This paper examines laws enacted in response to what some politicians see as a trend toward extremism in the name of protecting animals, Congress and several states have passed, or are currently considering passing, legislation setting harsher penalties for those involved in what has now been coined “ecoterrorism” or “agroterrorism.” This paper will examine some of the recently passed laws and legislation and the cases which have interpreted these laws. It will then analyze some of the constitutional issues raised by critics of the new legislation.
Animal Rights organizations have used photographs and video footage of inhumane conditions for years to help spread their message and persuade the general public and political parties on issues related to animal welfare. More recently, groups have been using footage to assist in bringing charges against owners of the companies where the footage was shot. This photographic evidence is often obtained when activists either trespass on the premises or gain entrance under false pretenses, like gaining employment without disclosing affiliations with animal rights groups. When these cases come to trial, they often implicate other issues, such as the admissibility of photographs in trials and fourth amendment search and seizure rights. These cases also raise questions about why animals are not better protected by the inspection schemes included in most agricultural regulation laws.
In response to what some politicians see as a trend toward extremism in the name of protecting animals, Congress and several states have passed, or are currently considering passing, legislation setting harsher penalties for those involved in what has now been coined “ecoterrorism” or “agroterrorism.” One model act includes a section which makes it a felony to enter an animal or research facility to take pictures or video if the actor’s intent is to defame the facility or its owner. This legislative response only reflects a more a broader drift toward characterizing animal rights activists as terrorists.
What happens when laws that purport to protect animals and those that purport to protect private property owners clash? Is there a way to defend animals while also preserving the rights of private citizens? And can private ownership be protected without the demonization of those who seek to protect animals? This paper will examine some of the recently passed laws and legislation and the cases which have interpreted these laws. It will then analyze some of the constitutional issues raised by critics of the new legislation. Finally, the paper suggests that these laws are too harsh in their punishment and characterization of animal activists.
II. Reasons Activists Resort to Direct Action
A. Regulation does not provide much protection for animals
Most agricultural businesses are subject to some kind of regulation, which will often include periodic inspections of the premises. However, regulatory schemes are sometimes ineffective at preventing animal cruelty. Laws are either not enforced or contain exceptions that apply to large parts of the industry. Activists are often prevented from gathering information about the industry through more traditional means and this is when animal activists feel the need to take direct action to observe and document conditions in which animals are being kept.
The Animal Welfare Act (AWA) provides for the humane care and treatment of animals bred for commercial sale, transported in commerce, used in biomedical research, and exhibited to the public.  The U.S. Department of Agriculture’s ability to protect animals is impaired by the limited sanctions available under the AWA for noncompliance.  Further, the AWA is very limited in its application. While the act covers cats, dogs, primates, and other mammals, it excludes birds, rats, and mice. Also, the act does not cover the slaughter of animals and animals used in food production. (See, 7 U.S.C. Sec. 2132 for the definitional section). The AWA provides that the Secretary shall promulgate rules allowing for the confiscation or destruction of any animal who is suffering due to noncompliance with the AWA; however, a significant exception is made for animals in research facilities. Enforcement of the animal welfare act also remains deficient due to the USDA’s reluctance to administer the statute. 
Anti-cruelty statutes at the state level are also not effectively enforced. “Very few people who commit cruelty are ever brought into a courtroom and prosecuted. In light of the small amount of money being spent to enforce anti-cruelty laws, it is obvious that state legislatures have not taken as much of an interest in animal welfare as they might have.”  Animal cruelty remains a crime that is under-prosecuted, and when it is, offenders often face small penalties, making the statutes an ineffective deterrent.
Even when evidence does not lead to criminal charges, the information gathered by activists when they enter animal farms and facilities can be very important.
Information-gathering is particularly important because above ground animal advocates are often barred from obtaining such incriminating information via lawful means. Activists may collect some data regarding the care and treatment of laboratory animals through the use of Freedom of Information Act requests, but even this incomplete and tardy information cannot be obtained about private animal enterprises, which are not subject to the federal FOIA and similar state statutes. Thus, liberators’ unlawful tactics may occasionally fill a void created by insufficient public disclosure laws. 
