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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”. USA Patriot Act - 18 USC 2331(5) Involve acts dangerous to human life Coerce civilian population Affect government conduct by: Mass destruction Assassination Kidnapping.

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

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  1. Animal Enterprise Terrorism ActOdette J. Wilkens, Esq.Executive DirectorEqual 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 AmendmentGuilt 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 BuddenbergCriminal Complaint • Protesting • Chanting • Using a bullhorn • Conducting internet research • Leafletting • Wearing bandanas • Chalking up the sidewalk

  38. US v BuddenbergCriminal Complaint • Objective Standard of Intent • Listeners’ Viewpoint • “Fearful,” “harassed” and “terrified” • Subjective Standard of Intent • Speakers’ Intent

  39. 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.

  40. 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

  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 Allianceowilkens@equaljusticealliance.org

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