Animals are not things

It's time to say that in court

NOTE: I’m writing every day in memory of Lisa, who died on October 13. Not all of these posts will be sent out by email, and some I may write from jail/prison, as I go to trial on November 29. So if you want to follow this journey, visit the blog every day. I’ll try to post by 10 am each day, but occasionally, I’m sure a post will be late.

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Today, we finalized what will be our opening motion in the felony trial beginning on Monday. In it, we argue that I cannot be prosecuted for larceny because a goat is a living creature, and not mere property, and therefore the removal of the goat does not qualify as larceny.

This is, as my former mentor Cass Sunstein once put it, a "leap” for the law. But it is not a huge one. Most people already recognize that animals are not things, intuitively. But our legal system, as in so many other areas, has lagged behind. Worse yet, the norms within our legal system have deterred our efforts to create cultural change. I cannot count the number of times someone has said that, “The legal system is taking care of the problem" or “If it’s so bad, why isn’t it being prosecuted?” There is dreadfully little understanding of the fact that animals are invisible to the law. Even the limited protections our legal system provides, then, have little to no effect.

One example is the historic ballot initiative passed in 2008 in California. More citizens voted for Prop 2 than any proposition in California history. Yet the promise of a cage free future was never delivered. And the activists who exposed the continued lawbreaking activity of major factory farms were completely ignored.

This is the sorry state of affairs we live in today. And this is why the motion we are filing tomorrow, in one of the most difficult counties in the nation, is so crucial. It’s time to turn animal rights into a political question. We have tried education. Protests. Investigations. And direct action. None of those tactics has caused the powers that be to take seriously the notion that animals are not things.

Sacrificing our own freedom may be the only way to do this.

The motion we are filing is below.

(A special thank you to Steve Wise, Kevin Schneider, and the Non-Human Rights Project for advice and support over the years, and the argument and citations in this motion. Steve is a legend in animal law. And we would not have even had the idea to file this motion if not for the pathbreaking work he’s done for Happy the elephant, which everyone should be following.)

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Wayne Hansen Hsiung, by and through his counsel of record, Jonathan D. Frohnmayer, respectfully moves the Court to dismiss the charges brought against him, including felony breaking or entering and larceny, on the grounds that a sentient non-human animal, a goat named Rain, is not “property” subject to the state’s larceny statute.

Under N.C. Gen. Stat. Ann § 15A-954(a)(10) and 15A-954(c), a motion to dismiss, on the grounds that a pleading “fails to charge an offense,” may be made at any time. The indictment in this case charges Mr. Hsiung with felony larceny under N.C. Gen. Stat. Ann. § 14-72, which provides that larceny of “property” is a crime. However, the legal status of animals has been rapidly evolving, and courts have increasingly recognized that “personhood can and sometimes does attach to nonhuman entities like… animals.” People v. Graves, 163 A.D.3d 16, 21 (4th Dept. 2018) (citations omitted). The highest court in the state of New York, moreover, recently addressed the question of an animal’s legal status, and in a concurring opinion, Judge Eugene Fahey wrote, “While it may be arguable that a chimpanzee is not a ‘person,’ there is no doubt that it is not merely a thing.” Nonhuman Rights Project, Inc., on Behalf of Tommy v. Lavery, 31 N.Y.3d 1054,1059 (2018) (Fahey, J., concurring).

Prominent legal scholars, such as Harvard University’s Cass Sunstein, have argued that “animals have been regarded as means to human ends, and often the status of animals as mere property has helped to ensure this unjust state of affairs,” Standing for Animals, 47 UCLA Law Rev. 1333, 1364 (2000), and that “it would not be a huge leap from current norms to establish an understanding that people do not own their dogs, cats, or horses, even if they have significant rights over the liberty of nonhuman creatures who live with them.” Id. At 1365-66 (emphasis added).  

Finally, a recognition, following Judge Fahey, that “there is no doubt that [an animal] is not merely a thing” is consistent with a long pattern in American jurisprudence of expanding our moral horizons to reflect evolving standards of decency. Women were not “persons” for many purposes until well into the twentieth century. See Trammel v. U.S., 445 U.S. 40, 52 (1980) (“Nowhere in the common law world -- indeed in any modern society -- is a woman regarded as chattel or demeaned by denial of a separate legal identity and the dignity associated with recognition as a whole human being. Chip by chip, over the years those archaic notions have been cast aside”). Human slaves were denied personhood and deemed mere property in much of the United States until 1865. See generally Slavery in the United States: A Social, Political, and Historical Encyclopedia 136–43 (Junius P. Rodriguez ed., ABC-CLIO 2007). Jews were once not “persons,” RA Routledge, The Legal Status of the Jews in England, 3 The Journal of Legal History 91, 93, 94, 98, 103 (1982), and the U.S. Government once argued that a member of an indigenous community was not a “person” either. United States ex rel. Standing Bear v. Crook, 25 F. Cas. 695, 697 (D. Neb. 1879).

Accordingly, Defendant respectfully moves this court to dismiss the charges filed in this case on the grounds that Rain was a legal “person” and not mere “property.”