Of course, until I see the indictments, I’ll reserve final judgement. But that’s no reflection on Will Potter’s good work – just recent learning *g*.

I don’t know if this is the first of conspiracy charges against activsts not accused of property destruction, but merely accused of practicing various forms of time-honored civil disobedience. Sure would like to know the answer to that.

http://www.greenisthenewred.co…..ists/1804/

Mafia Law Used Against Environmentalists for Tree Sits, Civil Disobedience, Blog Post

Posted: 29 Apr 2009 05:00 AM PDT

Two environmental activists in Bloomington, Ind., have been charged with racketeering–charges originally intended to target the mob–for allegedly “conspiring” to engage in tree sits, participate in non-violent civil disobedience, and make an inflammatory blog post.

Hugh Farrell and Gina “Tiga” Wertz are organizers in the campaign to halt expansion of the I-69 NAFTA superhighway. They were arrested on Friday, April 24th, and they’re each facing five charges that carry a maximum of eight years in prison.

Four of the charges are misdemeanors for “intimidation” and “conversion” (treating someone else’s property as your own). All four misdemeanors are related to a civil disobedience stunt where some activists removed the furniture from an I-69 project office, occupied the space, and posted an eviction notice. The government says the civil disobedience stunt was intended to place Ronnie Wilson in fear, and subject him to “contempt or ridicule.”

The felony charge is for corrupt business influence, or racketeering. The government isn’t arguing that these activists were actually engaged in racketeering, but that they are part of Roadblock EarthFirst (described as a criminal enterprise) and “conspired” to do so. According to their arrest warrants, Farrell and Wertz:

* “Conspired” to remove office furniture from I-69 project offices as part of eviction notice stunts.

* “Conspired” to post an “internet blog on two publicly accessed website stating ‘you will suffer the consequences’ and ‘perhaps we’ll go to your homes, children’s daycare, churches or wherever else you happen to turn your back.” The blog posts were made after the violent removal of activists from a tree sit.

* “Conspired” to commit “theft” when six individuals blocked the entrance to Gohmann Asphalt and Construction Company using non-violent civil disobedience and caused a loss of profits.

*“Conspired” to commit “theft” by “taking unauthorized control of trees” and “depriving lawful owners of use and/or value of the said trees.” (Note: the last two bullets are only in Wertz’s arrest warrant.)

Racketeering laws are intended to combat organized crime, such as the mafia, and include crimes like extortion, bribery and money laundering. Although ambitious prosecutors have tried to use the Racketeer Influenced and Corrupt Organizations Act (RICO) to target anti-abortion activists, animal rights activists, and the Hells Angels, the purpose of the law has always been to go after illegal business activity.

But these activists, and others like them, are not protesting this superhighway to make money. They’re not doing it for personal gain. Halting this environmental destruction will not financially benefit them in any way.

Then why use mob laws against them? Because of their beliefs.

Tree sits, office takeovers and road blockades are against the law, and the government has the tools and resources to prosecute those crimes.

But because of the politics of the alleged crimes, prosecutors are reaching for more. Civil disobedience has become “theft.” Tree sits have become “unauthorized control of trees.” These trumped-up charges are a way to take what are, at the very worst, misdemeanor crimes and turn them into federal crimes. It’s an attack on individuals perceived as being leaders in the movement for the sole purpose of stamping out dissent.

A support website for Hugh Farrell and Gina “Tiga” Wertz has been set up at http://mostlyeverything.net.

It would be nice if one could rely on the media to report on legal matters accurately. Unfortunately, the media is consistently legally illiterate, particularly on controversial and constitutional issues. (The media’s reporting on Patriot Act issues, for example, is execrable.) But in this case the media doesn’t get the distinction between crimes and overt acts in support of a conspiracy. That lack of understanding is aggravated by a U.S. Attorney’s office that didn’t do a particularly good job of drafting the indictment or issuing a press release in a way that explained it.

Ack! The window is closing!

To answer your question in 83, I am highly skeptical that loss of business resulting from protest would be sufficient to satisfy the “intentionally damages or causes the loss of any real or personal property” prong. First, such an interpretation would be so broad and unexpected that it would open up the statute to vagueness challenges. Also, if memory serves, the Supreme Court rejected that very argument in finding that RICO could not be applied to sue abortion protesters. I will look it up.

Thanks so much for your ideas and the thoughtul exchange you have made possible. I agree that such exchanges are all too rare, and I’m grateful for the opportunity you’ve afforded us all for this one. I look forward to reading your post!

