A little serious, a little satire, and all opinion on animal welfare.
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Ill-treat (transitive verb): to treat unkindly, or unfairly; to harm; abuse; maltreat. (Webster’s New Twentieth Century Dictionary, 1904)

Whether you loved or hated Bill Clinton, it’s unlikely you didn’t cringe when he tried to deny he had made a false statement when he said he had not “had sex in any way, shape or form” with Monica Lewinski by arguing that it depended on “what the definition of ‘is’ is.”  Even those how love the subtlety of the English language know that when you have to walk down that path, your trying pretty hard to lie without actually lying.

It is somehow appropriate then that Buck’s County DA David Heckler opted for the tortured definition approach when he dismissed cruelty charges filed by a lawfully sworn Humane Society Police Officer against the Philadelphia Gun Club.  He even one upped Clinton. Heckler, to paraphrase, chose to say, “It all depends on what the definition of ill-treatment was in 1891.”  One would think that he might simply do what you or I might do and simply look the word up to see that ill-treatment means to treat cruelly or improperly or to abuse.

Because that is the clear meaning of Pennsylvania’s cruelty law under which the Philadelphia Gun Club was charged.  It’s a simple word, a simple law, and a simple concept.  It is a crime to ill-treat an animal without cause.  The law even recognizes that there are many circumstances in which society has decided that ill-treatment is not a crime.  In normal agriculture and food production.  In pest control.  In self-defense. In lawful hunting practice.  Our culture recognizes that some actions are ill-treatment and we have chosen to exempt them from the law.

Bucks County DA, David Heckler

Heckler did not choose to exempt the Gun Club from prosecution based on any of these lawful exemptions.  In fact, he couldn’t since none apply.  The most likely allowable exemption would be a Game Code exemption and the Pennsylvania Game Commission has recently gone very much on record with members of the public to say that there is no Game Law protection for pigeon shoots since they are neither fair chase hunting, nor regulated hunting grounds game release activities, and the Game Code explicitly says no animals but those listed for hunting may be hunted.  Pigeons are not listed.

No, he had no choice but to try to argue that stuffing one pigeon (or hundreds, one at a time) in a box with a mechanical device which, when a string is pulled, flings the bird (or hundreds, one at a time) into the air in the line of sight of a shotgun welding shooter so it can be shot is not “ill-treatment”.  If it’s lucky, it is killed outright.  Most are not and either fall to the ground to, if they are lucky, have their necks rung (sometimes by children, charmingly referred to as “wringers”), and if they are not, dumped in a pile or barrel to suffocate.  Others fly away to slowly die of their wounds or drown in the nearby Delaware River.

So the simple question is similar to the one fielded by Clinton: How is this action not in some, or every, way, shape and form, ill-treatment?  The described activity is very obviously cruel treatment, improper treatment, and abuse.  It is by definition a violation of the letter of the law and certainly warrants allowing a judge to hear the State sworn Humane Society Police Officer’s case.  If Heckler can’t point to one of the clear and specific exemptions to the cruelty law, how can he dismiss the charges?  He can do it by arguing the definition of what “is” is and going out and finding a different, tortured definition of what “ill-treat” means.  And he had to really crank back the dial on his Way Back Machine because the “legal” definition he found was from a case in 1891.

In this case a man was first found guilty by a jury of his peers of cruelty for a pigeon shoot in Bucks County.  On appeal, the appeals court found that he was not guilty of cruelty and ill-treatment, he was merely guilty of being a poor shot, and that was no crime.  I couldn’t make this up.  There is also the slight matter of the appeal court referring to the then existing Game Law which is no longer in effect, making the verdict built on a foundation which no longer exists, castrating DA Heckler’s attempt at comparison.

Those old timey folks were really quite clever back then and they were deft at finding all kinds of ways to explain away the obvious and to deny the clear meaning of a word.  Heckler is following in a long line of such tortured definitions and bizarre justifications for violence and cruelty.  One wonders, though, why he chooses to hang his hat on this approach since the courts very notoriously employed this reaching back in time and mangling of meaning to defend many actions which would seem to be pretty straight forward crimes.

