My colleagues at Mayer Brown LLP and I are working on a pro bono amicus brief in the U.S. v. Stevens case — arguing in favor of striking down the speech restriction — and I wanted to ask readers who know about state hunting regulation for some help.
The law being challenged is 18 U.S.C. § 48, which says:
(a) Whoever knowingly creates, sells, or possesses a depiction of animal cruelty with the intention of placing that depiction in interstate or foreign commerce for commercial gain, shall be fined under this title or imprisoned not more than 5 years, or both.As you can see, the law applies (among other things) to depictions of conduct that is legal where it took place but illegal where it was distributed. Thus, for instance, if bullfights are illegal in California but legal in Spain, commercially distributing in California photos of a Spanish bullfight would be a federal felony, unless the depictions have "serious value."(b) Subsection (a) does not apply to any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value.
(c) In this section --
(1) the term “depiction of animal cruelty” means any visual or auditory depiction, including any photograph, motion-picture film, video recording, electronic image, or sound recording of conduct in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed, if such conduct is illegal under Federal law or the law of the State in which the creation, sale, or possession takes place, regardless of whether the maiming, mutilation, torture, wounding, or killing took place in the State; and
(2) the term “State” means each of the several States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and any other commonwealth, territory, or possession of the United States.
I'm looking for examples of
- "conduct in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed"
- that is likely not to seem particularly outrageous to most Justices, and
- that (unlike bullfighting bans) is legal in many states but banned in a few (or even in quite a few).
Other good examples would be if only a few states ban the killing of some animal, or ban some methods of killing, or ban the killing of female game animals but not males, or ban the taking of fish that are smaller than some size, while many other states allow this. Naturally, this is just a small part of what we're likely to argue in the brief. But I was hoping I might have readers' help with this. If you can point me to some such laws, I'd be much obliged.
There was a 7th circuit decision about the plant too.
I believe the status of wild pigs varies from state to state.
Does this mean that "The Michael Vick Story" will never get to the silver screen?
This example may meet your test- the deer in each case would be killed, the conduct is controversial amongst hunters but probably not to the general public or justices, and the acceptability varies among the states.
Cockfighting comes to mind.
In any case, are the laws that are passed to prevent perpetrators of some crimes to make money by publishing their "memoirs" etc. written in a similar language?
For example, some upper Midwest states allow hunters to put out corn, grains, salt licks, whatever, in advance of deer hunting season. (or piles of day-old donuts and sweets for bear hunting, say)
So you might put out a pile when you're setting up your tree stand ahead of time, so for a few weeks the herd will be used to hunting there. Then, opening morning, you get out there early in the tree stand, and you get your pick. (I like the guys who track hunt myself; gives the animal a chance, and half the fun is romping through nature and getting exercise. The tree stand guys can get chunky, and there's no reason for it, imo, until you get to be older/less mobile. But then, if I'm a farmer been feeding the deer all autumn out of standing corn, I guess I want to assure I get mine.)
With Chronic Wasting Disease, some states banned baiting since you don't want unnatural feeding places for deer to congregate and pass the disease. Other states, and other zones within states, where the deer have tested healthy, don't have that rule. So if I filmed my hunt from the tree stand taking down the deer ... and showed my brother-in-law in an adjoining state, is that illegal?
Another thing you might want to look at: the use of those night-vision cameras in advance of the hunt that show which animals are coming to feed. They are getting more inexpensive and popular -- not sure if it's worth looking into, but maybe you could do something with images from those cameras? I'm sure some yahoos out there poach at night, and record it?
Finally -- maybe look into game farms? They have special private hunting regulations (ie/no license, hunting "out of season" b/c the establishment takes care of all that.) Usually, these are wealthier people paying for private stock, and I imagine there too, there is a bit of taping of the hunt. Or more "controlled" conditions. Meaning things that are unethical when hunting during season on private and public lands, might be allowed at the game farms. Also, I think those tapes -- of fishing at trout farms, taped hunts -- might have more "animal cruelty" b/c there is less familiarity/skill involved from the participants sometimes, and hence more unintentional "hurt" to the animal.
Most hunters I know, understand if you wound the animal, you have a duty to track it. And their goal is a clean, quick kill, to properly preserve the meat. Hunters more interested in the status or size of their prize, might end up putting a lot more bullets in a creature before it goes down. And if it's being taped, that doesn't look too good but I bet the guides jump in to "help" asap.