WRT to:

(A) intentionally damages or causes the loss of any real or personal property (including animals or records) used by an animal enterprise, or any real or personal property of a person or entity having a connection to, relationship with, or transactions with an animal enterprise

I’m not purporting to explain NLG’s reasoning, so I hope no one will blame them, CCR, or CLDC for the following – I’m the sole responsible (culpable?) party:

To the extent protests that involve infractions (sitting on sidewalks, blocking driveways) or even non-violent midemeanors (trespassing) can and do deprive targeted entities of “real property” when commercial outlets suffer loss of business due to blockades and the like, AETA certainly seems to criminalize civil disobedience.

The statute clearly extends not only to laboratories, but also to entities that sell animals for consumption. When activists “U-lock” their necks to the local Burger King’s doors (hypothetically, as part of the Coalition of Immokalee Workers’ national campaign to force BK to pay tomato pickers one penny more per pound), as long as the business’ doors are closed, the business is losing money. When my forest defender friends lock down the gates of lumber yards selling wood from ancient forests, they’re costing the lumber yard money. [Having stood by as medical support, I can attest the lumber yard staff are quite vocal about these economic losses! *g*]. When the lumber yards carry chicks, they are covered by AETA.

In both of the above scenaria, how would the direct cut-off of a retail outlet’s business resulting in demonstrable drop-off in daily receipts not be causing the loss of “real or personal property”?

WRT to what AETA does and does not criminalize, here’s the ACLU’s 3/2/2006 letter to Congress regarding the resepective Senate and House versions of AETA. [To be fair, some changes were made after 3/2/2006, so it is certainly possible not all of the concerns in the letter carried through to the final version.]

ACLU Letter to Congress Urging Opposition to the Animal Enterprise Act, S. 1926 and H.R. 4239 (3/6/2006)

Re: Animal Enterprise Act, S. 1926 and H.R. 4239

Dear Member of Congress:

On behalf of the American Civil Liberties Union, a non-partisan organization with hundreds of thousands of activists and members and 53 affiliates nation-wide, we write today to explain our opposition to the Animal Enterprise Terrorism Act, S. 1926 and H.R. 4239 (AETA), a bill that amends the Animal Enterprise Protection Act (AEPA), now 18 U.S.C. § 43. The AETA criminalizes First Amendment activities such as demonstrations, leafleting, undercover investigations, and boycotts. The bill is overly broad, vague, and unnecessary because federal criminal laws already provide a wide range of punishments for unlawful activities targeting animal enterprises.

It’s important to let the reader know what conduct is criminal under current law, too. What are the elements of the crime? Setting them forth now is useful to make your point that the bill criminalizes speech. The AEPA, which passed in 1992, created a penalty of $10,000 or 10 years to life imprisonment for any physical disruption that leads to $10,000 in damages to an animal enterprise. AETA expands the class of criminal behavior in 18 U.S.C. § 43, by changing the term used to described activity “for the purpose of causing physical disruption” to activity “for the purpose of damaging or disrupting” an animal enterprise. The overbroad class of “disruptive” activities apply to any and all activities that result in “losses and increased costs” in excess of $10,000.

Lawful and peaceful protests that, for example, urge a consumer boycott of a company that does not use humane procedures, could be the target of this provision because they “disrupt” the company’s business. This overbroad provision might also apply to a whistleblower whose intentions are to stop harmful or illegal activities by the animal enterprise. The bill will effectively chill and deter Americans from exercising their First Amendment rights to advocate for reforms in the treatment of animals.

Alarmingly, the bill would also make the expanded crime a predicate for Title III federal criminal wiretapping. This provision could be used for widespread domestic surveillance of animal rights organizations. A court will be far more likely to find probable cause for a vague crime of causing economic damage or disruption to an animal enterprise than for a crime that requires some evidence that the organization plans to engage in activity causing illegal “physical disruption.”

While the bill provides an exemption for “lawful public, governmental, or business reaction to the disclosure of information about an animal enterprise,” that exemption applies only to claims of economic “disruption” and not claims of economic “damage.” It also does not necessarily cover the entire range of expression protected by the First Amendment, which covers more than a lawful “reaction” to a “disclosure of information.” Ordinary persons would not understand which activities are prohibited and which are lawful.

The bill AETA also expands the types of facilities covered by the AEPA. The bill adds facilities that sell animals, expands the class of criminal behavior to include threatening conduct (which could have a chilling effect on legitimate whistleblowers) and expands the class of entities protected from the enterprise itself to persons connected to the enterprise. Finally, AETA doubles the criminal penalties and criminalizes attempts to disrupt, which creates a greater danger of encompassing protected speech.

