On March 10, 2015, the federal Ninth Circuit Court of Appeals issued a decision in a case called CPR for Skid Row v. City of Los Angeles.… The federal appeals court found that the arrest of the organizer was unconstitutional. Even though the California law states that anyone who “willfully disturbs or breaks up” a […]
This legal primer is intended to be a basic legal resource for activists and legal observers involved in protests at or around railroads, ports, and energy facilities.
Train Bock
Use this guide to help you understand what you are getting into before taking any action. If you are arrested, you are obligating yourself to the federal and/or state criminal legal system, which may have consequences that include a conviction, jail, and/or probation. Act accordingly. If you are not able to deal with the consequences of an arrest and stand in solidarity with your community against government repression, don’t risk arrest. Activism can take many forms, so be honest with yourself about how you can be most effective in fighting for climate justice.
**Please be aware that this primer is not legal advice and does not form an attorney-client relationship.**
Download Railroads, Ports, and Utilities Legal Primer as a PDF for printing.
This Primer is meant to supplement Know Your Rights training from the Civil Liberties Defense Center and does not include a discussion of the most common charges and punishments that activists will face from criminal trespass, disorderly conduct, criminal mischief, etc.
Each State has different laws that may apply to actions on railroad, port, or energy facility property. This primer focuses on Washington and Oregon and is not meant to replace diligent research by campaigns in these or other states. Do your Research!
Railroad tracks, and usually the land extending up to 50 feet on either side, are private property of railroad corporations. Railroad police have interstate jurisdiction and can investigate and enforce all state law crimes against the railroad whether or not the officers are on railroad property.
There are special state and federal charges that may be brought against protesters interfering with railroads and trains.
Terrorist attacks and other violence against railroad carriers and against mass transportation systems on land, on water, or through the air (18 U.S.C. § 1992)
This is a big charge. It covers lots of non-violent behavior that’s not usually considered “terrorism.”
Disabling, wrecking, or derailing any on-track equipment or vehicle, as well as making tracks, depots, bridges, tunnels, signals, warehouses, etc., unusable or unworkable, qualifies as a “terrorist attack” under this statute.
You may also be charged under this statute for removing, damaging, or impairing a dispatch, crossing, or control signal, as well as interfering with drivers, engineers, or conductors with a reckless disregard for safety.
It’s also important to note that collecting information, surveiling, photographing, videotaping, or diagramming railroads or equipment to assist in any of this behavior may also qualify as a “terrorist act,” as does attempting, threatening, conspiring, or conveying false information about an attempt to do any of the above.
This is a Class C felony punishable by up to 20 years in prison and/or fines.
(Note: this charge applies to trains or mass transportation carriers involved in interstate or foreign commerce, or to individuals who cross state lines to commit the acts.)
Destruction of national-defense materials, national-defense premises, or national-defense utilities* (18 U.S.C. § 2155)
Despite its name, this charge covers lots of railroads. Injuring or destroying national-defense material, premises, or utilities is a crime, as long as you have the intent to injure, interfere with, or obstruct national defense. It’s also a crime to attempt to do so.
“Materials, premises, and utilities” include any railroad that might carry defense materials or troops — which could be most railroads.
This is a Class C felony punishable by up to 20 years in prison and/or fines.
Entering train to commit crime (18 U.S.C. § 1991)
It’s a crime to enter a train with the intent to injure property or a person, whatever that injury might look like.
This is a Class A misdemeanor punishable by up to 1 year in prison (injury to property or person) or a Class C felony punishable by up to 20 years (robbery or murder), and/or a fine.
In Washington, charges exist for:
Obstructing or delaying train (RCW 81.48.020)
This charge is pretty broad and criminalizes obstructing, hindering, or delaying a railroad car.
This is a misdemeanor punishable by up to 90 days in jail and/or a $1,000 fine.
Malicious injury to railroad property (RCW 81.60.070)
Tampering with any railroad equipment or structure is a crime in Washington. Railroad structures include embankments and culverts. Technically, you have to tamper in a way that endangers the safety of the property or people. Also note that throwing a “dangerous missile” at a railcar is covered by this statute.
This is a Class B felony punishable by up to 10 years in state prison and/or a $5,000 fine.
Sabotaging rolling stock (RCW 81.60.080)
“Rolling stock” means something rolling along a railroad track. If you take, remove, damage, alter, or interfere with any part of a railcar, and you intend to injure the railcar or deprive its owner of it, you may have committed this crime.
This is a Class C felony punishable by up to 5 years in state prison and/or a $1,000 fine.
In Oregon, entering or remaining on railroad yards, tracks, bridges, or rights of way automatically constitutes Criminal trespass in the first degree, a Class A misdemeanor punishable by up to 1 year in jail and/or a fine of $6,250.
Interfering or obstructing the service of a railroad, or using, rearranging, manipulating, or damaging railroad property automatically constitutes Criminal mischief in the first degree, a Class C felony, punishable by up to 5 years in prison and/or $125,000 fine.
Other States have different statutes or laws; make sure to research your state laws.
Note: Across the country, Criminal trespass remains the most common charge for activists involved in railroad actions. Keep in mind that, as in other types of actions, protesters may also be charged with criminal trespass, criminal mischief, disorderly conduct, or public nuisance.
Probation terms and restitution are common punishments for climate justice actions, but they are not often reported.
Ports are considered separate municipalities chartered by the state (like a city or a town). Port property is likely either owned by the port municipality, a corporation, or private individuals. State law applies in ports, but some federal charges may also apply because ports are considered critical infrastructure of commerce. Ports, like other municipal entities, have their own police forces to investigate and enforce laws concerning port property, which may include inland port property.
