The LEGAL Case Against Pigeon Shoots (Again)

June 5th, 2012 | Posted by Karel Minor in Uncategorized

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Such as local DA’s. One county DA forced animal cruelty charges to be withdrawn, not once but twice!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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