Animal Law Podcast 111: A Lamb to the (Botched) Slaughter

Mariann Sullivan: I was saying right before we started, two of my favorite lawyers talking about my favorite kind of laws, and that's cruelty laws. I love them. I love that you in particular, Will, but obviously also you, Chris, are finding new and imaginative ways of using them than I had ever imagined, so I can't wait to hear about this case, which is about lambs, and Colorado, and a slaughterhouse.

Have you ever seen that tote bag from Food Fight in Portland? It had a cute little picture of a lamb and it said, what kind of an asshole eats a lamb? I don't know what happened to that tote bag, but it's so good. And it kind of says everything about this case.

All right. Let's start maybe with the story of this slaughterhouse and who is involved here? Who are the animals who are involved here and where is it? Just the basics. Will, do you want to start with that basic background of what the place is that we're talking about?

Will Lowrey: Sure, the establishment that we're talking about here is called Colorado Lamb Processors. It's in a very rural area of Colorado, I believe, Rush, Colorado. And it is, as the name implies, a lamb slaughterhouse. So we are dealing with lambs that are slaughtered at this establishment, and that's the basis of the cruelty charge here.

Mariann Sullivan: I was surprised to see that it's a pretty recent business, isn't it? It hasn't been in business that long.

Will Lowrey: Yeah, I don't think it's been around a while. I know there was lots of articles in the local news when the facility was established and there was discussion about closing a gap in meat processing. So I don't think we're talking a place that's been around for decades and decades, and it's a pretty good sized facility from what I can tell as well.

Mariann Sullivan: And is lamb big business in Colorado?

Will Lowrey: I don't live in Colorado. I'll probably defer to Chris for that. You know, he's got more local roots than I do. I don't think lamb is as big as poultry and beef, but there's a sizable lamb industry. But specific to Colorado, maybe Chris can speak to that.

Chris Carraway: That's correct. Lamb is not the primary animal industry in Colorado. There are a couple slaughterhouses. One, which is actually the subject of a slaughterhouse ban initiative that is going to be voted on by voters in Denver this upcoming November.

Mariann Sullivan: Yeah, we'll be doing an interview about that on Our Hen House as well. So can you tell us, give us an idea of the process for slaughtering lambs, when it's done quote unquote properly? I ask this in particular because I, for a long time, I didn't really understand the huge differences in the way pigs are slaughtered from the way cows are slaughtered. This isn't the kind of stuff you learn in life, you know, until you become an animal advocate. So just briefly, but just to clarify, can you just give, without too many gruesome details, what is the quote unquote right way to slaughter a lamb?

Will Lowrey: Well, yeah, I'd be remiss to say there's not a right way to slaughter a lamb...

Mariann Sullivan: Yeah.

Will Lowrey: but here, as far as the process, there's a couple of different ways that are used. I mean, this situation that we filed this case about is a little bit unique. I mean, in general, the animal is going to be rendered insensible as federal law requires, and so that could either be done with electrical stunning, or it could be done with something like a handheld captive bolt.

And then the animal is going to be shackled and hoisted, and then the animal's throat typically would be cut before the carcass is processed. In this specific case, we were dealing with a ritual slaughter. It's my understanding that this slaughterhouse does slaughter multiple different types of ways.

And so, this I think was a halal slaughter incident. The lamb was supposed to have been electrically stunned, even though that's not necessarily required by federal law. And that didn't work. And that, that leads us into the complaint. So it's not terribly different than, you know, other mammals, you know, some stunning process, shackling, throat cut, and then on through the process.

Mariann Sullivan: So Will, you're more the client here and Chris is the attorney. So I'm assuming that you're kind of where this story started, but no, I'm not sure you're absolutely where it started. Cause I know Animal Equality was involved somehow. So can you just start like how you found out about that?

How did you find out about this particular case?

Will Lowrey: Yeah, and I'm glad you brought up Animal Equality. Animal Equality is one of the other clients on this case that Chris and his team are representing. And so Animal Partisan and Animal Equality are clients on the case. This is actually a case that was originally found by Animal Equality. Maggie Marshall, one of the attorneys who previously worked there. The case stems from United States Department of Agriculture inspection reports.

And so it was basically found by looking through inspection reports, reading the details of the violation that happened with federal law and deciding that there was also, we believe at least the state cruelty law violation.

Mariann Sullivan: You know, I really appreciate that too, the fact that a lot of this, you know, people think of undercover investigations as the way that, you know, we find out what's happening to animals, but you mentioned once before when I interviewed you, Will, that, like, one of your favorite hobbies is to just sit down at night and read animal cruelty statutes from around the country looking for holes. Like, also another, I mean, it's just, there's a lot of paperwork, especially involved in slaughter, anything that's governed by the USDA in any way. Sometimes investigations can just be going through piles and piles of paper, right?

Will Lowrey: Yeah, exactly.

Mariann Sullivan: Well, maybe not literally paper.

Will Lowrey: No, you're right. I mean, we often think of undercover investigations, which are a tremendous tool, but that's not to say that that is the only source for these cruelty cases. I mean, this is a case that involves USDA inspection reports. These are government reports that are published. You can also get information through Freedom of Information Acts.

You know, sometimes we might have activists that are taking videos at vigils. So I think as animal law attorneys, or maybe for your listeners as future attorneys, it behooves us to think of the wide spectrum of facts that we can get to sort of create cases. It doesn't just have to be an undercover investigation, it could be a government report like, like we have here.