Port Block – Portland (Photo Credit: Portland Rising Tide)
As with railroads, there are special state and federal charges that may be brought against protesters conducting actions at ports.
Boarding vessels before arrival (18 U.S.C. § 2279)
Boarding a vessel before it has completely moored—that is, before it has come to a rest at port—is a crime.
This is a Class B misdemeanor punishable by up to six months in prison and/or a fine.
Destruction of national-defense materials, national-defense premises, or national-defense utilities (18 U.S.C. § 2155)
We saw this one under railroads, too. The charge covers injuring or destroying national-defense material, premises, or utilities, which can include port facilities. You have to have the intent to injure, interfere with, or obstruct national defense. It’s also a crime to attempt to do so.
“Materials, premises, and utilities” covers docks, wharves, piers, bridges, dams, canals, locks, boats, or buildings that could potentially be involved in moving defense material or troops.
This is a Class C felony punishable by up to 20 years in prison and/or fines.
In Washington, a charge exists for:
Obstructing navigation (RCW 88.28.050)
This charge covers obstructing the navigable portion or channel of a harbor, bay, river or stream in any way.
This is a misdemeanor punishable by a fine up to $300.
Note: some states, like Oregon, do not have any special charges dealing with ports. But, again, protesters may face typical activist charges such as criminal trespass, criminal mischief, disorderly conduct, or public nuisance. Also, if you enter a boat or building with the intent to commit a crime, you may be charged with felony burglary. Research the laws in your state.
Seneca Protest – Eugene (Photo Credit: Cascadia Forest Defenders)
Utilities, public utilities, or energy facilities are the infrastructure producing or transmitting energy to the public, or the companies that own such infrastructure. Electricity, gas, oil, water, and sewage are all utilities. Although usually privately owned, utilities enjoy special legal protections because of their importance to the general public.
There are special federal charges that may be brought against protesters interfering with utilities.
Destruction of an energy facility (18 U.S.C. § 1366)
Contrary to its name, this charge covers more than just “destruction.” It’s also a crime to damage a facility involved in the production, storage, transmission, or distribution of energy, or to attempt to do so. This includes pipelines, whether or not they are under construction or operational.
If this damage causes a significant interruption in the facility’s production (or if you cause over $100,000 in damage), this is a Class C felony punishable by up to 20 years in prison and/or a fine.
It’s a Class E felony punishable by up to 5 years in prison and/or a fine if you cause up to $5,00 in damages and no significant interruption.
Note: this charges applies even to facilities that are not functional — either under construction or off-line.
Destruction of national-defense materials, national-defense premises, or national-defense utilities (18 U.S.C. § 2155)
We saw this in the railroad and ports sections. The charge covers injuring or destroying national-defense material, premises, or utilities. You have to have the intent to injure, interfere with, or obstruct national defense. It’s also a crime to attempt to do so.
“Materials, premises, and utilities” includes electric plants, lines, gas mains, pipes, poles, buildings, or structures supplying energy to national defense premises or armed forces. There are lots of national defense premises and lots of armed forces, so this includes a lot of utilities.
This is a Class C felony punishable by up to 20 years in prison and/or fines.
Criminal penalties for damaging a pipeline or facility(49 U.S.C. § 60123)
Damaging or destroying an interstate gas or hazardous liquid pipeline facility, or a pipeline used in interstate commerce — meaning it must cross a state line, which most pipelines do — is a crime. So is attempting to do so.
This is a Class C felony punishable by up to 20 years in prison and/or fines.
However, in Washington, causing an interruption or impairment in utility service by physically damaging or tampering with utility property automatically constitutes Malicious mischief in the first degree, a Class B felony punishable by up to 10 years in prison and a fine of $20,000.
Causing a substantial risk of such interruption or impairment by damaging or tampering with utility property automatically constitutes Malicious mischief in the second degree, a Class C felony punishable by up to five years in prison and a $10,000 fine.
In Oregon, interfering or obstructing the service of a utility, or using, rearranging, manipulating, or damaging utility property automatically constitutes Criminal mischief in the first degree, a Class C felony, punishable by up to 5 years in prison and/or $125,000 fine.
Note: It’s worth repeating: in addition to the charges listed above, protesters may face typical activist charges such as criminal trespass, criminal mischief, disorderly conduct, or public nuisance.
Always remember that it’s hard to predict what charges prosecutors will bring. Just because they didn’t pursue a certain charge this time doesn’t mean they won’t in the future.
Recognize that actions such as making plans, scouting, threatening, attempting, and conveying false information are often covered by the charge.
Do your legal research in advance of any potential arrest scenario.
Assert your Rights.
Know Your Rights
What to Do When Interacting with the Police
The police interfere with people’s rights in three distinct ways: Conversation, Detention, and Arrest. Identify your situation so you know your rights, and note that if a cop gives you a warning or an order and you disregard it, you may be arrested. Anything you say can and will be used against you, so stay calm and in control.
Police officers have the right to approach and ask you questions, but absent any reasonable suspicion that you are involved in criminal activity, an officer cannot detain you. You do not have to answer any questions. You do not have to provide identification to an officer at this level unless you are driving a motor vehicle; this includes non-US citizens. Minors (under 18 years of age) do not have to answer any questions by police unless a parent or attorney is present. Determine if you are in a Level I situation by asking if you are free to leave. If you are free to leave, leave.
