Iron County Prosecutors Drop Ag-gag Charges, Law Examined

Utah ag-gag charges dropped

Photo: Matthias M/Wikimedia Commons

Four animal activists who were allegedly on private property at a hog farm in Iron County in September have been released from charges of Utah’s agricultural interference law, also known as an ag-gag law. The activists will still face criminal trespass charges, and many are wondering when it comes to ag-gag laws, why trespassing charges aren’t sufficient and exactly who these other laws are protecting. In the case of many animal rights activists, they believe it’s not necessarily who is being protected but a certain type of misbehavior that is being protected.

Ag-gag in Iron County

The four activists from California and Maryland were members of a group known as the Farm Animal Rights Movement (FARM), and the hog farm was Circle Four Farms, a part of Murphy-Brown LLC, the livestock production subsidiary of the world’s largest pork producer. According to a report from the Salt Lake Tribune, the attorney for the activists, T. Matthew Phillips, stated that the four wanted to document the pigs’ journey from the farm to a California slaughterhouse.

According to the FARM website, they are a nonprofit group that is “working to end the use of animals as food through public education and grassroots activism.” While they claim that most of their programs are aimed at engaging “likely target audiences … and [nudging] them along the vegan path,” they also state that “[o]ccasionally, we seek to capture media attention through dramatic displays.”

Attorney Phillips says the Circle Four Farms incident was not one of these examples of “dramatic display.” In fact, he states that the four were actually on a public roadway and were only capturing images of farm buildings, not of the workers or animals.

However, the wording of Utah’s ag-gag law 76-6-112 states that a person is guilty of agricultural interference if they knowingly or intentionally record “an image of, or sound from, the agricultural operation” without the consent of the owner. The law specifies several acts that are prohibited, including leaving a recording a device on the premises, obtaining a job under false pretenses to record activity, recording activity as a regular employee of the facility, or trespassing on private property to get such images or sounds.

Given the fact that Iron County prosecutors are still charging the four activists with criminal trespass, they must differ with Phillips, however, Circle Four Farms stated that they didn’t wish to pursue the agricultural interference charges.

Ag-gag Under the Microscope and Put on Trial

Utah Rep. John G. Mathis (R-Vernal) sponsored HB 187 in 2012. The bill went through two revisions before being ultimately approved. According to an article in Deseret News, Mathis claimed the reason for sponsoring this bill was that he wanted to put an end to “animal-rights terrorists” out to destroy the agricultural industry. He was quoted as saying that animal protection groups such as FARM and People for the Ethical Treatment of Animals (PETA) were using these investigations as propaganda to promote their own organizations, especially in fundraising efforts.

Opposition to the ag-gag laws—which are currently on the books in five other states—say these laws are violations of the First Amendment and Fourteenth Amendment to the U.S. Constitution. They state that the First Amendment protecting free speech and press has specifically led to reform in the food industry in the past, citing such books as Upton Sinclair’s “The Jungle” which was pivotal in leading the government to pass the Meat Inspection Act and the Pure Food and Drug Act of 1906.

If convicted of criminal trespass, a class B misdemeanor per Utah Criminal Code 76-6-206, the four activists could face up to six months in jail and a fine of up to $1,000. Of the six states with ag-gag laws, only one other person has been charged with violation of the law. In February of 2013, Amy Meyer was charged for videotaping the operations at Dale Smith Meatpacking Company in Draper. However, charges against her were also dropped, with the reasoning cited as either public outcry or the fact that Meyer’s video footage showed that she was on public property at the time of her filming.

On a larger scale, in July of 2013, two national nonprofit organizations, the Animal Legal Defense Fund (ALDF) and PETA, filed a lawsuit against the State of Utah challenging the ag-gag law for violating the First and Fourteenth Amendments. Attorneys for the state attempted to argue that the case should be thrown out, however, according to an August 2014 article in the Salt Lake Tribune, U.S. District Judge Robert Shelby has refused.

Even though he didn’t dismiss the case, Shelby has said that at this point, the plaintiffs have failed to show how the statute has resulted in past injury as no one is currently being prosecuted under the statute or how it will cause future injury, but the case will still have its proverbial day in court which means it will have to stand up to further public scrutiny.

Kansas, U.S. Sixth Circuit Delay Same-Sex Marriage Progress

Sixth Circuit delays same-sex marriage progress

Photo: Jeff Belmonte/Wikimedia Commons

A little over a month ago, in a move that seemed to be opening the floodgates for legal same-sex marriages nationwide, the United States Supreme Court declined to hear an appeal from the State of Utah and four other states regarding their bans on same-sex marriage after those bans were ruled unconstitutional by the U.S. Court of Appeals for the Tenth Circuit. The Supreme Court declined without comment, but it was generally understood that they declined to hear the case because at that time, there was consensus among the federal appeals circuits.

