Good publicity for Trump, fundraising photo-op for HSUS & friends, but not much in it for animals
WASHINGTON D.C.––One could almost suspect a quid-pro-quo deal––Latin for “I’ll scratch your back if you scratch mine”––among U.S. President Donald Trump and major U.S. animal charities, especially the Humane Society of the United States, in arranging the heavily publicized November 25, 2019 signing of the Preventing Animal Cruelty and Torture Act, called the PACT Act for short.
Trump gained a huge public distraction from the televised impeachment hearings that had for two weeks dominated public discussion of anything having to do with him.
Trump also gained the opportunity to pretend to be friendly toward animals.
Trump administration meanwhile moved to permanently hide Animal Welfare Act enforcement records
Meanwhile, the Trump administration, in the words of HSUS president Kitty Block and Humane Society Legislative Fund president Sara Amundson, moved to “permanently conceal crucial animal welfare records, including inspection reports and enforcement records of puppy mills and horse shows, where Tennessee walking horses and other related breeds are vulnerable to the heinous practice of soring.”
Block and Amundson posted their message to social media just 10 days before their White House appearance.
The Trump administration move to conceal Animal Welfare Act enforcement records capped the first three years of the most aggressively anti-animal White House agenda since the 19th century, including practically nonstop Trump administration efforts to obstruct and weaken Animal Welfare Act and Endangered Species Act enforcement of any kind.
No one even made bunny ears in protest
But none of that kept Block, Amundson, and representatives of the American SPCA, the American Humane Association, Animal Wellness Action, the National Animal Control Association, Big Dog Ranch Rescue, K9s for Warriors, and the Warrior Dog Foundation from showing up for the White House photo op.
None of those institutional representatives even made bunny ears or owl horns behind Trump’s head by way of actually representing the suffering of actual animals, including laboratory animals, farmed animals, and wildlife, who are explicitly exempted from any application of the PACT Act.
Nor did Alley Cat Allies, People for the Ethical Treatment of Animals, former HSUS president Wayne Pacelle, and a legion of other animal advocacy organizations and leaders not represented at the signing ceremony refrain from trumpeting about their purported contributions to the alleged “victory” accomplished by PACT Act passage.
Got the pix out just in time for “Giving Tuesday”
After years of defeat and retreat under the Trump administration, all of these organizations desperately craved something they could tout as a positive achievement in online and direct mail appeals.
Fundraising industry professionals have long known that the very best day of the year to hustle donors is Black Friday, the day after Thanksgiving, coming just ahead of so-called “Giving Tuesday,” the first Tuesday of December.
Setting the signing ceremony for November 25, 2019 gave the participant organizations just barely enough time to plug photos of the bill signing into pre-prepared layouts and get them printed and mailed before Thanksgiving––and to distribute the photos showing their chief executives at the ceremony far and wide via social media meanwhile.
But just what is the PACT Act, and what exactly does it actually do?
The PACT Act exempts almost every form of human use of animals
Consisting of identically worded bills, H.R. 724 and S. 479, unanimously passed first by the House of Representatives and then by the U.S. Senate two weeks later, coincidentally two weeks before Trump signed it, the PACT Act as summarized by Associated Press “prohibits extreme acts of cruelty when they occur in interstate commerce or on federal property.”
The PACT Act exempts, however, anything done in connection with legal hunting, fishing, or trapping; “customary and normal” agricultural and veterinary practices; slaughtering animals for food; pest control; medical and scientific research; euthanasia; or actions “necessary to protect the life or property of a person.”
Most vertebrate species are otherwise covered, including birds, reptiles, and amphibians, but fish and invertebrates are not covered at all.
So what does the PACT Act cover?
Since the major animal use industries are completely exempted, including most uses of animals that occur in interstate commerce and on federal property such as National Parks, National Wildlife Refuges, and National Forests, one might wonder just what the PACT Act does cover.
“Animal cruelty in the United States is typically a matter of state or local jurisdiction, with each state having its own set of animal welfare laws,” explained Huffington Post “trends” writer Hilary Hanson. “But the PACT Act gives federal authorities the power to prosecute acts of extreme cruelty in specific cases.
“The PACT Act accomplishes this,” Hanson continued, “by building on existing legislation that targeted ‘crush videos’ ― fetish videos that show animals being tortured or killed. The Animal Crush Video Prohibition Act of 2010 made the creation and distribution of these videos a federal crime. That law defines “animal crushing” as an act in which an animal (excluding fish and insects) is ‘purposely crushed, burned, drowned, suffocated, impaled, or otherwise subjected to serious bodily injury.’
“But the 2010 law applies to these acts only if they occur in conjunction with a crush video,” Hanson recalled. “The new PACT Act expands on that law by making any activity defined as ‘animal crushing’ potentially a federal crime,” carrying a potential penalty of up to seven years in prison, plus fines “whether or not it is for a video.”
Will the PACT Act really bring more prosecutions––or any?