If an officer reasonably suspects you have been involved in a crime, they may detain you for questioning. You must identify yourself upon request at this level (name, address, D.O.B.). In most states, you do not have to produce an ID card unless you are the driver of a vehicle. Giving false information is a crime. Do not consent to a search, but if the police have probable cause or a warrant (which you should ask to see), they do not need your consent. But never verbally consent. Repeat: “I do not consent to this search.” Police may pat down your clothing if they have a reasonable suspicion that you are carrying a concealed weapon; do not physically resist but make it clear that you do not consent to any further search. Do not talk to the police. Say: “I invoke my Fifth Amendment Right to remain silent. I want a lawyer.” Police are allowed to lie to you, and anything you say (as well as complete silence) could be used against you and provide the police with probable cause to arrest you. Don’t run away even if you believe what is happening to you is unlawful; this may lead to your arrest and injury. Remember officers’ names and badge numbers, and write down everything about the incident as soon as possible.
Ask for an attorney immediately upon being taken into custody. Repeat this demand as often as necessary. You have the right to remain silent—wait for your attorney before saying anything. In most circumstances, if you refuse to provide a name and address while in custody, you will not be eligible for release or a court-appointed attorney.Within a reasonable time, the police must allow you to make a phone call to your attorney and may not legally listen to that call (but assume they will!).Do not talk to fellow arrestees regarding the circumstances of the arrest; you never know who might be listening/recording or if you’re actually talking to an informant or undercover officer. You must be provided adequate medical care while in custody. If you are on medication, inform the jail of that fact immediately and repeatedly, in writing if possible. If you have dietary restrictions for health or religious reasons, the jail may be required to provide you with alternative meals. Inform the jail of your dietary needs as soon as you arrive. If the jail fails to accommodate those needs, begin the grievance process immediately. Transgendered people have the right to be safe while in custody. Inform jail staff of issues of concern.
Either while in custody, or shortly upon your release, you will be required to appear in court for an arraignment hearing. Plead NOT GUILTY to all charges. Apply for a court-appointed attorney if you so choose. You will receive a future court date to appear. Make contact with your attorney as soon as possible. It is your responsibility to remain in contact with your attorney; this may be frustrating, but will be essential to your defense! If you choose to go to trial, it may be your responsibility to locate and secure witnesses on your behalf. If you are found guilty at trial, or elect to later plead guilty, you are allowed to delay sentencing at least 48 hours. At the sentencing hearing, you may be ordered to serve jail time, so be prepared to report to jail immediately. Probation requires you to obey all laws. A subsequent arrest while on probation could result in a separate probation violation case and additional punishment including jail.
Don’t Brag: You’re engaged in activism to protect the planet from further destruction, not to get cool points. Bragging about actions—past, present, or future—puts you and your community at risk. The government may use bragging to gather information about you, your comrades, and actions, and it may also decide to target you for getting more information. This applies to “real life” as well as electronically. Government agencies closely monitor email, Facebook and other websites, cell phones, and all electronic communications.
Don’t Gossip: Like bragging, gossiping creates a weak link through which the government can gather information about a community to use against it. Additionally, gossip opens up opportunities for the government to exploit or even create disagreements and tensions between activists. Even if the government doesn’t use your gossip to do damage, you may do that anyway; gossip can easily lead to good activists dropping out of movements. Online gossip can be especially damaging to individuals and communities, and most issues that arise within activist communities don’t need to be broadcast to the public and the government.
Operate on a “Need to Know” Basis: Only share information with others that NEEDS to be known, and only share the information with the people who NEED to know it. Any further sharing creates the unnecessary risks of information getting shared with informants, people who will snitch, and people who did not want the responsibility of knowing information. Furthermore, when you are sharing sensitive information with select individuals, be aware of who—and what—is around you. Don’t share information in the presence of anyone who does not need to know it, or in the presence of any electronic devices, security cameras, places that could be wired, etc.
Infiltrator: one who enters into a group or territory with hostile intent, usually with backing from a government agency or corporation.
Informant: one who provides information about an individual or a community to a government agency or corporation.
Provocateur: one who is employed by a government agency or corporation to create problems in a community and/or to encourage a community or individual members to engage in violent actions.
Snitch: one who turns their back on their community and takes on one or more of the above roles.
Assume that infiltrators, informants, and provocateurs are within any given activist community and respond accordingly. Be on the lookout for suspicious behavior from others, and adhere to security culture practices to help reduce the damage that these unwelcome parties can cause. If someone seems to have come out of nowhere, asks too many questions, stirs up unnecessary dissent, creates harmful gossip, pressures others to engage in violent activities, or behaves in other ways which suggest that they do not care about what is best for the cause, other activists, and the community—don’t trust them. They may be working for the government or a corporation that is eager to gather information about activists and to try to make effective groups fall apart.
In addition to being cautious about the danger posed by people who’ve been paid to work their way into activist communities, you should be careful about trusting people who may one day snitch. If for any reason you think that someone would not be able to withstand pressure from the police, FBI, or other government agency—or you think that someone would be tempted by offers of reduced sentences or money for turning on their comrades—don’t freely share information with them.
For a video of our Know Your Rights training for activists go to:
www.cldc.org/organizing-resources/know-your-rights-for-activists
Contact CLDC to arrange a training or series of trainings for your community.
If you appreciate activist resources like this primer and our Know Your Rights trainings, please consider becoming a member of the Civil Liberties Defense Center or make a donation to support CLDC’s work. Check out https://cldc.org/donate/ for more information about how you can help.