[As in comment 78, I’m mindful you may not have the chance to reply before the 24 hour window closes at 6PM PDT. Hope putting up this series of replies doesn’t seem like “piling on” - that’s not my intent. On the contrary, your substantiative questions deserve the greatest attention possible. In this series of replies I’m hoping to share with you and our readers information which I hope can serve as the basis for future discussions.]

In a recent post, you quoted the NLG for the proposition that the statute would criminalize civil disobedience, like blocking an entrance to a laboratory. I think that argument is exaggerated. Here’s why.

To violate the statute, blocking access to a laboratory in the course of civil disobedience would have to satisfy either (A) or (B) below:

(A) intentionally damages or causes the loss of any real or personal property (including animals or records) used by an animal enterprise, or any real or personal property of a person or entity having a connection to, relationship with, or transactions with an animal enterprise;

(B) intentionally places a person in reasonable fear of the death of, or serious bodily injury to that person, a member of the immediate family (as defined in section 115) of that person, or a spouse or intimate partner of that person by a course of conduct involving threats, acts of vandalism, property damage, criminal trespass, harassment, or intimidation; or

I doubt you could show that blocking an entrance damaged real property; an interpretation of the statute that broad would create overbreadth and vagueness concerns. The NLG is probably referring to the “criminal tresspass” language in (B). But if they are doing so, they are ignoring the full language of (B). Only criminal trespass that constitutes a “true threat” of death or serious bodily injury — that is, that puts a person in reasonable fear of such harm — would qualify. Note that the statute does not (as it could) make it illegal to put someone in fear of any bodily injury. I find it hard to see how blocking an entrance could be spun to satisfy this true threat requirement.

I appreciate your participation in a dialogue with someone who dissents from the prevailing message of your post. It’s rare on the left or the right.

A couple of responses:

1. The NY Bar commentary you post raises a few different critiques of the statute than the sites you previously linked. One such critique seems to be that the statute is improperly content-based because it only punishes such speech in the context of animal enterprises. Again, I would reserve judgment until reading the motion (and I will try to pull it off of PACER and post it), but I think that argument has enjoyed considerably less success in federal courts after a high point with RAV v. St. Paul. Moreover, with all respect, this is not the argument you made in your opening post.

2. The other argument made in the paragraph you cite is that “interfere” may be too vague, as well as overbroad. I suspect that a court will not find the statute fatally vague because the “interfere with” language is limited by the damaging and threatening language, which tracks very typical language in threat statutes. But again, I would not prejudge the motion before reading it.

It would be nice if one could rely on the media to report on legal matters accurately. Unfortunately, the media is consistently legally illiterate, particularly on controversial and constitutional issues. (The media’s reporting on Patriot Act issues, for example, is execrable.) But in this case the media doesn’t get the distinction between crimes and overt acts in support of a conspiracy. That lack of understanding is aggravated by a U.S. Attorney’s office that didn’t do a particularly good job of drafting the indictment or issuing a press release in a way that explained it.

But the bottom line is, yes, a criminal conspiracy can feature overt acts that are not illegal and are, in fact, protected conduct. I can look up a bank’s hours on the internet, travel to the bank, talk to a receptionist at the bank to get information about it, and call you to convey this information, and all of that is protected conduct. However, if you and have agreed to commit the federal crime of bank robbery, all of those acts can be treated as overt acts satisfying the overt act requirement of 18 USC section 371, the federal conspiracy statute. The overt act requirement is designed to protect people from being charged with conspiracy for mere theoretical discussions that have not moved beyond hypothetical planning to action. The problem is that the feds (I’m a former one, and now a defense attorney) like to list lots of overt acts in indictments, conveying to people who aren’t criminal lawyers the notion that these acts are being punished in and of themselves.

I’ll post the indictment and the motions (if they have been filed) in a post about this — this week, if I can find the time. Cheers.

4. The AETA violates the First Amendment, in that its broad language “interfering with operations of an animal enterprise” can be used to label a far reaching series of lawful, expressive conduct as terrorism, such as protests, boycotts, public speeches, picketing, email campaigns, media campaigns, undercover investigations, whistleblowing, and demonstrations in protest of animal and natural resource industries. The bill would penalize acts of civil disobedience, such as blocking entrances to laboratory, acts that are already punishable under the crime of trespass. The AETA will effectively deter people from advocating for reforms in the treatment of animals.

5. The AETA violates the 14th Amendment, which provides that the law cannot treat individuals differently on arbitrary grounds, such as the content of speech. The AETA targets lawful free speech activities of animal and environmental activists based solely on ideological content. It criminalizes acts of protest by these activists, and not those acts by activists dedicated to other issues—requiring law enforcement to determine on the scene whether a crime has been committed by listening to the content of the expression.