Mariann Sullivan: I think that's a really stunning fact and a really good reminder that there is information out there, especially when the USDA is involved in anything and just because something wasn't done about it doesn't mean that information can't be used. And now my understanding is that this particular incident involves someone called the Hide On Supervisor. And it involved one particular lamb. I wasn't aware it was a ritual slaughter. So can you just tell me who the hide on supervisor is? Not literally their name, but the, the function of that job, what they do and what happened here with this particular lamb?

Will Lowrey: Sure, yeah, I don't have a job description for that job. I think it's been our assessment that based on the fact that it's a supervisor role, it's somebody on the slaughter floor, that this is somebody with managerial responsibilities. This is somebody that presumably is overseeing the process or overseeing other people.

And so, direct to your question, what happened here, and this is again from not just the records that the USDA made available, but also from public records requests that were made, there was a specific lamb who was supposed to have been slaughtered with electrical stunning. That stunning did not work, and so the lamb was basically coming down the processing line, wide awake, fully conscious, looking around, sitting upright.

And we have this issue then where Colorado Lamb Processors apparently doesn't know what to do. And so you have a role called the sticker, and this is presumably the person that cuts the animal's throat, that's kind of like, I don't know what to do, asking the USDA what to do, and the USDA essentially instructs them, this animal needs to be rendered insensible.

And so, you now, Mariann, to your point, have this hide on supervisor role that comes over, so now we've got multiple parties. If you think of the facts, we have the sticker, we have the USDA person, we have the hide on supervisor, all trying to figure out how to do their job while this animal is presumably suffering on the processing line.

That hide on supervisor takes what's called a handheld captive bolt, it fires a steel rod into the skull of an animal. It's either intended to render that animal insensible, or to kill the animal. In this case it was intended to render the animal insensible. That fails, and so now we have an animal that has survived electrical stunning, has taken a steel bolt to the head, is bleeding from the mouth, acting like they are in distress.

The hide on supervisor tries it one more time, again, it fails. The animal is tossing their head around, clearly in distress. Finally, we have a slaughterhouse manager comes over, administers a fourth stun, and the animal is rendered insensible. So, I think if you just step back from the picture, you see multiple employees, a sticker, a supervisor, a manager, a USDA person. Multiple stuns. This is just a botched stun, and it's the basis for our complaint.

Mariann Sullivan: Yeah, and I think botched stun is an important point here. It's not just that this lamb had a particularly strong, like, skull or anything, it's that everybody was doing it wrong. I mean, and they actually even made the point somewhere, I saw in your papers, that I think it was the hide on supervisor, was very new on the job, hadn't been properly trained, is that right?

Will Lowrey: Yes, you're absolutely right. We got public records through the USDA that said as much. I mean, there's a quote from those records that says that the problem was caused by quote, inexperience and a lack of training and that the supervisor misjudged, that's in quote, the placement of the second bolt.

So, they're not trained and this is not a case where, Oh, you just missed some training and everything's fine. We have an animal that's suffering, bleeding from the nose and mouth because of this bad training and misjudging. So, it's not just a simple accident. It looks to us to be a systemic issue.

Mariann Sullivan: Yeah, clearly. All right. So, so the USDA is there and they have certain regulations governing slaughter. They don't do much when it comes to farm animals, but they do have regulations governing slaughter. So, what USDA rules, do you believe, did the USDA person there believe we're broken?

Will Lowrey: It's all related to the Federal Meat Inspection Act and the Humane Methods of Slaughter Act. Um, I think the specific regulation that they cited was along the lines of the animal is supposed to remain in an insensible state, right? If you administer a stun, like the electrical stunning, the animal should remain insensible.

And so that's the specific regulation. So, I think it is important to note, although we are at a state court, federal government came in and said, this was improper, you have violated federal laws, and it's related to humane slaughter of animals.

Mariann Sullivan: Alright, so the federal law was violated, what did the federal government do about it?

Will Lowrey: Yeah, we've seen this story before, right? And so we get what's called a Notice of Intended Enforcement, which is the USDA essentially saying, we think you have violated federal law, we are intending, and intent is the key word, it is our intent to remove inspection from your establishment. And so, for people that don't know, when the USDA removes inspectors from an establishment, that means that you can't continue to process meat, sell it in interstate commerce.

And so, the USDA said they were intending to remove inspection, and then, as always happens, Colorado Lamb Processors sent in some information, corrective action plans, and said, We understand this is what happened and the USDA kind of backed off and they issued what's called a letter of deferral and said okay We'll hold up and we won't suspend your inspection at this point.

So proverbial slap on the wrist

Mariann Sullivan: Yeah, if even that, like as long as you say I'm not going to do it again, like, apparently that's all you have to do when you break the law, I won't do it again, so we're, we're fine. You know, I've always heard that it's not the inspectors, it's the administration. Is that the sense that you get that the inspectors are, not all of them, I mean we can't categorize all of them, but are mostly trying to do their job, and then once it goes up the line, things just don't happen?

Will Lowrey: Yeah, it's it's hard to say I can definitely say i've seen inspections where you can sort of envision how difficult that must have been for the inspector, like how they're in this place, and they're getting lots of pressure, and whether it's through public records requests after the fact, where you can sense some animosity towards the inspector.

So I would certainly say that there are inspectors out there that are absolutely trying to do the right thing, and they are trying to enforce these laws. I'm sure there are others that aren't, for whatever reason. And so it's, it's probably a mixed bag. I can tell you when it all bubbles up though, to the point where somebody could take an action and somebody could implement a robust process to make sure that bad plants are being suspended, it's just not happening.

We just get these warnings over and over again. So at the highest level, someone or some people have ultimately said that, you know, it's, it's not a priority or we're not going to suspend places offhand.

