The Gist:
- Open Rescue is a tactic in the animal rights movement in which activists investigate animal facilities, rescue animals, and openly reveal their identities while telling the animals’ stories.
- Many Open Rescues happened between 2015 and 2017, mostly by DxE. With many pending felony cases, Open Rescues slowed while these legal cases moved forward.
- In October 2022, the movement won an unprecedented victory when two DxE activists were acquitted from felonies associated with Open Rescue.
- In the light of this victory, we examine the value of Open Rescue to the animal freedom movement.
- With minimal cost, a hopeful legal landscape, and the promise to inspire hundreds of volunteer activists, Open Rescue has the potential to build movement power in even greater ways than we’ve seen before.
When piglets Lilly and Lizzie were rescued from a giant pig farm, their rescuers spoke openly about what they had done. A multi-year FBI investigation and state felony prosecution followed. At the end of their trial, supporters expected them to go to prison, potentially for years. The rescuers had gotten their affairs in order. We thought they’d be held in custody between the verdict and sentencing. We wondered how they would do in their yearly parole board hearings, given that they’d never express remorse. This was goodbye for a long time.
I was in the courtroom when the decision was announced. It all started the way we expected. After deliberating for nearly eight hours, the jury entered the room, stone-faced. They didn’t look at us. The judge asked if the jury had come to a decision. They had. The bailiff passed the written decision between the judge, the foreperson, and the clerk. But then something strange happened. Charge by charge, we heard the words “not guilty.”
It was a fantastic moment. We were elated. The bailiff scolded us gently, saying, “I get it, but you need to be quiet.” But how were we supposed to be quiet when the unbelievable had happened? The judge had referred to Lilly and Lizzie by name. The jurors had asked why we didn’t rescue more piglets. We had argued for rescue in a court of law, and we had won.
This moment of sweetness was particularly unexpected for me. In the years since I’d participated in Open Rescue myself, I had grown doubtful about our hopes that it would produce wins in the courtroom. After all, I served as DxE’s legal coordinator for a little over two years- hiring lawyers, setting up defendant meetings, and occasionally talking down the worried parent of an activist facing charges. In all this time, of dozens of criminal defendants, not one went to trial. Cases were dropped, activists took deals so they wouldn’t need to continue their cases, and mostly, cases were delayed long past the point when I, impatient with the glacial pace of the legal system, left DxE to start Pax Fauna.
Now that the celebrations are over and regular work resumes, this post is an attempt to make an honest assessment of Open Rescue as a tactic to create social change for animals, in light of a victory we never expected.
A Moment to Re-evaluate
The rescue of Lilly and Lizzie happened on March 7, 2017, and their rescuers, Wayne Hsiung and Paul Darwin Picklesimer, were acquitted over five years later, on October 8, 2022. In 2017, DxE was releasing open rescues monthly, conducting mass trainings, and hoping that open rescue would end up being a viral tactic that would touch every farm and slaughterhouse in the world.
Since then, DxE has moved away from open rescue. At one point, Wayne had 17 pending felony charges, which seemed like plenty. Most of the cases took years to resolve (several are still plodding through pretrial hearings), and, without making it to trial, they didn’t always get the media attention we hoped for. Now that long-awaited evidence of the outcomes of Open Rescue cases are available, it is a prime moment for the movement to consider using it again. In this article, we’ll outline the lessons learned for the animal freedom movement from the Smithfield victory, and the implications for future strategy.
A Legal Theory that Worked
But First, the Parts that Didn’t
One defense strategy batted around in the heyday of DxE’s open rescues was that we could convince a jury to simply ignore unjust laws and make a decision based on their conscience, known as jury nullification. But it seems that’s not exactly what happened here. The jury did not explicitly decide that rescue is moral and Paul and Wayne didn’t deserve to be punished- they decided that the prosecution didn’t meet its burden of proof that the particular crimes charged had been committed. (From juror interviews afterwards, it seems that a moral motivation was also present, at least for some.) It also wasn’t a case that created a binding legal precedent. That means that nothing has changed regarding the legality of open rescue. Of course, activists hope cases like this can set a cultural precedent, and they can also be used as persuasive authority, information that informs, but does not dictate, the actions of judges in the future, even outside of the state of Utah.