Secrecy in any industry can breed problems and give actors the idea that they do not need to conform to laws or expectations. If agricultural leaders know that their acts are subject to some kind of inspection, it is likely they will be more stringent in policing their own actions.
Balancing animal rights with those of private property owners can be difficult, and even more so because animals are usually given only second-class rights to begin with. Animal cruelty statutes sometimes sound strict but are ineffective when weakly enforced. “Even though these types of statutes purport to prevent cruel treatment or a cruel killing or injury of any animal, ultimately the ability to effectively enforce their sanctions is subject to the rights of the property owner. For example, in Kansas it is a crime to sneak onto a puppy mill and either photograph or document activities. Such legislation obviously impedes the process of bringing illegal activities to the attention of authorities.”  The rights of private property owners deserve protection, but not at the expense of animals who are dependent on them for care.
B. Recent Cases
In several recent cases, animal rights activists have personally documented conditions at farms and companies, and their documentation has been the catalyst for further investigation and criminal charges. Their documentation has also been used in several cases as evidence against the defendant.
An investigator affiliated with the animal rights group Compassion Over Killing worked undercover at Esbenshade Farms from November 30 to December 9, 2005.  Esbenshade Farms is one of the county’s leading egg producers and is located in Mount Joy, Pennsylvania. During his employment at the farm, the individual videotaped the conditions of the hens in the facility. He then presented the evidence to a humane officer for Lancaster County. The owner of Esbenshade Farms was charged with 35 counts of criminal animal cruelty. The court ruled the videotape permissible during the trial over arguments by the defense that the tape had been made in violation of constitutional search and seizure laws. The activist maintained that although he returned to working at Compassion Over Killing (COK) following his employment at the farm, he was working independently during the filming, and was not working for the state, as the defense contended.  The criminal trial against the owner and manager of Esbenshade Farms started on April 18, 2006, during which the defense’s motion to suppress COK’s video evidence was denied. The trial continued on August 7, 2006, and is still pending.
Wolcott egg farm
In 2004, activists sneaked into the Wegman egg farm in the town of Wolcott three times to record living conditions. As part of Adam Durand’s burglary trial for entering the farm and removing 11 chickens, the jury was allowed to see footage that was shot at the farm, although Durand was denied the right to use justification as his defense. Durand shared the footage with State Police Investigator Frank D’Aurizio, who declined to press charges based on what he saw on the tape, even though when he was confronted with footage during Durand’s trial he admitted that he considered what was depicted to be neglect.  In 2004, the Better Business Bureau ruled that the “Animal Care Certified” logo used by Wegman is misleading to consumers and should be discontinued.  The investigation had other positive effects; Wegman’s gave four reporters a “one time” tour of their egg farm following Durand’s trial.
Mendes Calf Ranch
The Animal Legal Defense Fund (ALDF) filed a complaint against Mendes Calf Ranch in June of 2006 based on video footage obtained by East Bay Animal Advocates that showed baby calves at the Mendes operation are unable to lie down in a natural position or turn around without contorting themselves. The ALDF has also filed suit against the California Department of Agriculture, claiming they failed to inspect and uncover the cruelty which the video depicts. 
Two students from Stanford Law School are co-plaintiffs in the case. The students have bought and consumed dairy products that can be traced to Mendes Calf Ranch and for which they believed to be paying market value. They are claiming they suffered harm from paying for illegally-produced products that came from cows who were treated cruelly.  This case is still ongoing.
In this case, a simple passer-by turned into a champion of animal rights when he witnessed live chickens being tossed into a garbage container and documented it using his video camera. The tape found its way to the Humane Society of the United States, where staff conducted further investigation and started preparing the case for prosecution. The case never made it to trial, as the charges were dropped in exchange for agreeing to change its euthanasia procedures and pay $100,000 to help fund a new local humane society in the area. 