I’ll offer one parallel for Mr. Heckler.  Rape.  We all know what rape is.  A quick check of the current Meriam-Webster definition confirms that it forced sexual intercourse.  The 1904 Webster’s definition is slightly daintier, avoids the word intercourse and specifies that it is the rape of a woman or girl.  That is about as clear cut as can be.  If you force intercourse on a person against his or her (I guess in 1904 just her) will, you are guilty of rape.  Did you know that until very recently it was considered impossible to rape your wife?  Seriously, it was not until 1975 that South Dakota became the first U.S. state to make raping your wife specifically illegal and it wasn’t until 1993 that North Carolina became the final state to do so (way to bring up the rear, N.C.).

You might wonder why there would need to be an explicit law to outlaw raping your wife.  If any man forces his wife to have sex against her will, isn’t that the very definition of rape?  The only way to find otherwise would be to find an alternative definition.  Not one found in any dictionary or in our common lexicon, but one based on a legal opinion.  And a pretty tortured one at that.  Sound familiar?  It should, because until 1933- and still regularly thereafter- U.S. prosecutors and judges used a contorted legal opinions stemming from a 1736 legal treatise by English Judge Sir Matthew Hale, to justify either not prosecuting or acquitting husbands of the charge of raping their wives.  The treatise cited said that there couldn’t be rape in marriage because wives had already “submitted” to their husbands.  You know, they weren’t guilty of ill-treatment, just of being a bad shot.

It was not until 1933 that the first husband was found guilty of rape in the United States and it was not until 1993 that the last State finally stated the obvious and made it explicit law that rape is rape.  Period.  Or sort of.  It’s still a lesser crime to rape your wife in some states than to rape a stranger.  There too lies a parallel because in Pennsylvania it is a lesser crime to torture a pigeon as opposed to a pet dog.  But it is still a crime.  And it should be remembered when people ask why we need an explicitly stated law to ban pigeon shoots if they are already illegal that we needed similar seemingly obvious laws to say that a man can’t rape his wife and that a black man had the same right to vote as a white man.  Or that women have the right to vote at all.  Sometimes the obvious just needs to be stated for the benefit of the definitionally challenged, like DA Heckler.

DA Heckler walked the same path of presidents and prosecutors before him to torture a definition to obtain the outcome he desired.  It’s the same method which has allowed us to legally define “person” or “citizen” to exclude blacks or “voter” to exclude women or “torture” to exclude waterboarding, even when no dictionary cold be found to do so.  It is a well-worn path.   He had to do it because the clear meaning of the words in the law being prosecuted wouldn’t support his position.  So he had to fall back on some long ago judge’s twisting into an unnatural form (one definition of tortured) of the word “ill-treatment”.

There are a couple more interesting similarities between this week’s aborted prosecution and the one from 1891.  Both involved pigeons, both were in Bucks County, and both involved the Philadelphia Gun Club.  In 1891 the defendant, A. Nelson Lewis, was represented by Hugh B. Eastburn.  Hugh B. Eastburn is the great grandfather of D. Rodman Eastburn of , wait for it, Eastburn and Gray, the law firm representing the 2012 defendant, the Philadelphia Gun Club.  It’s also interesting to note that this law firm is reported to have associates who have been involved with the pigeon shoots held there now.  One of those associates is reported to have pled guilty to physically assaulting a shoot protestor.  That law firm’s associates are also reported to have donated half of the campaign contributions received during one campaign cycle by DA Heckler when he ran for judge in 2007.  In other words, DA Heckler appears to have dismissed charges against the client of major political donors, a firm with associates who reportedly participate in the shoots themselves.

Maybe in our search to determine why DA Heckler needed to go back 121 years to an obscure and bizarre legal decision to find a definition of ill-treatment he could have used the Google to obtain, we should instead look up another definition and try it on for size.