Mariann Sullivan: Yeah, I was going to ask you where within the USDA does the fix come in? But I guess that's something that you wouldn't have any way of knowing.

Will Lowrey: I meanthese inspections are in FSIS, right? The Food Safety Inspection Service. And so somewhere in that world, and that's not to say that there aren't good people in FSIS who are trying to do their job. But I mean, that is the vehicle of the USDA that's responsible for quote unquote humane slaughter.

So I would presume that the solution lies there.

Mariann Sullivan: Okay, so before I get to the actual next steps you took, I think we just need to make clear why it is that there's no legal recourse at the federal level. Like you have an argument that the law was broken, you have evidence that the law was broken, and you have federal law that was broken. But why is it that you cannot do anything at the federal level and you have to move on and find another way to deal with this?

Will Lowrey: Yeah, I mean, the short answer is there's no private right of action for a citizen or organizations like Animal Equality and Animal Partisan. Unlike something like the Endangered Species Act, where there might be a citizen suit provision where a private citizen can take action. That doesn't exist at the federal level.

And so we are beholden to the USDA to take action, at least at the federal level. And I think your question raises this whole issue is that doesn't mean we can't do things at the state level, but just no legal vehicle, no right of action. I can write letters all day to the USDA saying, please do this.

They could ignore them all day. Um, there's just nothing that forces this case in the court at the federal level.

Mariann Sullivan: Yeah, I just think it's important, you know, since we have law students who are not familiar with animal law, and we're so used to the fact that it's so hard to sue anybody for violations of the law when it comes to animals that it's, it's good to reiterate it occasionally that there's just not much you can do, except as you said, you can do stuff at the state level.

And that's, that's what we're really talking about here. So, tell us about these Colorado anti cruelty laws that you believe are involved here. Is this a point where, Chris, you want to come in or?

Will Lowrey: I was just going to say, Chris, do you want to take that?

Chris Carraway: Yeah, so, you know, in the state of Colorado, our animal cruelty statute is not that much different than what you'd usually see across the country, particularly as applied here. You know, our animal cruelty statute says that anyone who knowingly, recklessly, or with criminal negligence mistreats any animal commits animal cruelty. As you can certainly probably immediately see, there's a lot of ambiguity and vagueness in those words, and the plain reading would presume that, you know, these are fairly broad readings. Mistreats is a fairly understandable term. It's further defined by law as mistreating an animal means every act or omission that causes or unreasonably permits the continuation of unnecessary or unjustified pain or suffering. So it's a pretty straightforward animal cruelty statute. But, like in many other jurisdictions, there are always exceptions. Specifically, for farmed animals, if the conduct is part of accepted agricultural animal husbandry practices, it's not animal cruelty. And this is certainly a part of the critique that my colleague, Professor Justin Marceau, has put forth with the expansion of animal cruelty laws, which is being cognizant of the ways in which industry will be able to manipulate those laws and actually institutionalize these exceptions for farmed animals, for instance. Because cases like these, you know, really tend to bring out the contradiction. If you did a certain act to a dog, everyone would be horrified and would undoubtedly be cruelty, but if it were done to an animal that can be sold, by virtue of these exceptions, it's magically not cruelty, which certainly is a false distinction.

It's our view that it's cruelty through and through.

Mariann Sullivan: There's a few things I'd like to dig in there. This, this farmed animal exemption in Colorado law, is that really relevant here? Has anybody invoked it? Because it seems to me that once you've got the USDA saying this was done improperly, you don't have much, I forget exactly what you said the wording was, but you don't have much of an argument that exemption applies.

Can you just remind me of that language and talk about whether it would apply to something that is apparently not approved by the USDA according to its own regs?

Chris Carraway: So the exception is for accepted agricultural animal husbandry practices, which is not any further defined, so it's really up to the industry to determine itself what would be cruelty or not, but it's our position that, even presuming this exception would be valid, inherently, that the conduct alleged here would not fall within any sort of accepted practice.

For really two reasons, I mean one, as the USDA rightly pointed out, it just simply the conduct here recklessly and negligently applying stunning techniques improperly violated the humane methods of slaughter act. But I think even if we were to look at the industry's own policies, you know, particularly the American Meat Institute Foundation's recommended animal handling guidelines, they certainly make quite clear that when stunning is done correctly, the animals to feel no pain and should be rendered instantly unconscious. So it's our argument here that looking at the bare minimum standards that the law has to alleviate cruelty to animals, this conduct is beyond what would be permitted by any reading of this exception.

Mariann Sullivan: Yeah, it does seem like this is a pretty good case for avoiding that exception, as ridiculous as that exception is. Another thing that I think is particularly relevant here, and maybe this is because I'm in New York, which has a very archaic cruelty law, which does not talk about mens rea at all, but this statute specifically spells out the criminal negligence is one of the mens reas that creates liability under this law. Is that right?

Chris Carraway: Yeah, it can be knowingly causing animal cruelty, with criminal negligence or reckless conduct. So it permits a litany of mental states. And here, at the very least, there's recklessness and criminal negligence just simply based on the obviousness of failing to do what should be a rather routine task at a slaughterhouse.

But even by the company's own admission that this act was a result of improper training and experience, which to me, screams negligance and recklessness.

Mariann Sullivan: Let's talk a little bit about who is liable because there's obviously this guy, the hide on supervisor, but you're also making a strong argument for corporate liability as well. Why is that important? And how do you make that argument?

