Wayne Hsiung’s Landmark Animal Rescue Appeal Wins Some, Loses Some: What It Means for the Right to Rescue

Wayne is here to talk about it. I know we just did an interview on this case really not that long ago, but it- everything that happens in these cases I think is so important, and it's so great to be able to keep up to speed like this.

And so Wayne is here to talk about it, but also two of the other attorneys on the case, both from the University of Denver's Animal Activist Legal Defense Project, without which I just don't know what we would be doing. I don't know how this movement existed before that happened.

I, and I remember how it existed, and it was with very bad legal advice, or none at all. Just, you know, fly by the seat of your pants and hope you can get a lawyer later. It has changed everything. So Chris Carraway and Steffen Seitz are here from the, from the project, and we're gonna talk about this appeal, which came out in ways that I didn't expect. I mean, I didn't know what to expect, but I was surprised. Some successful, some not, and we're gonna talk about why.

Just a quick reminder about The Our Hen House podcasts. Rising Anxieties comes out on Tuesdays, The Hen Report on Thursdays. The long form interview, including this one, on Fridays, and bonus for flock members comes out on Mondays, so be there or be square.

All right. We already covered a lot of what happened. I looked back and I didn't realize it was that recently, it was in January, that we spoke about this case before the appeal was decided, before the appeal was even argued. So I really want to focus on the decision from the court, where it leaves us, and what next steps are.

And I really suggest that anyone who is listening, who didn't listen to the prior interview, listen to it because we really can't go through all of the setup that we did there. But Wayne, can you just give us the quick recap of the facts of what this case was about?

Wayne Hsiung: Back in May of 2018, I organized 500 people to walk into a Whole Foods egg factory farm called Sunrise Farms to both document conditions that we thought and I think were in fact a violation of California law, including a very famous law called Prop Two that's become even more famous recently because of the Save Our Bacon Act and the fight against the Save Our Bacon Act. It's

a

law

that banned the most abusive intensive confinement of certain types of animals, including egg-laying hens. And we had actually documented the use of these exact confinement facilities, battery cages, for years at Sunrise Farms, reported it. State inspectors acknowledged that the hens were abusively confined, but they had done nothing about it for two years prior to this demonstration.

So May of 2018, we decided if the government isn't gonna enforce a law and protect these animals, we will. And we walked in, walked out with, I believe it was 38 hens. One of them passed away, so I think the final number that were rescued is 37. One of them died at the veterinarian. And did this all very openly.

You know? We actually called the police ourselves and it's very interesting demonstration 'cause the police actually sorta helped us take the hens out 'cause they were like, "What do we do?" they'd just never been confronted with a situation like this. But as a result of this case, I was initially charged with I believe it was seven felonies.

By the time we went to trial it got down to two felonies, and they actually dropped the theft and burglary charges 'cause they realized they couldn't prove these animals actually had any value 'cause they were so sick and distressed. But we went to trial in, it was what? September, October or November.

It was a very, long trial, Steffen to sit through the entire thing. after a very long deliberation, a jury did convict me of one felony, conspiracy to commit trespass at Sunrise Farms, and then two separate counts for trespass at two other factory-- or two other counts of trespass, both for the action at Sunrise, which I organized, another action the next year at Reichardt Farms, a duck farm. I was directly involved in organizing it, but I supported as a lawyer. Yeah, so that's the factual background that led to this appeal, 'cause I was convicted partly because I was denied the right to use what's called the necessity defense, essentially arguing that it was necessary to help these animals because they were suffering in ways that, you know, the term in the case law is actually evil.

It's evil what's happening to these animals, and there is no other way to stop this evil.

Mariann Sullivan: Yeah, and evil is actually a specific word of art within this case. All right. When last we spoke, we were still waiting for an argument date, but it hadn't been briefed. We went through a lot of what you just said, but a very expanded version of what was going to be argued. Just before we get into what the court decided, was there anything particularly notable about the argument that you'd like to share?

Wayne Hsiung: Yeah, Steffen was in the quorum too. I'd be interested to hear his observations. I think the most fascinating thing to me was that the judges seemed caught between what was clearly the morally correct decision and what they saw as the legally correct decision. 'Cause even the lead judge, and I think the author of the opinion, who's I think the chief judge on the First District Court of Appeal, one of her first statements was, "This is a factory farm with 800,000? Oh my God, 800..." Like, she just stopped for a moment, just realizing there are more animals in this farm than there are human beings in the en- I think in the entire county, Sonoma County. It's as big as the city of San Francisco in a couple of large sheds. And you could tell throughout that when we talked about the animals, they were-- they clearly had some sympathy, and they understood there's a reason people are deeply concerned about animals. But then they always tried to find legal excuses for why you can't take the action that you took, you know? And the thing they settled on ultimately was, "Well, this wasn't an emergency, even if there's some moral issue what's happening to the animals, because you planned it, there was a conference, you went to the authorities, you did all this stuff to, like, train your activists. That clearly it wasn't an emergency, so the necessity defense doesn't apply."

And I'm sure we'll get into this, and I, just thought it really did demonstrate the deep tension that exists in just all public attitudes towards the use of animals in the food system.

Mariann Sullivan: Yeah, that's how I was going to respond to what you said. That just sounds... But the court is actually stuck with the problem that they have to make a decision that's going to impact this system that nobody knows about. It's interesting that they were that naive about the number of animals involved, and, nobody knows what to do about.

And so, there they are. And as a result, they come up with some odd decisions, which I think they did here. Do you have anything to add, Steffen?

Steffen Seitz: I was just gonna echo sort of what Wayne said, there did seem to be uneasiness with the scale of the facility and the treatment of the animals, but there's also this natural conservatism that courts have. So I remember in particular at one point, one of the judges said something about, you know, their opinion ending up in a folder at one of these demonstrations.

Which, one, shows that they were sort of aware of the record or the fact that Wayne has carried these kinds of legal opinions with him in the past. But also this, like, concern about too much justice, about vigilantism, et cetera, that I think is this sort of natural conservatism that produces this sort of odd opinion in which, they seem to try to find any number of reasons why, you know, you can't go full in on necessity. and it's not really like they really commit to almost, like, one very clear rationale. They just seem generally uncomfortable with it, and I think it's what produces kind of a strange opinion.

Mariann Sullivan: Yeah. Yeah. I, I-- not to quote myself, but I'm gonna go ahead and quote myself. I think the last time we spoke, I said their problem is that, everything we argue just proves too much, and you can't... Like, okay, let's end the farming of animals in the United States. You know? Like, that's both kind of what they'd be doing.

Now, Chris, you weren't there, right? So, I... you're not gonna add anything to that. All right. So the charges that ultimately went to trial and resulted in conviction, you referred to this, Wayne, they involved these three trespass counts, but from two different actions and facilities. Can one of you describe each charge and tell us which facility they involved and how they differed from each other?

Because that does become important, maybe particularly in the mistake of law argument down the road. So, and I had a lot of trouble sorting them out, 'cause the court doesn't even sort them out very well in its decision. They just keeps talking about trespass. Well, they're all trespass.

Steffen Seitz: Yes, so there's two trespass convictions, the one at Sunrise Farms at the egg farm is under 6020, which is basically remaining on a property and refusing to leave after the owner or the owner's agent or police officers asked you to leave.

Mariann Sullivan: That's pretty basic trespass

Steffen Seitz: Refusal to leave when on the property. and then that's 6020 at Sunrise, and then there's also conspiracy to commit that 6020 trespass at Sunrise. So that's for the egg farm. And then for the duck farm, it was 602K, which is trespass with an intent to interfere with a lawful business. So it requires a specific kind of intent.

It's not just going on the property of another, it's also going on the property of another with a particular kind of intent, namely the intent to interfere, and that was for the duck farm.

Mariann Sullivan: Okay. And, and the only one that survived after this, and I'm just, not to give away the ending or anything, but it's easier to follow, I think, if people understand. The only one that survived was that simple trespass, right? And we're gonna talk about what happened to the other two. All right, the necessity defense.

The first thing the court dealt with in its opinion was the necessity defense, which is, you know, as you know, my favorite topic. And let's just do the basics. What is it and where is it found in California law? And basically, what are the elements?

Steffen Seitz: So it's a common law defense, that has around six-ish elements. but the most crucial stuff is that it's the gist of the defense is that we want people in emergency situations to be able to take emergency action to avoid some greater evil. So really this idea of being able to avoid a greater evil is at the heart of the defense, and allows you to violate the letter of the law to do so. And in California, the way they describe that greater evil is a, quote, "significant evil." So you have to take action to avoid a significant evil. That action has to be proportional to that. You have to have a reasonable belief that what you're doing is necessary to do so. You have to have a good faith belief. And you have to exhaust all adequate alternatives.

