by John M. Simpson<\/p>\n
On November 14, 2018, the New York Court of Appeals affirmed the dismissal of a mandamus petition seeking to enforce certain state\u00a0animal cruelty laws against the practice of Kaporos.\u00a0 The Alliance to End Chickens as Kaporos, et al. v. New York City Police Dep’t, et al.,<\/em> No. 126 (N.Y. Nov. 14, 2018).\u00a0\u00a0<\/a> The Court of Appeals ruled that the “extraordinary remedy” of mandamus was not available because “[e]nforcement of the laws cited by plaintiffs\u00a0would 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.”\u00a0 Id<\/em>., slip. op. 2, 3 (citations omitted).<\/p>\n As described by the majority opinion of the Appellate Division, First Department:<\/p>\n Kaporos is a customary Jewish ritual practiced by the non-City defendants, who are ultra Orthodox.\u00a0 It dates back to biblical times and occurs only once a year, the few days immediately preceding the holiday of Yom Kippur.\u00a0 Adherents of Kaporos believe this ritual is required by religious law and that it brings atonement and redemption.\u00a0 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.\u00a0 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.\u00a0 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.<\/p>\n 152 A.D.3d 113, 115 (2017).\u00a0 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.\u00a0 The “City defendants” included\u00a0the New York City Police Department and Commissioner and the Department of Health and Mental Hygiene.\u00a0 The “non-City defendants” included individual Jewish rabbis, members of yeshivas or other Orthodox Jewish religious institutions and several other institutions\u00a0all located in Kings County.\u00a0 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\u00a0and other subjects.\u00a0\u00a0 Plaintiffs sought an order directing that the City enforce these laws against the non-City defendants.\u00a0 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\u00a0chickens.\u00a0 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.<\/p>\n The Appellate Division rejected the plaintiffs’ claims, reasoning as follows:<\/p>\n 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.<\/p>\n<\/blockquote>\n Id<\/em>. at 118.\u00a0 Furthermore, the one law whose text\u00a0arguably created a mandatory duty \u00a0— Agriculture and Markets Law \u00a7 371,\u00a0specifying that a law enforcement officer “must” issue a citation — still implicated enforcement discretion:<\/p>\n Notwithstanding the use of the word \u201cmust\u201d in the statute, it is still subject to the definition of animal cruelty as otherwise defined in the Agriculture and Markets Law.\u00a0 Agriculture and Markets Law \u00a7 350(2) defines “torture” or “cruelty” to include \u201cunjustifiable physical pain, suffering or death.\u201d Thus, a determination of whether a practice in killing animals is \u201cunjustifiable\u201d implicates discretion and is not susceptible to a predictable, mandated outcome.<\/p>\n<\/blockquote>\n Id<\/em>. at 119.<\/p>\n 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\u00a0that it is protected under the Free Exercise Clause of the Constitution, as applied to the states through the Fourteenth Amendment.”\u00a0\u00a0\u00a0Id<\/em>. at 118.\u00a0 The Court of Appeals ruled that, since it had determined that mandamus was not an appropriate remedy, “[w]e need not determine\u00a0whether\u00a0enforcement of the cited laws would infringe upon the First Amendment rights of the\u00a0non-City defendants.”\u00a0 Slip op. at 3 n.2.<\/p>\n \n","protected":false},"excerpt":{"rendered":" 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\u00a0animal cruelty laws against the practice of Kaporos.\u00a0 The Alliance to End Chickens as Kaporos, et al. v. New York City Police Dep’t, et al., No. 126 (N.Y. Nov. 14, … <\/p>\n Continue reading “New York Court of Appeals Tosses Kaporos Animal Cruelty Case”<\/span><\/a><\/p>\n","protected":false},"author":317,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[2],"tags":[49,184,187,188,5,183,185,186],"ppma_author":[697],"class_list":["post-126","post","type-post","status-publish","format-standard","hentry","category-general","tag-animal-law","tag-animal-sacrifice","tag-first-amendment","tag-free-exercise-clause","tag-john-simpson","tag-kaporos","tag-mandamus","tag-new-york-agriculture-and-markets-law"],"authors":[{"term_id":697,"user_id":317,"is_guest":0,"slug":"jmsimpson","display_name":"John M. Simpson","avatar_url":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-content\/uploads\/sites\/38\/2018\/06\/simpsonjohn-125x150.jpg","author_category":"","last_name":"Simpson","first_name":"John M.","job_title":"","user_url":"https:\/\/www.duanemorris.com\/attorneys\/johnmsimpson.html","description":"Read John's bio.<\/a>"}],"_links":{"self":[{"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/posts\/126","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/users\/317"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/comments?post=126"}],"version-history":[{"count":0,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/posts\/126\/revisions"}],"wp:attachment":[{"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/media?parent=126"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/categories?post=126"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/tags?post=126"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/ppma_author?post=126"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}\n
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