No specific laws, but maybe these few areas might bear further fruit in your pursuit? I'll comment again, if I can think of more specifics.
Also, some people take grisly pictures if they kill something big with their vehicle, and might email it to relatives in another state. Unintentional most often, but grisly and causing cruelty and suffering to the animal? You betcha.
Is that illegal, to email your friends pics of that?
so for a few weeks the herd will be used to FEEDing there.
An initiative banning leg hold traps ended up covering more ground that many people thought.
By an expansive reading, any old National Geographic showing a leg hold trap would be suspect, as would a lot of movies. Not to mention slugging your horse ('Blazing Saddles'). Dynamiting gophers is probably banned somewhere ('Caddyshack').
Akin to slaughtering prairie dogs in the Dakotas. (Nobody eats prairie dogs; it's solely for sport.) Some people think that's outrageous, but they got some many there they don't miss them is the justification, I think. Plus it surely brings in tourist hunting money. (always reminded me of that whack-a-mole game at the arcades myself. Up pops the head, down goes the dog. And onto another!)
Here is a list of all states' crossbow hunting regulations, with links to the statutes/regs.
On a quick glance, it looks like Oregon and New York ban crossbow hunting outright, a number of states allow it only for handicapped hunters, some only in certain seasons, and some essentially allow it all the time.
Also--this law would appear to apply to criminalize pictures of animals killed by hunters where the hunting seasons for particular game varies to the extent the picture shows a killing during a time which was not another state's season.
I suspect you're going to find many of your examples outside the traditional hunting seasons (deer, turkey, bear) and more yahoos who hunt for sport screwing up, than those who do it no so much for "fun" but for the meat and tradition.
Pigeon shoots
Use of bait
Some states prohibit shooting does (e.g. AZ), other states encourage it (e.g. MO).
Some states require deer hunters to use shotguns (e.g. NY), some states prohibit the use of shotguns to hunt deer. Likewise, caliber restrictions, centerfire vs. rimfire, etc.
Hunting by minors under a certain age.
Use of spotlights. Night hunting. Use of battery-powered optics (e.g. Aimpoint) banned in some states, lawful in others.
Laws re shooting from a vehicle (can be an issue for the handicapped).
Sunday hunting laws.
Requirement in some states to shoot from an elevated position if using a rifle.
Trapping.
Use of lead vs. copper ammunition.
Hunting from aircraft.
I believe it is illegal in Michigan and Iowa, as well as maybe a few others.
It is legal in Maryland where I did it as a boy and Virginia where I now live. It is also legal in most if not all of the south and west, although I can point to no specific resource, just a general accumulation of knowledge.
Every now and again I watch hunting shows. Several years ago I recall seeing one about dove hunting. Illegal if broadcast into a non-dove state?
Also, many of the shooting resorts in the South have dove hunting excursions. It's old south stuff - carriages, dogs, gun handlers, attendants, etc. I imagine in this media age, participants could get a video of their hunt. If so, would that be illegal to import into or transport through a state that bans dove hunting? Perhaps the commercial gain prong would not be satisified by a vacationier taking a DVD home. Although surely the resort made the DVD for commercial gain. Just a hypo, I have no idea whether these resorts even offer a DVD.
Hasn't Scalia hunted birds with Cheney? If so, it's likely at least he would not think dove hunting is outrageous.
Even if depictions of native Americans hunting fall within the exceptions in the statute, I've read about aboriginal groups needing to raise money auctioning off (legally) the right to hunt a particular animal that would normally be illegal for a non-aboriginal - so would photos/video of such a hunt be illegal because they showed a non-native Indian doing the hunting?
In a quick search I found an example that is unfortunately (for your purposes) Canadian (Yukon Territory), they've sold 1000 licenses over 20 years, this story is about one selling for $315,000.
2008 story about this tag being sold to a West Virginia hunter
Perhaps there are examples of U.S. tribes or the state of Alaska or the like allowing something similar under special circumstances?
Even if that won't work for this brief, perhaps the foie gras bans fit nicely into your "slippery slope" theories.
Then, how about the circumstance where opting for the lesser of two environmental objectives in a specific geographic area or time frame would not normally be acceptable. Don't we kill sacred bison when the herd needs to be culled or they go off public land? Go down the list of protected species. Aren't there times/places/circumstances when some particular person is allowed to kill them? I'm thinking Indians taking salmon on the Columbia river, Indians taking whales, Indians possessing eagle feathers.