Mariann Sullivan: And of course, the trial court had famously held that the defense just does not apply to harm to animals, which is a really simple way of getting rid of it.

Steffen Seitz: Exactly. It's the very first prong. They basically said harm to animals just doesn't count as significant evil as a matter of law.

Mariann Sullivan: And how did the appellate court deal with that? Which was really in, in so many ways, the central issue of the case.

Steffen Seitz: It's kind of odd. So the appellate court spent multiple pages saying there is a public policy in California against cruelty to animals. Here are all the laws that say so. Here are the cases that say so. Then they said, "We don't have to decide this issue. We're not actually going to decide whether or not the necessity defense can apply to animals. We're going to assume, that's the case without deciding it and then, sort of knock the defense down on other grounds."

But there is also some other weird language where they seem to indicate that even if there is a significant evil, you know, even if harm to animals counts as significant evil, then it still doesn't authorize self-help under the necessity defense.

There's sort of this one throwaway sentence that is quite annoying. It's a really sort of strange way that they deal with it where they spend multiple pages saying, "We do think that, you know, harm to animals counts in some ways, that it is some kind of evil. But we're not gonna decide the defense on those grounds. We're gonna try to move past that while also leaving us with some really problematic dicta."

Wayne Hsiung: Wait, so what is the throwaway sentence that you're referring to?

Steffen Seitz: I can just actually read it. It's on, yeah, page 13 of the opinion. It says, "However, the existence of this public policy does not mean self-help is an available remedy to prevent suspected animal cruelty occurring on someone else's private property, particularly when such property is a commercial farm regulated by a separate statutory scheme, to wit the Food and Agricultural Code."

Mariann Sullivan: So the court left it as almost as confusing as it was before. The trial court had decided, "Well, it just doesn't apply to animals. It's really simple."

Again, it becomes very confusing and we really don't know how it applies at all. God forbid, you know, the court should, like, decide the issue. All right, but the court focused on imminence.

Imminence was not something you just mentioned in the elements, but it is, I mean, it is an important factor, in many states, in deciding whether a necessity defense applies. Is that right?

Steffen Seitz: Yeah, so there's two ways that imminence sneaks into the defense. Sometimes some California courts have actually just said what's required is a significant and imminent evil, so they actually sort of make it as part of the defense. And then other times it's just sort of used in the description of the defense more generally.

And I think probably the best way of thinking about imminence is really as part of the adequate alternatives requirement. So you have to exhaust all adequate alternatives. If a harm is super imminent, then it turns out that no alternative is going to be adequate. You don't have time to call the police or to call an ambulance if your friend is bleeding out and they need to get to the hospital right away.

If it's less imminent, if your friend has an injury that's going to take, you know, many hours to, to actually cause real suffering and pain, then you have to exhaust all adequate alternatives. You have to call the police, you have to call an, an ambulance, et cetera. So I think probably the best way of thinking about imminence is as part of that adequate alternatives prong. But to be clear, California courts are not clear on this. It's sort of all over the place. Sometimes it's mentioned, sometimes it's not. This is what happens with a common law defense. Every court sort of focuses on a different facet, and then the defense as a result ends up being a bit, sort of vague, sort of has all of these things floating around.

Mariann Sullivan: It does get very confusing, and it almost seems like... I feel like... I hope I can articulate this, like that the way that the court did it, it kind of leaves it possible to either decide that it's, it's not imminent, the harm wasn't imminent because you took too long taking these other efforts, or you didn't exhaust all of your efforts and therefore it doesn't matter whether it was imminent or not.

It's like kind of heads I win, tails you lose. So it's interesting that you see that as part of that same, I don't think that was entirely clear, but I hope everybody out there will think about it for a while and make sense of what I just said, 'cause I do think it's...

Wayne Hsiung: I think you hit it on the head. That is exactly the contradiction in the opinion, and it's just... And I hope the Supreme Court acknowledges that, because it is a basic tension in the Court of Appeals opinion, that it's kind of like heads I win, tails you lose, right?

Because you either do all the things you have to do to meet the adequate alternatives prong, like you've done all the preparations, you've reported it, you've kind of done investigation to document there's nothing else that can be done, in which case you meet the requirement that you've exhausted your legal alternatives. But then if you do that, then it shows it's not imminent because you had time to do all these things. It's so, it's, just, it's a totally unfair opinion in that regard. And in many ways, I don't want to be too harsh on the Court of Appeals, because I do think on some intuitive level, I... This is just the read I got in the courtroom.

I don't know if this is your read, Steffen. It'd be interesting to see if Justin feels the same way. I felt like the judges kind of liked us, and they wanted to be on our side on some level. They were just scared. So but as a result, I mean, I just think it often the case that i-in all regards, when institutions make decisions out of fear, they come out with incoherent decisions like this.

And I don't think it means they're not smart. I don't think it means they're not good people. I think it means that they let their fear about creating an actually coherent system interfere with their duty as judges just do the legally and frankly, the morally right thing.

Mariann Sullivan: I think you're right. I think it also probably enters into that they probably didn't all agree. How many of them are there? Three or five? Three. And they probably didn't agree, and they wanted to come to ... So they made some kind of compromise, which ends up not making a whole lot of sense, but you know, they... you won a lot, so there's that.

All right. Do you have an example of another case where the court's interpretation of the imminence requirement would not make sense? I feel like you gave either an example, a factual example or an actual case where this doesn't make sense, where you can't, like ... it's not always a building on fire that you can rush in and grab the child and run out the door.

Steffen Seitz: Yeah, so one of the most important cases on the necessity law in California is called In re Eichorn. And it's basically about a homeless person who goes to the shelter, he stays at the shelter a couple of times, but then oftentimes he's not able to get a spot, and so he sleeps outside and violates an anti-camping ordinance.

So on one of these nights, he ends up being charged with violating that anti-camping ordinance. And there's no finding that, you know, that very night he went to the shelter and it was full. It's basically this chronic condition of shelters being full, and him having nowhere else to sleep, and so he has to sleep on public property and violate the anti-camping ordinance.

And the Court of Appeals says, of course, he has a necessity defense, and we can't require, you know, a citizen of this county to have to leave the county, or to have no alternatives. He has no other option, but, you know, sleep is a human need. He has no other option but to sleep outside. I think it's one of those where it's not like the harm of sleep deprivation is imminent at any given moment, especially because this is sort of like a structural problem because they don't have enough shelter beds. And so I think the best way of thinking of that situation is the harm is basically imminent every single night that he goes to bed and that there isn't a shelter space for him.

Until they build the adequate structures to provide him a place to sleep at night that isn't public property, that harm continues to be an ongoing emergency, continues to be imminent, and any given night, he has a necessity defense available for sleeping outside. And that's sort of-- it's not explicitly what the court found, but that's effectively what they found because they said that he has a necessity defense. And I think if Wayne's opinion, the way they talk about imminence here, were accepted, it would make it really hard for that person to have a necessity defense, even though we think of that as one of the paradigmatic examples of when someone does have a necessity defense.

Mariann Sullivan: They also use the word unforeseen, which kind of also keys into this whole issue that they were struggling with. I'm not sure unforeseen was in the statute or the jury instructions. They just decided it has to... Why would it have to be unforeseen? Like, I have no id- like, why would that be a requirement?

You have to be shocked?

Steffen Seitz: Yeah, I mean, it, it really seems like the word emergency appears a lot in necessity case law, and so they look at the dictionary and, you know, emergencies are often unforeseen. So they say, "Well, it has to be unforeseen, it

Mariann Sullivan: Not always

Steffen Seitz: not always. I mean, this person, for example, this homeless person, he knew, you know, tomorrow, the next night, every single night, I'm going to sleep outside because there's no shelter beds for me.

it's totally foreseen, and yet it's still an emergency. You know, if there's a hurricane coming, if there's a wildfire coming, and you take preparations for it, that doesn't mean it's not an emergency just because you know it's gonna happen in a few days. I think it's one of those situations where, they sort of had this gut feeling that maybe this seems somehow choreographed, this doesn't seem like an emergency, and so they were kind of throwing everything at the wall without maybe thinking through the ways that it actually impacts necessity case law writ large.

Mariann Sullivan: Yeah. You argue that the court transformed a question of fact into a question of law. Can you explain that?

Steffen Seitz: Yeah, so really the necessity defense is something that should go to the jury. It's fundamentally a factual defense. Are each of these prongs, you know... are they all met? And questions like is it imminent enough? Is it an emergency? Those are really questions for the jury. Like, it should be the case that Wayne gets to present here's why harm to these animals is imminent, and the prosecution gets to say, "Well, look, but they also, like, spent all this time planning. It was part of a conference, et cetera."