* For explanatory purposes: “The words “national-defense material” include arms, armament, ammunition, livestock, forage, forest products and standing timber, stores of clothing, air, water, food, foodstuffs, fuel, supplies, munitions, and all other articles of whatever description and any part or ingredient thereof, intended for, adapted to, or suitable for the use of the United States in connection with the national defense or for use in or in connection with the producing, manufacturing, repairing, storing, mining, extracting, distributing, loading, unloading, or transporting of any of the materials or other articles herein before mentioned or any part or ingredient thereof.
The words “national-defense premises” include all buildings, grounds, mines, or other places wherein such national-defense material is being produced, manufactured, repaired, stored, mined, extracted, distributed, loaded, unloaded, or transported, together with all machinery and appliances therein contained; and all forts, arsenals, navy yards, camps, prisons, or other installations of the Armed Forces of the United States.
The words “national-defense utilities” include all railroads, railways, electric lines, roads of whatever description, railroad or railway fixture, canal, lock, dam, wharf, pier, dock, bridge, building, structure, engine, machine, mechanical contrivance, car, vehicle, boat, aircraft, airfields, air lanes, and fixtures or appurtenances thereof, or any other means of transportation whatsoever, whereon or whereby such national-defense material, or any troops of the United States, are being or may be transported either within the limits of the United States or upon the high seas or elsewhere; and all air-conditioning systems, dams, reservoirs, aqueducts, water and gas mains and pipes, structures, and buildings, whereby or in connection with which air, water, or gas may be furnished to any national-defense premises or to the Armed Forces of the United States, and all electric light and power, steam or pneumatic power, telephone and telegraph plants, poles, wires, and fixtures and wireless stations, and the buildings connected with the maintenance and operation thereof used to supply air, water, light, heat, power, or facilities of communication to any national-defense premises or to the Armed Forces of the United States. [From 18 U.S.C. § 2151]
This information has been compiled to give social justice activists a brief understanding of trademark and copyright law as it relates to common questions and concerns that arise in social justice organizing.
The FBI’s Uniform Crime Reporting (UCR) program, which collects and publishes crime statistics, has developed an online database tool to make it easier to search for crime data going back to 1960.
The online database contains crime offense statistics from 1985 to 2009 (the most recent reporting year) for city law enforcement agencies with populations of 10,000 and over, and for county agencies with populations of 25,000 and over. Estimated crime counts from 1960 to 2009 for national and state-level data are also included in the UCR Data Tool. (Because not all law enforcement agencies provide data, the FBI estimates some crime counts.) Figures for arson, which was added to the UCR program as a Part I offense in 1979, are not included in the database.
This service is provided to you at no charge by Federal Bureau of Investigation.
http://www.fbi.gov/news/stories/2010/november/ucrtool_112910/ucrtool_112910
Federal Government information:
US Dist Court for Northern District of California local rules: /www.cand.uscourts.gov/
US Dist Court for Oregon local rules: http://www.ord.uscourts.gov/en/local-rules-of-civil-procedure-2012
Federal Code of Regulations: www.leginfo.ca.gov/calaw.html
California Code:
Oregon Revised Statutes: http://landru.leg.state.or.us/ors/
Oregon Courts:
Pacer: Federal Court Document Website: http://pacer.psc.uscourts.gov
Lane Co., OR Attorney Jail Visiting: www.co.lane.or.us/Sheriff_Corrections/attyhrs.htm
Comprehensive listing of legal news groups by topic: home.earthlink.net/~parajuris/CounselQuest/usenet.htm
Links and searchable databases on MANY legal topics: http://e-zlegal.com/links.html
Practice Areas: Asylum Law, Death Penalty: www.healthlaw.org
Human Rights, Prisoners’ Rights: www.probono.net/index.cfm
Trial Lawyers for Public Justice:
National Lawyer’s Guild: www.nlg.org
Downloadable Know Your Rights Info
Federal Investigators and Your Rights: www.cs.oberlin.edu/students/pjaques/etext/ifanagentknocks.html
General Protest Information: www.protest.net
First Amendment library: www.firstamendmentcenter.org/
Free Speech Radio News: www.fsrn.org
Bill of Rights Defense Committee: www.bordc.org
Homeland Security Complaints and Redress Procedures: DHS Traveler Redress Inquiry Program (DHS TRIP)
Electronic Frontier Foundation: www.eff.org
Look through these LINKS to find materials that you may need:
Basic Know Your Rights Information
Know Your Rights Brochure (English)
Know Your Rights Brochure (Spanish)
Other Know Your Rights Information
Immigrant PowerPoint (English)
Immigrant PowerPoint (Spanish)
Immigrant Teen PowerPoint (English)
Transdermal & Subdermal Piercings
Resources Created by the CLDC
American Legislative Exchange Council (ALEC)
Copyright and Trademark Information – Using Corporate Logos
Grand Juries are an Abuse of Power
Videotaping Police During Political Demonstrations
Other Resources
Abolish the AETA!
Blueprint for Inclusive Health Care for Transgender Workers
Guide to Corresponding with Prisoners
Tasers and the Police (English)
Tasers and the Police (Spanish)
Transgender Direct Action Guide
Your Right to Demonstrate & Protest
We strive to educate the public, and particularly communities of color or other higher risk and vulnerable communities, by conducting “know your rights (KYR)” trainings throughout the country. Each workshop is tailored to the needs of the particular group of participants.
CLDC’s Executive Director, Lauren Regan, conducts speaking tours throughout the year on a variety of educational topics including: the USA PATRIOT Act, the Military Commissions Act, the Animal Enterprise Terrorism Act, grand jury procedures, the Freedom of Information Act, and other threats to our civil liberties. The CLDC focuses on challenging and changing these statutes when they are used to censor or eliminate the rights of citizens engaged on political expression.
