• Exceeds 2005 Federal Sentencing

Guidelines:• Sexual Abuse = 4.5 years • Manslaughter = 3 years• Larceny = 4 months

Animal EnterprisesAnimal Enterprises

• Protected even if engaged in illegal activity

• “Lawful” used only once in definition• Treated as a Protected Class• Recidivist Violators of Animal

Welfare Act

• Protected even if engaged in illegal activity

• “Lawful” used only once in definition• Treated as a Protected Class• Recidivist Violators of Animal

Welfare Act

Porn Shops are Animal Enterprises, Too!

Porn Shops are Animal Enterprises, Too!

• What do porn shops, luncheonettes and drugstores have in common? Animals.

• Leather Outfits• Eggs• Premarin

• What do porn shops, luncheonettes and drugstores have in common? Animals.

• Leather Outfits• Eggs• Premarin

Violates 6th AmendmentViolates 6th Amendment• Any fact that increases the

penalty must be found by a jury beyond a reasonable doubt

• AETA requires the judge to find additional facts to increase the penalty - violates 6th Amdt

• US v Booker, 543 U.S. 220 (2005)

• Any fact that increases the penalty must be found by a jury beyond a reasonable doubt

• AETA requires the judge to find additional facts to increase the penalty - violates 6th Amdt

• US v Booker, 543 U.S. 220 (2005)

Infringes on State Sovereignty

Infringes on State Sovereignty

• ABA Task Force on Federalization of Criminal Law, 1998• Cites 3X Animal Enterprise

Protection Act of 1992

• ABA Task Force on Federalization of Criminal Law, 1998• Cites 3X Animal Enterprise

Protection Act of 1992

AETA PassesAETA Passes

• Non-controversial bill• 5 Votes in House• House: Scott & Petri• Senate: Feinstein &

Inhofe

• Non-controversial bill• 5 Votes in House• House: Scott & Petri• Senate: Feinstein &

Inhofe

US v Fullmer (“SHAC 7”)US v Fullmer (“SHAC 7”)

• Stop Huntingdon Animal Cruelty (SHAC)

• Successful Economic Boycott on the Internet

• Convicted of Animal Enterprise Terrorism

• Stop Huntingdon Animal Cruelty (SHAC)

• Successful Economic Boycott on the Internet

• Convicted of Animal Enterprise Terrorism

SHAC Campaign ResultsSHAC Campaign Results

• Marsh, Inc. leaves HLS• Deloitte & Touche leaves HLS• Board Members leave HLS• HLS’s delayed listing on NYSE• HLS’s stock price plummets

• Marsh, Inc. leaves HLS• Deloitte & Touche leaves HLS• Board Members leave HLS• HLS’s delayed listing on NYSE• HLS’s stock price plummets

US v Fullmer (SHAC 7) 3rd Circuit Decision

US v Fullmer (SHAC 7) 3rd Circuit Decision

• No direct evidence of wrongdoing• No direct evidence of conspiracy• Convictions affirmed by the

“totality of the circumstances”

• No direct evidence of wrongdoing• No direct evidence of conspiracy• Convictions affirmed by the

“totality of the circumstances”

Judge Fisher DissentJudge Fisher Dissent“[E]ven viewing the evidence in the

light most favorable to the Government, ... no rational trier of fact could have found the essential elements of the crime of conspiracy to violate the AEPA beyond a reasonable doubt.”

“[E]ven viewing the evidence in the light most favorable to the Government, ... no rational trier of fact could have found the essential elements of the crime of conspiracy to violate the AEPA beyond a reasonable doubt.”

Judge Fisher DissentJudge Fisher Dissent

• Evidence must relate to the illegality referenced in the indictment

• Gov’t never proved its case.

• Evidence must relate to the illegality referenced in the indictment

• Gov’t never proved its case.

