The trial of open rescue

Seven years after founding the DxE Open Rescue Network, I finally go to trial. Here's why it matters.

On January 9, 2015, one day after DxE released its first open rescue to The New York Times, I penned one of the most important articles of my activist life: On the Importance of Open Rescue. The piece described the brutal conditions in which we found Mei Hua, a little hen collapsed on the floor of a “Certified Humane” Whole Foods egg farm. And it set out four reasons that her rescue was not just morally justified, but strategically crucial to driving the animal rights movement forward. The post, which also announced the formation of the DxE Open Rescue Network, was part of a strategy by DxE to transform rescue into the canonical act of the animal rights movement. To make the right to rescue a reality.

For too long, animal rights activists had been defined as picky eaters, or nude protesters splashing blood on celebrities, or self-righteous critics looking for something to complain about. The shift towards rescue, I believed, was crucial to shifting the public’s perception of the fight for animal rights. Rescue made clear the urgency of our movement. It shifted the debate away from consumption and towards systems. It aligned our movement with cultural and political narratives, such as the dog in a hot car, that were powerful and sympathetic. And perhaps most importantly, a movement of open rescue would force our legal and political system to answer a question: are animals living creatures, or are they things? As I wrote then, “[Open rescue] takes the liberation of animals directly into our own hands, and, by going in with our faces proudly uncovered, we dare the industry to try our actions in the court of public opinion.”

And that bet paid off, immensely. Seven years later, hundreds of animals have been rescued. Thousands of activists have participated in open rescues across the nation. Laws have been challenged and changed. And the shift towards animal rights as a social and political movement, and not just a hobby for animal lovers, is happening before our very eyes.

But the work is far from done. And the last reason I cited above, that “by going in with our faces proudly uncovered, we dare the industry to try our actions in the court of public opinion,” is particularly important now. Because, over 7 years after we launched the Open Rescue Network, I approach trial on November 29, for the rescue of a sick baby goat in Transylvania, North Carolina.

The right to rescue is going to court.

This is crucial because animals have been denied access to the courtroom since the founding of our nation. For decades, animals have been invisible to our legal system, seen as mere objects for corporations to burn, bury, or exterminate on a whim. Efforts to give animals legal standing are promising, but slow and incremental, dependent on the whims of those in power. Judges generally throw such cases out of court, on the grounds that animals are not legal “persons” under the law. (In this regard, animals are treated similarly to our nation’s historical treatment of people of color and women, who were also denied full legal personhood by the courts.) Legislators can’t be bothered with animal rights because it isn’t seen as a winning political issue. Open rescue forces our legal and political system to address the questions about animals it would not prefer to address. It politicizes an issue that our system would prefer to leave apolitical. Because, when a human being’s freedom is on the line, the system is forced to answer the question: is an animal a “thing” to steal, or a living being to rescue? The trial unfolding on November 29, while it carries grave risks for me personally, is an opportunity for the movement to make the case for animal rights in a court of law.

Going to trial is also crucial because of the precedent it can set: legally, politically, and culturally. The American legal system is a “common law” system, i.e., one in which the judicial system crafts the law based on ancient principles and interpretation. What happens in the courtroom can have binding legal effect in any future cases. And the common law principle we are invoking at trial, that my actions were “taken to protect life, limb, or health of a person",” i.e., that my action were legally necessary, will have far reaching impacts if we succeed.

For one, it will be the first time a court has recognized that animals are “persons” under the common law. As the brilliant legal scholar and activist Steven Wise has pointed out, this was a crucial first step to achieving full legal rights for chattel slaves. A positive outcome in this case could be legally harnessed in future cases beyond open rescue, from dog neglect to endangered species. We could argue to future courts, “See what this court, even in North Carolina, concluded. Animals are legal persons with rights. You, too, should conclude the same.” In a common law system, legal principles can’t be contained; they naturally spread to cases that are completely unexpected to the original litigants.

But the political precedent we will set, with a victory, is even more important. Transylvania County is one of the more conservative counties in America, with 60% of voters siding with Trump. It is filled with farmers and ranching, and it is a classic picture of rural America, with only 34,000 people in the entire county. If we show that animal rights activists can win over a jury of our peers even in Transylvania County, we show that we can win everywhere. And the first thing I will do, if we win, is walk straight into the District Attorney’s office and demand that he immediately commence an investigation of commercial animal farming in his county. What choice will he have, at that point, when his own community has spoken for the right to rescue? What choice will any District Attorney have, if they cannot convict the people who are taking direct action?

But the most important precedent is the cultural one. My mentor Cass Sunstein has written about how the fundamental problem with social movements is often what he calls “preference falsification” – the self censorship that leads issues that might otherwise receive wide support from ever seeing the light of day. From gay rights to #MeToo, movements that have overcome the problem of preference falsification have made tremendous progress in astonishingly short periods of time. But to get people to speak their truth, we have to empower them. A victory in a case like this will do exactly that. It will prove that we can persuade a jury of our peers, even in a deeply Red county, and inspire so many others to talk about animal rights too. A victory is not just a victory in the court of law; it’s a victory, as I wrote 7 years ago, in the court of public opinion.

Say we don’t win in court, however, and that I end up in prison. The final reason this trial is crucial is that a loss in court will still be a victory for the movement because of the power of sacrifice. The legendary gay rights activist Evan Wolfson pointed out to us, a few weeks ago at the Animal Liberation Conference, that every movement faces obstacles and losses. But the effective movements learn to “lose forward” – i.e., harness even outcomes that technically seem like losses to drive a movement’s progress. This happened for gay rights on multiple occasions. The tragedy of the AIDS crisis in the 1980s became a rallying cry to come out and act up. The 1996 Defense of Marriage Act led to a powerful political surge culminating in legal victories in Hawaii, California, and other states by the early 2000s. And the movement’s greatest political loss, a proposition in California that banned gay marriage in 2008, became the key mobilizing tool for its ultimate victory in the US Supreme Court.

The key throughout these cases was that the movement used the sacrifices of its activists – including, in some cases, even their death – to fire people up for change. When the public saw people, who were just trying to do the right thing, beat up, imprisoned, or killed, it roused their conscience and triggered a moral revolution. The women’s suffrage movement was emboldened by Susan B. Anthony’s sacrifice when she was imprisoned for trying to vote. The civil right movement was emboldened when Rosa Parks was arrested for refusing to give up her seat.

Indeed, this has been the story of virtually every successful social movement since this nation’s founding: sacrifice leads to change. And it will be the story of animal rights. In many ways, for DxE, it already is. By far the most important communications and mobilization successes in DxE history have come in the immediate wake of criminal prosecutions. When the public sees that someone is facing prison, for the mere act of taking a dying animal to the vet, their conscience is roused. Now we will see if that continues to be true, as we start my first felony trial.

In many ways, this is a case that’s grounded in faith. Faith that our legal system will be fair. Faith that the jury of North Carolina will be open-minded and kind. And faith that the broader public, at heart, believes in the right to rescue and animal rights. The most important tenet of faith I hold, however, is faith in our movement, and in you. If we win this case, we will need you to join us in pushing to institutionalize that victory in the legal and political fabric of our nation: enshrining the right to rescue, and animal rights, as a fundamental principle of our legal system. If we lose, we’ll need you even more, to ensure the story of sacrifice is told, and to make it even more likely that we win our next case.

This is, in short, the moment we need you, the moment the animals need you. And if we answer the call, together, the world will never be the same.