United Poultry Concerns December 18 , 2003


Legislative Council of California to Honorable Paul Koretz
2176 State Capitol

July 31, 2003


Dear Mr. Koretz:

You have asked whether the use of woodchipping machinery to destroy unwanted live chickens violates California law prohibiting cruelty to animals. According to information furnished to us by your office, recently approximately 30,000 live, three- to four-pound hens were destroyed in a woodchipper at two California egg ranches. Based on the information you provided, for the purposes of this opinion we assume that the incident in question involved spent hens. “Spent hens” are defined in subdivision (b) of Section 1245.2 of Title 3 of the California Code of Regulations as “older chicken hens which are considered too unproductive to retain as egg-layers.”

Section 19501 of the Food and Agricultural Code requires certain poultry to be rendered insensible to pain before slaughter by various means that are rapid and effective. However, spent hens are specifically excepted from this provision, and from the regulations respecting the humane slaughter of poultry adopted by the Department of Food and Agriculture pursuant to Section 19501.5 of the Food and Agricultural Code (see Sec. 19501 F. & A.C; 3 Cal. Code Regs. 1245.1, 1245.2, 1245.4). Thus, the destruction of spent hens is not subject to the requirements of Section 19501.

Section 597 of the Penal Code [all section references are to the Penal Code, unless otherwise indicated] addresses animal cruelty more generally; subdivisions (a) and (b) of Section 597 read as follows:

597. (a) .. . every person who maliciously and intentionally maims, mutilates, tortures, or wounds a living animal, or maliciously and intentionally kills an animal, is guilty of an offense punishable by imprisonment in the state prison, or by a fine of not more than twenty thousand dollars ($20,000), or by both the fine and imprisonment, or, alternatively, by imprisonment in a county jail for not more than one year, or by a fine of not more than twenty thousand dollars ($20,000), or by both the fine and imprisonment.

(b) . . . every person who overdrives, overloads, drives when overloaded, overworks, tortures, torments, deprives of necessary sustenance, drink, or shelter, cruelly beats, mutilates, or cruelly kills any animal, or causes or procures any animal to be so overdriven, overloaded, driven when overloaded, overworked, tortured, tormented, deprived of necessary sustenance, drink, shelter, as to be cruelly beaten, mutilated, or cruelly killed, and whoever having the charge or custody of any animal, either as owner or otherwise, subjects any animal to needless suffering, or inflicts unnecessary cruelty upon the animal, or in any manner abuses any animal, or fails to provide the animal with proper food, drink, or shelter or protection from the weather, or who drives, rides, or otherwise uses the animal when unfit for labor, is, for every such offense, guilty of a crime punishable as a misdemeanor or as a felony or alternatively punishable as a misdemeanor or a felony and by a fine of not more than twenty thousand dollars ($20,000).
For the purposes of Section 597, “torment,” “torture,” and “cruelty” include “every act, omission or neglect whereby unnecessary or unjustifiable physical pain or suffering is caused or permitted” (Sec. 599b). Thus, Section 597 prohibits malicious and intentional maiming, mutilation, torturing or wounding of an animal, malicious and intentional killing of an animal, torturing, tormenting, mutilating, or cruelly killing an animal, or subjecting an animal to needless suffering, unnecessary cruelty, or abuse [Other sections of the Penal Code prohibits various forms of cruelty to animals . . . but none of these sections contains any provision of specific applicability to the question presented.]

Birds fall within the statutory definition of “every dumb creature” (Sec.599b) and thus qualify as “animals” for purposes of animal cruelty statutes (People v. Baniqued 92000) 85 Cal.App.4th 13, 15-16). Section 597 is not limited to domestic animals and, thus, applies generally to all animals (compare with Sec. 598b, which prohibits the use of pets as food). Furthermore, while the prohibitions contained in Section 597 do not interfere with the right to kill animals used for food and certain other activities (see Sec. 599c), there is no exception from these prohibitions for euthanizing animals that previously laid eggs if the animals are not to be used for food. In the absence of an exception, we address the issue of whether Section 597 prohibits the use of woodchipping machinery to destroy unwanted live chickens.