Chris Carraway: In terms of how you make the argument, you know certainly a business entity can be charged with a crime, especially if the unlawful conduct is engaged in is authorized solicited requested commanded, or knowingly tolerated by the business entity or high managerial agent acting within the scope of its employment on behalf of the company.

So obviously this involved the hide on supervisor and other employees that on it's face have managerial roles in the company, and they were in fact the ones that were taking part in this negligent care and overseeing it, you know, additionally, as the company has itself admitted, this resulted because of lack of training, which indicates a truly systemic failure that is system wide that can't be remedied by going after a single individual because it is really the, the reality of places like these slaughterhouses, um, move at such a high pace, rely on minimizing their overhead and the result is that animals suffer cruelty, workers are put in danger, environmental regulations are overlooked, all so the business can make more money.

So in order to have a system impact, I think it's important really to prosecute this company because they're ultimately the ones responsible.

Mariann Sullivan: Yeah, absolutely. I mean, I think that's something that the animal protection movement or the animal law movement has struggled with for a long time. The problem of cruelty actions against, often illegal immigrant workers, who, I'm not saying they shouldn't be prosecuted, but then the company tends to say, Oh my God, we're so shocked! We never thought this would happen. The crucial thing is to find a way to hold the company liable. Your first action here was to write a complaint to the local prosecutor. Can you just tell us about, I mean, you can always write a complaint to anybody. I mean, like, we could write a complaint to any prosecutor.

That doesn't always mean something will happen. And we'll talk about the fact that you actually had a backup plan if nothing happened, but can you tell us about the complaint itself? I mean, it was a relatively simple document, and what did you ask the prosecutor to do and what was the result?

Chris Carraway: To sortf jump ahead a little bit, Colorado is one of the few jurisdictions that allow you to file suits to appoint a special prosecutor and compel prosecution if the usual prosecutor, the elected DA or appointed DA, refuses to prosecute a crime. And we'll break down sort of the legal standard for that, but what is required here in Colorado is the prosecutor actually has to decline to bring charges.

So obviously, you know, it would be great if we told the prosecutor about these violations of law, and he investigated it, and held this company accountable. Then we wouldn't have to go to the second step. But often times, as we've seen, prosecutors really tend to turn a blind eye towards cruelty that happens in places like factory farms.

But nevertheless, we had filed a fairly robust outline on why this conduct was animal cruelty, providing the prosecutor with the documentary evidence that supports that, a legal analysis as to how this fits the definition of animal cruelty, how lambs are covered under the statute, how this is not an accepted agricultural practice that would be exempt.

And we even laid the roadmap out about how the prosecutor could essentially bring charges against the company. The prosecutor didn't respond, and after some bothering by myself, ultimately says, we're not going to bring charges, and failed to articulate why. Despite the fact that, you know, we had asked, you know, this might be a reoccurring thing, given that Colorado Lamb Processors has repeatedly been noted by the USDA for inadequate handling of the animals.

So, you know, we sincerely asked, why do you think this is not a crime? So in the future, we could, perhaps, have a more tailored complaint. He declined to give any sort of reason, which is exactly why we filed suits to force him to give a reason.

Mariann Sullivan: Yeah, I mean, I can imagine that he, he might've known that that was, that was what was coming, but maybe not. Uh, you know, maybe all of this is new to prosecutors and they're really shocked when it turns out that, you know, there are actual lawyers who are actually going to put a lot of work into doing these things. So, as you've already told us a bit, but do you want to add anything specifically about this section of Colorado law that you're proceeding under now that does allow you, and which according to Will, seems to be finding them all over the country, that there are more of these possibilities in various states, and they vary in a bunch of different ways, that do create something of an opening for when a prosecutor fails to do their job, even when it comes to animals. Do you want to tell us anything more about this law that we should know about?

Chris Carraway: Sure, and you know, it's similar to a statute in Wisconsin. Our project, the Animal Activist Legal Defense Project, is bringing a similar lawsuit against Ridglan Farms, a beagle breeding and research facility in Wisconsin, with a hearing to determine whether a prosecutor should be appointed for animal cruelty there this fall, and I know, I believe Will has been successful in getting a hearing or additional accountability using that same statute.

In Colorado, there's a statute, section 16 5209. which allows you to essentially bring suit against the prosecutor for failure to bring charges. The burden is on us as the petitioner to show that the failure to bring charges was arbitrary or capricious or without reasonable excuse. And oftentimes you file suit and the court can just straight up dismiss the suit initially on the pleadings, but oftentimes, the next step is to bring the prosecutor into court to justify his or her failure to bring those charges.

And, you know, I've practiced in Colorado for about 13 years, 10 of those as a public defender, all across the state, and I've only seen this statue invoked three other times, one of which was by my friend Matthew Strugar when he was at PETA for a, a similar issue of animal cruelty, in rural Colorado.

But, you know, initially, we tell the court, Hey, we filed a complaint with the DA, the DA has refused to file charges, we think that was without justification. And, you know, the prosecutor essentially filed a response saying, Well, this animal was going to be slaughtered anyway, so it's not cruelty.

And I think we can sort of get more into the DA's response in a moment, but if you have any other questions about sort of like how the statutory scheme is set up.

Mariann Sullivan: Yeah, I would just like to, I mean, there is some case law, from what I understand, talking about the standards that the court should use in reviewing a prosecutor's refusal to prosecute an alleged crime. Can you just go into a little, was the name of the case Sandoval, I believe? Can you just go a little into how the courts have elaborated on the, because arbitrary and capricious, of course, is a standard that is used very commonly in administrative law.

It's a very high standard, but it's not an insurmountable standard. But, what are the specifics that the court has laid out as potential places where this could be used?

