In recent years, animal rights activists have entered farmland without permission to expose what they believe are inhumane conditions for farm animals. The activists videotape what they see and sometimes “rescue” animals by removing them from the property. When prosecuted for trespass, activists have often asserted the defense of legal necessity—that the harm sought to be prevented outweighed the harm of the criminal trespass. One such organization, Direct Action Everywhere (DxE), is known for such actions. In 2023, DxE’s co-founder was convicted by a Sonoma County, California jury of criminal trespass and conspiracy to commit trespass arising from DxE incursions onto a chicken farm and a duck farm. Defendant appealed, and on April 30, 2026, the Court of Appeal, First Appellate District, reversed two counts due to an erroneous jury instruction and remanded for further action. However, the court affirmed the conviction for misdemeanor trespass by refusing to leave private property. The court also rejected the necessity defense as a matter of law and rejected defendant’s First Amendment challenges to the aiding and abetting and trespass laws. People v. Hsiung, No. A169697 (Cal. App. 1st Dist. Apr. 30, 2026).
The court noted that California law had long established that, for the necessity defense to apply, “[th]e situation presented to the defendant [relying on a necessity defense] must be of an emergency nature, threatening physical harm, and lacking an alternative, legal course of action.” Slip op. at 15 (cleaned up). Here, the “evidence undermine[d] any claim that defendant had no choice but to commit trespass because he was acting in an emergency situation to prevent imminent, significant harm to animals.” Slip op. at 18. This was due to significant advanced planning for the activists’ incursions. As the court observed:
Defendant and other DxE activists described preparations that began well in advance of the Sunrise incident on May 29, 2018, and the Reichardt incident on June 13, 2019. These preparations involved: (1) obtaining legal advice from lawyers regarding the implications of the activists’ plans; (2) hiring a veterinarian to opine on the conditions of the animals living on the poultry farms based on video and photographic evidence previously gathered by activists; and (3) organizing and training groups of activists to participate in various protest activities that included peaceful vigils outside the properties, a lockdown on farm property, and animal rescues from inside barns conducted by activists donning biohazard suits.
Indeed, the fact that both incidents, Sunrise in 2018 and Reichardt in 2019, occurred during or just before the Animal Liberation Conference, a large animal rights activism event in Berkeley, reflect the level of detail and advanced planning that went into them.
This evidence undermines any claim that defendant had no choice but to commit trespass because he was acting in an emergency situation to prevent imminent, significant harm to animals. [Slip op. at 18].
The court had “another concern” about defendant’s claim that he had no choice but to commit criminal trespass. California Penal Code § 559a provides a vehicle for a private party to complain and obtain official action against what the complainant believes is animal cruelty. There was no evidence that defendant pursued that alternative.
While the court rejected the necessity defense, it ruled that defendant was entitled to present mistake of law as a defense to two charges—the mistake being the belief that necessity was a defense. This is because “mistake of law may be a defense to a specific intent crime when the mistake negates the defendant’s specific intent to commit the crime.” Slip op. at 23. The charges of conspiracy and trespass with intent to interfere with business are both specific intent crimes. Nonetheless, the evidence must show the claimed belief was held in good faith. Here the proffered, excluded evidence could have supported this defense because defendant had obtained legal opinions from a law professor and a former prosecutor that his planned conduct was lawful. The trial judge’s refusal of a jury instruction on this point was error. “Accordingly, defendant should have been permitted to present to the jury a mistake of law defense based on his good faith, albeit incorrect, belief that committing a trespass was legally justified by necessity, notwithstanding his awareness that trespassing was a crime.” Id. at 26-27. Whether the legal opinions were inadmissible on other grounds and whether defendant actually relied on them in good faith the court left for another day.
Finally, the court made short work of defendant’s constitutional arguments. The criminal aiding and abetting statute raised no First Amendment concerns because “[i]t does not regulate speech but conduct.” Slip op. at 35 (emphasis in original). Nor did the trespass crime of refusing to leave when asked under Penal Code § 602 constitute a content-based restriction of speech due to its exclusion of labor union activities. This is because the statute itself “’does not apply to persons on the premises who are engaging in activities protected by the California or United States Constitution.’” Id. at 36 (citation omitted).
This case has three important takeaways for agricultural landowners in the animal protein business:
► While the conviction on two charges was reversed, the court affirmed defendant’s conviction for misdemeanor trespass by refusing to leave private property. This is a general intent crime and easier to prove than the specific intent crime of trespass to interfere with lawful business. It also is not subject to a mistake of law defense that the trespasser believed trespass was permissible. The penalty for trespass by refusing to leave is jail time up to 6 months, a maximum fine of $1000 and stay away orders.
► Given how animal rights activists plan and orchestrate their activities in advance, the requirement of a true emergency situation significantly narrows the circumstances supporting necessity as a defense.
► Even where mistake of law might apply, the mistake must be made in good faith. A result-oriented legal opinion by an animal rights lawyer will likely undermine an assertion of good faith reliance.