Ms. Regan has appeared numerous times on the national Democracy Now! program and is frequently quoted in over 250 national and local media outlets including Rolling Stone, the Guardian of London, the New York Times, and many more.
At the invitation of the National Lawyers Guild, Ms. Regan spoke in New York about “Green Scare” prosecutions; spoke at Yale University’s “Rebellious Lawyering Conference,” and recently the University of California Los Angeles Law School invited her to speak on the history of COINTELPRO, government repression, and activism.
Other Public Speaking Topics Include:
The CLDC offers these presentations to universities, civic groups, conferences, social change and environmental activists, conservatives, and religious groups.
To schedule a presentation, please contact us!
Strategic Lawsuits against Public Participation, also known as SLAPP suits, ordinarily arise out of defamation lawsuits. Defamation is a common law tort whereby one citizen can sue another citizen for damage to reputation. The difference between an ordinary defamation lawsuit and a SLAPP suit is that the plaintiff in a SLAPP suit does not generally plan to actually win their lawsuit. Instead, SLAPP suits are intended to intimidate, censor, disparage, burden, and punish activists for exercising their right to free speech and protest. SLAPP suits are used against individuals who may have meager resources and are unable to afford the legal counsel necessary to help them protect their rights.
As one court has stated:
SLAPP suits function by forcing the target into the judicial arena where the SLAPP filer foists upon the target the expenses of a defense…The purpose of such gamesmanship ranges from simple retribution for past activism to discouraging future activism…Those who lack the financial resources and emotional stamina to play out the “game” face the difficult choice of defaulting despite meritorious defenses or being brought to their knees to settle…Persons who have been outspoken on issues of public importance targeted in such suits or who have witnessed such suits will often choose in the future to stay silent. Short of a gun to the head, a greater threat to First Amendment expression can scarcely be imagined.
Gordon v. Marrone, 590 N.Y.S. 2d 649, 656 (N.Y. Sup. Ct. 1992
The use of SLAPP suits as a harassment tool became so pervasive that beginning in the 1990’s, some states began adopting laws – commonly referred to as “anti-SLAPP” laws – to protect a citizen’s rights to engage in free speech. Not all of these laws are alike, but many of these anti-SLAPP laws offer defendants the opportunity to recoup their legal fees if they prove that they have been forced to defend themselves from a frivolous lawsuit. CLICK HERE to see if your state has anti-SLAPP laws and to get updates on progress of federal anti-SLAPP legislation. However, even if the defendant ultimately prevails with an anti-SLAPP suit, the defendant will likely have wasted multiple years defending their case. Thus, exoneration from a SLAPP suit, if it comes at all, will not come without years of time wasted on litigation and emotional turmoil, as well as the loss of thousands of dollars if a defendant is not lucky enough to live in the few states that have anti-SLAPP laws.
In the last twenty years, animal rights activists in particular have been a target of these suits, some for merely posting a blog on their personal website, and others for their acts of protest and political demonstration. The threat of these lawsuits is enough to make any social change advocate hesitate before expressing their opinion, in effect illegally chilling that individual’s exercise of the First Amendment.
CLDC is a national expert in defending activists and their campaigns from the threat of unconstitutional SLAPP suits. CLDC has a large brief bank and legal resources available for lawyers. If you are an attorney representing environmental or social change activists, please contact us. If you are an activist or organizer and a SLAPP suit has been filed against you, contact the CLDC immediately for assistance. In most states, you only have 30 days from when you were served with the lawsuit to file a response asserting constitutional defenses. CLDC provides trainings to activist campaigns on SLAPP suits.
Because the First Amendment protects our right to free speech, the common law legal claim of defamation can only be used against activity that is not protected speech under the Constitution. Essentially, there is no defamation of a public figure or concerning a matter of public concern unless the speaker knowingly and recklessly made a false statement with a “malicious intent” that caused injury to the affected individual. See New York Times Company & Ralph Abernathy et al. v. Sullivan, 376 U.S. 254 (1964). However, in the realm of SLAPP suits, the corporations and individuals who file the lawsuits routinely ignore these Constitutional safeguards. For example, even though animal welfare advocacy is an issue of public interest that receives Constitutional protection, see e.g. Dienes v. Associated Newspapers, Inc., 137 Mich. App. 272, 276, SLAPP suits against animal welfare advocates may be filed and proceed for years without any proof that statements made against them were false or made with a reckless disregard for the truth.
Letter to Editor in Scientific Journal:
Immuno A.G. v. Moor-Jankowski, 77 N.Y.2d 235, 567 N.E.2d 1270 (1991)(PDF)
In 1983, Dr. Shirley McGreal, who was chair of the International Primate Protection League, submitted a letter to the editor of the Journal of Medical Primatology. The letter criticized Immuno AG, a multinational corporation based in Austria, and their plans to establish a facility in Sierra Leone in order to conduct hepatitis research using chimpanzees. In January of 1983, Dr. J. Moor-Jankowski, the editor of the journal, submitted a copy of the letter to the corporation for comment or reply and specifically stated that the journal would not publish the letter if the allegations could be proven false. The corporation never provided proof that the allegations were false, and the journal eventually published the letter.
