Why rescuing animals should never be a crime

Imagine you see your neighbor’s dog drowning in their backyard pool. You call out for the neighbor and bang on their door, but no one comes. Their gate is closed, so you unlatch it, enter the backyard, and rescue the dog. Should you go to jail for trespassing on their property?

As a matter of common sense, the answer seems clear: No, you shouldn’t be punished for performing a good deed. The law even reflects this intuition: A doctrine known as the “necessity defense” allows one to argue that their actions, though otherwise illegal, were justified because they prevented an even greater harm. Further, some would say that, as a moral matter, it would be wrong to see a dog drowning, know that you had the ability to rescue her, and do nothing.

However, following a similar scenario, what if the animal rescued was not a dog in your neighbor’s pool, but a chicken or pig in a factory farm? Should the rescuer then be able to raise the necessity defense? Two ongoing cases in California pose this very issue, and the courts are struggling with the analysis. In each case, activists rescued suffering birds from agricultural facilities in Sonoma County, and in each case, the judge denied the activists the opportunity to present the necessity defense to the jury.

These activists should be allowed to raise the necessity defense as it unequivocally applies in cases of animals rescued from agricultural facilities for the same reason it applies to the hypothetical rescue of a dog drowning in your neighbor’s pool: The animals were suffering.

As law professors and experts in animal law, we’ve filed briefs in one of these cases, on behalf of an activist convicted in 2023 who is currently appealing his conviction. We’re also closely following the other case, in which a 23-year-old UC Berkeley student faces up to five years in jail for rescuing four chickens. The student’s trial began this week.

In the years leading up to the rescues now in court, investigators documented extensive, unlawful animal cruelty at these same animal agriculture facilities, including ducks and chickens who were starving, diseased, immobile, injured, and, in some cases, dead and decomposing. Advocates also alleged violations of California law prohibiting intensive confinement of animals in agriculture. They repeatedly reported this evidence to law enforcement, which took no action.

So activists did. They entered the facilities, rescued some very sick birds from three factories, and got them immediate veterinary care. Though one chicken was too sick to survive, all the other birds were able to live at sanctuaries. Although the agriculture facilities were never charged for animal cruelty, activists were charged in relation to the rescues.

In both cases, the activists attempted to raise a necessity defense, but the courts blocked them from doing so, ruling that preventing harm to animals is not the kind of “significant evil” that California’s necessity law protects.

These courts are wrong. Numerous laws, in California and across the country, show that prohibiting harm to animals is an important societal value. These range from protecting animals against cruelty, to regulating the welfare of animals in agriculture, to laws that effectively codify a necessity defense with respect to animals in specific circumstances. Perhaps the best known example of this last type are “hot car laws,” which exist in some form in about a dozen states, including California, and can provide immunity from liability when someone breaks into a vehicle to rescue an animal who’s overheating or otherwise in danger of suffering harm.

California law also protects people who trespass in order to provide a confined animal food and water. Still another California law protects some individuals from liability for what would otherwise be the unlicensed practice of veterinary medicine if they provide treatment to an animal in an emergency situation. Think of a firefighter administering oxygen to a family cat pulled from a burning house. All these laws aim to encourage action to aid animals in distress, action that might under normal circumstances be illegal.

Yet the courts in both recent animal rescue cases have categorically excluded the necessity defense when the life or well-being at risk belongs to an animal. In other words, no harm to any animal ever warrants a necessity defense, according to these judges.

Why? One reason may be our contradictory relationship with animals: We recognize that animals can feel pain and we want to protect them. We also want to be able to raise and slaughter billions of them for food. When one dog is drowning in a pool or is overheating in a hot car, perhaps it’s easy to see that trespassing or damaging property to save them is protecting them from a “significant evil.” But when the rescue is from an agricultural facility and the animals are ones we raise for food, perhaps our human biases cloud our judgment. “Aren’t they different from dogs who live in our homes?” we might think. “Aren’t we going to kill them anyway?” we might rationalize. But the animals are all sentient creatures and their suffering is significant.

The law is constantly evolving to reflect our changing values. There was a time when a car window, shattered to save the life of a pet, would have more legal protection than the animal herself. Now, it is clear that the car may be damaged to save the animal inside. The courts should recognize that, with animals in agricultural settings, too, rescuers may violate lesser laws to prevent the more significant evil of animal suffering.

Kristen Stilt is professor of law and faculty director of the Brooks McCormick Jr. Animal Law & Policy Program at Harvard Law School. Matthew Liebman is professor of law and chair of the Justice for Animals Program at the University of San Francisco School of Law.