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Liberty and Justice NewsTracker

AG Opinion: Abuse-Reporting Bill Has Problems

Tennessee’s top lawyer has declared that a controversial measure purporting to prevent animal cruelty is “constitutionally suspect.”

Republican Gov. Bill Haslam has said he wouldn’t decide whether to sign the legislation until after he got state-sponsored legal advice. Attorney General Robert Cooper issued the opinion Thursday.

Cooper and his staff wrote that the much-debated legislation potentially violates principles of freedom of the press and the right against self incrimination. Also suggested in the attorney general’s opinion, written upon the request of Nashville House Democrat Mike Stewart, is that the measure, House Bill 1191, appears not-so-subtly designed to target a particular group — namely, animal rights activists — rather than to address a matter of genuine state concern through a neutral law of general applicability.

Sponsored in the state House by Republican Andy Holt of Dresden and in the Senate by Somerville Republican Dolores Gresham, the bill requires anyone who films or photographs animal abuse “for the purpose of documenting the offense” to hand the material over to unspecified law enforcement authorities within 48 hours. It passed handily in the Senate, but by only one vote in the House of Representatives. Both chambers are controlled by Republicans.

“HB1191’s requirements related to both the reports and the recordings impact speech rights protected by the First Amendment,” concluded the state’s lawyers. “In that regard, there are three potential objections on the validity of the restrictions and requirements contained in HB1191. First, the provisions in HB1191 are arguably underinclusive relative to the governmental interests that the bill seeks to protect. Second, the requirement to provide any recordings to law enforcement authorities could be construed by the courts as an unconstitutional prior restraint. Third, the reporting requirements could be found to constitute an unconstitutional burden on news gathering.”

The “underinclusiveness” objection raised in Cooper’s opinion relates to the scope of the bill. The measure appears to target only those who are looking to document and expose animal cruelty, rather than anyone who films or witnesses animal abuse.

By way of explaining the constitutional red flag raised when the specter of underinclusiveness comes up in a law, Tennessee’s attorney general quotes a 2011 U.S. Supreme Court decision striking down a California effort to ban violent video games. In the high-court’s opinion, penned by Justice Antonin Scalia, “Underinclusiveness raises serious doubts about whether the government is in fact pursuing the interest it invokes, rather than disfavoring a particular speaker or viewpoint.”

In Tennessee, that’s been a central criticism of the “Ag Gag” bill all along. Opponents rejected claims by the bill’s sponsors that their overriding concern is to stop abuse of animals. Senate Majority Leader Mark Norris, himself an attorney, went so far as to call the measure “a sham bill.”

Cooper, a Democrat, states that “(t)he underinclusiveness of HB1191’s reporting duty, which applies to recordings but not to other documentary or eyewitness evidence of abuse, creates an issue about whether the government is disfavoring particular persons who seek to communicate by creating recordings of livestock cruelty, rather than pursuing its stated interest in having immediate reporting of livestock cruelty in order to facilitate law enforcement investigations.”

Reached by phone Thursday evening, Rep. Holt said he “respectfully disagrees” with Cooper’s assessment. Holt, a hog farmer from Weakley County, added though that “this argument will not be lost on animal rights. If it’s lost at all, it will be on constitutionality.”

Haslam has until May 15 to sign the bill, veto it or let it become law without his signature.

CORRECTION: An earlier version of this story mistakenly identified the author of the U.S. Supreme Court case referenced as Chief Justice John Roberts.

Amelia Morrison Hipps and Mark Engler contributed to this report.

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Liberty and Justice NewsTracker

DA, Sheriff Criticize Animal-Cruelty Reporting Measure

While Gov. Bill Haslam weighs his options regarding legislation sitting on his desk that opponents have dubbed the “Ag Gag” bill, the chorus of condemnation continues to grow.

Earlier this week two prominent Tennessee crime-fighters told TNReport they have concerns about the bill from a policing standpoint. The state’s longest serving district attorney as well as the president of the Tennessee Sheriff’s Association are saying the legislation is flawed to such degree that enforcement and prosecutions would be problematic if it becomes law.

The bill, sponsored in the state House by Andy Holt, R-Dresden, and in the Senate by Somerville Republican Dolores Gresham, requires anyone “who intentionally” films or photographs animal abuse “for the purpose of documenting the offense” to hand the material over to law enforcement within 48 hours.

It passed handily in the Senate, but by only one vote in the House of Representatives. Both chambers are dominated by the GOP. The governor is also a Republican.

District Attorney General Tommy Thompson, Jr. of the 15th Judicial District called the legislation “an obstruction to justice.”

“This bill is more an industry protection act. It’s a way to prevent people from finding out, because you have to get the trust of the people who are doing it,” said Thompson, a Democrat who for 36 years has served as chief criminal prosecutor for Wilson, Trousdale, Smith, Macon and Jackson counties.

