Animal Enterprise Terrorism Ac

1. Animal Enterprise Terrorism Act Odette J. Wilkens, Esq. Executive Director Equal Justice Alliance

2. “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

3. 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

4. AETA - The Bottom Line

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

5. Animal Enterprise Terrorism Act (“AETA”)

• Unconstitutional
• Violates Free Speech - 1st Amendment
• Violates Due Process - 5th Amendment
• Violates Right to Jury Trial - 6th
Amendment

6. AETA 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

7. Second Offense Prong

• Course of Conduct:
“2 or more acts evidencing a continuity
of purpose”
• Targets Ideology
• Bootstraps Illegal Acts to Legal Acts

8. “Course of Conduct”

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

9. Animal Enterprise Terrorism Act

• RICO for Animal Activists
• Engaged in the same enterprise /
“continuity of purpose”
• No conspiracy required

10. Violates 1st Amendment Guilt by Association

• NAACP v. Claiborne Hardware, 458 US
886 (1982)
• Brandenburg v. Ohio, 395 US 444 (1969)

11. AETA’s Rules of Construction

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

12. Excessive Penalties

• Up to 20 years
• Exceeds 2005 Federal Sentencing
Guidelines:
• Sexual Abuse = 4.5 years
• Manslaughter = 3 years
• Larceny = 4 months

13. Animal 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

14. Porn Shops are Animal Enterprises, Too!

• What do porn shops, luncheonettes
and drugstores have in common?
Animals.
• Leather Outfits
• Eggs
• Premarin

15. Violates 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)

16. Infringes on State Sovereignty

• ABA Task Force on Federalization of
Criminal Law, 1998
• Cites 3X Animal Enterprise Protection
Act of 1992

17. AETA Passes

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

18. US v Fullmer (“SHAC 7”)

• Stop Huntingdon Animal Cruelty (SHAC)
• Successful Economic Boycott on the
Internet
• Convicted of Animal Enterprise Terrorism

19. SHAC 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

20. 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”

21. Judge 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.”

22. Judge Fisher Dissent

• Evidence must relate to the illegality
referenced in the indictment
• Gov’t never proved its case.

23. SHAC 7 Indictment

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

24. 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

25. SHAC 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.

26. Guilt by Association

• “Direct action” goal to end animal
testing at HLS
• Anyone acting in agreement was
engaging in criminal conduct and
conspiracy.

27. 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

28. Guilt by Association

• Antidote: strictissimi juri
• Strictest test for evidentiary
sufficiency under the First
Amendment
• Ensure that conviction is not for
ideological agreement with others.

29. Criminal Negligence Standard

• Vicarious liability for 3rd parties’ acts
• Inferring conspiracy without direct
evidence

30. US v Fullmer 3rd Circuit

• Historical Context
• Assault on Brian Cass - Feb 2001

31. US 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

32. US 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

33. US 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.

34. SHAC 7 Restitution

• $1 million verdict
• Jointly and severally liable

35.

Source: Center for Constitutional Rights

36. US 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

37. US v Buddenberg Criminal Complaint

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

38. US v Buddenberg Criminal Complaint

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

39. US v Buddenberg Indictment 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.

40. US v Buddenberg Indictment 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

41.

Source: Center for Constitutional Rights

42. Compare

• Animal Activists
- 1200 “incidents”
- No Murders

43. Anti-Abortionists

• 9 Murders
• 700 Blockades
• 33,000 Arrests
• 163,000 Disruptions (picketing, bomb
threats)
• 5000 Incidents of Violence (41 bombings)
Source: National Abortion Federation

44. Compare

• White Supremacists
• Militia Movement
• Subprime Mortgage Crisis
- “Inside Job” - Best Documentary

45. Green Is the New Red: An Insider’s Account of a Social Movement Under Siege

• By Will Potter
• GreenIsTheNewRed.com

46. Animal Enterprise Terrorism Act (“AETA”)

• Unconstitutional
• Violates Free Speech - 1st Amendment
• Violates Due Process - 5th Amendment
• Violates Right to Jury Trial - 6th
Amendment

47. “Those who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety.” -

Benjamin Franklin

48. What Can Be Done?

• Support Repeal Bill
• Sign Up To Receive Our Alerts

49. Odette J. Wilkens, Esq. Equal Justice Alliance owilkens@equaljustice alliance.org