Chris Carraway: Yeah, higher courts in Colorado have really started looking at the American Bar Association standards for prosecutors in terms of bringing charges. And really expanded on that to about 10 to 15 various factors that a court can consider when determining whether a failure to prosecute was arbitrary or capricious or without reasonable excuse and a lot of those relate to you know, is there any doubt as to whether a conviction can be achieved. Certainly the general rule is a prosecutor has wide discretion with respect to bringing charges, and a prosecutor may refuse to bring charges because they think the case is weak, or there are witness credibility issues, or there are instances of unlawfully obtained evidence.

So a lot of the factors really relate to the prosecutor's analysis of the case. Is there a reasonable doubt that the accused person is guilty? Is there sufficient admissible evidence? Are witnesses available? Are they likely to cooperate? You know, what is the credibility of the complaining witness?

Here, obviously, the victim in the case is a lamb that has since been killed, so that's really a moot point, but you know, the courts will also look at, what's the extent of the harm caused by the offense. What is the punishment? Is the punishment disproportionate, related to the offense or the specific offender?

Were there improper motives of the petitioner, in this case Animal Partisan and Animal Equality, in bringing this complaint? What are the other competing demands on the prosecutor's office, with respect to resource availability? And those really kind of fall into like the 10 to 15 factors that a court can consider.

And the sort of the takeaway is there's a lot of justifications a prosecutor can point to to shield themselves from a finding that their refusal to prosecute was without reasonable excuse, but in this case, the prosecutor really focused on one.

Mariann Sullivan: Yeah, but before we get to that, I just had one more question about the standards or I guess the, the standing. I just wanted to make clear. You said that, you can't have a bad motive. I mean, one of the things they will look at is whether you have a bad motive in bringing this, or whether Animal Equality has a bad motive. But there's no standing requirement. The huge problem that occurs so often in so many animal law cases does not exist here, right? You don't have to have an interest in the case, you don't have to prove that you were injured by this alleged violation of law.

Anybody can bring this kind of petition as long as they don't have bad motive, is that right?

Chris Carraway: That's correct. It's not even bad motive, it's improper motive, because certainly if you were a victim of a crime, you might feel very strongly, maybe even maliciously, that you think the person that harmed you should be prosecuted, but it's, it's the impropriety of the motive that is looked at, and that certainly something that was never alleged in this case.

It was of whether or not this would be like an abusive process.

Mariann Sullivan: Yeah. Will, did you want to add something?

Will Lowrey: Yeah, well, I just wanted to add one extra fact about this law and some other laws in other states in that they're In large part, not specific to animal issues. So I don't want anybody listening to think, oh my gosh, Colorado has got some animal specific, like question the prosecutor. The one in Wisconsin that Chris mentioned, this one here, there's a similar one in Pennsylvania, they're general, they're not animal specific. And I think the value of that is that they can be applied in lots of situations. In Pennsylvania, those cases have been brought for a lot of police misconduct cases. And so this is not just about a tool that is only existing for animal people. It's a broader tool that we just so happen to be using for animal issues.

So it can help a larger swath of society.

Mariann Sullivan: Yeah, that's a really great point. And, it is also true in other states as well. The point I was making that even though probably most of the time these cases would be brought by somebody who was somehow involved or injured, that is just not necessary. You can just be a concerned citizen.

Will Lowrey: It's the refusal. I mean, if you look at the statute, I mean, the statute talks about unjustified refusal. And so if I am the entity or the person that's made the request and I have been refused. Then I have a right. You know, in my head, it's similar to a FOIA law, right? If I've made the request and you've refused me, suddenly I have a right of action.

And so that's the case here as well.

Mariann Sullivan: A right of action. I mean, that is, that can be very hard to come by in animal law. So, it's a really exciting area to pursue. Of course, it's not easy. Standards are very high as we pointed out. But let's get back to the case, Chris, you were going to tell us about their response.

Chris Carraway: Yeah, so, normally what's required is that the prosecutor has to give their justification. And, you know, in prior cases, I've seen them be quite just straightforward, saying we don't think the case is strong. I've seen them be quite detailed, going into the credibility of the parties. In this case, the prosecutor only really addressed one fundamental point, is that there is a belief that because this lamb is to be slaughtered, it's not cruelty.

Which is as legally incorrect as it is just morally shocking. Because if we were to take that logic to its obvious result, it essentially means that you can be as cruel to an animal if your intent is to kill and sell him or her for money, then it's never going to be a crime, which certainly is not how our animal cruelty statute is designed and certainly is not the intent of the legislator as evidenced by the fact that, you know, we do have laws that contemplate animal cruelty in places such as the Colorado Lamb Processors.

But what I found interesting was that that that was the only issue that the prosecutor really hedged his bets on. So we talked about a litany of like 10 to 15 factors. He didn't really touch upon any of those. So in many respects he concedes this isn't a case in which he has doubts he can prove the case.

It's not a case in which, you know, it's a misdemeanor crime, he has an increase in felonies or homicides in his jurisdiction, so it's a resource issue. He didn't look at that. It was just simply this sort of fundamental thing that, hey, this animal's going to be killed anyways. Who cares about the suffering that animal has along the way? Which is just simply incorrect and quite frankly, awful.

Mariann Sullivan: I found it unbelievable. I mean, when I got to that point in the papers, I couldn't not think of another argument to, I mean, it is hard for him to come up with an argument here. I agree. Like, it's a bad case for him, but he used the word that your arguments were preposterous, that this animal could be subjected to cruelty.