In December of 1984, the corporation sued the author of the letter, the editor of the journal, and six other defendants. As the New York high court stated in its opinion eventually dismissing the case after seven years of litigation, the case was a “libel action against the editor of a scientific journal, essentially for his publication of a signed letter to the editor on a subject of public controversy.” Although the lawsuit had initially been filed against eight defendants for two separate publications, the time and money-consuming litigation eventually exhausted seven of the defendants to the point that they paid off the corporation with “substantial sums” to be freed from the litigation. The editor of the journal was the only surviving fighter and had to endure seven years of litigation, including appeals to the U.S. Supreme Court, his own 14 day deposition, and hundreds of thousands of dollars of legal expenses. To the chagrin of all of the defendants who agreed to settle with the corporation, the New York high court ultimately dismissed the lawsuit because most of the statements were Constitutionally protected as statements of personal opinion. Additionally, the corporation failed to prove that any of the factual statements were actually false.
Schumacher v. City of Portland, 2008 WL 219603, No. CV-07-601-MO (D. Or. Jan. 23, 2008)(PDF)
Starting in 2005, animal welfare advocates held weekly protests outside of Schumacher Furs and Outerwear, a retail store in Portland, Oregon. The protests usually involved a few dozen activists who would hold up signs with anti-fur messages, chant slogans, and play videos on portable televisions depicting animals being tortured and skinned alive for their fur. After two years of these weekly protests and public education campaigns that were successfully encouraging the public to choose more humane way to clothe themselves, Schumacher sued the City of Portland, In Defense of Animals, Animal Liberation Front, People for the Ethical Treatment of Animals, Inc., and several individuals, for claims of Intentional Infliction of Emotional Distress, Interference with Business Relations, Interference with Contract, Public Nuisance, and Trespass. The company argued that the city was a necessary party because it had allegedly failed to protect the company from illegal protest activity. The company requested damages from the city in the amount of $6.2 million, and from all the other parties for $6.6 million each. Although there was evidence of illegal conduct related to the protests, the company had no evidence that any of the named defendants were responsible for illegal conduct. Accordingly, the activists asked the court to dismiss the lawsuit under Oregon’s anti-SLAPP law, ORS 31.150.
The court refused the company’s request to impute illegal conduct to the activists, stating “I find it was not objectively reasonable to sue the organizations and individuals [that] Plaintiffs were able to identify at the protests, or whose publications were identified as in the case of PETA, on the hunch that those organizations and individuals must be involved in the illegal activities of other protestors Plaintiffs could not identify. . . I granted the Motions to Strike because Plaintiffs did not produce evidence the prevailing defendants did anything illegal.” Additionally, the court vigorously chastised the company for filing a SLAPP suit:
Although Plaintiffs may have had meritorious claims against people whose names they did not know, or even against the City of Portland, they sued people against whom they had no evidence for $6.6 million, sought to restrict their First Amendment speech rights, and disparaged their reputations with accusations of criminal conduct, terrorist affiliations, and responsibility for “shutting down” a business whose financial solvency was questionable before the protesting activities began. This was an extraordinary abuse of the litigation process. . . . I find that awarding fees in this case will properly serve to deter putative plaintiffs from filing multi-million dollar suits against non-profit groups and private citizens engaged in First Amendment activities . . . .
Accordingly, the court dismissed the suit, and awarded legal expenses to the activists in the amount of almost $100,000.00.
Comins v. VanVoorhis, Case No. 2009 CA 15047-0 (PDF)
(9th Judicial District Circuit Court, Orange County, Florida)
In 2008, a blogger named Matthew VanVoorhis posted a YouTube video link to a video of a man named Chris Comins shooting two dogs, along with two articles expressing his concern, anger, and opinion on the incident. Comins was later charged with two counts of felony animal abuse for this incident. Despite the video documentation of the event and the pending felony charges, Comins sued VanVoorhis for defamation and “tortuous interference with a business relationship,” and has requested an unspecified amount of damages that at least exceed $15,000. Comins argues that the blog postings “contain numerous factual inaccuracies, gross exaggerations and damaging statements regarding Plaintiff and the incident.” He argues that the “blog posts are designed to incite violence and pose an imminent threat to Plaintiff and employees of his company.” Van Voorhis has filed a motion to dismiss the complaint and has filed counter claims in the lawsuit arguing that the lawsuit violates his First Amendment rights.
In 1970, Congress enacted the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961, ostensibly to curtail the criminal activities of the mafia. In the forty years since RICO was enacted, the application of the law has extended far beyond the activities of loansharks and the “Don,” and into Constitutionally protected protest activities. Over time, the federal courts have gradually made the original intent of RICO – i.e. stopping the criminal activities of the mafia – less and less significant. Instead, the courts have issued interpretations of RICO that consistently ignore this intent and allow the law to be used as a way to silence advocates for social change. Animal welfare organizations such as People for the Ethical Treatment of Animals (PETA), the American Society for the Prevention of Cruelty to Animals (ASPCA), the Humane Society of the United States (HSUS), as well as many others have been victims of RICO prosecutions.
Thus, RICO has degenerated into a weapon that government and industry actors can use against advocates for social change – a weapon that can inflict millions of dollars in court fees and fines, as well as potential jail time, for mere acts of protest. Organizations and individuals that engage in protest for social change, especially protest against businesses and corporations that exploit animals, are now exposed to the threat of RICO charges, fines, and incarceration. Undoubtedly, this application of RICO results in a chilling effect on all of our First Amendment rights.
In 1950, the U.S. Attorney General held a conference that explored growing national concern with the increased criminal activities and influence of the mafia. As a result of the conference, several committees were formed to develop a legal strategy to address this concern. These committees recommended legislation that would act as a broad net to catch all possible criminal activity committed by mafia members. In 1970, Congress enacted RICO as Title IX of the Organized Crime Control Act. The law contains a long, broad list of activities that qualify as “racketeering,” and thus as federal crimes under RICO if the government can establish a “pattern” of more than one such act.