However, a recent ruling by the U.S. Court of Appeals for the Sixth Circuit to uphold bans in four states and an application to the Supreme Court from the State of Kansas to delay the issuance of licenses for same-sex marriage may just force the Supreme Court’s hand to finally weigh in on the issue. While many members of the LGBT community celebrated the rulings against bans on same-sex marriages, many are also in agreement with the opposition that the only way to truly settle this issue is for the nation’s highest court to address it.

Same-sex Marriage in Utah

While the ABA Journal is calling the Kansas case “one of the fastest same-sex marriage cases to develop,” here in Utah, it has been a 10 year battle. In 2004, voters in Utah approved Amendment 3 to the Utah State Constitution. This amendment defined marriage and its subsequent benefits as strictly between a man and a woman. The constitutionality of Amendment 3 was challenged based on the Equal Protection Clause of the 14th Amendment of the U.S. Constitution, and ultimately on Dec. 20, 2013, U.S. Fifth District Judge Robert Shelby ruled Amendment 3 unconstitutional.

During a 17-day period between Shelby’s ruling and the State of Utah issuing an appeal to the Denver-based 10th Circuit Court of Appeals resulting in a stay, approximately 1,300 same-sex marriage licenses were issued. In June 2014, in a three-judge panel review, the Court of Appeals upheld Shelby’s ruling.

The State took their appeal to the U.S. Supreme on two issues: whether states should have the ultimate right to make decisions regarding issues of marriage, and if an actual right existed in the U.S. Constitution protecting same-sex marriage.

The Supreme Court’s refusal to hear the case upheld the 10th Circuit Court of Appeals decision that Amendment 3 was unconstitutional.

How Kansas Believes They are an Exception

Kansas also falls into the 10th Circuit, which means the same ruling would apply to them. Federal courts in Kansas are bound by the ruling. After a federal judge in Kansas struck down the state’s ban on same-sex marriage, state officials cancelled their plans to hold a hearing regarding marriage licensing and instead put a temporary hold on all marriage licenses via the Kansas Supreme Court while they could call for new briefs on the issue.

The Kansas federal judge’s striking down of the ban on same-sex marriage was supposed to go into effect on Tuesday, Nov. 11, but on Monday, the state filed an application with the U.S. Supreme Court for a delay in same-sex marriages. Kansas stated they are different than the other cases which the Supreme Court refused to hear because they believe the move by the federal judge interfered with the state supreme court’s review of the matter which was already underway.

The application was filed with Supreme Court Justice Sonia Sotomayor, who also handles emergency legal matters for the 10th Circuit, and on Monday, Sotomayor granted the request to delay issuing same-sex marriage licenses while the state appealed to the 10th Circuit.

How the 6th Circuit Decision Delays Same-Sex Marriage Progress/h3>

When submitting their application to Sotomayor, the state of Kansas relied heavily on the decision on Nov. 6, 2014 by the U.S. Circuit Court of Appeals for the Sixth Circuit to uphold the ban on same-sex marriage in four states: Kentucky, Michigan, Ohio, and Tennessee.

Previous to this decision, the cause of same-sex marriage was moving forward without many hitches. In the past month, the freedom to marry was awarded to same-sex couples in 16 different states. The decision by the Supreme Court to refuse to hear the appeal case paved the way for same-sex marriage in the 10th and 4th Circuits. On October 7, one day after the Supreme Court decision, the 9th Circuit affirmed the freedom to marry via cases from Idaho and Nevada, setting the stage for same-sex marriage in that district as well. Previous to the 6th Circuit ruling, only 15 states remained that didn’t have the freedom to marry for same-sex couples.

According to the Kansas application, with the 6th Circuit ruling, there is now “irreconcilable conflict” among the appeals courts, so “the final resolution of these important constitutional questions by [the U.S. Supreme Court] will certainly be required.”

Speculation puts this action by the Supreme Court as early as before the end of their term in June 2015, however, it is also likely that it will be pushed to the beginning of their next term in October. Regardless, both sides of the issue believe they have a right to be heard. For supporters of same-sex marriage, they believe their freedom to marry should still be protected by the 14th Amendment. Meanwhile, opponents maintain their argument that ultimately this is a state’s rights issue and that the Supreme Court should step out of the way.