So the PACT Act mostly applies to random recreational mayhem, the sorts of mindless cruelty and violence that often outrage much of the public when done for no economic purpose, but tend to go ignored if done behind closed doors in a barn or laboratory.
In addition, explains a PETA summary, the PACT Act “allows federal enforcement on cruelty-to-animals issues that states might lack resources or the authority to tackle. The law won’t prevent states from filing additional cruelty charges, so perpetrators could potentially face both state and federal charges for harming animals.”
Reality, though, is that even when heinous crimes against humans are involved, prosecutions are rarely pursued at all possible levels; the successive and successful state and federal prosecutions of former football star Michael Vick in 2007 and 2008 for offenses associated with dogfighting were an exception––and also, incidentally, an exception pursued under existing laws, a dozen years before the PACT Act existed.
Much more typical was the 2017 decision of Texas law enforcement to drop the prosecution of former HSUS vice president for investigations David Wills on charges of continuous sexual abuse and trafficking of a minor child, after federal charges carrying heavier penalties were filed.
The ASPCA & HSUS say…
Added an ASPCA summary of the PACT Act, “Although all 50 states have felony penalties for animal cruelty, prior to the PACT Act’s passage, there was no federal law that protected animals when abuse occurs in places where the federal government has jurisdiction [but state and local governments do not]. The PACT Act bridges this gap to allow, for the first time, federal prosecution of animal torture in instances where local and state law enforcement cannot reach.”
Where exactly are such places, and what exactly would be an offense that the PACT Act might address?
HSUS representatives in the days after the PACT Act passed mentioned three places where the PACT Act might apply: cases in which acts of covered forms of cruelty crossed state lines, cases occurring on Native American reservations, and cases occurring on U.S. military bases outside of the territorial United States, where state and local anti-cruelty legislation would not apply.
Non-exempted examples of cases previously going unprosecuted, in which animals have been “purposely crushed, burned, drowned, suffocated, impaled, or otherwise subjected to serious bodily injury” in actions crossing state lines, are so few that ANIMALS 24-7 may have record of none.
PACT Act does not touch neglect or abandonment
Cases can be identified in which individuals have committed acts of egregious and deliberate cruelty in one state and have been charged, but have fled to another state and not been extradited, usually because the original charge was a misdemeanor instead of a felony.
The PACT Act might be invoked to bring a felony charge, to be prosecuted in whatever state the suspect happens to be apprehended.
Perhaps a hundred times more common, however, are interstate cases of animal neglect and abandonment. For example, multi-time convicted animal hoarder Vikki Lynn Kittles, also suspected in the 1985 disappearance of her mother, Jean Sullivan, ran afoul of the law at least six times in four states over the next 16 years, and was believed to have committed similar offenses under assumed names in several more states, but repeatedly eluded justice by jumping from state to state.
Also increasingly common are cases in which animal transporters working for no-kill rescue organizations dump or kill animals and pocket the money they have been paid to take them to adoption shelters in other states.
But because the PACT Act does not even mention neglect or abandonment, it has no application to these categories of offense.
Uniform Military Code of Justice
Cruelty cases occurring on Native American reservations are typically prosecuted under either tribal, state, or local law. Neglect and/or abandonment on reservations, as in other rural areas, often is not prosecuted, but again, the PACT Act has no applicability.
Article 134 of the U.S. Uniform Military Code of Justice, prohibiting offenses “to the prejudice of good order and discipline in the armed forces or of a nature to bring discredit upon the armed forces,” specifically penalizes cruelty and/or neglect of “any animal owned or used by the United States, owned or used by a local or state government in the United States, its territories or possessions; or any wild animal located on any public lands in the United States, its territories, or possessions.”
In October 2016, reported then-HSUS president Wayne Pacelle in his blog A Humane Nation, continued under the same title by Block and Amundson, “President Barack Obama signed an executive order” which extended Article 134 of the Uniform Code of Military Justice to “now apply anywhere in the world where the military is stationed…on a par with states’ animal cruelty statutes. Violations will be separated by ‘abuse, neglect, or abandonment of an animal’ and ‘bestiality,’” Pacelle explained.
“The maximum punishment will include bad conduct discharge, forfeiture of all pay and allowances, and jail time ranging from up to one year to up to five years, depending upon the offense,” Pacelle finished.
Unless Trump has quietly undone the October 2016 Obama order, the PACT Act only converts part of it from an executive order to a law.
PACT Act has no application to strictly local cases
Despite the severe limitations of the PACT Act, it has already been widely heralded, before even taking effect, for supposedly doing quite a lot that it does not do.
For example, Associated Press on November 27, 2019 reported the arrest of Justin Visconti, 37, in Mineola, New York, for allegedly beating several cats and kittens, binding them with duct tape, and throwing them down his apartment building’s trash chute.
Visconti faces up to two years in prison if convicted of the New York state charges against him.