And that's the kind of thing that a jury should decide. That's a question of fact. Instead, the court said, "No, actually, as a matter of law, because there was planning, because this was foreseen, because there was deliberation, the necessity defense isn't available."

And so there're a court sort of imposing this kind of new quasi-legal threshold, to what really should be a factual question that goes to the jury.

Mariann Sullivan: Alright, I have a few like sort of obscure questions, but I have to ask them. There was this quote from d- from a Judge White which totally perplexed me. I won't read the whole thing, but it ends with, "Unless laws are held unconstitutional, those challenging or defying them must be prepared to bear the short-term consequences of their actions in the hope that society will benefit and that historians will look charitably upon them."

Isn't that basically saying there is no necessity defense? Like, it's just saying if you don't like the way the law applies here, just, you know, break the law and then hope it's held unconstitutional. That's not how this works, is it?

Steffen Seitz: Yeah. I'd be curious to hear what Wayne thinks about this. I mean, my sense is that this is the place and opinion more than anywhere else where you really see the court's uneasiness. They feel like what's happening to these animals is unjust, and what Wayne and others did was the right thing to do.

And yet, at the same time, they really don't want to sort of authorize this kind of vigilantism as they see it. And so they're kind of trying to have it both ways and sort of have this quote about, you know, civil disobedience is important, et cetera. Yeah, I... The quote doesn't really make sense to me in its context except as a way of kind of like making their own consciences perhaps rest easier.

But I'm not sure if, Wayne, if you read it differently.

Wayne Hsiung: I read that statement as proof of realism. That fundament-- I mean, my view of the way judges make decisions is they just have some moral intuition, and then there's like a patchwork of legal analysis they impose on it to basically help them justify their conclusion. My sense is from the beginning, they thought, "Okay, he's kinda got a point, but we can't let people get away with just like running around breaking into factory farms. So there's gotta be some punishment, but it shouldn't be this severe." So like, what's the right level of punishment?

Well, it's kind of like a misdemeanor. You know? It's, they shouldn't be able to so severely punish him, turn him into a felon, disbar him. They shouldn't be able to deny him the right to present basic evidence as to why he did what he did, but we also can't let him get away with it.

And this quote is just sort of like an ad hoc justification for that, saying, "Well, as a general matter in democracies, we do punish people for things that seem like they might be moral, and that is part of the system of democracy."

And I'm not even necessarily disagreeing with them. I just think also part of the system of democracy and part of the way civil disobedience works is that brave judges ultimately conclude that the things that are in one time period punished as within someone's legal rights later. And you know, the civil rights movement, the gay rights movement, all these movements did exactly this.

You know, whether it's the Hawaii gay rights case, the sit-in campaigns in Greensboro, the original bus boycott in Montgomery when Rosa Parks sat on a... Actually, she was actually sitting in a colored seat, not in a white seat, but she was forced to move from a colored seat because a white person was gonna take it.

In all these instances, someone was criminally charged, and it is true they had to bear some sacrifices. But in the long term, the way change happened was judges and other institutional power holders concluded that they were right. Not just that they should be punished, but just not punished so severely, but fundamentally that the law had to change through partly judges making better decisions.

So I think that's kind of my just psychological explanation of what they're going through. But don't have a lot of respect for that sort of decision-making by judges 'cause I think it shows just a profound cowardice. And now I'm being very insulting to the judges, but it is how I feel.

Mariann Sullivan: You're done with them. that's okay. Unless one of them gets elevated to the Supreme Court. We won't worry about that. All right. Well, I mean, I...

Wayne Hsiung: Can I just say, in defense of the judges? It is a cowardice that I have felt through much of my life too. It is a cowardice that, you know, my foremetric cast some scene is written about. So it's a cowardice that's very much a public form of cowardice that a lot of people have because it's kind of like what you said, Mariann, because the implications of not being a coward are so dramatic.

If you actually say what you think should happen, which is intuitively correct, that animals should not be hurt, then suddenly our entire society has to be completely transformed.

Mariann Sullivan: No, I think that's really the problem. I think it, the judges are put into an unusually awkward position in these cases. And but I, you know, I, though I think that legal realism definitely entered into this decision, I don't think it's always the case, and I don't think they always ignore defenses, and I think that they could have paid a little better attention to the necessity defense here.

All right, should we go into this, the fact that when they're talking about things that you should have done, that you should have acted in haste, but you also should have done all these things. is this file a complaint pursuant to 599A? Can you just briefly explain what that is and, and why you didn't think it was necessary to do that?

Because I kinda like those laws. You know, a few states have them, similar to 599A, and I'm wondering why you didn't pursue that.

Wayne Hsiung: 599A gives private citizens the right to, I think it's appear before a court, might be a magistrate.

Mariann Sullivan: I think. Or either

Wayne Hsiung: ask for a search warrant to be issued to kind of investigate animal cruelty. And it, the law is written in mandatory terms that the search warrant shall be issued to a law enforcement officer or I think a humane officer to investigate this cruelty. Now, the key part of it that was the reason we felt, even when I read the statute, I thought this is completely pointless, is it leaves as a discretionary matter a law enforcement officer will actually do the investigation. They, they have to execute the search warrant. In other words, they have to be kind of given the search warrant and they're authorized to go inspect animal cruelty, but they don't actually have to do it.

They just have a right to do it. Given that over a two-year period, the authorities had responded repeatedly to us by at best ignoring us and at worst threatening us when we had reported animal cruelty at Sunrise Farms, we thought it was a pointless effort because fundamentally it's still dependent on discretion of law enforcement officers. so just thought it was pointless.

Mariann Sullivan: Futile, yeah. Okay. That makes sense. all right. We, unless you have anything else to add on the necessity defense, I think we should move on.

Chris Carraway: I wanted to add that Will Lowrey with Animal Partisan has been trying to do 599a petitions in California and just frankly been simply unable to do them. You know, courts just don't know what to do with them, you know? He tried doing that in Merced, wasn't allowed to file it as a criminal complaint, wasn't allowed to file it in a civil complaint. He ultimately had to try to seek appeal in the California Supreme Court. They denied that petition for review. So, you know, functionally, while 599 may exist, practically it doesn't.

Mariann Sullivan: But it does exist in other states. I would... I know that it's a topic he was particularly interested in. I wonder if he's going to pursue it. I know there's a similar statute in New York, and I wonder if they vary. You know, back then, I think they were passed probably in the early 1900s or maybe, or, somewhere in the first half of the 1900s, that, you know, the pattern... the exact same law didn't get passed in every state.

It wasn't nearly as well organized as that, and they vary a lot. But I think there was a legitimate effort at that time to try to, come up with ways to get laws better enforced vis-a-vis animals without having to hire like a lot of police officers or whatever to do something. So I'd be interested to know if those laws...

They, might vary in the sense that maybe you don't have to rely as much on law enforcement, to... though I don't know how a private citizen... I'm perseverating, like, like ignore me.

All right. I think we should finish with necessity, which is sad, but go to the second issue that is in your petition to appeal that you think that the court should look at, and that's in this, this, like incredibly clever and smart lawyering, which you did not bring up at trial.

We discussed it that, that, in, in your former interview, which, you know, you had good reasons for. But you did bring it up on appeal, and that has to do with this labor law. Now who should I... Steffen, was this also your part of the brief? Or, whoever it was, can you kind of briefly explain this issue?

Steffen Seitz: Yeah. So I want to give credit to Mirais Holden, who drafted this part of the brief, who's done really excellent work for us. I drafted the part of the petition for review, so I've become pretty familiar with it at this point. But basically, so the only remaining conviction on the books still for Wayne is this 6020 trespass at Sunrise, which is again, refusal to leave. But there is an exception written into that statute. You aren't allowed to remain on property af-after being asked to leave unless you're doing it, as part of a labor protest or as part of labor activities, which includes picketing, leafleting, trying to organize workers, et cetera. That applies both to employees, but also non-employee union organizers. And our argument is basically this makes the statute content-based. It basically says that if you walk onto property and you refuse to leave, you're allowed to do so if you are doing it for a particular issue area, namely labor, but not for other issues like animal welfare. And so, as a result, it's a content-based regulation of speech.

Those are presumptively unconstitutional. They have to pass strict scrutiny, which is extremely difficult to pass. And we think, as a result, that means that the statute's unconstitutional.

Mariann Sullivan: Now the court basically held that this, your whole argument was ridiculous because the statute says, "This subdivision does not apply to persons on the premises who are engaging in activities protected by the California or United States Constitution." So I think the court is saying so there couldn't have been a constitutional violation 'cause this is in that...