Corrupt (adjective): dishonest

Synonyms: bent, bribable, crooked, double-dealing, on the take, tainted, unethical.

I believe another lawyer once said, “If the glove don’t fit, you must acquit”.  Some definitions just fit better than others.  And some fit like a glove.

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Friends,

Tomorrow – June 9th – is my thirty-second birthday. This is only important to a small number of people, and rightly so. It is also the seventh anniversary of my association with the Humane Society (that’s right, I went to a job interview on my birthday.)

When my wife Laura and I talked about having a party on Saturday, I was adamant that guests not bring gifts. I’ve already got everything I could want: I have a great home, a wonderful family, and an ever-widening circle of friends, along with all the piles of things you accumulate in thirty two years.

I also have a great job doing what I love for people and animals – and it’s that part that really got me thinking. I’ve got a great life, so great that I can’t think of a single material thing I really need. But that places me in a small minority, and I learned that firsthand working here at the Humane Society.

When I started here as an animal control officer in 2005, I had never worked in animal welfare before, never experienced the cruel realities of poverty here in our own community. Add in the peculiarities of my personality and the effects of six years of military service, and I was completely out of touch with the problems people were facing every day here in Reading and Berks. And because I lacked understanding, I also lacked compassion. Luckily, I learned
that compassion here at the Humane Society.

I’ll never forget the homeless woman I met on Spring Garden whose scruffy Chihuahua rode in a dilapidated baby stroller while she collected cans to recycle. She and the dog slept in an abandoned house at night because she couldn’t take him into a homeless shelter.

I’ll always remember the gratitude and dignity of a retired Navy man in Jacksonwald to whom we regularly delivered dog food as part of our Ani-Meals on Wheels program. Prior to that, he’d shared his food with his old German Shepherd – and I bet the dog still got some choice bits afterward.

And maybe most of all of these, I can still see the faces of families reunited with pets we offered temporary housing after disasters. They had weeks or months of cleanup ahead and plenty of headaches to come, but they were together.

We couldn’t solve all of their problems, but I have watched the Humane Society help these people and thousands like them over the past seven years. And it may be selfish to consider this just as important, but they helped me too. I am not the person I was seven years ago, and while much of that is due to the superhuman patience and love of my wife Laura, I owe an incalculable debt to the Humane Society and to the people and animals we help everyday.

While I said at the beginning that I didn’t want gifts, I’ll ask you for one now if any of what I said made sense to you. Please make a donation to the Humane Society, whether it’s a monetary gift or a bag of dog food, or reserve a pass for the upcoming Pints for Pups. You’ll help us to continue the vital work that makes life just a little bit better for the people and animals we serve – and for me, too.

Thank you!

Dylan

 

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Did you get a chill? That might have been from the YouTube video posted with my cooperation and approval by Steve Hindi and SHARK explaining my view of why Pennsylvania’s pigeon shoots are, in fact, already illegal.

Arcane animal welfare policy fetishists may have followed the occasional tete-a-tete between the two of us over messaging in the past. Not on the message, but on the messaging. I’m not sure if older age has made me fierier or Steve cuddlier (in his emails he actually started asking people to be polite when they make calls now) but, either way, we are starting to find ourselves on the same side of the messaging and the message.

And that should terrify pigeon shooters, their political and law enforcement protectors, and the apologists of archaic displays of cruelty. When Mr. Moderate (me) and Mr. Not-So-Moderate (Steve) shake hands on something, watch out.

What we shook hands on this time was to make a concerted joint effort, with anyone who will work with us, to press the case of the illegality of pigeon shoots under current Pennsylvania law. The time for claiming that they are legal based on a lack of prosecution is over. They are being prosecuted, to the extent local DA’s will allow it and local Magisterial Justices will apply the letter of the law. Not bringing charges has never been evidence of the legality of an action. Especially when those with the power to allow it prevent or hamstring the attempts.