SHAC 7 IndictmentSHAC 7 Indictment

• Elements of AEPA 2002 version:• Physical disruption • To an animal enterprise• Causing loss of property used by

animal enterprise

• Elements of AEPA 2002 version:• Physical disruption • To an animal enterprise• Causing loss of property used by

animal enterprise

SHAC 7 Convictions Affirmed

SHAC 7 Convictions Affirmed

• Court failed to strictly construe AEPA 2002

• Convictions based on AETA 2006:• “Interference”• Electronic disruption of HLS• Economic disruption of HLS• Physical disruption of non-animal enterprises• Loss of profits of HLS

• Court failed to strictly construe AEPA 2002

• Convictions based on AETA 2006:• “Interference”• Electronic disruption of HLS• Economic disruption of HLS• Physical disruption of non-animal enterprises• Loss of profits of HLS

SHAC 7 Cert PetitionSHAC 7 Cert Petition

“The petitioners did not conspire to violate 18 U.S.C. § 43, the AEPA, properly construed. To the contrary, they explicitly designed their anti-HLS campaign so as to avoid violating that law.” ~ Cert Petition, p.19.

“The petitioners did not conspire to violate 18 U.S.C. § 43, the AEPA, properly construed. To the contrary, they explicitly designed their anti-HLS campaign so as to avoid violating that law.” ~ Cert Petition, p.19.

Guilt by AssociationGuilt by Association

• “Direct action” goal to end animal testing at HLS • Anyone acting in agreement was

engaging in criminal conduct and conspiracy.

• “Direct action” goal to end animal testing at HLS • Anyone acting in agreement was

engaging in criminal conduct and conspiracy.

Guilt by Association Josh Harper

Guilt by Association Josh Harper

• Engaged exclusively in protected First Amendment activity

• Conviction for Conspiracy Upheld• Friendship with Kevin Kjonaas and • His longstanding political and personal

support for the cause of animal rights ~ Cert Petition, p.23

• Engaged exclusively in protected First Amendment activity

• Conviction for Conspiracy Upheld• Friendship with Kevin Kjonaas and • His longstanding political and personal

support for the cause of animal rights ~ Cert Petition, p.23

Guilt by AssociationGuilt by Association• Antidote: strictissimi juri• Strictest test for evidentiary

sufficiency under the First Amendment

• Ensure that conviction is not for ideological agreement with others.

• Antidote: strictissimi juri• Strictest test for evidentiary

sufficiency under the First Amendment

• Ensure that conviction is not for ideological agreement with others.

Criminal Negligence Standard

Criminal Negligence Standard

• Vicarious liability for 3rd parties’ acts

• Inferring conspiracy without direct evidence

• Vicarious liability for 3rd parties’ acts

• Inferring conspiracy without direct evidence

US v Fullmer 3rd Circuit

US v Fullmer 3rd Circuit

• Historical Context• Assault on Brian Cass - Feb

2001

• Historical Context• Assault on Brian Cass - Feb

2001

US v FullmerUS v Fullmer

Government’s theory:• “Physical disruption” =

“interference” with HLS’s operations (including “electronic disruption”)

• Mere purpose of closing down HLS = physical disruption

• Loss of property = profits

Government’s theory:• “Physical disruption” =

“interference” with HLS’s operations (including “electronic disruption”)

• Mere purpose of closing down HLS = physical disruption

• Loss of property = profits

US v FullmerUS v Fullmer• Incorrect jury instructions• “physical disruption” defined as “an

action using interference with the normal course of business or activity at an animal enterprise”

• “economic damage” included “loss of profits”

• Not limited to statutory terms of “damage to” or “loss of” property

• Incorrect jury instructions• “physical disruption” defined as “an

action using interference with the normal course of business or activity at an animal enterprise”

• “economic damage” included “loss of profits”

• Not limited to statutory terms of “damage to” or “loss of” property

US v FullmerUS v Fullmer

District court failed to provide instructions to ensure that agreement with a campaign or animal rights ideology could not be grounds for conspiracy.

District court failed to provide instructions to ensure that agreement with a campaign or animal rights ideology could not be grounds for conspiracy.

SHAC 7 RestitutionSHAC 7 Restitution

• $1 million verdict• Jointly and severally liable

• $1 million verdict• Jointly and severally liable

Source: Center for Constitutional RightsSource: Center for Constitutional Rights

US v Buddenberg Criminal ComplaintUS v Buddenberg Criminal Complaint

• Buddenberg, Khajavi, Pope and Stumpo

• 18 USC 43(a)(2)(B) “intentionally places a person in reasonable fear of death, or serious bodily injury … by a course of conduct involving threats, … harassment or intimidation”