Ordinary branding with a branding iron, stapling ear tags, putting rings in noses, castration, debeaking, declawing, tail docking and ear cropping are certainly intentional maiming or mutilation, and not likely to seem particularly outrageous.
But I don't know of any states that ban these. It's possible, but I doubt that any do. A detailed search of statutes might reveal some oddities though.
Dipnetting and throw-netting are mostly illegal in California.
I think California bans trapping of mammals for fur.
The reason is that there are so many swamps that they can go into in the lower parts of the state that are just too hard (not to mention reptilian) to slog through. Send in the hounds and let them deal with the vipers. The hunters can wait by the road sipping a PBR and wait for the hounds to chase them out.
2) Dove hunting would indeed be a case. MI voted to retain its ban on that, while in AZ it's been almost wide-open for many decades. Their reproductive rate is so high that it's impossible make a biological pitch for banning hunting, so the argument against basically boils down to doves being cute.
3) Disney was once famous for animal snuff films -- when the lemmings refused to push each other over a cliff into the sea, they were "helped," and when predators chased down an animal, it was in a confined area where escape was impossible. I suppose a predator killing its prey does not create a criminal act, but how about a human setting it up? If I were throwing rabbits to a bunch of pit bulls, I doubt there would be a defense of "the dogs did it, not I."
Never saw a depiction of that, though.
Cannot quite recall the details, but some place or places in the South hunt squirrels with clubs.
In Hawaii, pigs are hunted with dogs and knives. This is cruel to the dogs, who get excited and run off cliffs.
Granted, you could defend such depictions as having serious political value, but it strikes me that this law could potentially chill PETA members' speech. (A stretch, I know, but throwing it out there)
I imagine such treatment of gestating sows is legal in most other states, and would not shock the conscience of most justices.
Worse, the law reads that it is illegal to import, in whole or parts, a mountain lion. Meaning if you legal shoot a lion in Montana, you can't bring it back to CA. You also couldn't buy a lion that was already mounted and legally import it.
I know in Idaho, you can bait bears south of about Pend O'reille, but north of that you can't.
Now that I think of it, my point about ad-supported web pages also makes this objection pretty much moot. Anything can be for commercial gain.
Have there ever been any court decisions which interpreted "commercial gain" in connection with web pages bearing ads?
http://www.youtube.com/watch?v=vwMSy7xK218
I've elided some portions not relevant to the qualifications above.
1. The statute clearly bans intentional maiming (declawing) for some species, but not for others.
2. The maiming (declawing) is not a particularly outrageous thing, since it is perfectly legal to perform on some species.
3. I doubt all states have as detailed a statute as this, distinguishing species of the same family for which maiming is permitted or prohibited. Particularly, the specific threshold of 3 generations removal to distinguish "Exotic or native wild cat species", would likely not be universal among state cat declawing statutes.
California Penal Code Section 597.6:
597.6. (a) (1) No person may perform, or otherwise procure or arrange for the performance of, surgical claw removal, declawing, onychectomy, or tendonectomy on any cat that is a member of an exotic or native wild cat species, and shall not otherwise alter such a cat' s toes, claws, or paws to prevent the normal function of the cat's toes, claws, or paws.
(2) This subdivision does not apply to a procedure performed solely for a therapeutic purpose.
(b) Any person who violates this section is guilty of a
misdemeanor punishable by imprisonment in a county jail for a period not to exceed one year, by a fine of ten thousand dollars ($10,000), or by both that imprisonment and fine.
(c) For purposes of this section, the following terms have the following meanings:
...
(3) "Exotic or native wild cat species" include all members of the taxonomic family Felidae, except domestic cats (Felis catus or Felis domesticus) or hybrids of wild and domestic cats that are greater than three generations removed from an exotic or native cat. "Exotic or native wild cat species" include, but are not limited to, lions, tigers, cougars, leopards, lynxes, bobcats, caracals, ocelots, margays, servals, cheetahs, snow leopards, clouded leopards, jungle cats, leopard cats, and jaguars, or any hybrid thereof.
STFU PETA!
What if the conduct was legal when filmed, but now isn't--for example, lots of old movies actually depict cruelty to animals. Are we going to have to destroy them?
of any speech prohibited by the statute because “[b]y the very
terms of the statute, material depicting cruelty to animals that
has serious utility–whether it be religious, political, scientific,
educational, journalistic, historic, or artistic–falls outside the
reach of the statute.” Id. at 4.