“The people who are doing it are smarter with the law than a lot of the people who are enforcing it,” he added. “They aren’t going to do anything where you can see them until you gain their trust.”

However, a spokeswoman for the Tennessee Farm Bureau, which supports the legislation, told TNReport the measure has been unfairly characterized by media and opponents.

Noting that the bill was initially titled the “Livestock Protection Act” by one of the sponsors, Farm Bureau Executive Vice President Rhedona Rose said the purpose and intent of it is to protect the animals and stop the abuse of the animals. Calling it “Ag Gag” misrepresents what the bill in fact does, she said, which is require people who knowingly witness and record animal abuse to promptly report it to law enforcement officials who can then take steps to stop it immediately.

Rose also pointed to Tennessee’s relatively high score on an Animal Legal Defense Fund assessment of all 50 states’ laws relating to animal treatment as evidence of “how strong we are in dealing with animal abusers.”

“I think the farm community is very frustrated that because of a few bad actors, the entire agriculture farm community is getting a black eye,” Rose said. “They are ready to deal with those who are in fact causing that image and feel like that folks that have proof of that image and knowingly and intentionally go out and capture the proof of that image, they could get it to law enforcement to be dealt with quickly.”

Nevertheless, vocal opponents of the measure, including Republicans like Senate Majority Leader Mark Norris and House Consumer and Human Resources Subcommittee Chairwoman Susan Lynn, have said the bill seems more like a thinly veiled effort to stifle the activities of animal rights activists — that the legislation would in effect “gag” them in the interest of protecting ag and livestock producers.

Thompson, the district attorney, said putting together enough evidence for a prosecution to occur would in fact require more than just one recorded instance of animal abuse. He compared the undercover operations of documenting animal abuse to undercover drug operations.

“If the drug task force had to report their buys within two days, first of all, you would never have enough informants who could get in like that,” he said. “Secondly, if you have to report within two days, the person comes to court and says, ‘That was just the first time I ever did it. I made a mistake. I’m sorry,’ and he may be the biggest drug dealer in town.”

Thompson, who also raises cattle, said the drug task force always tries to do three or four buys from a dealer so they can’t claim it was a casual sale when they come to court.

“You can’t just stand there and take pictures in two days,” said Thompson. “You have to work awhile and let them trust you before you get in position to where the real abuse is going on.”

Thompson added that the bill “doesn’t really have any teeth to it, because anything that is a Class C misdemeanor by fine only gets moved to the bottom of the priority list for law enforcement. There’s so much more important stuff going on.”

Putnam County Sheriff David K. Andrews pretty much agreed with Thompson that the bill has no real teeth and that capturing a one-time incident is basically futile.

“There’s no jail time to it. If a judge issues a pick-up on someone, law enforcement is going to make an effort to pick that person up. But then when you pick him up, what do you do with him?” said Andrews, who last summer was elected to lead the Tennessee Sheriff’s Association.

“If he can’t pay it and won’t pay it, what are you going to do? You can’t put him in jail.”

While the Sheriff’s Association has not taken an official active role in the legislation, Andrews said he used to work undercover and that if you buy drugs from someone just one time, “you might as well not go to court.

“They’re going to say, ‘Well, judge, I really just done this the one time. I was coerced or this or that.’ It sort of takes the teeth out of your prosecution,” Andrews said.

The governor is awaiting an opinion on the bill’s constitutionality from the state attorney general before deciding whether to signs it, veto it or let it become law without is endorsement.

Amelia Morrison Hipps may be reached at amhipps@downhomepolitics.com, on Twitter @DwnHomePolitics or at 615-442-8667.

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Liberty and Justice

‘Ag-Gag’ on Guv’s Desk; AG Yet to Opine

Rep. Mike Stewart, who voted against the so-called “ag-gag” bill, is still waiting for an Attorney General’s opinion on the constitutionality of the legislation, which arrived on Gov. Bill Haslam’s desk only just at the end of last week.

Haslam has until May 15 to veto it, sign it or let it become law automatically without his endorsement.

The bill, sponsored in the state House by Andy Holt, R-Dresden, and in the Senate by Somerville Republican Dolores Gresham, requires anyone who films or photographs animal abuse to hand the material over to law enforcement within 48 hours. The Legislation passed both chambers last month.

Even though the bill passed the House on April 17, its last hurdle in the General Assembly, the speakers of the two chambers did not sign it until May 1.

Kara Owen, deputy chief of staff for communications and policy for House Speaker Rep. Beth Harwell, said it was a logistics issue. She said it was not uncommon when there are so many bills that pass the last few days of the session for there to be a delay in having them engrossed and sent to the proper speaker’s office for his or her signature.