In People v. Speegle (1997) 53 Cal. App.4th 1405, 1411 (hereafter Speegle), the court of appeal stated that, because there are “an infinite number of ways” in which an animal could be subjected to substandard treatment, the Legislature cannot catalogue every violative act. Section 597 prohibits both active and passive infliction of cruelty on animals (see Sec. 599b). In this case, the incident in question was an intentional act. The majority of California cases involving animal cruelty have involved passive infliction of cruelty through the criminal neglect of animals. When active infliction of cruelty was involved, the issue of what acts constitute animal cruelty was not categorically addressed. In People v. Thomason (2000) 84 Cal.App.4th 1064, 105601066 (hereafter Thomason), the defendant was charged with violation of subdivision (a) of Section 597 for producing “crush videos” in which mice, rats, and newborn mice were crushed and killed by a woman under the heel of her shoe. On appeal, the appellant argued that Section 597 does not apply to rodents because they may be killed an any time and by any means under Section 599c, as they are a threat to health and property and therefore excepted from subdivision (a) of Section 597. The court of appeal held that Section 5401 of the Food and Agricultural Code, Section 116125 of the Health and Safety Code, and Section 599c address the destruction of specific animals, those known to pose a danger to life, limb, or property, under specific conditions, on premises that are infested with any pest or on which any pest is found (Id., at p. 1068). Further, the court held that, even if it could be said that the rodents killed could be classified as those covered by Section 599c, they may not be intentionally and maliciously maimed, mutilated, or tortured to death for the purpose of selling video tapes for commercial gain (Id., at pp. 1068-1070). Thus, the court of appeal held in Thomason that animals that are permitted to be killed pursuant to Section 599c may not be subjected intentionally to needless suffering or unnecessary cruelty.

In our opinion, determining whether Section 597 has been violated in any case and, thus, whether animal cruelty has occurred, will depend on the facts presented in that case. Looking at other states, the Supreme Court of Colorado addressed the issue of what constitutes animal cruelty in a case involving an intentional act in Waters v. The People (Colo. 1896) 46 P. 112 (hereafter Waters). The facts of that case were that defendant, Waters, had released 40 live doves from a trap for the purpose of using them as targets to shoot at for sport and amusement; some of the doves were shot and killed outright; and some of the doves were wounded, captured, and then immediately killed. The Waters court, in reaching its conclusion that the defendant violated the Colorado animal cruelty law, stated as follows:

“Every act that causes pain and suffering to animals is not prohibited. Where the end or object in view is reasonable and adequate, the act resulting in pain is, in the sense of the statute, necessary or justifiable, . . . Or where the act is done to protect life or property, or to minister to some of the necessities of man. But the killing of captive doves, as they are released from a trap, merely to improve one’s skill of marksmanship, or for sport and amusement, though there is no specific intention to inflict pain or torture, is, within the meaning of this act, unnecessary and unjustifiable. . . . and so the avowed object of this shooting is neither adequate nor reasonable; hence, under this act, unjustifiable. . . .” (Id., at p. 115.)

In reaching this decision, the court distinguished cases from other states on the basis that, in the case before it, the actions resulted in the mutilation of birds (Id., at p. 114) thereby inflicting pain (Id., at p. 113).

The use of woodchippers has not been endorsed by the American Veterinary Medical Association as an acceptable means of euthanasia for poultry (Woodchippers not to be used to euthanize poultry, AVMA says: http://www.avma.org/onlnews/javma/juno3/0306old.asp [6/30/03]). However, maceration in grinders specifically designed for the disposal of poultry has been described as a humane method for disposing of young chicks and embryonated eggs (Center for Animal Welfare: Euthanasia of Poultry: http://animalwelfare.ucdavis.edu/publication/poultryeuth.html [6/26/03]).

These views indicate that the determination of whether the incident in question involves animal cruelty is a question of fact. We think that a court or jury, in determining whether any particular act constitutes animal cruelty, would consider numerous issues. For example, how much pain was inflicted on the animals involved, and for how long were they forced to endure this pain? Was the woodchipper operating in an efficacious manner, and how exactly were the birds destroyed upon entering the machine? Was the act prompted by agricultural necessity? Did a disease quarantine, the condition of the birds, or the stress, trauma, or injury that may have been caused to them make transporting the flock to a commercial slaughterhouse or rendering plant impossible or impractical? Were approved methods available at the time that could have been used to destroy the flock at the ranch, or at a commercial slaughterhouse or rendering plant?

To summarize, the use of woodchipping machinery to destroy unwanted live chickens is neither specifically prohibited by the animal cruelty laws nor authorized by the Food and Agricultural Code. Those laws requiring the humane slaughter of poultry specifically except spent hens (see Sec. 19501, F.&A.C.; 3 Cal. Code Regs. 1245.1, 1245.2, 1245.4). It is our opinion, however, that Section 597 of the Penal Code prohibits the use of woodchipping machinery to destroy spent hens if under the specific fact, as discussed above, the hens are thereby deemed to be subjected intentionally to needless suffering or unnecessary cruelty,
Very truly yours,
Diane F. Boyer-Vine
Legislative Counsel

By Krista M. Ferns
Deputy Legislative Counsel

[The opinion rendered in this document was solicited by the Association of Veterinarians for Animal Rights (AVAR) through the office of CA Assemblyman Paul Koretz. Info@AVAR.org]

United Poultry Concerns is a nonprofit organization that promotes the compassionate and respectful treatment of domestic fowl. www.upc-online.org

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PO Box 150
Machipongo, VA 23405-0150
FAX: 757-678-5070

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