Never mind.
Any legitimate video about hunting would fall into one of those categories, wouldn't it?
Fox hunting might be an example. Laws dealing with furbearers perhaps. Or types of traps.
Dg and cock fighting is a good example.
Dove hunting isn't a good example. By a large margin, Doves are the most popular game species in the country.
However, HSUS is pulling all the stops out to shut down pigeon shoots in Pennsylvania right now. Apparantly they are banned - as an organized event - nearly everywhere else but not in Pennsylvania. That might be the best example.
A lot of things people do while training dogs (force fetching, for example) will likely seem cruel to the masses who have no clue. That might qualify too.
And if you look up Mike Rowe (from Dirty Jobs) and lamb castration, he's got a great video on line about how he visited a shepard in Colorado and was castrating lambs and the guy did it in a way that every ANimal Rights Group said was cruel but when they did it in the "humane" way low and behold it caused much more suffering for the animal,
Not pretty to see an animal caught in one of those.
PETA knows how to market -- the pictures are really gruesome.
In Idaho, hunters can hunt whitetail deer using most commercially available rifles so long as the rifle-scope-sling combination weighs sixteen pounds or less and is not fully automatic. Idaho Administrative Code 13.01.08.410.
A hunter using a pump-action .30-06 rifle (a common hunting gun) can legally kill a deer in Idaho but not in Indiana because the caliber of the bullet is approximately six-hundredths of an inch too small for hunting in Indiana.
I believe that the reason for the difference is geography and safety. Indiana does not want hunters using small caliber, high velocity ammunition because those types of bullets travel much farther than large caliber, lower velocity bullets, and Indiana is really flat.
Whether showing footage in Indiana of a hunter using a .30-06 to bag a deer in Idaho is a felony under the federal law is another question. But killing a deer with a .30-06 is conduct "illegal under . . . the law of the State in which . . . possession" took place.
Hunting with a rifle is conduct which involves killing an animal, and is conduct that most judges should not find particularly egregious. Additionally, a fifty state survey would probably reveal more slight differences between state regulations of types of firearms and ammunition. (E.g. using a semi-auto gun is ok in Idaho, but not in Pennsylvania).
Has case law done what should to be required: put the burden on the prosecution to demonstrate beyond reasonable doubt that the exceptions are NOT met by an individual so charged?
As far as I know only two states have a firearms
season for fish, Vermont and my home, Virginia.
Here in Virginia the fishermen set themselves up
in a tree above the river so as to shoot nearly
straight down with a high powered rifle.
It's only allowed in a few counties in the western
part of the state. Or perhaps only certain tributaries
of the Shenandoah. I don't recall offhand.
Many states ban the hunting of game species that are commonly hunted in others. Many game species were wiped out in areas of the Midwest and have been reintroduced recently. Wild turkeys are now hunted in the Midwest, yet prior to the reintroduction in the 1990s I had never seen one. Companies like H.S. Strut sell videos of turkey hunting techniques in all 50 states, since people travel for hunts.
Elk are being reintroduced to Wisconsin, but with a herd of about 90 they are a long ways from being legally hunted. If I go to any hunting supply store (or turn on outdoor network) I can access videos of hunting techniques depicting the killing of elk (filmed mostly in CO or WY and sold to people who go out west to hunt). These stores possess the depictions for commercial gain. WIDNR info on elk (go to frequently asked questions):
http://www.dnr.state.wi.us/org/land/wildlife/elk/
A particularly sympathetic example would be someone in a state where trout are not a gamefish (most likely plains or southern) watching A River Runs Through It. Wal Mart has a copy on the shelves for commercial gain.
Minnesota allows spear fishing for a large variety of fish, but many states (Georgia I believe for one) do not. There is a limited Sturgeon spearing season in Wisconsin, but most states that have sturgeon so not allow them to be taken. Some sell the meat.
Many states, like Iowa and Illinois do not allow deer hunting with rifles, while some do. In Minnesota, there is a dividing line tracking a number of highways between the northern and southern half of the state. A person north of the dividing line could take a deer with a rifle that would be poaching a couple hundred yards south. Guide services, call manufacturers, and hunting-related products companies distribute these images for commercial gain, both for training and advertising.