Grocery Stores carrying the Animal Care Certification label
Video investigations by several animal rights groups, including Compassion Over Killing and Mercy For Animals, prompted COK to file a lawsuit in D.C. Superior Court against area retailers Giant Food, Brookville Supermarket and Lehman's Egg Service and the organization that administers the Animal Care Certified certification, United Egg Producers. In February, 2005 Giant agreed to drop the logo from egg cartons sold under its brand name while it reviews Compassion Over Killing's claims that the birds are kept in inhumane conditions. 
III. Legislative Response and the Rise of “Ecoterrorism”
The Federal Bureau of Investigation defines eco-terrorism as “the use or threatened use of violence of a criminal nature against innocent victims or property by an environmentally-oriented, subnational group for environmental-political reasons, or aimed at an audience beyond the target, often of a symbolic nature."  The FBI considers animal rights and environmental activists to be a major domestic terrorism threat.  Congressional Quarterly recently released what they believe is an internal list of threat’s to the nation’s security, which included both the Animal Liberation Front and the Earth Liberation Front, but did not list right-wing domestic terrorists and terrorist groups. 
In response to this growing concern over the actions of animal rights activists, there has been legislation passed on both the state and federal level that impose harsher penalties on those whose actions are motivated by a desire to save animals. Many of these laws have come under attack both for their constitutionality and their far reaching effects.
A. Federal Action
Congress used its commerce power to enact the Animal Enterprise Protection Act in 1992.  This act made it is an offense, punishable by up to a year in prison, to physically disrupt an animal enterprise and cause the owners to lose $10,000 or more. The act provides a life imprisonment penalty for killing someone during the commission of the crime. The act also ordered the Attorney General and the Secretary of Agriculture to jointly conduct a study on the extent and effects of domestic and international terrorism on enterprises using animals for food or fiber production, agriculture, research or testing.  The report, released in 1993, concluded that “there has been no conclusive proof that a person has ever been physically injured by animal liberation activity in the United States …. None of the extremist animal rights-related activities analyzed for this report is known to have resulted in the injury or death of another individual.” 
In December 2002, the Criminal Justice Task Force of the American Legislative Exchange Council (ALEC), an organization of state and national lawmakers backed by corporate sponsors, endorsed a model “Animal and Ecological Terrorism Act.”  The Animal and Ecological Terrorism Act (AETA) seeks to create harsh penalties including a Terrorist Registry for acts performed by the Animal Liberation Front and ALF-type actors. In addition, the proposed legislation will affect animal advocates not involved with the ALF. One element of the bill, known at the membership clause or institutional liability provision,  would make it a felony to donate money to or in any way assist an organization that sponsors or conducts the prohibited deterring activity, regardless of whether the donor had any specific knowledge or intent. Donors or members found guilty under this provision would be added to a “terrorist registry along with people who actively participate in the deterring activity, and their names and photographs would be posted by the Attorney General on a state website for three years or more.” 
The act has come under fire by legal scholars and animal advocates alike. “In the literature sponsored by ALEC proposing model legislation for the Animal and Ecological Terrorism Act, the authors aim to make one believe that animal and ecological activist groups like the ALF and the Earth Liberation Front are comparable to groups like Al-Qaeda. The goals and methods of ALF are drastically different from those of terrorist groups. ALF’s guidelines expressly state its intention to ‘take all necessary precautions against harming any animal, human and non-human.’” 
The constitutionality of the Act has also been questioned. “The AETA seeks to differentiate identical acts solely on the basis of the actor’s political purpose. For instance, a person who breaks into a research facility to release animals because that person is morally opposed to testing on animals will be treated as a terrorist under the Act. If a person breaks into a research facility to release animals for fun, she will not be treated as a terrorist. The person in the latter situation will simply be prosecuted under existing criminal laws such as trespass, breaking and entering, and criminal mischief. The discrepancy between the two examples shoes how the AETA seeks to bar the animal activist’s point of view.” 
One provision of the Model Act is section 3(A)(2)(e), a felony prohibition against entering an animal or research facility to take pictures by photography, video camera, or other means with the intent to defame the facility or its owner, even when such entry is lawful.