Postal Service Mail Surveillance Raises Legal Concerns

Mail Surveillance raises legal concerns

Photo: IFCAR/Wikimedia Commons

In 2013, when former CIA systems administrator Edward Snowden leaked information to the public regarding the National Security Agency and other agencies’ usage of global surveillance programs, including the tracking of email and phone records, many were stunned. However, previous to an audit conducted by the Office of Inspector General and obtained under the Freedom of Information Act (FOIA), a mail surveillance program that has been going on for over a century known as “mail covers” has been slipping quietly under the radar. Results of the audit—including the fact that almost 50,000 requests were made last year to secretly monitor the mail of American citizens—are raising many concerns regarding efficiency and abuses of Constitutional rights.

Not the Only Mail Surveillance Program

Mail covers is a program where postal workers will record information from the exterior of letters and parcels at the request of a state or federal law enforcement agency or the U.S. Postal Service’s (USPS) own investigative branch, the Postal Inspection Service. According to a report by the New York Times, law enforcement claims this method of surveillance is still “a powerful investigative tool,” providing information to the agencies about an investigation target’s businesses, associates, bank records, and even accomplices.

While mail covers is the one of the older mail surveillance programs utilized by law enforcement agencies, it is not the only one. Mail imaging—a process where computers take photographs of the exterior of all pieces of U.S. mail—has been used for several years as a central component of mail processing. According to the USPS, these images are only stored for anywhere from a week to 30 days. However, law enforcement agencies are able to request stored images of mail sent by investigation targets.

Another mail surveillance program came into effect in 2001 but wasn’t made public until 2013 when reports revealed that ricin-laced letters were mailed to President Obama and former NYC Mayor Michael R. Bloomberg. The Mail Isolation Control and Tracking Program was created after the 2001 anthrax scare that killed five people. It allows for the tracking or investigation of mail suspected of containing biohazards such as ricin or anthrax.

Mail Surveillance Inefficiencies and Abuses

According to the New York Times, the requests for mail surveillance come from all levels of government, from global intelligence investigations to state criminal inquiries. While Paul J. Krenn, a spokesman for the Postal Inspection Service, stated that “there has to be a legitimate law enforcement reason” for mail surveillance, according to former FBI agent, James J. Wedick, the program can easily be abused because it doesn’t require a judge’s order or warrant. According to the Inspector General’s audit of the mail cover system, approximately 20 percent of orders for mail surveillance from law enforcement outside of the Postal Inspection Service were not properly approved.

In addition to the apparent ease of instigating mail surveillance, there have also been problems with maintenance of records. The audit revealed that even after orders for surveillance had expired, postal workers were still recording and sending data to the law enforcement agencies who requested them. Of the mail covers audited, 928 of them were still considered “active” even though the order had expired.

Another concern regarding mail covers is the abuse of the system. Typically, the Postal Service is only supposed to grant “mail covers” in regards to law enforcement agencies or issues of national security. However, the audit revealed that13 percent of orders were either unjustified or not correctly documented, and several incidents have come to light proving that regulation of this form of mail surveillance is a serious concern.

In 2011, a county supervisor in Arizona, Mary Rose Wilcox, discovered that the sheriff and county attorney had been using mail surveillance on her. Wilcox believed this was a result of her vocal criticisms of the sheriff’s alleged practice of targeting Hispanics in the area. The sheriff and county attorney used the surveillance information to get a warrant for banking and other information about two restaurants owned by Wilcox and her husband. A subsequent raid of one of the Wilcox restaurants at the local airport resulted in the loss of the contract as well as causing a drop in business at their other establishment. Wilcox sued the county and won in a ruling upheld by the Ninth Circuit Court of Appeals.

Another case involved a San Antonio defense attorney who discovered that the federal prosecuting team was using mail covers to track communication between the defendant and the defense team. While this would seem to be a violation of Sixth Amendment of the U.S. Constitution protecting the assistance of legal counsel (to include private communications between client and attorney), since they aren’t actually reading the mail, mail covers in this situation are not being considered a violation as of yet.

A Commitment to Address Concerns

Other claims of violations of the First Amendment protecting free speech and the Fourth Amendment protecting against unreasonable search and seizure are running into the same hurtles as those claiming Sixth Amendment violations. While reading the actual contents of the mail requires a warrant, simply examining the outside of the packaging doesn’t constitute a violation of a Constitutional right.

Even though this is the case, the audit by the Inspector General brought these issues to light, and as a result, senior Postal Service officials have publicly stated that procedures are being tightened.

“Performance measures and weekly reporting have been put in place to record receipt of outside agency criminal mail cover requests and to ensure timely processing.”