An even more discrete difference would be among those rifle calibers with which deer could be taken legally. The .30-30 Winchester has taken more deer than about any caliber known (think old lever action grandpappy's deer rifle), but it is illegal in Indiana and was illegal in Minnesota up until 2008.
The Outdoor Channel and others like it broadcast hunts from all over the world. Many of the game species are illegal to take in many of the states broadcast. Can't take a mountain goat in Iowa.
Hopefully some of this is useful. I could probably think of a hundred more examples if these don't fit, since hunting laws and regulations make up a very local regulatory scheme. Any questions and I would welcome an email.
Logically, the word "conduct" should be construed in connection with the purpose of the statute, which is prevention of the depiction of cruelty to animals. It is no more or less cruel to shoot a deer on Sunday than it is to do so on Saturday. The Pennsylvania prohibition of shooting a deer on Sunday is a policy matter unrelared to animal cruelty. Indeed, the rules against using a rifle in certain areas, i.e. the special regulation (archery/shotgun only) zones, or at certain times, i.e. during archery season, are antithical to animal cruelty concerns, since the rifle is much more likely to dispach the deer without suffering than the bow and somewhat more likely to do so than the shotgun.
Factor in the principles of statutory construction, and the First Amendment considerations, and the arguments on the other side seem frivolous.
Texas allows the hunting or trapping of mountain lions. California does not. In Texas you must use a centerfire cartridge for deer, which includes the .223 Remington.
Several states prohibit hunting on Sunday. Texas does not.
Many states have requirements for how much blaze orange clothing a hunter must wear, and they conflict.
2. Some states, Virginia for example, allow hunters to use dogs to flush turkeys in certain seasons, but this is only in a minority of states.
3. Are there any states that allow shooting nuisance or invasive species from helicopters?
4. SSD--electronic calls for snow geese are also legal in the U.S. during a later extended season. This is by federal law. Electronic calling is often used for predator hunting. There may be states that ban this, though.
5. Stevie Miller--are you sure that the mourning dove hunters are only shooting them for target practice? In addition to being wasteful, they're missing out on a great table bird.
6. Hog dogging--field trials for catch dogs used in feral hog hunting. I'm not really sure if this is legal in Texas, but law enforcement doesn't do anything about it.
That seems an awful low of shot in so little bird.
But some people will clean a mess of pan fish for a meal too, I suppose.
Nick
Yes. Hawaii shoots feral domestic goats and cows from helicopters.
I misremembered about clubbing squirrels. It was rabbits.
A foundation set up for the woman's children brought in $8000 in donations.
A competing foundation set up by the local tree huggers to care for the mountain lion's cubs raised $23,000.
Northern California is a nutty place.
An Atlatl, or other spear, is a legal weapon for hunting in Alabama, but not in Virginia (as legal hunting methods are listed, and spears are not listed as okay)
Dove hunting is a good one--illegal in Michigan, legal almost everywhere else.
Bear is legal to hunt in Virginia (and many other states) but there are states that do not permit bear hunting. I imagine there are quite a few examples of animals legal to hunt in one state (or country), but not in another. Alaska's probably a source of quite a few. If I understand VA game laws correctly, game animals are: bear, bobcat, deer, fox, rabbit, raccoon, and squirrel. About a dozen "nuisance species" are also listed. Therefore, any other animals (birds are listed separately, and elk are mentioned elsewhere), are illegal to hunt. So, a moose (or caribu, etc.) hunting video would probably count. And if I misunderstand the way VA game law works, I'm sure another state would provide a proper example.
Now, shock collars on lawyers might be worth a look. ;-)
It is legal to hunt wolves in Alaska but it is illegal in other states with wolf populations including Arizona and New Mexico (the current ESA delisting litigation will not affect these states).
Cougar hunting is legal in western states like Idaho, Montana, Oregon and Arizona but it is illegal in California.
It is legal to hunt on Sundays in more than 40 states but it is illegal to do so in states like Virginia, Connecticut and North Carolina.
Hunting deer with dogs is legal in North Carolina, Virginia, Georgia and other states but it is illegal in states such as Texas, New Jersey and California.
It is legal to hunt black bears using bait in Maine but it is illegal to hunt over bait in California.
Spring bear hunting is legal in Montana but it is illegal in Colorado.
Dove hunting is legal in more than 45 states but it is illegal in Michigan and Iowa.
Hunting deer with centerfire rifles is legal in most states but it is illegal in Ohio and Illinois.
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