The felony photography provision is no doubt designed to insulate the protected business interests from the damaging effects of undercover reporting. Such documentary efforts often capture unlawful activity, triggering long overdue enforcement actions. Neither the Model Act not its progeny in the state legislatures has a journalist exception to the felony photography provision, despite the fact that it proscribes conduct following lawful entry. In fact, Arizona Senate Bill 1081, which was passed by the legislature but ultimately vetoed by the Governor, did not contain an exception for law enforcement authorities either. 
The felony photography provision is a classic example of the broad reach of new legislation, which often fails to take into account completely legal and legitimate reasons for taking and using photographs.
Other bills have been introduced with varying levels of success, some of which are still under consideration. The Terrorism Against Animal-use Entities Prohibition Improvement Act, H.R. 4883, was introduced by Rep. Sam Graves on July 24, 2004. It was reported out favorably to the House Committee on the Judiciary without amendment. The bill had no cosponsors. No further action occurred on this legislation during the 108th Congress. 
Congress recently heard testimony in support of Wisconsin Republican Rep. Tom Petri's Animal Enterprise Terrorism Act, Bill H.R. 4239, a bill that would tighten laws against animal rights activists who use intimidation and violence against animal enterprises such as farms and research labs, and also those businesses and individuals with even a tenuous connection with those enterprises.  While further action is still pending on federal bills, several states have added similar provisions.
B. State Action
As of the 2003-2004 session in state legislatures, versions or pieces of the Model Act have been introduced in at least thirteen states.  Most recently, Pennsylvania Governor Edward G. Rendell signed House Bill 213 into law on April 14, 2006, which amended the state’s crime code to include the offense of “ecoterrorism.” Passed overwhelmingly in both House and Senate, it makes obstruction of commercial activity involving animals or plants a felony. Specified offenses (such as agricultural vandalism, crop destruction, criminal trespass or theft) are already crimes in Pennsylvania, but this legislation is said to be aimed at deterring politically motivated property destruction with the intent of intimidation. If the specified offense is already classified as a first-degree felony, a person convicted under the new statute could be sentenced to up to 40 years of imprisonment and may face a fine of up to $100,000. Additionally, restitution could be ordered in an amount up to triple the value of the damages incurred. The Governor stated that under the new measure, a person exercising their right of freedom of petition or freedom of speech on public property or with the permission of the landowner and who is peaceably demonstrating or exercising those rights is to be immune from prosecution or civil liability for ecoterrorism.  The American Civil Liberties Union, however, opposed the bill on First Amendment grounds and said it was a “threat to the First Amendment rights of all Pennsylvanians who wish to express their views on matters of public policy ” and that “classifying people who trespass or engage in disorderly conduct as terrorists is unwarranted.” 
Oregon legislators have introduced a bill that would make repeat acts of eco-terrorism punishable under the state's racketeering law.  The bill adds crimes against agricultural enterprises, research laboratories and livestock operations to the state law originally designed to fight criminal organizations. Under the bill, a person who vandalizes or steals from a research facility, logging operation or livestock business twice or more in a five-year period would face a Class A felony charge (20 years in prison and a $300,000 fine). The bill has no effect on legal protests or demonstrations on behalf of animal rights or environmental causes.
A 2000 California law mandates more severe punishment for people who willfully destroy agricultural research crops.  The law makes a person who intentionally destroys research crops liable for twice the value of the damaged crop. The courts will determine the value of damaged crops on an individual basis; reimbursement will include research and development costs. Costs that could be recovered include tuition or lost wages for graduate students' damaged projects.
With the growing interest by state legislators in enacting such provisions, issues of the admissibility of the evidence gathered by activists has arisen.
IV. Admissibility of Photographs
In general, photographs are admissible into court as long as what they purport to depict is relevant to the issues in the case and the pictures are an accurate representation of the scene depicted. United States v. Daniels , 377 F.2d 255, 258 (6th Cir. 1967) Photographs can be authenticated by a party who has personal knowledge of the location and who can verify that the photos substantially represent the conditions as they existed at the time in question. Strickland v. Davis , 221 Ala. 247 (1930).