Preposterous! Like, it was an unbelievable argument. What about preemption? Is there any argument that because the USDA, which, you know, enforces these regulations relevant to cruelty within the slaughterhouse, that a state prosecution could be preempted here?

Chris Carraway: I'll let Will talk about that. Cause this is something that Will has spent a lot of time on.

Mariann Sullivan: Oh, great.

Will Lowrey: I don't think there's a preemption issue here. I mean, the Federal Meat Inspection Act and the Humane Methods of Slaughter Act, they do certainly contain a preemption provision, but that provision only speaks to laws that are in addition to or different than. And so we're talking about an improper stunning issue here, so it's not different. I mean, if you look at federal law, federal law requires animals to be rendered insensible. It requires them to stay insensible, and that's exactly what we're doing here. I mean, that's the provision under Colorado's law that we're saying, you mistreated the animal because you did not improperly stun the animal.

That's not in addition to, it's not different than federal law. I'm sure you know, Mariann, there was a Supreme Court case, National Meat Association vs. Harris, that specifically says that states can enforce their own cruelty laws. And so, it's not to say that every state law is never going to run afoul of federal law, but in this case, we're not adding anything in addition to or different than.

This is a stunning issue. Federal law requires that the state can enforce their law. I think there's good case law that supports that.

Mariann Sullivan: Yeah, I mean, even National Meat Association versus Harris, which was not a case that I, I mean, I didn't like that case, but it would not cover the situation here.

Harris being, of course, Kamala Harris, just as an aside, in that case, and she was on the side of the animals. I just want to add that. I'm sorry, Chris, I'm interrupting you.

Chris Carraway: Yeah, I mean, it's more akin to the common situation where, you know, a state crime can also be prosecuted federally. You think of like gun crimes or certain drug crimes, and it's just a matter of discretion, resources, and things of that nature. And that certainly does not stand for the proposition that just because the federal government can take action and chooses not to that no crime was committed, which was a point that the prosecutor, in this case, his name is Travis Sides, tried to raise is that there wasn't a crime because the USDA ultimately did nothing. Well, that's not a legal proposition. It has no legal impact, but also it simply ignores the fact that, you know, the USDA's own inspector general and doing an audit on how effective animal welfare laws are in the country has essentially concluded that the USDA's enforcement is ineffective and quote basically meaningless.

So it's not an abdication of responsibility for local or state prosecutors by inaction of the federal government. In fact, it amplifies the need for prosecution because when you have the federal government who very well may not want to allocate the resources to such a localized crime, that's certainly where a state prosecutor would frankly be in a better position to prosecute that crime.

Mariann Sullivan: Yeah. And I mean, as you point out, well, they're really just upholding and enforcing federal law, in addition to the fact that they're enforcing it by way of the cruelty law, it says the same thing in this case. What about the argument that they were only following the veterinarian's instructions and that's all you have to do?

Chris Carraway: I mean, the USDA veterinarian on site said, hey, render this lamb unconscious. Did not say, do it wrong, do it negligently recklessly in a manner

Mariann Sullivan: Good point.

Chris Carraway: that would cause the lamb to suffer. But that's also irrelevant because the crime is the conduct. If I were a defendant in like any case, like a bank robbery case, and someone told me, go rob this bank, I can't say, well, it's not a crime because someone told me to do it.

So that argument by the prosecutor, Mr. Sides, is just illogical and again, just misses the mark. You know, certainly while we believe morally and ethically that the slaughtering of these lambs is impermissible, we recognize that the law has different set of standards, and even applying the really minimal, inadequate standards in the law, the crime is the negligent and reckless manner in which Colorado Lamb Processors stunned the lamb in question. That it went beyond what is permissible. And it's irrelevant as to whether or not anyone told them what to do. It's the act of doing it wrong that caused that lamb to suffer.

Will Lowrey: I would just add also, agree with everything Chris said, but I mean, the fact that the USDA was even involved was because Colorado Lamb Processors had botched the initial electrical stun. And so not only had they botched that initial stun that led to all this confusion about what do we do now? You know, there's notes in the USDA report that talk about they weren't sure what to do, so they asked the USDA. So everything that Chris said is spot on, but the sole fact that the USDA inspector was even there was because they had already screwed up. Their process had already broke, and I think that shines a light on just the systemic nature of the issues here.

Chris Carraway: And I think it's reasonable to conclude the USDA, it's not just a random one off chance that the USDA inspector happened to be there when there was improper stunning or instances of animal cruelty as, as Will commented, it's reasonable to expect or conclude that this is really a systemic problem. Because as Will later discovered, December of that same year, there was another instance that the USDA noted, in which a lamb was improperly stunned, was not stunned through the electrical stunning process, and actually tried to escape being slaughtered from the line.

And an employee had to throw his body on the lamb, for the lamb to ultimately be stunned, which is just another instance of repeated cruelty, repeated improper conduct, negligence, and recklessness, but also that whatever excuses Colorado Lamb Processors gave earlier in the year about how this is a one time incident, really disingenuous, and this is more of a systemic problem, and is why local prosecutors should hold not just the individual employee, but specifically the company accountable, because this will be repeated if there is no accountability here.

Mariann Sullivan: Yeah, particularlyy since I did see, I mean, I mentioned this before in the papers a number of times, I think from them, pointing out that this employee was very new and clearly had not been properly, I mean, that's not an excuse. Like, like if you hire somebody new, they can't screw up until they've been on the job for a while, especially since the turnover is probably constant. They need to be trained. It's the company's fault. You brought up something, Chris, that I, I think is something. you know, that I think all animal advocates struggle with in these types of cases, that you have to take as a given that there's no way to argue that slaughter or some pain, some suffering is illegal.