But the Associated Press article concluded, “President Donald Trump signed a bill this week that makes certain acts of animal cruelty a federal felony.”
Nothing Visconti did falls under PACT Act jurisdiction.
Will PACT Act withstand Supreme Court scrutiny?
Nor is it clear that the language in the federal Animal Crush Video Prohibition Act of 2010, used to frame the PACT Act., can withstand the scrutiny of the currently sitting U.S. Supreme Court. Under Trump, the prevailing Supreme Court interpretation of the extent of federal authority has been significantly narrowed by the appointment of Justices Adam Gorsuch and Brett Kavenaugh.
The Animal Crush Video Prohibition Act of 2010 was enacted soon after the then-U.S. Supreme Court on April 20, 2010, by a vote of 8-1, struck down a 1998 federal law that prohibited interstate sales of video depictions of illegal cruelty to animals.
The law was written to ban “crush videos,” as was the 2010 law, but the only case brought to court under the 1998 law was U.S. v. Stevens, a 2004 federal prosecution in Pennsylvania of Virginia resident Robert G. Stevens for selling videotapes of Japanese dogfighting and hog/dog rodeo.
Supreme Court ruling allowed an alleged perp to escape prosecution
A second case, pending in Missouri when the Supreme Court ruled, was dropped because the Supreme Court ruling meant it could not be prosecuted. In that case, Jarrod Hayn, 38, of Kampsville, was indicted for selling a 40-minute DVD inviting viewers to “Come and ride along with me while I drive on some of the most deer-infested roads in the Midwest and use my vehicle to run them down.”
The DVD reportedly showed Hayn hitting deer, mostly in Illinois on his commutes to a job as an Illinois Department of Corrections officer. Attorney Ed Fanning, representing Hayn, told Robert Patrick of the St. Louis Post Dispatch that the case cost Hayn the position.
The Supreme Court in the Stevens decision rejected the contention of the U.S. Department of Justice, the Humane Society of the U.S., and the ASPCA that the production, distribution, and possession of images of cruelty to animals should be prohibited under the same narrow exceptions to the First Amendment that were created to ban child pornography by the 1982 Supreme Court ruling in New York v. Ferber.
Supreme Court ruled on First Amendment issues
But the Supreme Court largely framed the Stevens verdict as an affirmation of the need for news media and animal advocates to be able to expose cruelty to animals by making use of visual images.
The Supreme Court reasoning paralleled an amicus curiae brief submitted by the Reporters Committee for Freedom of the Press and 13 other news media organizations, whose arguments were based primarily on uses of undercover video to expose cruelty, including by Fund for Animals founder Cleveland Amory in 1970, and by the Humane Society of the U.S. in exposés of slaughterhouse abuses.
Altogether, the Reporters Committee for Freedom of the Press cited 27 examples involving collaborations among news media and animal advocates which it contended would have been criminalized if the 1998 law had been enforced to the letter.
Since the Stevens videos were sold interstate, the Supreme Court in the Stevens decision did not consider, nor did it have reason to consider, whether federal jurisdiction might apply to an offense not involving interstate commerce.
2010 law held up––but jurisdictional issue was not considered
The Animal Crush Video Prohibition Act of 2010 was written around the Supreme Court verdict on the First Amendment issues.
At that, U.S. District Judge Sim Lake, of Houston, Texas, in April 2013 found the Animal Crush Video Prohibition Act of 2010 to be unconstitutional on the same grounds as the 1998 law.
The 2013 Lake ruling obliged the federal prosecution to drop the cases against alleged “crush video” makers Brent Wayne Justice and Ashley Nicole Richards.
But the Lake verdict was overturned and the charges reinstated in June 2014 by the 5th Circuit Court of Appeals.
Found the appellate court, “Congress has a significant interest in preventing the secondary effects of animal crush videos, which promote and require violence and criminal activity.”
Justice and Richards then appealed to the U.S. Supreme Court, but the Supreme Court in March 2015 declined to review the 5th Circuit Court of Appeals decision.
Lake then, in May 2016, found the defendants guilty on all charges.
Challenge to PACT Act likely
Of note, Justice and Richards faced federal charges in the first place, after having initially been charged under Texas law, when the U.S. Attorney’s Office in Houston pre-empted the Texas cruelty case by bringing five charges under the Animal Crush Video Prohibition Act of 2010.
The Texas charges were then dropped. As in the Stevens case, there was no question of federal jurisdiction because the videos produced by Justice and Richards were produced for interstate commerce.
The PACT Act, should any prosecutor invoke it in a case not involving interstate commerce, will almost certainly be challenged on jurisdictional grounds.
Animal cruelty cases occurring on Native American reservations and federal property such as National Parks, National Wildlife Refuges, and National Forests have historically always been prosecuted under state and local law, and there is no clear constitutional precedent likely to be recognized by at least three of the present nine Supreme Court Justices (including Justice Clarence Thomas as well as the two Trump appointees) for transferring those cases to federal authority.