Like what does this even mean? Like I, I keep, the, I... It's one of those arguments that keeps going around in my head. I'm trying to figure out what they're saying. Like as a general rule, if you're trespassing to make a speech, your activities aren't protected by the Constitution. That's true, but that's really not what you're... the ar- Do, you have any... Can you explain this to me?

Steffen Seitz: Yeah. So the statute has this First Amendment savings clause that basically says this shouldn't be read to, like, intrude on any First Amendment rights.

Mariann Sullivan: I hate those things. I hate them. Sorry.

Steffen Seitz: They argue basically like, "Oh, well, the statute says it doesn't violate the First Amendment, so therefore it doesn't violate the First Amendment," which is obviously nonsense.

Especially because, you know, every statute already has-- Even if it didn't have a savings clause, every statute has to comply with the Constitution. Just because you say so, you know, in addition, it doesn't actually add anything meaningful to the statute. And then second of all, to the degree that savings clause like that are useful, they're useful because they give courts a hook in order to read a statute narrowly.

So they might say, for example, "Oh, that means we're gonna read this term, slightly strangely in order to avoid constitutional issues because the legislature indicated they really wanna be, like, careful about, constitutional violations." But here they don't even explain how this gets rid of the content-based issue.

Again, our claim is not that everyone has a right to go onto property and refuse to leave in order to advocate for their issue. Our claim is that if legislature wants to regulate that, they have to do so in an even-handed manner. They can't pick one issue area like labor law and give it preference over another issue area like animal rights.

Mariann Sullivan: Yeah, it seems like the court was almost saying that this is a full defense for anyone making a speech on private property, in which case you're good.

Steffen Seitz: Yeah. Yeah, the, implication

Mariann Sullivan: But that can't be what it was saying.

Steffen Seitz: Like, th- they, never really tease out the implications. I find it, like, a super strange and disappointing part of the opinion 'cause I feel like they really didn't... Like, it was sort of almost a throwaway at the end, where they didn't think that we would look at it too closely, I guess.

Mariann Sullivan: The Animal Enterprise Terrorism Act also has one of these savings clauses. It's always driven me crazy. You know that they're only in there when the legislature knows they're on thin ice and knows that they're probably violating somebody's constitutional rights. So they just throw in there this, as you said, completely pointless statement since they're not allowed to violate people's constitutional rights that, "Oh yeah, and we're not violating anybody's constitutional rights."

It's just really offensive. All right. Th- there's some weird preservation thing here. I think you corrected me, or informed me in the last interview that this didn't have to be preserved because of its constitutional nature. But the court has this footnote after the petition for re-hearing saying part of the argument wasn't made on appeal, so it's forfeited. Is that relevant?

Steffen Seitz: It's sort of re- So we, we asked for a rehearing. We basically said, "Look, we want to give the court another chance to consider this," because we hadn't addressed the savings clause.

Mariann Sullivan: And it, your decision makes no sense whatsoever

Steffen Seitz: basically like, "Look, we just want to point out that this doesn't make any sense."

And they say, "Well, you didn't make that argument initially." But that also doesn't make sense because we did raise the content-based issue. We don't have to respond to every single argument in the opposition, especially if the argument is only a single sentence. In fact, submitting a reply brief is entirely optional in California. We just have to raise the issue, and then it's up to them to figure out whether or not the issue is meritorious. So yeah, I just think it was, again, it was almost them feeling like we were being ungrateful for asking for, you know, this one to be overturned when they'd already done so much for us by overturning the felony.

Mariann Sullivan: It probably is true.

Wayne Hsiung: Can I say something about my experience in the California appellate courts too, just generally? It is shocking how bad even appellate opinions are. I would say this is ... I've done now a half dozen or so California appeals, and they're all just atrocious, just in terms of basic competence, and it makes you lose a lot of trust in our legal system. But beyond just some of the legal errors, just getting so many of the facts wrong. And again, I don't want to fault these judges. I'm sure they're busy, maybe their clerks are overloaded. I don't know exactly what's going on. But for example, they just confuse the facts in this case in fundamentally problematic ways.

They think that at Sunrise we were locking down on factory farming machinery, which just didn't happen. Like, they just invent all these facts and put them in the background. Honestly, I think one of the stories here is not just on animal agriculture but on a larger set of issues. The scrutiny that our institutions are receiving is unprecedented in the course of human history.

Typically, powerful people can make terrible decisions and no one even know about it. But I think one silver lining of this opinion, and again, it's not the fault of these specific judges that their opinion is as incompetent as it is, 'cause it's just a systemic problem, is that we're making a lot of really bad decisions, on climate change, on housing, on war, and on animals too.

And I, I think these decisions really do illustrate how broken some of our systems are, just at a basic competence level.

Mariann Sullivan: Yeah, no, that's depressing. But, you're totally right about that locking down on the machinery. I read that in the opinion and I thought, "Wow, I didn't know about that part." Now I know why I didn't know about that part.

All right. That is your petition, but we also have to address the issues in the people's petition because they are also appealing. I just want to mention, this is totally nothing to do with this, but I put into AI the question, are the people also appealing in this case? And AI said, "No, they decided not to." So don't trust AI. One more, one more cautionary tale. Fortunately, I also asked Steffen, and he said, "Yeah, here's the papers."

All right. Chris, I think that you mentioned that you were doing the mistake of law, argument, which I'm glad of because there's a lot here that is hard to understand. I don't want to go into the jury's instructions, the court's instructions to the jury unless we have to, because they were so confusing that, I mean, I couldn't figure them out.

It really gives you sympathy for jurors to try to go through what the court was saying. But I don't think we have to, but if we do need to, and I don't ask you about them you know, feel free to, to go into that as an additional issue. All right. Can you explain the basis for the court's reversal of two, the two counts that it did reverse on?

Chris Carraway: Sure. Before discussing what mistake of law is, I'm gonna sort of take a step back and talk about specific intent crimes. Two of Wayne's convictions were specific intent, the conspiracy and one of the trespasses. And specific intent means that the government has to prove that it was a defendant's conscious objective, what they were intending on doing.

It's not as if they have to prove that a result happened. They have to prove that it was the defendant's purpose to cause that result. So for instance, if someone was charged with a crime like Wayne was, with the intent to trespass, with the intent to disrupt a business, if someone's full intent was to rescue animals, there would be a tension there. And while there may have been a disruption to a business, as long as the defendant was not intending that to happen, then he can't be guilty of that crime. And for conspiracy, the intent is basically entering into an agreement to do an unlawful act. So if you're intending to agree to do something with someone else that you believe to be lawful, then you're just not guilty of conspiracy. As a fundamental aspect of due process, a defendant's entitled to challenge the state's attempt to prove specific intent. So regardless of whether a mistake of law is a defense, the state is saying Wayne intended to disrupt a business, then Wayne would be entitled to say, "No. Here's what I was intending on doing."

But California specifically, unlike most other jurisdictions, has this doctrine of law called mistake of law, which says if you have a good faith belief that your conduct is lawful, and that belief negates the specific intent, then you're not guilty of a crime. Conspiracy again is I think the most direct example. If you believe what you're doing is lawful, then that's mutually exclusive of the intent required for conspiracy, which is to agree to do an unlawful act.

So ultimately, Wayne's argument at trial was, well, I had all these legal opinions and my own experience as an attorney that I believed the doctrine of necessity made my conduct lawful. And it's our position that Wayne's correct and all the advice he got was correct and necessity applied. But in the alternative, since the court rejected, necessity, well, certainly Wayne believed it in good faith.

The court, as a bright line rule, said, "Well, necessity can never be the basis for a mistake because necessity is an affirmative defense, and it just means that you're-- can't be punished for the crime," which is fundamentally incorrect. The state's argument essentially was necessity is mutually exclusive of a mistake because necessity, they incorrectly say, means you committed the crime.

But that's not how defenses work. Defenses work, you are in-- you are not guilty of the crime if an affirmative defense applies. So ultimately, the court of appeals said, "Yeah, that's correct," and there's a whole body of precedent, that says, you know, for instance, if someone's relying on an exemption in law about distributing marijuana, then they're entitled to present that evidence to defeat a conspiracy allegation.

That's a case called Urzusanow or Urzicanow. That's really kind of the fundamental case for this concept. So the court of appeals fundamentally said Wayne was entitled to at least present evidence of this defense and the legal opinions because the court, in denying mistake of law based on necessity, excluded, you know, a whole host of reasons why Wayne intended to do certain things.

He was forced to essentially tell a dishonest story to the jury about what he believed and why he believed it. So the state's unhappy with losing that, so they are asking for review in the California Supreme Court, essentially making two fundamental arguments. They're repeating their argument that necessity is exclusive or is inconsistent with mistake of law, which was rejected not only in the Court of Appeals, but also by the trial court in Zoe Rosenberg's case.