On the day the bill passed the House, Stewart, a Democrat, asked for a state attorney general’s opinion “to see if it violates the first amendment as it relates to freedom of the press and how it will affect the proprietary rights to their work product such as video or photographs taken as part of the undercover investigation.”

As of Tuesday morning, no opinion had been issued by Attorney General Robert Cooper’s office. However, the Nashville legislator’s assistant Delano Brent said she did receive an email from the AG’s office that stated an opinion could be issued by Friday.

Supporters contend that the measure is meant to encourage whistleblowers to come forward and stop illegal treatment of animals as quickly as possible. Critics, however, argue that it is actually an industry protection law, created to stop journalists and animal rights groups from gathering enough evidence to prove cases of continuing abuse.

Holt told TNReport on the legislative session’s final day that after discussing the measure with Haslam, he’s confident that it would become law. He also defended the intentions behind the legislation, charging that the Humane Society of the U.S. was demonizing it to raise money.

“The truest intent of this bill is to protect animals – especially from ongoing investigations like we’ve seen many times in the past from HSUS,” Holt said. “This is a radical animal activist group that raises literally hundreds of millions of dollars.”

Rep. Susan Lynn, a Republican, voted against the bill saying it violates free speech and that it criminalizes those who are seeking to stop animal abuse. On the day of the House vote, Lynn said the bill “is coercion by government of the worst kind.”

Lynn said she talked to Haslam before the last session and asked him to wait before signing it until the Attorney General opinion had come back.

The Mt. Juliet representative also noted that the bill did not go through the House Judiciary Committee after the criminal statute was added to it as an amendment in the House Agriculture and Natural Resources Committee. She said that move was wrong.

Opponents to the bill include lawmakers on both sides of the aisle, the HSUS, as well as celebrities like Carrie Underwood, Emmylou Harris and Ellen DeGeneres. On Friday, members of the Clergy for Justice faith community delivered a letter to Haslam urging him not to sign it.

Last week, the governor said he had not made up his mind how he will proceed with the legislation. He said he sympathizes with farmers, while also understanding the arguments against it.

While the bill passed in the Senate 22-9, it passed in the House 50-43-2 on a razor’s edge. One vote less and it would have failed for lack of majority, making an override of a veto unlikely.

Amelia Morrison Hipps may be reached at amhipps@downhomepolitics.com, on Twitter @DwnHomePolitics or at 615-442-8667.

John Klein Wilson contributed to this story.

 

 

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Liberty and Justice NewsTracker

Controversial Livestock Abuse Legislation Passes House, Goes to Governor

After almost two hours of debate, a contentious livestock-abuse reporting bill cleared the state House of Representatives Wednesday with the minimal vote necessary for a chamber majority, 50-42-2.

The legislation requires individuals who record cruelty to livestock to submit those unedited images to law enforcement within 48 hours or face being charged with a Class C misdemeanor.

Tennessee Code Annotated defines livestock as “all equine as well as animals which are being raised primarily for use as food or fiber for human utilization or consumption, including, but not limited to, cattle, sheep, swine, and goats.” The bill does not apply to dogs, cats or chickens, although some argued it should.

Passage in the House was a hard-fought battle on the part of House Bill 1191 sponsor, Rep. Andy Holt, who has argued from the beginning that the purpose of the bill is stop animal abuse as soon as possible.

“How long do you think an animal should have to suffer before the perpetrator is brought to justice?” the Republican from Dresden asked in his closing remarks before the vote. “I particularly believe we should bring that individual to justice as quickly as possible. Others, who oppose this bill, feel like four, five, six months is appropriate, and I completely and wholeheartedly disagree.”

Holt said nothing in the bill would prohibit a person investigating a suspected livestock abuse situation from continuing that investigation after he had turned in the video tape or photographs of the first incident recorded.

Delaying law enforcement while individuals or animal rights groups built cases through continued documentation of abuse was only one argument against the bill, which was bipartisan in its criticism.

The most contentious argument came from Republican Rep. Vance Dennis, who argued that the bill is “unenforceable because you can’t arrest someone for the crime you’re creating.” 

“You cannot arrest for a fine-only misdemeanor. You can cite for not coming to court, but if the person doesn’t come to court, you have no means of enforcement, “ said Dennis, an attorney from Savannah.

Rep. Susan Lynn, R-Mt. Juliet, argued that by attaching a criminal offense to the legislation, “This bill is coercion by government of the worst kind.”

Other arguments raised in the House were much the same as those raised in the Senate on Tuesday, where the legislation passed 22-9, with four Republicans joining five Democrats in voting no.

Senate Majority Leader Mark Norris brought an amendment that would have rewritten the bill and would have required “any person who has knowledge of or observes” an animal being abused to report it to law enforcement immediately.