Such as local DA’s. One county DA forced animal cruelty charges to be withdrawn, not once but twice! This DA also happened to accept campaign donations from the pigeon shooters association. Fiery Steve would call this corrupt. Moderate me would only call this seriously suspect and grounds for recusal in the decision to prosecute. Another county DA has allowed charges to go forward but refused to allow the Humane Society Police Officer to retain an attorney, permitted under the law and common practice in cruelty cases, for the trial.

And where a local DA allows a case to go forward unimpeded, we have justices who make decisions based not on the law but on politics. A recent not guilty decision included- I do not lie- talking points that were word for word from the NRA’s talking points to supporters about pigeon shoots. Not a reference to the actual law, but NRA talking points. This hardly makes a case for legality. It makes a case for, at best, ignorance and, at worst, collusion and, yes, Steve, “corruption” might be a word that is in play.

Since my organization, Humane Society of Berks County, was one of the organizations which brought cruelty charges against a local pigeon shoot- recently abandoned as a fundraiser by the local sportsmen’s club and good on them- only to have them forcibly withdrawn by the local DA, I never had a chance to make our case for the illegality of pigeon shoots in open court. So, I’ll make it here, again. At length, again. Because despite NRA bulleted short lists, some things are complicated and take time and thought.

The Charge: Violation of PA 5511(C)(1): A person commits an offense if he wantonly or cruelly ill-treats, overloads, beats, otherwise abuses any animal, or neglects any animal as to which he has a duty of care, whether belonging to himself or otherwise, or abandons any animal, or deprives any animal of necessary sustenance, drink, shelter or veterinary care, or access to clean and sanitary shelter which will protect the animal against inclement weather and preserve the animal’s body heat and keep it dry.

Some officers have gone for the second section above and made a case for the shelter and sustenance. We were going to make a case flatly on the bolded first portion. Launching hundreds of birds (or just one) from a trap and shooting them/it to flop around full of bird shot in agony to die slowly is the definition of wonton and cruel ill treatment. The action is wanton and cruel. J ’accuse!

The first immediate defense would be to ask the judge to find that this action is not wanton and cruel. That would be a stretch because one only needs to substitute another animal, let’s say a dog or a deer, for the pigeon. It would clearly be wanton and cruel in those cases. In fact, this situational cruelty is why the Cruelty Law actually specifies the circumstances in which it does not apply to clearly cruel actions. One can’t always simply say, “What if it was a dog?” We don’t hunt dogs. We don’t slaughter dogs for food. But those things are not cruelty under the law when we do it with deer or cows.

Therefore, to make the case that this isn’t an action in which we can simply swap out the animal being shot to determine the wonton cruelty of the action, the shooter must take a different approach and say, “Yes, the action would be cruel if a dog or a deer, but the law still allows me to do this cruel thing.” And the first point goes to me: Launching and shooting an animal is cruelty. Unless the judge wants to say it isn’t. Did I mention that Magisterial Justices in Pennsylvania are elected locally, don’t have to have a law degree (or any legal background), and are free to simply ignore the law and reality? So, I still might have lost right here, but I don’t think so.

Moving on. Having established that launching and shooting an animal is wanton cruelty; the defendant must present an affirmative defense or face conviction. In other words, why is this cruelty permitted under the law? And many cruelties are permitted under the law. I’ll run through them quickly, as we would have in court.

There are several defenses under PA 5511. It shall not apply to “the killing of any animal taken or found in the act of actually destroying any domestic animal or domestic fowl.” Unless these are killer pigeons, that one doesn’t work. “Reasonable activity as may be undertaken in connection with vermin control or pest control,” is another defense. I’ve never seen rats rounded up, transported across state lines, and used in trap shots by Orkin. I think that one is a loser, too. Self-defense is another clear legal defense. Except I’m unaware of the need to defend oneself against anything but pigeon poop. Loser. How about “activity undertaken in normal agricultural operation.” This is an old favorite of puppy millers but it hardly applies to pigeon shoots. None to these exclusions apply and none are a valid defense against the charge of wanton cruelty.