Another piece to the theory whose result was inconclusive was the necessity defense- a legal concept in which a criminal act is justified if it prevents immediate, greater harm. The judge in this case forbade DxE from introducing it (as usually happens for animal and environmental activists hoping to claim it), but it would sound something like this: Paul and Wayne knew that animals were suffering terribly inside Circle Four Farms, and they were justified in committing trespass, a smaller harm, in order to stop a greater harm- criminal animal cruelty. While it was explictly forbidden, this defense was both implied by the defendants in their discussion of the poor health of Lillie and Lizzie, and possibly common sense to the jurors who aquitted. My guess is that the necessity defense represents an unquantifiable moral component to this case. It can’t be expected to earn aquittals by itself, since it’s rarely included in jury instructions, but it’s necessary for winning over juries all the same. (You can hear more from the jurors at an upcoming by the Denver Animal Activist Defense Project.)
Felonies Schmelonies
It was, however, a proof of concept of part of a legal theory that Wayne and DxE have been touting for years- that under the right circumstances, diligent open rescue investigators won’t be guilty of any crime more serious than trespass. (In Utah, prosecutors must choose between charging burglary and trespass- this isn’t true everywhere.) Because investigators enter farms with only the intent of documenting what’s happening in the facility, they aren’t guilty of burglary, which generally requires entering a building with the intent to commit a theft or felony. Because the animals they rescue are on the verge of death, they aren’t guilty of theft, which usually requires that one steal something of value. However, courts and juries do not always agree with activists in the assessment of the monetary value of sick rescued animals, or the relevance of animal’s value, such as in Wayne’s own conviction at trial after rescuing Rain, a baby goat with pneumonia. (Another upcoming test will come from my own charges of burglary and theft in association with the rescue of beagles from a breeding and testing facility in Wisconsin, each valued at $1200.) In the future, activists may be able to set themselves up for success by rescuing animals whose urgent medical needs cost more than they are worth to the farm. (Of course, specific laws and jury instructions will vary according to circumstances and jurisdictions, and I’m writing this from the perspective of an activist and not an attorney or legal expert.)
Difficulties with OR as a Tactic
Possible downsides to Open Rescue as a strategy could be the cost, the difficulty of replicating the legal strategy, and a risk of an undesirable media narrative. None of these seem insurmountable for a savvy group of activists.
Costs
Costs of the investigation itself can be in the realm of a few thousand dollars- lower if equipment (e.g. cameras) is used for multiple investigations. These include flights and hotels for a small team, a rental car, biosecurity supplies, and vet visits. The legal fees are where it really adds up. Lawyers can cost tens of thousands of dollars, to which we can add the price of specialized investigators or jury studies, additional tens of thousands of dollars. This price might be comparable to undercover investigations, which require a salary for an investigator for months in addition to the equipment and costs associated with preparing the story for release. However, the vast majority of Open Rescues were never prosecuted, resulting in a very low average cost overall.
Charisma
Watching Wayne Hsiung represent himself in court, I was struck by the thought that he was the most qualified person in the world for this particular task- a lawyer and practiced public speaker who had been preparing for this moment for years. This might lead one to conclude that others can’t replicate his strategy, but I disagree. While Wayne’s decision to represent himself made for some exciting theater, I don’t believe it was necessary for the verdict. As touching as it was to hear him say to the jury, “I don't actually want you to acquit us on a legal technicality, I want you to acquit us as a matter of conscience” it seems that they probably were acquitted on a legal technicality as discussed above- the piglets didn’t have any monetary value, and perhaps that they didn’t have the intent to rescue when they entered the farm.
