Lauren Regan’s recap from the ShellNo “Paddle in Seattle” action May 15th-18th. Hundreds of activists created a flotilla to stop the Arctic-bound Royal Dutch Shell “Polar Pioneer” oil drilling rig.
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.
The Evolution of RICO “Extortion”
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).
Application of RICO to Animal Welfare Organizations
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.
Circus Elephant Abuse Protest
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.