There is one more defense laid out in the law and this is the one which receives a glancing argument by pigeon shooters. It’s the one which apologists fall back on. But it does not hold up any better than the others if you actually read the law. PA 5511 does not apply to “the killing of any animal or fowl pursuant to the act of June 3, 1937 (P.L. 1225, No. 316), [FN2] known as The Game Law…” In other words, if it’s legal hunting under the law, it’s legal. Even if it’s cruelty.

This is the argument which worked on me when I first came to Berks County. Someone told me pigeon shoots were protected under game code and I took that at face value. I had never looked up to see first-hand that deer hunting was legal, so why would I bother with pigeon shoots? Except I don’t get cruelty calls about deer hunting the way I do pigeon shoots and finally, after a friend in the business told me that they weren’t covered by game code or regulation, I read the game code. It’s long. I read the game regulations, rules, seasons, and bag limits. My friend was right, it wasn’t covered. But my friend wasn’t a cruelty officer and I was. And that made me realize that this wasn’t a matter of ambiguity. These shoots, if not protected by game code, were completely illegal.

The Game Code says “The commission shall promulgate such regulations as it deems necessary and appropriate concerning game or wildlife and hunting or furtaking in this Commonwealth.” So, even the words “it’s OK to have pigeon shoots” isn’t in the law- and it isn’t- the Game Commission has the authority to make it legal through regulation. That means we only need to go to the PA Game Commission’s Hunting Seasons and Bag Limits to see what the rules are for what animals may be hunted, how many, when, and in what way. It’s a comprehensive list including deer, muskrats, crow, groundhogs, bear, you name it. Pigeons are not on the list but a very important sentence is included: “No open season on other wild birds or mammals.” That means that if it’s not on the list, it can’t be hunted. Period.

Pigeon shoots are not hunting under Pennsylvania’s Game Code or promulgated regulations. But wait! I hear you lurking shooters reading this getting indignant and thinking, “We never said this was hunting, it’s a trap shoot at private clubs! We don’t need no stinkin’ regulations or permits!” Au contraire, mon frere, you very much do. The Game Code, 34 Pa. Cons. Stat. § 2928(a), allows that releases and shoots at “Regulated hunting grounds require a minimum of 100 acres of land, or land and water combined, on which the permittee must release one of the following species of domestically produced game birds: namely, ringneck pheasants, bobwhite quail or mallard ducks. Any of the listed species and chukar partridges may be released only if they are listed on the permit application and propagated by the permittee or received from a legal source.” Not pigeons. There is no game code protection.

The case is simple: Shooters are charged with the wanton cruelty of shooting pigeons and piling them up to die a slow death. The defense must show that this cruelty is exempt from prosecution because it is protected under a provision or PA law. Self-defense, normal agricultural practice, pest control, animal control, protecting other wildlife, and game code and game regulations do not provide any defense against the charge. In an absence of a defense and in light of both the specific letter and totality of the law addressing the dispatch of animals in Pennsylvania, a judge has no choice but to convict. That’s assuming the judge actually follows the law when this case in made before the court. Guilty, guilty, guilty!

There are a couple extremely easy ways for shooters to make these shoots legal. Get the Game Commission to change the regulations to allow for hunting pigeons without a season or bag limit. My guess is that the change would have to be overturned by legislation. HSBC would cease our yammering about pigeons because the activity, while loathsome, would be legal. Or they could go the route of direct legislation and make shoots expressly legal, as the anti-shoot folks are similarly seeking a legislative remedy by making them expressly illegal. I’ve already suggested two bills which would go head to head. One allows, one bans. Let’s see who votes for what and which would win.

But until then, HSBC will stick with our legal position that pigeon shoots are already illegal under the law and that there is no legal defense under the law. The only defense is from the shooters’ cronies who block the rightful application of Pennsylvania law in our courts.

On that, Steve and I agree 100%.

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