“When reviewing the admissibility of a photograph into evidence, we must first determine whether the photograph was relevant. If we determine the photograph was relevant, we must then engage in a rule 403 balancing test.” Long v. State , 823 S.W.2d 259 271 (Tex. Crim. App. 1991). The court then assesses the admissibility of photographs under a three-part test, examining (1) relevance, (2) tendency to incite or inflame, and (3) the probative value versus the potential to cause unfair prejudice. State v. Spreitz , 190 Ariz. 129, 141, 945 P.2d 1260, 1272 (1997) .
Photographs are frequently used in animal-related cases, and especially in prosecutions for animal cruelty where it is often necessary to demonstrate the extent of the injuries that the animal or animals in question suffered. Courts will again employ the standaed test of admissibility for photographs.
Generally, photographs will not be kept out just because they tend to inflame the jury. In Tiller v. The State , 218 Ga. App. 418 (1995), the court admitted videotape depicting the condition of several horses. The court said that “although we can agree with Tiller that the tape may have ‘inflamed’ the jury, it was relevant to the jury’s consideration of the charged crimes. Photographs that are material and relevant to any issue are admissible even though they may inflame the jury.” Similarly, in Roose v. State of Indiana , 610 N.E.2d 256 (1993), Roose argued that the trial judge abused his discretion when he admitted photographs of the dog in an injured condition because they tended to inflame and impassion the jury against him. The court concluded that the photographs were properly admitted into evidence and that “the gruesomeness of a photograph is not a sufficient ground for exclusion if the photograph is material and relevant.” Id. at 257.
Photographs taken by animal activists will often pass the threshold of admissibility. Pictures depicting the conditions in which animals are being kept are usually at the heart of cases against agricultural farms, and they will likely be admitted as long as they are authentic and depict the conditions accurately.
V. Related Search and Seizure Regulations
The admissibility of photographs is sometimes subject to constitutional restraints depending on who took the photographs and how they were obtained.The Fourth Amendment prohibits unreasonable searches and seizures that are conducted by public officials; the Constitution does not protect against those affected by a private citizen or organization that is not acting as an agent of the government. In ecoterrorism cases, it is often the case that evidence is initially gathered by animal activists acting as private citizens and is then presented to law enforcement authorities, who decide whether or not to take further action. If warranted, the police will often gather additional evidence on their own after obtaining a warrant. While there are exceptions to Fourth Amendment restrictions, including inspections conducted as part of industry regulation, there are still strict limits on when and how inspections and warranted searches can be conducted. These limitations protect the rights of private property owners, but can also hamper investigations and are another reason why activists may feel the need to act on their own.
The Kansas Court of Appeals held in State v. Marsh that even though warrantless inspection is necessary to further the regulatory scheme, there must be some minimal sort of mechanism which protects a defendant’s right to be free of an unreasonable search and seizure. State v. Marsh , 823 P.2d 823, 827-829 (Kan. Ct. App. 1991). In Marsh , officials raided a puppy mill and collected evidence, not on a judicially ordered search warrant, but rather on an emergency administrative order issued by the commissioner of the animal health department pursuant to the state animal dealers act. The court ultimately concluded that because neither the order nor the act made any effort to limit the time, place, and scope of a warrantless search, fourth amendment restrictions applied and any evidence gathered under this scheme was inadmissible at trial.
Ecoterrorism groups can sometimes take advantage of exceptions to the Fourth Amendment. If activists witness neglect or abuse that is occurring in plain view, they can alert public officials who may act under the “plain view” exception.Under this exception, “objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence.” Galbreath v. State , 213 Ga. App. 80, 82 (1994). In Sirmans v. The State , 244 Ga. App. 252 (2000), a Humane Society employee contacted the County Sheriff’s Department about complaints they had received about Sirmans’ alleged neglect of his animals. Later, employers of both the Humane Society and the Sheriff’s department went to the property, took photographs, and took the animals that were in the worst possible condition to a veterinarian for care. The court rejected the State’s claims that the Humane Society employees were acting as private citizens, thereby avoiding the constitutional restrictions on search and seizure of private property because they were acting as agents in investigating and in concert with the County Sheriff’s Department. However, the court also found that there was evidence to support all three criteria necessary to satisfy the plain view exception. Id. at 252.