I believe that with competent counsel and no particular gift for public speaking, this case implies that other investigators could have a decent chance of acquittal from serious charges under similar sets of facts. (That’s not to say that any lawyer will do- competent and dedicated activist attorneys are vital and rare. Advice on their selection would easily fill a blog of the same length.)
Narrative
A final concern with Open Rescue that I want to address is the narrative put forth through the media. DxE can be considered a liberationist group. That is, they are not interested in lowering the mortality rates of piglets in factory farms or winning slightly bigger cages for egg-laying hens- they mean to advocate for animals as individuals who deserve rights. However, this insistence on liberation over welfare doesn’t always get through to the media.
Of the Smithfield Investigation, the most widely consumed coverage came from the New York Times, the subtitle of which read, “The Utah trial highlighted what the defendants argued is a lack of transparency for the treatment of animals at large corporate farms.” It also included a discussion of corporate transparency, gestation crates, and a quote from Wayne Hsuing saying “Instead of trying to put us in prison… the better thing to do is just take care of your animals.” Facing a trial and serious criminal consequences, it can be tempting for a defendant or organization to adapt their message to one that may be perceived as more palatable and more likely to win the case and woo the media.
However, unlike many of DxE’s other Open Rescues that focused on dispelling the Humane Myth, the Smithfield Investigation’s narrative was more focused on corporate lies around welfare. (The company had previously vowed to phase out gestation crates, while its largest facility still used them.) I don’t believe that Open Rescue itself implies a welfare angle if the advocates behind it don’t want one.
Upsides
Storytelling
In contrast with undercover operations, Open Rescue allows for a quality of storytelling that allows the audience to identify a single victim to feel empathy for. Discussion of particularly cruel practices or deceptive marketing can be accompanied by the story of an individual who survived, transforming a dark story about corporate wrongdoing into one containing a vision for change. These stories are also strengthened by the honesty of the activists, their willingness to break unjust laws in the open and demand their day in court.
Additionally, Open Rescue allows for the telling of many different stories- ones that may resonate on social media, traditional media, with lawmakers, and for juries, all of whom have different interests. While the media may not pick up every case of open rescue, if we try enough different ways, eventually some of them will blow up.
Activist Transformation
Open Rescue allows activists to be transformed by what they see. Now, when we speak about animals, we have firsthand knowledge of their lives and deaths. The risk we take in conducting Open Rescue functions as a signal of our commitment, to ourselves and to others. DxE’s mass open rescues and a similar tactic used by Meat the Victims transformed hundreds of activists into people with firsthand experience.
Importantly, this experience is of bearing witness and also of helping. By rescuing animals, or at least stopping the functioning of the facility for some time, activists’ witnessing of violence is accompanied by intervening, leading to more empowerment and less burnout than bearing witness on its own.
Open Rescue transforms not only the activists’ internal sense of motivation but also their credibility as messengers to the public: from here on, they can attest as eyewitnesses to the barbarity of animal farming.
Untapped Potential
To date, Open Rescue has done important work at transforming activists, challenging the humane myth, uncovering previously unknown atrocities, and earning a voice in the media, not to mention saving real lives. In the future, Open Rescue could be used in even more creative ways than we’ve previously seen. For just one example, in the context of an animal rights ballot measure, donors to the opposition could be identified and their farms could be investigated by groups unaffiliated with the ballot measure, with investigations published just before election day. This would provide both important publicity for the issue and accountability to those who would financially support an anti-animal position.
Until Every Cage is Empty
The full potential of Open Rescue as a tactic has yet to be fully realized. While it’s understandable that, in the period of time where many charges were pending and few were resolved, activists moved away from it, the time is now right to reinvest energy in openly investigating violent facilities and rescuing the animals we find there. We hope to see open rescue happen by greater numbers of activists, at greater frequency, and to save more lives than has been possible before.