But they're presenting this absurd sky is falling argument that says, if you allow this, then everyone, especially activists, are gonna put forth this belief that I think necessity applied, which simply ignores the court's gatekeeping function in evaluating, at least as a threshold level, the good faith belief and the juror's ultimate duty to adjudicate that fact.

And they cite to the Golden Gate Bridge case in which activists blocked the Golden Gate Bridge protesting the genocide in Gaza. They cite a defendant who said, "Well, I believe necessity applied." And they're like, "Oh my God, the sky's gonna fall. Everyone's gonna say this." But they neglect to say that mistake of law based on necessity was denied in that case, notwithstanding the fact that Wayne's case had been published at that point.

They also ignore the fact that a jury rejected the mistake of law defense in Zoe's case. And so their sky is falling argument really kinda, one, diminishes the role of the courts and juries, and ignores the facts on the ground that courts and jurors do actually fulfill that role and obligation.

Mariann Sullivan: And, since the court has now held that Wayne's belief that he had a defense was a mistake, it actually will make it very difficult in this particular type of issue involving, involving animal rescue. It now becomes almost impossible to use that defense, right? Like, it, it's a very convenient way for the court to get out of this particular case without creating a problematic precedent for the future, because now everybody knows that justification is not a... or, necessity is not a defense. Is that right?

Chris Carraway: Not really, I don't think, because ultimately the Court of Appeals rejected Wayne's necessity defense on a highly factually specific question. so it doesn't say that as a bright-line rule, necessity would never apply in a situation in which someone is rescuing animals from unlawful cruelty. So I think ultimately, I also don't think they created necessarily precedent on mistake of law because they were just applying the precedent that was already there, which is another one of the reasons why we will be opposing the state's request for review on mistake of law, because the court didn't do anything radical by reversing Wayne's convictions as it relates to mistake of law.

Mariann Sullivan: Do you have an opportunity to file papers oppo- in opposition to, and do they have an opportunity to file papers in opposition to your application to appeal?

Chris Carraway: That's correct.

We'll be doing that, later this week or early next week. I don't know if the state's gonna file an opposition to our our petition for review. Probably each be finding out at the same time.

Wayne Hsiung: Yeah, And Chris, we, I, if I remember correctly, you're getting support from a bunch of criminal defense lawyers in your opposition. Is that correct? It's like the Criminal Defense Bar in California.

Chris Carraway: We're reaching out to, supporters. You know, amicus can file letters of support for review. It's not necessarily briefing, but it's asking the court th-this is an important issue, you should take this up.

Mariann Sullivan: Alright. So that'll be something to keep an eye on. One thing other, I also wanted to ask you because I think that they also argue that even if the court had been correct, the error should have been deemed harmless. Can you kinda just explain how harmless error standards apply here and why the prosecution believes the...

I think the prosecution argued that they applied the wrong harmless error standard?

Chris Carraway: Correct. So, appeal really has two central questions. One is, did the court make an error? And two is, does it matter? Because sometimes courts do make an error, and it won't affect the verdict. it's on a collateral issue or the evidence is so overwhelming. So there are three standards of reversal that apply in California.

Harmless error is the lowest standard. and the second is harmless beyond a reasonable doubt, which is where the question has some sort of constitutional nature, like the deprivation of a defense. And then the highest is structural error, which is, it essentially renders the proceedings entirely unfair, and the amount of prejudice to the defendant is irrelevant.

It's automatic reversal. And in Wayne's case, because the court's error in denying mistake of law as it applied to necessity was so categorical and fundamental, we argued it was structural. And what was interesting is that the AG, the Court of Appeals never argued to the contrary. So it's our position that they effectively waived that argument, because they didn't respond to it. and the Court of Appeals in the initial opinion said, "Well, um, we're not necessarily gonna say one way or the other, but just note they didn't argue it and just say, regardless, it warrants reversal." And on a petition for rehearing by the state, the Court of Appeals clarified it's gonna be harmless beyond a reasonable doubt, or to the extent of nevertheless, it would be harmless beyond a reasonable doubt. so the state, on petition for review, wants the California Supreme Court to essentially apply the lowest standard.

But I think that's just such a Hail Mary for them, for two reasons. Is one is, case law is clear. When an error affects an affirmative defense, that's harmless beyond a reasonable doubt at minimum. But two, I mean, you look at the closeness of Wayne's case, even without the defense, where they asked, where they deliberated for an incredibly long time. They hung on one count in which mistake of law was a live issue. And, you know, Wayne was allowed a limited mistake of law defense, saying he believed that a narrow statute, 597E applied, which at the time permitted someone to effectively trespass to provide food and water to animals. but that's a lot narrower than necessity because it has requirements like you have to believe they didn't have food and water for twelve hours, and it doesn't necessarily allow the breadth of remedy that necessity does. But the jurors still ask questions about that. So even if it were the lowest rung, this harmless error, there's no way that a court's gonna find that the error did not have sufficient prejudice. I think case law is clear. At minimum, it's harmless beyond a reasonable doubt

Wayne Hsiung: Can I just jump on that and say, I think I said this in our last interview, but trial was such a sham trial because of this ruling. We were having the most ridiculous discussions about food and water. It's like,

Mariann Sullivan: Yeah. I was trying to, just avoid talking about it at all, which I think we kind of can at this point because it so confuses everything.

Wayne Hsiung: It does confuse everything. But it like we, we were talking about, oh yeah, there's this hen that was like sick with some sort of respiratory ailment. Or like for example, I mean, one of the hens that we took out of Sunrise Farms had a mutilated prolapse, which is, sorry for the gore, but you know, I mean, honestly it is useful for your audience to know these things. It's evidence of cannibalism. Basically, they tend to go after each other's vents in factory farms and tear each other apart from the inside out. And we pulled out this hen that had like a prolapse that was all bloody and torn up, probably a victim of cannibalism.

And I have to try and explain how taking this animal out is a demonstration of lack of food and water. It's like, "Oh yeah, this hen was being partially cannibalized and her prolapse was ripped open and by the way, we took her out because she didn't have food." It's like, what are you talking about? And if you look at the jury transcripts afterwards, 'cause Justin and his team interviewed the jurors, a big part of the reason they convicted was lack of credibility.

They were just like, "We just didn't believe Wayne." You know? And I don't blame them because as Chris pointed out, the judge forced me to lie. wasn't allowed to tell the truth. So it's... I, agree with Chris 100% that both on the legal issue, this is a clear case of structural error. But second, even if it's not, I do not see how you could possibly argue this is harmless error.

'Cause it just fundamentally undermined my ability to tell a story to the jury.

Mariann Sullivan: Yeah. The questions of the jury were sometimes so apt and, really focusing on relevant issues, and the responses were so frustrating. It must have been very hard to be on that jury.

Wayne Hsiung: What was harder was being the attorney or I should say the defendant. That was extremely difficult. And I will say that trial definitely tested me in a way that no case has ever tested me, just in terms...

Mariann Sullivan: Yeah. No, that's very challenging. Really very challenging.

Wayne Hsiung: Lack of faith in our legal system. it's funny, I mean, Steffen was like a fairly recent lawyer at this point, and I think it was a little bit of a shocker to him, even though like he's definitely researched a lot of the kind of profound inconsistencies and failures of our legal system.

But my sense from just talking to you afterwards is you were kind of in a state of shock at how Judge Passaglia was treating us.

Steffen Seitz: You know, fresh out of law school, I spent all this time learning the law, only to go to court for the first time and find out that the law didn't really seem to matter.

Mariann Sullivan: That's very depressing. Very depressing. And, I mean, it just occurred to me, this is probably too cynical, though, you know, I'm talking to you, Wayne, so nobody could be more cynical about the law than you. But, the fact that the appellate court here kind of split the baby and, gave you something and gave them something, might just be that they hope it doesn't go up any further.

Like, and it... 'cause so far nobody has really grappled with the real facts, and the real law. And maybe the Supreme Court of California would feel obligated to do that. I don't know.

Wayne Hsiung: It goes back to this issue of fear. They're scared about the consequences, and they're also just scared to confront what actually happens to animals, 'cause it's a scary thing to talk about animals being cannibalized and having their,

Mariann Sullivan: Yeah.

Wayne Hsiung: Their cloacal, their vaginal openings being ripped open from the inside out. That's not a fun thing to think about and acknowledge is happening

Mariann Sullivan: everywhere.

No, and they are as naive as everybody else in the world about what's really happening out there. And so I'm sure it's, yeah, it's very shocking.

All right. That was, I mean, I think you just covered all of the issues, Chris, unless you have anything else to add on the mistake of law part. I was... There was also something in the jury instructions.

