New York Court of Appeals Tosses Kaporos Animal Cruelty Case

by John M. Simpson

On November 14, 2018, the New York Court of Appeals affirmed the dismissal of a mandamus petition seeking to enforce certain state animal cruelty laws against the practice of Kaporos.  The Alliance to End Chickens as Kaporos, et al. v. New York City Police Dep’t, et al., No. 126 (N.Y. Nov. 14, 2018).   The Court of Appeals ruled that the “extraordinary remedy” of mandamus was not available because “[e]nforcement of the laws cited by plaintiffs would involve some exercise of discretion …” and plaintiffs “do not seek to compel the performance of ministerial duties but, rather, seek to compel a particular outcome.”  Id., slip. op. 2, 3 (citations omitted).

As described by the majority opinion of the Appellate Division, First Department:

Kaporos is a customary Jewish ritual practiced by the non-City defendants, who are ultra Orthodox.  It dates back to biblical times and occurs only once a year, the few days immediately preceding the holiday of Yom Kippur.  Adherents of Kaporos believe this ritual is required by religious law and that it brings atonement and redemption.  The ritual entails grasping a live chicken and swinging the bird three times overhead while saying a prayer that symbolically asks God to transfer the practitioners’ sins to the birds.  Upon completion of the prayer, the chicken is killed in accordance with the kosher dietary laws, by slitting the chicken’s throat. Its meat is then required to be donated to the poor and others in the community.  Each year thousands of chickens are sacrificed in furtherance of this ritual and the practice takes place outdoors, on public streets in Brooklyn, and in full public view.

152 A.D.3d 113, 115 (2017).  The plaintiffs included individuals who reside, work or travel within the Brooklyn neighborhoods where the challenged practice occurs as well as an organization dedicated to ending Kaporos.  The “City defendants” included the New York City Police Department and Commissioner and the Department of Health and Mental Hygiene.  The “non-City defendants” included individual Jewish rabbis, members of yeshivas or other Orthodox Jewish religious institutions and several other institutions all located in Kings County.  The plaintiffs contended that Kaporos violates multiple New York state and New York City municipal laws and ordinances governing animal welfare, animal cruelty, sanitation, slaughterhouse operation, animal nuisances and other subjects.   Plaintiffs sought an order directing that the City enforce these laws against the non-City defendants.  Plaintiffs argued that Kaporos is a health hazard and cruel to the birds and contended that the non-City defendants could express their devotion by using coins rather than live chickens.  Plaintiffs also asserted that the City defendants not only failed to enforce the cited laws but also aided and abetted the practice by setting off areas and providing lighting for the ritual to occur.

The Appellate Division rejected the plaintiffs’ claims, reasoning as follows:

We hold that the laws which plaintiffs seek to compel the City defendants to enforce in this action involve the judgment and discretion of those defendants. This is because the laws themselves implicate the discretion of law enforcement and do not mandate an outcome in their application.

Id. at 118.  Furthermore, the one law whose text arguably created a mandatory duty  — Agriculture and Markets Law § 371, specifying that a law enforcement officer “must” issue a citation — still implicated enforcement discretion:

Notwithstanding the use of the word “must” in the statute, it is still subject to the definition of animal cruelty as otherwise defined in the Agriculture and Markets Law.  Agriculture and Markets Law § 350(2) defines “torture” or “cruelty” to include “unjustifiable physical pain, suffering or death.” Thus, a determination of whether a practice in killing animals is “unjustifiable” implicates discretion and is not susceptible to a predictable, mandated outcome.

Id. at 119.

While it did not decide the issue, the Appellate Division noted that U.S. Supreme Court precedent has “recognized animal sacrifice as a religious sacrament and decided that it is protected under the Free Exercise Clause of the Constitution, as applied to the states through the Fourteenth Amendment.”   Id. at 118.  The Court of Appeals ruled that, since it had determined that mandamus was not an appropriate remedy, “[w]e need not determine whether enforcement of the cited laws would infringe upon the First Amendment rights of the non-City defendants.”  Slip op. at 3 n.2.