The N.C. Court of Appeals on Tuesday declared unconstitutional as applied the state’s cruelty-to-animals law. The context for the ruling is a pigeon shoot.
John Malloy owns The Dogwood Gun Club in Granville County. Twice a year, he holds invitation-only shoots on his land. About 40,000 “feral” pigeons are used in each shoot. Concerned that the state might seek to prohibit the events under the cruelty-to-animals law, Malloy sought an injunction barring enforcement. Specifically, Malloy contended that the law was unconstitutionally vague as applied to him.
The standard for vagueness was defined by the U.S. Supreme Court in Grayned v. City of Rockford: “[A] statute is unconstitutionally vague if it either: (1) fails to ‘give the person of ordinary intelligence a reasonable opportunity to know what is prohibited’; or (2) fails to ‘provide explicit standards for those who apply [the law].’”
The definition of cruelty to animals is contained in North Carolina G.S. § 14-360(a): “If any person shall intentionally overdrive, overload, wound, injure, torment, kill, or deprive of necessary sustenance, or cause or procure to be overdriven, overloaded, wounded, injured, tormented, killed, or deprived of necessary sustenance, any animal, every such offender shall for every such offense be guilty of a Class 1 misdemeanor.” Cruelty becomes a felony if the act is malicious.
The law does, however, provide an exception for the “lawful taking of animals under the jurisdiction and regulation of the Wildlife Resources Commission.” The commission may, in turn, exclude certain types of birds from this exception thus making them subject to the cruelty law. Among these is “the domestic pigeon (Columba livia).”
Columba livia was originally brought to North America as a domesticated animal used for homing. Many examples have since escaped captivity and live in a wild, or feral, state. There is no genetic difference between feral and domesticated birds. One of the common (non-scientific) names for the species is also “domestic pigeon.”
The WRC argued before the appeals court that its rule-making referred to all Columba livia, domestic or wild. In support of its argument, it presented the testimony of a wildlife biologist, who said, “There is no scientifically accepted use of common names with scientific names. Scientists do not use common names because of just the type of confusion exemplified in this case.”
The court was not persuaded by the WRC’s argument. “Legislators and the general public, however, do use common names and can become confused,” wrote Judge Robin Hudson for the court.
“We do not believe that a person of ordinary intelligence, without such scientific background, would be able to determine whether a particular pigeon is domestic or feral, or to determine whether shooting that pigeon is a violation of the statute. Had the WRC intended to use the term ‘domestic pigeon’ to include wild and feral pigeons as well, it certainly could have done so, but it did not.”
The court ordered that a permanent injunction be entered prohibiting the enforcement of the animal cruelty statue against Malloy.
The case is Malloy v. Cooper, (00-898-2).
Lowrey is an associate editor at Carolina Journal.