I'm not sure whether anybody's appealing about this, but I thought it was an interesting issue, the instructions of the jury being unconstitutional regarding aiding and abetting because including the word promoting, which I think that is a really interesting argument. Is that, are you hoping to bring that up on appeal, but you just didn't highlight it as one of your, you know, powerhouse issues in the petition?

Chris Carraway: Well, it depends, because Wayne's reversal on the specific intent crimes mooted the issue.

Mariann Sullivan: Oh, all right. That's the part I was missing. All right.

Chris Carraway: However, if the state is successful in seeking review on mistake of law, then in our opposition, we will be arguing, if you're, if you're gonna take this review, now we have to address this issue, because specifically, you know, the... Wayne's... The evidence, especially for count four at Reichardt, where Wayne was essentially acting as an attorney and outside supporter. And when I say outside, I mean literally outside. He's not on the property where people are essentially engaging in civil disobedience by locking down. you know, the evidence they really focused on is he gave some sort of supportive speech. And, you know, you are allowed to essentially, encourage unlawful conduct as long as you're not inciting it, and that's a test that comes from U.S. Supreme Court called Brandenburg. And the problem with the aiding and abetting instruction is, you know, promote covers a wide range of protected speech. So absent some sort of incitement qualification in the term promote, then the statute or the jury instruction reaches protected speech and the harm is most prevalent in Wayne's conviction at Reichardt. and the jury focused on that. I mean, they asked specifically a question of what does promote mean. So the reversals, on the specific intent really mooted the issue, which is why we didn't raise it, um, especially 'cause that was part of the court's unpublished opinion. but the court's opinion on that is just completely ridiculous and wrong.

They apply the wrong legal standard. They misread the cases that they cite. So if the court, the California Supreme Court, apply... you know, grants review for mistake of law, we're essentially seeking cross-review of the court's aiding and abetting, um, ruling, because then it would be relevant if the court reverses the court of appeals.

Mariann Sullivan: Is that word promote in the aiding and abetting statute? It's not. I, that was unclear on that.

Chris Carraway: So what's interesting is we raised it both as a facial challenge and an as-applied challenge. And, you know, our facial challenge, which I, you know, we were always, like, concerned because the word promote doesn't go-- isn't in the statute, but the term aid and abet is obviously in the statute, and courts have defined aid and abet as including promote. So our argument facially was that aid and abet is unconstitutionally overbroad because it means promote. Now, the Court of Appeals rejected that and just applied an as-applied challenge. But practically, if they were to have granted our argument and said, "Yeah, you're right," it would've had the same effect in terms of a facial challenge or an as applied.

It would've meant that courts could no longer define promote, you know, or they're gonna have to deal with the same argument. Although I think Wayne's case is pretty exceptional 'cause I don't know how many aid and abet cases involve just a supportive speech.

Mariann Sullivan: Yeah. No, it does seem like an unusual case. And also, I mean, it, I think maybe the court pointed out some cases where it, you know, they're talking about promoting gang activity. Promoting gang activity just viscerally has a different meaning than promoting civil disobedience. I mean, you don't promi- promote gang activity by giving a speech.

You know, you do it by giving somebody money or something. So I can see how it, it could be an as-applied challenge that in some cases it wouldn't convey a, an unconstitutional, infringement on speech.

Chris Carraway: But even those cases, those gang cases ca-- you know, Green, Castaneda, Henry Alberto, if you actually look at those cases, they're vagueness cases. I mean, the argument in Green is the statute's so vague it's overbroad, and then the court of appeals said, "Well, it's not vague at all, so your argument on overbreadth doesn't apply." So the court's reliance on those cases is misplaced, and it's in tension with what federal courts in the Fourth Circuit and the Ninth Circuit have held that promotes overbroad in the context of the Anti-Rioting Act.

Mariann Sullivan: Well, I can't say I hope you get a chance to address it, but I would like to see it addressed. And I guess you will get a chance to address it if you're gonna argue it, but, hopefully the court isn't, it won't become relevant in the opinion. I think that co- i- sh- is there anything that I should've brought up that I didn't about what's going up or possibly going up or interesting things that the court decided?

Wayne Hsiung: What was the most shocking thing for you in reading the Court of Appeals decision? Just out of curiosity. When you read it, what did you think? This is just... Did you, do you think we challenged the right things?

Mariann Sullivan: It all sounded good to me. Like I'm reading it after the fact, so I'm like, "Oh yeah, that makes sense." Obviously the most important thing to me was the necessity defense. I guess the most shocking thing was is that they managed somehow to cut it that fine, that they were able to get rid of the ridiculous trial court decision, which just I find deeply offensive that harm to animals can't be a significant evil when it's actually a criminal offense.

And but still managed to not apply the necessity defense, and to avoid it. You know, I guess I should ask this so it, it's not-- I haven't thought it through, but, so it might not make sense. But why, if they didn't have to charge the necessity defense at all because the mistake of law defense took care of everything, what about the cause of action that the mistake of law defense didn't take care of?

Shouldn't the necessity defense have been applied to that? They basically avoided using the necessity defense 'cause they decided on other grounds. But there's still one count

Wayne Hsiung: Yeah, I mean, this is where the imminence thing comes in. They just basically say, "Well, as a matter of law, you're not entitled to use this even for general intent crime for an intent-based defense, 'cause necessity doesn't apply to any scenario where you prepare ahead of time."

Which I agree is just completely absurd.

I just...

Mariann Sullivan: Yeah

Wayne Hsiung: So for example, a firefighter, a first responder, you know, in, in some cases there are statutes that protect them specifically, but in some y- you can imagine some circumstance where the specific statute doesn't apply to someone like a firefighter who has gear prepared to save someone from a fire. Necessity defense now no longer applies to this pretty canonical situation where you really want it to apply. You want someone to break into a house and save someone from a fire, even if it's trespass, even if it's breaking and entering.

Mariann Sullivan: No, it is a classic case of animal cases make bad law, and they do all the time just in order to c- to, to avoid... I mean, instead of hard cases make bad law, animal cases make bad law 'cause they come up with crazy things to say in order to get rid of the case, and then they have implications in other cases, and that's a crazy implication. How could that possibly make sense in the context of the necessity defense? Not every necessity is, like, the same, as you pointed out.

All right, what's the story? Like, so you're waiting, and to file, your papers in opposition and to get their papers in opposition. Are there replies, too?

Is this a whole full briefing, situation?

Chris Carraway: No, it's just an answer in opposition, and then, you know, the California Supreme Court has 60 days with a 30-day extension to decide whether they're gonna take the case or not. And then we'll do briefing if they decide to take the case, and only on the issues that they decide to take the case on.

Mariann Sullivan: They specify the issues upon which they want r-... what they want to review?

Chris Carraway: Yeah, they could take up one of the issues. They could take up all of the issues. it really depends on what they wanna review.

Mariann Sullivan: And they could gr- grant leave to one party and not to the other, right?

Chris Carraway: Exactly.

Wayne Hsiung: The other thing that's gonna be decided is whether, I mean, I guess technically we could make a, we can move to, to stay trial court proceedings, but the district attorney technically can retry me on these counts.

Mariann Sullivan: I I actually was gonna ask that, expectations about what would happen if they... Do you think Sonoma County might be too sick of you, Wayne, and just...?

Wayne Hsiung: What are you saying about me, Mariann? I, really,

Mariann Sullivan: What are pr-... anybody have predictions either on what, whether you'll get leave, what the Supreme Court will do, or what are, whether there'll be a retrial? Anybody wanna, put any bets down?

Wayne Hsiung: I, I will tell you my instruction to Chris and Steffen and Justin after this decision came out, is do everything you can to make sure I get another trial.

Chris Carraway: Yeah.

Wayne Hsiung: 'cause I wanted another trial

Chris Carraway: And I'll say, I mean, when I went for Zoe's restitution hearing, I asked the DAs, "So are you guys gonna retry Wayne?" And pretty emphatically, the answer was no. 'Cause the... You know, my take of that is they're afraid of Wayne. But, at least that's what they're s- they told me.

Mariann Sullivan: Yeah.

Chris Carraway: whether

Mariann Sullivan: Can't really trust them. Yeah

Chris Carraway: Whether that changes, know, to be seen. They don't have, to make that decision for a little bit. but you know, I think their reasoning is they already have a conviction. Wayne has served his sentence, so he can't really get a harsher sentence. So a lot of it is mostly upshot for Wayne. But, I think it's pretty rare that I've had a client who's had a reversal who wants to be retried. But I think there're really important issues on this case, and I think, it would be important for Wayne to have a fair shot, to have these issues appropriately litigated because they mean so-- the case means so much more than whether Wayne individually wins or loses.