• Maximum penalty 5 years

• Buddenberg, Khajavi, Pope and Stumpo

• 18 USC 43(a)(2)(B) “intentionally places a person in reasonable fear of death, or serious bodily injury … by a course of conduct involving threats, … harassment or intimidation”

• Maximum penalty 5 years

US v BuddenbergCriminal ComplaintUS v Buddenberg

Criminal Complaint• Protesting• Chanting • Using a bullhorn• Conducting internet research • Leafletting • Wearing bandanas • Chalking up the sidewalk

• Protesting• Chanting • Using a bullhorn• Conducting internet research • Leafletting • Wearing bandanas • Chalking up the sidewalk

US v BuddenbergCriminal ComplaintUS v Buddenberg

Criminal Complaint

• Objective Standard of Intent• Listeners’ Viewpoint• “Fearful,” “harassed” and

“terrified”

• Subjective Standard of Intent• Speakers’ Intent

• Objective Standard of Intent• Listeners’ Viewpoint• “Fearful,” “harassed” and

“terrified”

• Subjective Standard of Intent• Speakers’ Intent

US v BuddenbergIndictment Dismissed

US v BuddenbergIndictment Dismissed

• No facts to support indictment• Rejects government’s argument that:• “[I]t will rely on the defendants' conduct

as a whole ... If individual acts did not amount to a threat or an act of intimidation or harassment, what conduct as a whole did?” ~ Order Dismissing Indictment, p.13.

• No facts to support indictment• Rejects government’s argument that:• “[I]t will rely on the defendants' conduct

as a whole ... If individual acts did not amount to a threat or an act of intimidation or harassment, what conduct as a whole did?” ~ Order Dismissing Indictment, p.13.

US v BuddenbergIndictment Dismissed

US v BuddenbergIndictment Dismissed

• Defendants should not be convicted on anything other than what is stated in the indictment (i.e., facts in that case), because it “is a concern of constitutional dimension, grounded in the Fifth Amendment.”~ Order Dismissing Indictment, p.12

• Defendants should not be convicted on anything other than what is stated in the indictment (i.e., facts in that case), because it “is a concern of constitutional dimension, grounded in the Fifth Amendment.”~ Order Dismissing Indictment, p.12

Source: Center for Constitutional RightsSource: Center for Constitutional Rights

CompareCompare

• Animal Activists - 1200 “incidents” - No Murders

• Animal Activists - 1200 “incidents” - No Murders

Anti-AbortionistsAnti-Abortionists• 9 Murders• 700 Blockades• 33,000 Arrests• 163,000 Disruptions (picketing, bomb

threats)• 5000 Incidents of Violence (41 bombings)

Source: National Abortion Federation

• 9 Murders• 700 Blockades• 33,000 Arrests• 163,000 Disruptions (picketing, bomb

threats)• 5000 Incidents of Violence (41 bombings)

Source: National Abortion Federation

CompareCompare

• White Supremacists• Militia Movement • Subprime Mortgage Crisis

- “Inside Job” - Best Documentary

• White Supremacists• Militia Movement • Subprime Mortgage Crisis

- “Inside Job” - Best Documentary

Green Is the New Red: An Insider’s Account of

a Social Movement Under Siege

Green Is the New Red: An Insider’s Account of

a Social Movement Under Siege

• By Will Potter• GreenIsTheNewRed.com

• By Will Potter• GreenIsTheNewRed.com

Animal Enterprise Terrorism Act (“AETA”)

Animal Enterprise Terrorism Act (“AETA”)• Unconstitutional• Violates Free Speech - 1st

Amendment• Violates Due Process - 5th

Amendment• Violates Right to Jury Trial - 6th

Amendment

• Unconstitutional• Violates Free Speech - 1st

Amendment• Violates Due Process - 5th

Amendment• Violates Right to Jury Trial - 6th

Amendment

“Those who would give up essential liberty to

purchase a little temporary safety,

deserve neither liberty nor safety.”

- Benjamin Franklin

“Those who would give up essential liberty to

purchase a little temporary safety,

deserve neither liberty nor safety.”

- Benjamin Franklin

What Can Be Done?What Can Be Done?

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• Support Repeal Bill• Sign Up To Receive Our Alerts

Odette J. Wilkens, Esq.Equal Justice Alliance

owilkens@equaljusticealliance.org

Odette J. Wilkens, Esq.Equal Justice Alliance

owilkens@equaljusticealliance.org