There's a line. How do you manage that in the way you litigate to like, you know, this is what the law is, this is what we're trying to enforce. This is all we've got. And yet not somehow start asserting that all that's fine. Or do you, do you worry about that at all?

Or do you think about it, especially when you're doing PR in the animal rights movement? How do you manage it?

Chris Carraway: I certainly think about it a lot. You know, this is also a common question when we talk about our defenses and open rescue cases, where we want to invoke the doctrine of necessity. And, you know, there's a difference between rescuing an animal that's suffering unlawful animal cruelty versus rescuing an animal who's going to be slaughtered and you morally disagree with that. The latter category, many doctrines of necessity, would not give any sort of legal relief, but I think it's important, really there are two, two things that come to mind. One is, ultimately where we want to get to how the law treats animals, would be sort of rendered meaningless if these basic safeguards aren't even enforced. And the fact of the matter is, is that a lot of these animal cruelty laws for animals in factory farms, they are suffering cruelty day in and day out, by my own moral calculus in terms of what I think animals should be subject to as virtue of the fact that they have rights, they shouldn't be subject to cruelty, but even by the different standard of what the law says. I mean, going to any factory farm, these aren't just accidents where you're finding instances of cruelty.

It should be concerning that every time you do an investigation into a factory farm like this, you are finding violations of the law. So I think it's important to hold these companies to account because I think that may make it easier to go even further, ultimately to the place where we want the law to give animals actual rights.

But I think also what is particularly important for me in these cases, is bringing out the contradiction on how the law looks at animals, and has sort of a false dichotomy with farmed animals or animals for food that are sold for money. Because in our moving papers, you know, we found numerous other cases in which the district attorney has prosecuted animal cruelty for conduct against dogs and horses, you know, things that are awful things to do to animals.

But frankly, I don't believe is nearly as bad as what happened to the lamb here. So it would be sort of disingenuous to say that, you know, worse conduct is not a crime, but that's exactly what we're seeing in this case, where we have much worse conduct causing a lot more pain and suffering to an animal. And that there is no accountability because it is an animal that is going to be murdered and sold for food.

And I think these instances highlight that sort of contradiction and can allow people to take a look at these animal cruelty laws and say, well, Hold on, like, why is there an agricultural exception, and who decides that?

Like, why should the industry, who is making money, who has an incentive to make more money and lower standards, and cause more harm to animals to make more money, why are they the ones that get to set what society's view of cruelty is? Because, quite frankly, that's anti democratic. And that's why, like, for instance, things like the ballot initiative in Colorado to ban a lamb slaughterhouse in Denver is so important because those are really democratic instances.

So I think it spurs this like additional conversation about sort of the futility or the weaknesses inherent in our animal cruelty statutes.

Mariann Sullivan: Yeah, absolutely. I absolutely agree. And I think this case really, really highlights that because of the very fact that the prosecutor made such bad arguments and it, I mean, these might've been the only arguments really available to him and he was forced to argue because of the status of the case, arguing that whatever horrific cruelty an animal is subjected to during slaughter is not against the law and that it's preposterous to argue otherwise.

I mean, when the prosecutor is forced to make arguments like that, you know you are hitting some variations in the law that perhaps need to be addressed.

Chris Carraway: But you know, I think the prosecutor's argument isn't that out there when you look at how a lot of people view farmed animals, right?

Mariann Sullivan: No, I agree. I agree. It just, he was just forced to put it down on paper.

Chris Carraway: Yeah, and you know, a lot of people, you know, I disagree with it, but a lot of people adopt that viewpoint. And I think that's why it's important, especially like in these cases, because it provides an opportunity to try to, to highlight that, you know, an animal, like a lamb, is capable of suffering, is deserving of the same rights as your own dog.

And, you know, while we don't have this evidence, but we do in our original case, you know, I think we can look at, you know, I think there's a visceral reaction when people see animal cruelty, that they're against it. And even just the written description of how the lamb in this case reacted to the improper stunning is nightmarish.

And, you know, I think it really will challenge that sort of traditional view for a lot of people that well this animal's just for food, doesn't really mean anything. Like that's how they view it, but I think when actually confronted with the suffering that this lamb went through, it makes it really hard to continue to believe that, and it just provides us another opportunity to emphasize that it doesn't matter if it's a farmed animal or a dog, you know, these animals are capable of suffering, they're worthy of protection and rights.

Will Lowrey: Yeah, I was just going to say, to me, definitely when confronted with the suffering, but I also think when confronted with the law. I mean, to Chris's point, it is this prevailing opinion that farmed animals are just exempt from everything, but that's not generally what the law says. If you sit there and you read the statutes and you read What is mistreatment?

What is the exemption? How does this apply? It's, it's in the law. It's not like we're out here trying to make brand new law and get rights for lambs at slaughterhouses. Like this is the law as the Colorado legislature passed it. It's just getting over this barrier that people's preconceived notion is, oh my gosh, there's no way an animal being killed for food can be subject to cruelty laws.

And I think that's what's fascinating about this case is that well, they can and that's what your law says. So let's take it to court and see what happens.

Mariann Sullivan: Absolutely. I mean, and if the law was actually enforced, things would be dramatically different because I'm sure that the things that you managed to find out are happening are really only the tip of the iceberg. Chris, you mentioned there's this ballot initiative pending in Colorado and there's this huge clinic at the University of Denver and it's become a center for animal activism defense.

And I, I also hear that the governor in particular, his husband, have some strong views on animal cruelty. So, so what's the state of play for animals in Colorado? Do you think it's a state that's gonna show some leadership?