Mariann Sullivan: Yeah, and you're kind of risk-free 'cause you already served your sentence. Why not? I guess it depends to some extent on assuming the Supreme Court takes it, and assuming the Supreme Court decides it and writes on it like what they say. Like that would have something to do with whether they want to re- so it's impossible to predict.

All right. Well, I think that's Sonoma, but we, we also, I also promised we would talk about Zoe Rosenberg's case and about Ridglan. So Chris, I'm kind of flying blind here, as I mentioned. I don't know much about the issues that are being raised because the conviction has come down, but as far as I know, the appeal is in process.

Is that right? And can you tell us... Can you just... Well, actually on my last question to you, just covered all of the issues in one shot, so do the same here.

Chris Carraway: Sure. well, so Zoe was convicted for her rescue at the Petaluma Poultry slaughterhouse, and we are appealing. We just received the record, which are all the transcripts and things like that. I was shocked that the record in Zoe's case is larger than the record in Wayne's case.

Mariann Sullivan: Wow.

Chris Carraway: Um, It's about 6,000 pages so far, not including jury instructions.

So we're currently reviewing the record to figure out which issues to raise in her briefing. It's a large record, and I think there are a lot of interesting issues, the denial of necessity.

We won mistake of law, based on necessity at the trial court, so we don't have to litigate that, but a lot of other interesting, unique issues.

Mariann Sullivan: And the charges that she was convicted of are pretty similar to the ones involved here, right?

Chris Carraway: Correct. It's conspiracy to commit trespass, two misdemeanor trespasses, and a motor vehicle tampering, which was based on removing four chickens from a truck.

Mariann Sullivan: It's really hard for me to imagine Zoe Rosenberg tampering with a motor vehicle, but I have this picture in my mind that doesn't make any sense. So if you won the mistake of law, and not, to get into a ridiculous number of issues, if you won the mistake of law at trial, why is the conspiracy charge still in existence?

Chris Carraway: Well, it's 'cause the jury rejected that as a defense. And,

Mariann Sullivan: Okay. you won the right to bring it.

Chris Carraway: Yeah, but we were still incredibly limited on the evidence that we could bring in support of that. We were limited on all the knowledge that Zoe knew over an extended period of time about how Petaluma Poultry and Perdue neglects and abuses their birds. We weren't allowed to introduce records showing how many birds arrived dead due to that neglect at the slaughterhouse, how many birds were condemned, especially as cadavers, which is a term of art, that generally is synonymous with birds that are scalded alive, which was a big reason that Zoe did what she did, is because she believes, with justification, that the line speeds are so fast and the conditions are so negligent that birds were in fact being scalded alive, and that's based on documents that we weren't allowed to introduce. So we were allowed to at least have that defense, but we were cut off at the knees in presenting the evidence supporting that defense. So that's just you know, gonna be one of the issues raised in Zoe's appeal.

Mariann Sullivan: Alright, so we'll be looking forward to hearing more about that after you've read all those 6,000 pages. And, let's... And, a case, that's even, in an earlier stage, but I think that probably peop- a lot of people are somewhat familiar with is Ridglan. And Wayne, I'm pretty sure most people listening have heard of what went on, but give us the quick recap and then tell us about the charges, 'cause I'm not sure most people are really...

They're aware that there have been charges, but no details.

Wayne Hsiung: Yeah, the super short version of a 10-year journey is, we identified multiple instances of pretty grotesque animal cruelty, including confining beagle puppies in two foot by four foot cages where they're driven to insanity, surgical mutilation of animals without veterinary supervision or even anesthesia, and conditions so nauseating that even state inspectors said they struggled to breathe inside the facility.

Instead of charging the facility, despite this overwhelming evidence that came from state inspectors, it came from whistleblowers who were employees, and it came from activists, they charged us with crimes initially. Went to trial. Chris was my co-counsel. I was representing myself in March 2024. They dropped the case because they realized how bad the PR was in the hope that this would go away. And so we decided in what was at the time considered by most people, maybe even to a certain extent me, as a shot in the dark, to file a petition for a special prosecutor, to force the prosecutor to investigate the animal cruelty and issue a criminal complaint against Ridglan. Steffen actually drafted that complaint and the petition, or actually, I think I drafted the complaint, but Steffen drafted the petition, which is a much more exhaustive and important legal document.

And much to our surprise, in January 2025, the petition was granted. I think partly because the evidence was just so compelling. When you accumulate it all and you just listen to it all in court, which happened in October 2024, it was just, like, very clear to everyone in the room that something deeply wrong had happened at Ridglan Farms. But in October of 2025, after 10 months of supposedly investigating, the special prosecutor declined to prosecute Ridglan and a stipulation, which very importantly, was not gonna protect even a single dog. None of the dogs would get out. And so at that point, we basically started saying everywhere we could to everyone who would listen and to many people who would not listen, including the district attorney and the special procur- prosecutor themselves, "If you don't rescue these dogs, we will." We set a date for it openly. We said we're going on March 19th. On March 18th, one day before we had scheduled to do the open rescue, about 150 people showed up at Ridglan Farms, barged in with angle grinders, crowbars, got in the facility and came out with 30 dogs in arms. So that kicked up a firestorm in the animal rights movement and frankly, beyond the animal rights movement, and we've had very strange bedfellows supporting this campaign now, including extremely far left congresspeople like Mark Pocan and extremely far right congresspeople like Nick Langworthy in New York.

You know, Nick, adjacent to

Mariann Sullivan: Absolutely

Wayne Hsiung: York. and also including Lara Trump. The the daughter-in-law

Mariann Sullivan: Right.

Wayne Hsiung: of the president came in o-out in support, and most recently RFK Jr. but partly because we were getting so much support, we decided after March 15th, even though they had arrested a bunch of us, we're gonna go back again and try and get all the dogs out. On April 18th, about 1,000 people showed up. A lot of us, not me, sadly, I was not there because they arrested me immediately. But a lot of us got very viciously assaulted by police. People had their noses smashed, broken bones, kicked unconscious, teeth lost by officers assaulting people, shooting them with rubber bullets, using chemical weapons like stinger grenades that Amnesty International has concluded are a violation of international law. But partly because of the enormous amount of attention, there was enough pressure on Ridglan that a number of separate animal rights organizations, including, Lorie Simmons of Big Dog Ranch Rescue, just an amazing woman who I've met only in the last couple months, secured the release of every single dog at Ridglan Farms. So that's like the three-minute version of 10 years.

Mariann Sullivan: And tell us about the charges that are currently pending and w-

Wayne Hsiung: case, of

Mariann Sullivan: and whether...

Wayne Hsiung: Law Podcast.

Mariann Sullivan: Right.

Wayne Hsiung: funny ' cause I almost... it's so, almost feels so irrelevant 'cause all the dogs are free. It's like, "Whatever, you can charge me." So they're charging us, only for March 15th at this point. They haven't charged any of the thousand-plus people who showed up on April 18th. Maybe partly because they realized, you know, their officers engaged in some serious misconduct. But they're charging us with one count of felony burglary for breaking into the facility with the intent to commit a theft, one count of theft for the 22 dogs removed, and one count of attempted theft for the eight dogs that we tried to remove who were subsequently seized by the police and returned to Ridglan Farms.

And finally, one count of felony criminal damage for supposedly doing, I believe it's like, is it $30,000 of damage they're claiming? Does anyone remember what the number is? It's roughly correct. It's something like that. It's in that ballpark.

So those are the four counts. Trial was originally scheduled for September 28th, which was already a violation of our speedy trial rights 'cause in Wisconsin, a felony trial, if you demand a speedy trial, has to be held within 90 days.

Mariann Sullivan: Wow,

Wayne Hsiung: 28th was like 120. It is fast, but I mean, I will say there, speedy trial right is one of these rights that has been incrementally eroded by 100 years of terrible jurisprudence.

Mariann Sullivan: There's a million exceptions. Like

Wayne Hsiung: So they... But that, wasn't the case. I mean, even if you look 30 or 40 years ago, courts were looking at speedy trial very differently.

There's been just... I've been looking at this case law, and our system has just... We think of factory farm as like a distinct and unique evil, and in many ways it is. Certainly in terms of the scale and severity of the suffering, nothing compares to what happens to animals. But the system has abused lots and lots of human beings, too, and one of the classes of human beings who have abused are defendants.

There are so many rights like the speedy trial right that accumulations of judicial decisions over the last hundred years have undercut to the point that now the speedy trial's like, it's like a non-speedy trial right, effectively.

But, challenging that. I just filed a motion for because the trial court is trying to push the speedy trial, supposedly speedy trial back to J- January of 2027, which is 157 days beyond the statutory requirement. We'll see what happens. I suspect we're not gonna prevail. We might have to appeal that one, too, and we're going to trial in January of 2027.