Similarly, i n McCall v. The State of Texas , 540 S.W.2d 717 (1976), the defendant objected to the admissibility of photographs depicting animals he was charged with mistreating on the grounds that they were the result of an illegal search and seizure. The court ruled that the search and seizure were conducted by the Humane Society or persons acting in their capacity as members of the society and not by police officers, and that the search in this case was not unreasonable and could have been conducted by a police officer because the dogs were kept in an open field and in plain view of neighbors and passersby. Id . at 720.
In State of North Carolina v. Nance , 149 N.C. App. 734 (2002), officers seized horses without a warrant three days after observing their emaciated condition from plain view observations. The court ruled that the knowledge officers gained from plain view observations did not constitute a search under the fourth amendment; even though such observations did not justify a warrantless seizure in this case, information, such as photographs, gathered before officers entered the property would be admissible.
There is also an “exigent circumstances” exception to the fourth amendment. The Supreme Court has approved exigent circumstances justifying warrantless seizures in several cases, suggesting “that exigent circumstances exist where the need for immediate action is so great as to outweigh the potential infringement of a defendant’s rights under the Fourth Amendment, thereby justifying the officers’ failure to obtain a warrant.” Nance 149 N.C. App. at 742. In Brinkley v. County of Flagler , 769 So. 2d 468 (2000), where a deputy and animal cruelty officer arrived to make a preliminary inquiry regarding a citizen’s complaint and ended up seizing several animals after observing the inhumane conditions under which they were being kept, the court found that the distress of the animals was apparent to the deputy and the investigator, and “any reasonable person would also have concluded that an urgent and immediate need for protective action was warranted. Accordingly, we find that entry onto the property under these circumstances was constitutionally permitted.” Id. at 471. It is not clear whether courts will consistently find that agricultural cruelty constitutes an exigent circumstance, but it is another possible avenue that activists can use to protect animals while working within the law.
In addition, to challenge a search and seizure on Fourth Amendment grounds, the defendant must prove that he had a reasonable expectation of privacy. While animal farms are privately owned, they are still regulated and subject to searches to ensure compliance. Section 704 of the Federal Food, Drug and Cosmetic Act  authorizes the Food and Drug Administration to conduct inspections of regulated business establishments. It is questionable whether a court would find that a private group concerned over animal welfare could occupy such a quasi-governmental status. The issue does, however, raise important considerations of whether a farm that provides food to the public has any reasonable expectation of privacy, which is a precondition to being protected against unreasonable searches and seizures under the Fourth Amendment.
Legal protections like the Fourth Amendment are often a double-edged sword. While the amendment gives valid protection to the rights of private property owners, it can make it more difficult for officials to investigate conditions at animal farms and enterprises and it is the animals who pay the price.
While few people would support acts of violence of serious sabotage in the name of animal welfare, it seems important to consider why activists feel compelled to commit less serious crimes, like trespassing in order to obtain photographs of conditions, and why there are not better systems in place to monitor the welfare of animals. Legislation calling for the protection of animals that does not contain effective means of enforcement are basically meaningless.
In this day and age, terrorism is on everyone’s mind, but due to the weight of the word and the connotations associated with it, terrorism should be saved for appropriate circumstances. Trespass, no matter what the intention is of the trespasser, should rarely rise to the level of terrorism. It seems ironic that politicians are willing to invest so much time and energy into passing laws against ecoterrorism, when they could prevent the need for many acts of ecoterrorism by passing more effective animal protection statutes.
 18 U.S.C. 43
 See American Legislative Exchange Council, Animal & Ecological Terrorism in America, available at http://www.alec.org/meSWFiles/pdf/AnimalandEcologicalTerrorisminAmerica.pdf (2003 ). A nearly identical draft of the model bill has been published by U.S. Sportsmen’s Alliance. See U.S. Sportsmen’s Alliance, The Animal and Ecological Terrorism Act, at http://www.wlfa.org/interactive/features/Read.cfm?ID=1129 .
 11 Animal L. 255, 256 (pdf file)
 11 Animal L. 255, 269 (pdf file)