A violation of RICO can lead to a prison sentence of 20 years to life, as well as fines and permanent government seizure of personal property. In addition to these criminal penalties from the government, the “victim” business/individual in a RICO case may also file a civil lawsuit to recover three times the money damages actually incurred (referred to as “treble damages”), as well as attorneys’ fees, for itself. These treble damages and attorneys’ fees provisions are attractive to businesses and individuals looking to collect huge payoffs.
RICO’s broad definition of racketeering has allowed the Act to be consistently misused and applied to advocates for social change with no connection whatsoever to the mafia and organized crime. Often the purported basis for applying RICO to these political activists is that their activities fall within the loose definition of “extortion” under section 1961.
Generally, courts will look to a federal law known as the Hobbs Act in order to determine if a criminal act qualifies as an act of extortion. The Hobbs Act, 18 U.S.C. § 1951, defines extortion as “obtaining of property from another, without his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.” The U.S. Supreme Court has interpreted this definition to apply even if the alleged extortionist doesn’t actually receive a direct benefit by obtaining the property at issue, United States v. Green, 350 U.S. 415 (1956), and even if the alleged extortionist does not have any economic motive to commit the action, see Scheidler v. National Organization for Women, Inc., 547 U.S. 9, 14-15 (2006). However, the U.S. Supreme Court has also held that extortion must still include some actual obtaining of property.
See Scheidler v. National Organization for Women, Inc., 547 U.S. 9 15 (2006).
Undercover investigation of animal testing laboratory
The initial expansion of RICO primarily affected anti-abortion protestors engaged in physically violent attacks on abortion clinics. However, in 1997, People for the Ethical Treatment of Animals (PETA) became the first advocacy group that was not an anti-abortion group to be sued under RICO. Huntingdon Life Sciences – a business that engages in controversial exploitative animal testing practices such as live dissection and aggressive physical abuse of captive domestic animals – filed a civil RICO lawsuit against PETA after PETA publicly exposed the company’s extraordinarily cruel practices.
Huntingdon Life Sciences alleged that PETA had engaged in a “pattern of racketeering activity” prohibited by RICO by (1) conducting undercover investigations of its animal testing laboratories, including most recently an eight month undercover investigation in one of the company’s New Jersey laboratories, and then (2) publicly releasing video footage and other documentation of the incredibly cruel and abusive practices observed by the PETA investigator.
See Huntingdon Life Sciences, Inc. v. Rokke, 986 F. Supp. 982, 984 -985 (E.D. VA. 1997)
The practices documented by the PETA investigator included breaking the legs of domestic dogs and then administering osteoporosis drugs to the dogs to see how the bones healed. The tapes also showed workers routinely slamming monkeys into cages, and suspending monkeys in mid-air while pumping test substances into their stomachs. One technician stuffed a lotion bottle into a monkey’s mouth as a “joke.” Perhaps the most alarming was a video that showed a terrified and alert monkey kicking and screaming as it was being strapped down to an operating table. Although the monkey was given some sedatives, it was still conscious as lab technicians cut its body open and removed its organs.
When PETA released these videos to the media, the public immediately let Huntingdon Life Sciences know that its cruel and exploitative practices were outrageous and unacceptable. Companies that had commissioned Huntingdon Life Sciences to test their products cancelled their contracts and investors dumped their stocks, resulting in losses of millions of dollars to the corporation. PETA had also turned over the videotapes to the U.S. Department of Agriculture (USDA). The USDA performed a subsequent investigation of Huntingdon Life Science’s laboratory practices, and ended up charging the facility with 23 counts of violating the Animal Welfare Act. See In Defense of Animals v. U.S. Dept. of Agriculture, 656 F.Supp.2d 68, 82 (D.D.C. 2009) (court ordering that USDA and Huntingdon Life Sciences had to disclose the records of this investigation to the public under the federal Freedom of Information Act because “defendants have failed to justify the withholding of the records”).
After filing the RICO lawsuit, Huntingdon Life Sciences convinced the court to issue a gag order to stop PETA from publicly disseminating the results of its investigation, and the court held PETA in contempt of court for allegedly violating this order. When PETA then asked the court to dismiss the RICO claims, the court refused its request, finding that the “eight month investigation by Rokke [PETA’s investigator] and the subsequent transportation of documents for use in press releases and direct mailings” were sufficient acts to constitute crimes of “racketeering” that amounted to a “pattern of racketeering” under RICO when considered in conjunction with past PETA investigations. More specifically, the court found that the acts of the PETA investigator that fit within the scope of RICO were that she “(1) participated in the interstate transportation of documents stolen from Huntingdon” and “(2) violated the Travel Act by traveling to Ohio to promote the extortionate scheme . . . .” Apparently, the court was referring to the undercover investigation in general as the “extortionate scheme.” The case eventually settled out of court.