Mariann Sullivan: Okay. and nothing has been charged in the second... Yeah, you mentioned that. All right. Looking forward to that too. Any other next steps in the right to rescue generally?

Wayne Hsiung: I'll just say one thing about the Ridglan case is that, the word person does specifically appear in the statute and in a very interesting way, and I'm very excited to litigate that.

Mariann Sullivan: In the necessity defense?

Wayne Hsiung: So it's in the defense of others statute in Wisconsin, and Chris knows this case law and the statute much better than I do 'cause he did the briefing on this. But I think lead to some interesting discussion in the courtroom, and it already did because in our prior Ridglan case that was dismissed, one of the briefs literally said that the defense of other statutes only applies to persons and dogs aren't persons, they're things, or something

Mariann Sullivan: Oh, yeah. that's really

Wayne Hsiung: " This is gold for us," ' cause this

Mariann Sullivan: Yeah, seriously, nicely said.

They could've just stopped. Dogs aren't persons. That would've been so much wiser. What about... Can I, ask about, Marshall? Or is that all vague? I mean, since it's right down the road from me, I'm kind of

Wayne Hsiung: they-- so

Mariann Sullivan: curious

Wayne Hsiung: campaign that has been going on for decades. Marshall BioResource is in Upstate New York. It's about 45 minutes east of Rochester, where you're living. Has been a target of the animal rights even as far as long as I can recall. A bunch of activists...

You know Brian Peas?

Mariann Sullivan: Sure

Wayne Hsiung: I don't have to... I shouldn't talk about Bri- I mean, it's in the public record, and it's in the news media, so I don't think Brian cares about us bringing this up. But, you know, he was, charged and took a plea for rescuing a bunch of beagles from MBR back in the early 2000s 'cause he was caught, like, in a field holding two beagles in his arms by a bunch of cops using infrared cameras. And so that goes back 20 years. People have been trying to get into Marshall,

Mariann Sullivan: That's hardly a bad thing to say about him.

Wayne Hsiung: Well, I just think Brian has moved on to politics. He's, like,

Mariann Sullivan: Alright. Alright. Alright.

Wayne Hsiung: a lawyer, so

Mariann Sullivan: I don't know. The way Ridglan is playing in the press, I think, it's probably a positive

Wayne Hsiung: Oh, absolutely. I agree. So I just don't wanna, like, talk about someone else's criminal history.

I mean, I, better than anyone know that criminal history is not necessarily a bad thing, but Brian does have that criminal history. But anyways, I mean, partly because of that action, I think a lot of people decided Marshall was just too difficult to campaign against 'cause they, they are powerful in a way that even Ridglan is not.

I mean, this is a massive multinational corporation that has offices in China and Japan and France. The... But I will say the international campaign to outline the criminal abuses at Marshall across the entire world is growing in momentum. there's this facility called Greenhill. I'm sure Chris knows about this.

You may know about this as too, as, as well. Steffen, you probably don't remember this 'cause before your time. But in Italy, that was shut down because of a spontaneous open rescue. There was a big march to Marshall in... And Greenhill was the Marshall facility in Italy, and a couple hundred activists showed up there, and I think it was just, like, a dozen people, partly because they were just inspired by the amount of public support, decided to just charge in and take a bunch of dogs out. And partly because of that action, Greenhill got shut down. And then there's MBR in the UK, where my wife lives, and she's obviously, you know, done some open rescues there.

Mariann Sullivan: Yes, and she was on the podcast talking about that if people wanna

Wayne Hsiung: no, amazing work. But, my hope is, in light of what RFK Jr. and Brooke Rollins and Mark Pocan and so many people have said over the last couple months, don't have to do this because, frankly, I don't want to have to do this.

It is extremely laborious, frightening, violent oftentimes when you're confronting these incredibly powerful armed industries and their supporters and law enforcement. I don't want another activist get hurt. I don't want another activist to have to go on trial. But if the government doesn't do the right thing, we've promised that we will by the end of the year.

So

Mariann Sullivan: that's

Wayne Hsiung: our commitment.

Mariann Sullivan: Well, that's what the right to rescue and open rescue really is about. All right. Anybody, Chris or Steffen, did you want to add anything on that? I do have one more question, like, which is probably something for Wayne, but maybe for both of you as well. Dogs. It's the dogs. I mean, we can see that the dogs are, like, the breakthrough issue.

How do we get everybody to go through that gate? Do you have a plan? Can we extend this to other animals? Because this really worked better than anything I ever remember.

Wayne Hsiung: For me, it's partly just social contact theory. I think one of the fundamental reasons The Civil Rights movement, The Gay Rights movement achieved success was just contact and intermixing between different marginalized communities and mainstream establishment types, right? And there's a lot of evidence and examples like, you know, someone like Rob Portman, the senator in Ohio, who is very right-wing and came out in front for gay rights because his son was gay.

Or Dick Cheney, you know? Not exactly a hero of the left, whose daughter's gay and wanted to get married, and lo and behold, Dick Cheney turns. And I think the social contact theory works for dogs in two ways. One is, there are so many people who, kind of know someone who has advocated for dogs already, right?

That they're... farm animal advocacy for animals that are not companion animals is incredibly important. So many imp- powerful people doing that work, including you, Mariann. I mean, you wrote the piece, The Fox in the Hen House, that, changed my view of animal agriculture in pretty fundamental ways. But no, it really did. I mean, it just... 'Cause h- honestly, it kind of demoralized me though, 'cause I was, like, in law school thinking, "Oh man, I just, like, wasted my life going into this legal system that's completely broken." But, I think dog advocacy is mainstream in a way that no other animal advocacy is. Like, every, e- every community has humane societies. They're so, they're such, like, a dominant part of American culture and pr- pretty much the culture of the West. And so you're exposed to people who've done in- incredible things for dogs, not just, like, donated to a charity or helped some dog who's been abused, but even rescue.

Like, there's so many people who know who directly rescues dogs. And so our ability to make the movement to rescue mainstream may be a- amplified by the fact that everyone knows someone who rescues dogs. The other social contact theory that matters a lot is just direct contact with the dogs themselves, that when we tell stories about dogs and the suffering they go through and the joy they feel, just, like, how beautiful it is when they come into our homes and they give us hugs and kisses, and they get to play outside and sleep on a bed. I think the social contact people have with dogs and their intuitive understanding for what that means for the dogs is incredibly powerful for us for change. And the goal really is to use this social contact to extend that sympathy to all animals, to help them realize... because a lot of the people who are involved in the Ridglan Open Rescues, for example, are not just dog advocates, we're animal advocates.

So just one concrete example that's just very suggestive,

The number of people I think have gone who I think have gone vegan from the Ridglan rescue campaign, and, this is just the the people involved in the rescue directly, probably numbers in at least the hundreds.

Majority of the of the people involved in that open rescue effort were not vegetarians or vegans. They probably people who had never even thought about farm animals, and I I would guess that at least a couple hundred have moved their own personal dietary habits in the right direction because of the social contact with other vegans.

Mariann Sullivan: Yeah. I mean, I believe that's possible. I think it, it's ha- I think it's hard sometimes for some people who are animal advocates, like really hardcore animal advocates, to understand, like, how people change because it's not the way that necessarily I did.

You know? Like, but somehow I do think it's possible, and I really hope that's true because it has been such a powerful moment in the movement. I mean, just extraordinary work. And kudos to all of you for the work that you're doing. Like I said, if it wasn't for the University of Denver, I don't know what we would do.

Wayne would be in prison, and the rest of us would, you know, be carrying signs in front of grocery store or something.

Wayne Hsiung: I, think the movement would be broken right now if not for the University of Denver. I don't know if I said this to Steffen and Chris and Justin yet, but but I think what happened to SHAC would've happened to us this time around if not for the University of Denver. So I, I agree. It's it's it's been absolutely crucial.

Mariann Sullivan: It's extraordinary. You know, this is a totally different issue, but it just reminded me, like, I got subpoenaed recently by a farming outfit about some interview I did. It was tot- totally inappropriate, but I happened to know somebody who worked for a big law firm, and immediately, like, it went away.

If I had not known somebodywho worked for a big law firm, I would still be mired in trying to fi- I mean, having lawyers who know what they're doing really does make a lot of difference, so thanks, to all of you. Thanks for joining me today.

I will, I guess I, I need to let you go now 'cause we've almost, we've almost gotten to an hour and a half. So thanks also to Vicki Beechler for her help in producing the podcast. Thanks to you guys for tuning in. Remember to subscribe on your favorite podcatcher and/or on YouTube, and I will see you next time.