Chris Carraway: I hope so, Colorado has had a history of sort of moving to become more progressive, you know, was a red state, purple state, and then I think most people sort of believe it's like a blue state. Which, you know, progressivism is often associated with protection of animals, but

Mariann Sullivan: Yeah, well, not for very good reasons.

Chris Carraway: But, you know, certainly we do, animals have friends in the governor's mansion. For animals,

there's a new Bureau of Animal Protection, and things like that, but, you know, also on the other hand is that animals are a huge industry in Colorado, so I think that will really be a site of conflict. I hope Colorado will become a leader for animals. And that really sort of just depends not on like me as a lawyer or even like us at the law school.

It really just depends on, or even elected representatives, quite frankly, it depends on the people on the ground that are actually agitating and advocating for animals. Those are going to be the folks that really push the change. And I really view my job and the Animal Activist Legal Defense Project's job, is to enable and support those individuals.

Because it's not going to be some clever argument I make, that's not how law changes. It's gonna be the social pressure and the advocacy that ordinary folks on the ground are doing. And you know, I think it's exciting that there is this really novel new ballot initiative banning fur and slaughterhouses.

You know, if either of those are successful, it could be a really significant step forward in the animal rights movement. And I, and I want to note that, you know, there are other ballot initiatives across the country. You know, Sonoma County, has a ballot initiative to ban factory farms, CAFOs, and things like that.

But, you know, ultimately, It's not the lawyer. It's not necessarily the elected representative. It's going to be the folks on the ground in the animal rights community that are going to make certain states leaders for the animal rights movement.

Mariann Sullivan: Well, clearly that's true, but the lawyers have a part. I mean, for one thing, trying to keep them out of prison. For another thing, just in cases like this, people do not understand what happens in slaughterhouses, or what the laws are, or what the actual practice is. I mean, anything that brings attention, that helps those advocates bring attention to what's really happening to animals is good. So I'm really grateful that you're doing this case. Is there anything that I should have asked you that I didn't?

Will Lowrey: I can't think of anything.

Mariann Sullivan: What are next steps?

Chris Carraway: So we have a hearing on September 6th in the Morgan County Courthouse, where, you know, the judge will essentially hear additional oral arguments from both sides. Myself, as well as the District Attorney, Travis Sides, as to whether or not Mr. Sides' refusal to prosecute this case was arbitrary or capricious or without reasonable excuse.

Mariann Sullivan: And Mr. Sides is the actual DA of the county, not an assistant?

Chris Carraway: Correct, of the Judicial District, which encompasses a few counties, but Morgan County is sort

of the largest in that area. It's a county that is about an hour, hour and a half northeast of Denver, in sort of eastern plains of Colorado.

Mariann Sullivan: And if you're successful, who prosecutes this case?

Chris Carraway: The court can appoint a special prosecutor. Oftentimes in Colorado, when a special prosecutor is appointed, it will be a prosecutor from a nearby jurisdiction. So that very well could be the prosecutor for Adams County, which is the neighboring County where I used to practice as a public defender.

It could be a prosecutor in Denver County and, you know, Denver County does have more of a focus on, you know, I think, there's an animal cruelty prosecutor there who admittedly does not go after institutionalized animal cruelty. You know, it really depends. You won't necessarily see them just find a private attorney and hire them.

It will likely be a neighboring district attorney's jurisdiction.

Mariann Sullivan: And they don't have to appoint someone. They could give it right back to Mr. Sides, is that right?

Chris Carraway: Well, not really, you know, the court can essentially rule the refusal to prosecute was valid, and that's sort of the end. You know, we can explore appellate remedies. And I think it would be an interesting appellate question as to whether or not the Animal Cruelty Statute would apply to an animal that is to be slaughtered.

Alternatively, if the court agrees with us, it would go to a different prosecutor. So, it's doubtful that Mr. Sides would be the one that ultimately would prosecute this case for obvious reasons. Because, you know, sort of the appearance of impropriety is kind of there.

Mariann Sullivan: Yeah. It's fairly obvious. Well, I'm looking forward to hearing what happens next. Will, do you have anything, anything to add about your experiences being a client this time instead of you're usually the lawyer on the case. Is it more

fun being the client?

Will Lowrey: I don't know if it's more fun. Well, I guess it's more fun because Chris and team do all the work, so I get to sit back and just kind of review.

Mariann Sullivan: Meant.

Will Lowrey: That part is fun. I've had a great experience with the clinic with Chris and Stefan and Justin. Um, you know, I'd be remiss to say that they're not also acting as attorneys in a separate Animal Partisan case.

This is a public records case against Colorado State. So I've had a couple of interactions, very, very positive. I'm, I'm thankful that there are resources out there.

Chris Carraway: And Animal Partisan's a great client. We love working with will.

Mariann Sullivan: A mutual admiration society!

Chris Carraway: I really want to take this opportunity and, you know, Will mentioned Maggie Marshall with Animal Equality. Maggie did a lot of the work in the initial complaint and drafting. The strengths of this work product are due to, to Maggie and Animal Equality's input, in this case and, you know, we're super grateful, and we love having Animal Equality as a partner in this case as well.

Mariann Sullivan: I'm really glad you added that. That's great to know. And I just really, as I said before, I really admire that kind of work of just sitting down with reams and reams of, well, I guess, pixels, not paper, but, and just going through it and finding the problems. So, it's heroic work and anybody can do it and it's just a lot of work and it's very painful, but look what can come from it. So thanks so much for doing it. Thanks so much for joining us today.

Chris Carraway: Thank you for having us.