In 1999, Jacques Ferber, Inc., a furrier located in Philadelphia, filed the second RICO civil lawsuit against animal welfare organizations and several individual animal rights advocates alleging that the groups had engaged in a pattern of racketeering activity that included conspiring to shut down the furrier. Jacques Ferber, Inc. v. Bateman et al., Civ. No. 99-2277 (E.D. PA 1999). The lawsuit alleged that the weekly protests that the activists had participated in for four years were “interfering with his legitimate business enterprise” and this amounted to a federal crime of conspiracy and racketeering under RICO. Although there was evidence that individual protestors had broken windows, poured acid on windows, and glued the store’s front entrance shut, there was no evidence of which individual protesters had committed the acts, or that any of the named defendant organizations were in any way responsible for these activities. In addition to alleging extortionate vandalism in their lawsuit, the company also alleged that the activists had disseminated “defamatory stickers and signs” outside of the store, as part of their effort to “interfere with business.” These “defamatory stickers and signs” were used as one of the predicate acts that constituted the larger “extortionate scheme,” and the company sought $50,000 in damages for stickers and signs alone. In response to the lawsuit, the activists agreed to refrain from property destruction, property defacement, trespassing, or disorderly conduct in connection with lawful demonstrations, entering the store or residence of the company’s employees, attempting to initiate communicate with minor children of the company’s employees, blocking access to the store, committing other illegal activities, and from encouraging other to commit any of these activities. The case was then dismissed.
Nearly 15 years after the first RICO case was filed against animal welfare activists, RICO is still being used against these activists. In 2010, Feld Entertainment, Inc., the company that owns Ringling Bros. and Barnum & Bailey Circus, filed a federal civil RICO lawsuit against the Humane Society of the United States (HSUS), the American Society for the Prevention of Cruelty to Animals (ASPCA), the Animal Welfare Institute, the Fund for Animals, the Animal Protection Institute, former circus elephant keeper turned elephant welfare advocate Tom Rider, and leading animal law firm Meyer, Glitzenstein & Crystal. The lawsuit alleges that “In order to bring a philosophical debate into federal court to advance a radical ‘animal rights’ agenda and in order to garner publicity and raise money to support their various activities, defendants [], acting in concert with their attorneys, [], devised and participated in an illegal and fraudulent pattern of actions to circumvent well established limits on the Article III jurisdiction of the federal courts.” See complaint PETA vs FELD.
Essentially, the company argues that that these animal rights groups and their attorneys participated in a pattern of racketeering activity that includes bribery, paid witnesses, and mail fraud across interstate lines in the process of litigating a case against the company to protect Asian elephants under the Endangered Species Act. The Endangered Species Act lawsuit alleges that Ringling Bros.’ routine beating of elephants with bull hooks, and its chaining of elephants for long periods of time constitute the unlawful “take” of these endangered animals in violation of the Endangered Species Act. See ESA Complaint. In February – March, 2009, the U.S. District Court for D.C. held a six-week long trial of the case challenging Ringling Bros.’ treatment of Asian elephants in the circus. Several former Ringling Bros. employees testified that the circus routinely strikes elephants with sharp bull hooks and keeps the elephants chained for the majority of their lives. The plaintiffs submitted voluminous evidence, including internal FEI documents and USDA documents, supporting their claims, and some of the world’s leading experts on elephants testified that Ringling Bros.’ routine practices “wound,” “harm,” and “harass” the elephants in violation of the Endangered Species Act. The case is currently on appeal in the D.C. Circuit Court of Appeals.
In addition to the apparently retaliatory RICO lawsuit, Feld Entertainment, Inc. has a history of attempting to dismantle animal rights groups that campaign to expose its cruel treatment of circus animals. In the past, Feld Entertainment has teamed up with the CIA and spent millions of dollars in an attempt to infiltrate animal welfare groups like PETA and In Defense of Animals. See complaint PETA V FELD (PDF). Operatives illegally recorded conversations and obtained highly confidential bank account numbers and bank information, credit card information, confidential internal financial records, and personnel information.
The Green Scare is the federal government’s ongoing prosecution of environmental and animal rights activists. The name relates to the Red Scare of the 1940’s and 1950’s. It includes the government, corporations, and politicians labeling activists as “ecoterrorists” and national security threats and giving them to long prison sentences.
You can read more about it in Rebecca K. Smith’s article “Ecoterrorism”, a Critical Analysis of the Vilification of Radical Environmental Actitists as Terrorists
For many it has come to be represented by Operation Backfire, the Shac7, Eric McDavid, Rod Coronado, Tre Arrow, and the Animal Enterprise Terrorism Act.
“A massive and prolonged effort to change the social, political, and economic structure of a local environment cannot be characterized as a violent conspiracy simply by reference to the ephemeral consequences of relatively few violent acts.”
Justice John Paul Stevens.
NAACP v. Claiborne Hardware, 458 U.S. 886, 933 (1982)
UPDATE:
Operation Backfire defendent Rebecca Rubin will be sentenced on January 27, 2104
Government Sent Brief – Rebecca Rubin
Rebecca Rubin Plea Agreement
In light of most recent events, Activists need to know how to protect themselves. Here you will find a list of helpful materials surrounding Grand Juries. Please contact us if there is something more that you would like to see on this page.
Grand Jury tools:
The public is entitled to limited information about any current grand jury. To obtain that information, you need to send a public records request to the Clerk of the Court for the federal court where the grand jury is taking place. Below please find a template for the information that is normally provided by the Courts. This information will provide you with (1) the date the grand jury began (empaneled) so that you can determine when the grand jury period will expire (unless extended); (2) how often the grand jury is scheduled to meet; (3) whether it is a regular or special grand jury; (4) whether there are any special jury instructions the Court provided to the grand jury to use while determining whether an indictment should issue.
Dear Clerk of the Court:
I am requesting public information regarding the current empaneled federal grand jury in the [Western Washington District.] Specifically, I would like the Court Order directing empanelment of the grand jury, the letter to prospective grand jurors, and any special jury instructions issued by the Judge.
Please do not hesitate to contact me if you have any questions or concerns. Time is of the essence, and thus I would appreciate this information as soon as possible.
Thank you very much for your time,
(your name here)