However, Senate Bill 1248 sponsor Sen. Delores Gresham moved successfully to kill Norris’ effort, which was tabled on a 17-10 vote.

“Obviously, it’s not the attempt of the sponsor of the bill to make every citizen who might find themselves in a situation where they might observe this to make them a criminal. But indeed that’s essentially what this bill does,” said Gresham, a Republican from Somerville, about the Norris amendment.

Norris, a Republican from Collierville, shot back, “Either you’re opposed to animal abuse or you’re not, and that’s why this amendment is designed to get to the root of the problem. The sponsor says she doesn’t want to criminalize animal abuse in general, just the filming of it. If you see abuse, you need to report it, whether you’re filming it or not.”

Sen. Charlotte Burks, D-Monterey, rose in support of the bill because, “As a farmer, I’ve got livestock, and sometimes people don’t understand the proper handling of livestock. … It could be misunderstood and it could waste a lot of our DA’s time.”

Sen. Bill Ketron, R-Murfreesboro, again cited the link between those who commit animal abuse at an early age and those who commit child and/or spousal abuse as an adult.

Equally as passionate in favor of the bill, Sen. Mike Bell, R-Riceville, expressed outrage at the United States Humane Society for holding the video of soring of a Tennessee walking horse in Collierville for four months before releasing it in May 2012.

Amelia Morrison Hipps may be reached at amhipps@downhomepolitics.com, on Twitter @DwnHomePolitics or at 615-442-8667.

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Featured Liberty and Justice

Senate Vote on Animal-Abuse Reporting Delayed

Legislation is on the Tennessee Senate floor that would require individuals who shoot video or take photographs of people being cruel to animals to submit those images to law enforcement within 24 hours.

The bill is on hold now though, after conflicting perspectives on the proposal emerged between fellow GOP caucus members. It was rolled until next week.

On Thursday Senate Majority Leader Mark Norris told members of the body that he sees problems with Somerville Republican Delores Gresham’s measure, Senate Bill 1248.

“This is a Catch-22 bill. I don’t know anybody in here who favors animal cruelty,” said Norris, an attorney from Collierville. “We oppose animal cruelty, yet it’s being construed in some quarters as a bill that supports animal cruelty.”

An individual could be charged with a Class C misdemeanor punishable by fine only if he fails to turn in a video or photographs taken of an animal being abused. Under Tennessee law, those found guilty of a Class C misdemeanor may be charged up to $10,000.

Norris said the way the bill is drafted, one could argue that it’s not designed to prevent animal cruelty but rather “to prevent the filming of animal cruelty under certain circumstances.”

“I don’t know why this bill doesn’t require those who witness animal abuse, whether they are filming it or not, to report it immediately,” Norris said. “This actually creates exceptions.”

Norris said the bill “sort of suggests” that it would be OK for somebody who likes to film animal cruelty to do it, because the person is not doing it for the purpose of exposing it.

Norris indicated he thinks the legislation came about as a result of “an incident that was filmed in (Gresham’s) district.” He added, “We shouldn’t be passing bills because of a particular incident like that.”

In May 2012, an undercover Humane Society-shot video showing a Tennessee walking-horse trainer mistreating horses aired nationally. Earlier this month, three people were indicted by a grand-jury in Fayette County on charges stemming from alleged “soring” of Tennessee Walking horses. Fayette County is in Gresham’s district.

Gresham, who is in her second term as a senator after serving two terms in the House, said she understood her colleagues’ struggles with the bill, but defended it by saying it “is very narrowly tailored in a specific way.”

She said the bill was directed toward livestock because agriculture, which is written across the state seal, “is our identity. We take care of our animals, and we will not have people abuse them, and certainly not allow the abuse to continue for the sake of documentation.”

Noting that some have called it “an anti-whistle blower bill,” Gresham argued it is just the opposite.

“What I’m saying in this bill is, ‘Whistle blower, blow your whistle and take what you have to law enforcement because that’s where it belongs,’” she said. “Investigations and documentation, if that’s what is required, needs to be done by law enforcement not by vigilantes.”

She acknowledged that while the inspiration for her bill “may be distantly related to an event in my district,” the fundamental concern is to stop abuse.

Senate Minority Leader Jim Kyle of Memphis suggested that the bill be rolled until next week and Gresham agreed. “If we can make it stronger, it is my pleasure to work on the bill,” she said.

The bill was rolled to next Tuesday’s Senate floor session. The companion House Bill 1191 was referred to the Calendar & Rules Committee on March 26. It has yet to be placed on the calendar for the lower chamber’s vote.

Amelia Morrison Hipps may be reached at amhipps@downhomepolitics.com, on Twitter @DwnHomePolitics or at 615-442-8667.