[emphasis mine - kjm]

With respect to this point:

Moreover,

Each proscribed and terrifying act of handing out leaflets, chanting, chalking, or — gasp — Googling is now a Federal crime, punishable by up to five years in Federal prison. How did the Homeland’s security police make speech a crime? They used AETA, the Animal Enterprise Terrorist Act: the law that makes America’s civil rights movement a Federal crime.

Well, no. Not at all.

The statute criminalizes this conduct:

(a) Offense- Whoever travels in interstate or foreign commerce, or uses or causes to be used the mail or any facility of interstate or foreign commerce–

(1) for the purpose of damaging or interfering with the operations of an animal enterprise; and

(2) in connection with such purpose– [snip]

It also says, by the way:

(e) Rules of Construction- Nothing in this section shall be construed–

(1) to prohibit any expressive conduct (including peaceful picketing or other peaceful demonstration) protected from legal prohibition by the First Amendment to the Constitution;

The indictment in this case lists, as overt acts in support of the conspiracy, any number of things that taken in isolation would be protected by the First Amendment. You have specified some of them. Overt acts are not, themselves, crimes. Some federal conspiracy statutes have been interpreted to require an “overt act” — that is, an actual act towards the object of the conspiracy — rather than simply an abstract agreement to do something illegal. To the extent the statute requires it, the indictment must specify the overt act. Federal prosecutors tend to list overt acts in the indictment whether or not the particular conspiracy statute requires it, because it tells the story nicely.

You might believe that under the First Amendment an overt act cannot be protected by the First Amendment. If that is the case — and I’d be interested in seeing a case that says that — it’s a violation shared by most federal conspiracy statutes. Pick up any federal drug conspiracy indictment and you will see listed, as overt acts, phone calls, discussions, and other expressive acts that outside of the context of a conspiracy to do an unlawful act would be protected by the First Amendment.

Thank you for making the clear distinction between overt acts and indictable acts (if “acts” is the correct term, no snark intended). Though I do not doubt your assessment, other sources apparently state that the AETA 4 are charged with crimes for expressive acts:

The first is the San Jose Mercury News

Crimes arrested activists are accused of:

Oct. 21, 2007: A group of 20 protesters demonstrated outside of a UC Berkeley professor’s home in El Cerrito. Some wore bandanas to hide their faces. They trespassed on his front yard, chanted slogans and accused him of being a murderer because of his use of animals in research.

Jan. 27, 2008: Demonstrations, including chalking, in front of the homes of several UC researchers

Feb. 20, 2008: A group of five protesters tried to forcibly enter the Westside home of a UC Santa Cruz researcher during a child’s birthday party. The researcher’s husband was hit during the demonstration.

July 29, 2008: Fliers left at Caffe Pergolesi in Santa Cruz that contained the names, addresses and telephone numbers of several UCSC scientists. The fliers said the researchers were “murders and torturers alive and well in Santa Cruz” and stated “We know where you live. We know where you work. We will never back down until you end your abuse.”

In the title of their May 21, 2009 announcement, CLDC and CCR appear to state the activists were indicted for leafletting and internet research:

(URL not available)

Rights Lawyers File Motion for Activists Indicted Under Terror Law for Leafleting, Internet Research

Rights Attorneys File Motion Saying AETA Indictment In Violation of First Amendment

May 21, 2009, New York, NY – Today, the Center for Constitutional Rights (CCR) and the Civil Liberties Defense Center (CLDC) joined in defense attorneys’ motion to dismiss the U.S. government’s indictment of four animal rights activists under the Animal Enterprise Terrorism Act (AETA).

[snip]

The activists, Joseph Buddenberg, Maryam Khajavi, Nathan Pope and Adriana Stumpo, referred to as the AETA 4, were indicted for alleged conspiracy to commit “animal enterprise terrorism” as a result of their alleged participation in conduct including protesting, writing with chalk on the sidewalk, chanting, leafleting, and the use of “the Internet to find information on bio-medical researchers.” These activities are protected by the First Amendment.

Passed by Congress towards the end of the Bush administration, the AETA makes activities such as protests, boycotts, picketing and whistleblowing crimes.

With no snark intended, if I’ve misconstrued the legal significance of what the Mercury News reported and what CLDC/CCR assert, I of course apologize for that error and thank you for pointing it out. Again, with no snark intended, as IANAL, I’d love to be able to know directly from the CLDC and CCR if I misconstrued their findings.