Has HSUS CEO Wayne Pacelle Paved The Way For HSUS Legal Liability?

On October 18, the Carroll Cox Show interviewed Ronnie Graves and Allan Schwartz, former members of the Humane Society of the United States (HSUS) Emergency Rescue Team.  There are 3 items that stand out that indicate that the Humane Society of the United States as an organization and volunteers as individuals may have been put into a seriously actionable position. (in layman's terms, at legitimate risk of lawsuit)

• The badge and identification provided to Ronnie Graves by the Humane Society of the United States, reportedly ordered by Scotlund Haisley & identified by a law enforcement official as 'too similar to that of law enforcement'
• The statement by Scotlund Haisley to Ronnie Graves, “I want the scum to think we’re law enforcement,” when confronted with the potential illegality of the identification
• The response of Wayne Pacelle, “I like the Cowboy Ways that Scotlund brings to the team,” when the Scotlund Haisley's comment was reported to him by Ronnie Graves, in person.

These items appear to tie together three potential issues: Impersonation of a Police Officer, action "under color of law" , and issues related to Section 1983 of the US Constitutional Torts Code (cited below).    These three elements appear to all be tied together by the Carroll Cox show interview, as well as additional recent court cases. 

Impersonation of a Police Officer

Since Police Impersonation laws seem to be relatively similar across the US, I am referring to Criminal Jury Instructions as published by the Judicial Branch of the State of Connecticut:

• Element 1 - Impersonation: The first element is that the defendant <insert as appropriate:>
  • by (his/her) words or conduct, pretended to be a sworn member of an organized local police department or the division of state police within the department of public safety.
  • wore or displayed without authority a uniform, badge or shield by which a police officer is lawfully distinguished.
• Element 2 - Intent: The second element is that by such action, (he/she) intended to induce another to submit to such pretended official authority or otherwise to act in reliance upon such pretended authority. A person acts "intentionally" with respect to a result when (his/her) conscious objective is to cause such result. <See Intent: Specific, Instruction 2.3-1.>

I am not a lawyer, and do not pretend to be, but to my layman's eyes the elements cited in the CT Criminal Jury Instructions appear disturbingly close to being fulfilled.  Especially when considering that the badge authenticity as a law enforcement badge is irrelevant to this sort of issue:

• Commentary:  The fact that the uniform, badge or shield was not authentic is irrelevant. "The goal of the statute is to prohibit criminal impersonation. Among other things, the statute prohibits an individual from using a badge with the intent of inducing another to submit to authority that he or she does not possess. Because the state proved beyond a reasonable doubt that the defendant used a badge that appeared to lawfully distinguish him and that he used the badge in the manner proscribed by the statute, we are unable to see how the issue of the badge's lineage or authenticity bears on the goals that the legislature sought to achieve." State v. Guadalupe, 66 Conn. App. 819, 828 (2001), cert. denied, 259 Conn. 902 (2002).

Action "under color of law"

There are two scenarios where private persons (or organizations) are considered to be acting "under color of law":

1. a private person who conspires with a state actor is a state actor for the purpose of the alleged conspiracy.
2. a private person who acts as an agent of the state acts under color of law.

Humane Society of the United States announces its working collaboratively with government agencies on a regular basis, does this not fulfil the definition of "under color of law"?  A few of numerous examples below:

• "Yesterday, our team worked with the Pennsylvania Department of Agriculture and its Bureau of Dog Law Enforcement" (Source: Wayne Pacelle, "A Humane Nation")
• "The HSUS’s Emergency Services team had four deployments—puppy mill raids in North Carolina, Tennessee, Mississippi and South Dakota—where we partnered with local organizations and law enforcement to rescue dogs in distress, the victims of greed and neglect." (Source: Wayne Pacelle, "A Humane Nation")
• "...we rescued more than 500 dogs and about 15 cats in cooperation with the Kaufman County Sheriff’s Office..." (Source: Wayne Pacelle, "A Humane Nation")

Section 1983 of the US Constitutional Torts Code

Here is where the potential implications for the Humane Society of the United States as an organization, its volunteers personally and any government agency or official become disturbing.  According to Section 1983 of the US Constitutional Torts Code:  "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any state or territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia."

I know, its a lot of legal-ese.  The layman's thumbnail sketch:  An individual (and/or organization) in an entwined relationship with government that is involved with depriving any citizen of any of their Constitutional rights "under color of law" is subject to being sued by the injured party in their individual capacity.   

So, let's say you are a volunteer helping a private organization seize animals (property) in association with a government agency.  (entwined relationship) Under Section 1983, if there are Constitutional violations associated with the actions of the private organization, not only might the organization be in an actionable position but also the individuals associated.  That includes volunteers. 

Why should you care?

The recently filed lawsuit in Hawaii is a Section 1983 lawsuit citing violations of Mr Pang's rights under the First, Fourth, Fifth & Fourteenth amendments. It appears that volunteers are among the included parties, even if not yet individually identified.   (Page 8 also references the use of 'law enforcement looking badges')

The portions of the Louisville Metro Government Animal Control law struck down in Kentucky as in violation of the Fourteenth Amendment were brought to court through a Section 1983 suit, leaving Louisville Metro Government  and associated officials potentially subject to damages and court.  Louisville Metro Animal Services Director Giles Meloche has recently resigned, officially leaving as of December 31.  The Kentucky court specifically cited that permanent deprivation of an animal owner of his property absent a finding of guilt is unconstitutional.  Another federal lawsuit on similar grounds is reportedly being filed against Louisville Metro Government on friday October30.

The information conveyed by Ronnie Graves appears to indicate an intent to deceive people as to the true level of authority of members of the HSUS Emergency Rescue Team and an acceptance of that attitude up to the highest levels of the HSUS leadership.  As per statements by Ronnie Graves, these issues were raised in January 2008, yet the use of the possibly illegal badges and identification continue to be used  as demonstrated in HSUS photos and videos on a regular basis.  (example below from a recent HSUS video)

Afterthoughts...

There have been numerous raids of animals across the US in which animals have been seized and dispersed or even euthanized prior to court decision.  This includes the Garwood case in Indiana, another case in North Kentucky just working its way through the courts, innumerable raids involving pitbulls and many more.  The number of potential cases could be staggering.

It raises questions.  Why are government agents allowing the use of this style of identification, badge and uniform by HSUS personnel under their watch?  Do they understand that they are potentially placing their agencies and themselves in an actionable position?  Do volunteers understand that they could end up personally liable for unconstitutional actions if they occur "under color of law"?