[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]
ANIMAL FIGHTING PROHIBITION
ENFORCEMENT ACT OF 2005
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON CRIME, TERRORISM,
AND HOMELAND SECURITY
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
ON
H.R. 817
__________
MAY 18, 2006
__________
Serial No. 109-115
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
_____
U.S. GOVERNMENT PRINTING OFFICE
27-607 PDF WASHINGTON : 2006
_________________________________________________________________
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COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina HOWARD L. BERMAN, California
LAMAR SMITH, Texas RICK BOUCHER, Virginia
ELTON GALLEGLY, California JERROLD NADLER, New York
BOB GOODLATTE, Virginia ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
DANIEL E. LUNGREN, California ZOE LOFGREN, California
WILLIAM L. JENKINS, Tennessee SHEILA JACKSON LEE, Texas
CHRIS CANNON, Utah MAXINE WATERS, California
SPENCER BACHUS, Alabama MARTIN T. MEEHAN, Massachusetts
BOB INGLIS, South Carolina WILLIAM D. DELAHUNT, Massachusetts
JOHN N. HOSTETTLER, Indiana ROBERT WEXLER, Florida
MARK GREEN, Wisconsin ANTHONY D. WEINER, New York
RIC KELLER, Florida ADAM B. SCHIFF, California
DARRELL ISSA, California LINDA T. SANCHEZ, California
JEFF FLAKE, Arizona CHRIS VAN HOLLEN, Maryland
MIKE PENCE, Indiana DEBBIE WASSERMAN SCHULTZ, Florida
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas
Philip G. Kiko, General Counsel-Chief of Staff
Perry H. Apelbaum, Minority Chief Counsel
------
Subcommittee on Crime, Terrorism, and Homeland Security
HOWARD COBLE, North Carolina, Chairman
DANIEL E. LUNGREN, California ROBERT C. SCOTT, Virginia
MARK GREEN, Wisconsin SHEILA JACKSON LEE, Texas
TOM FEENEY, Florida MAXINE WATERS, California
STEVE CHABOT, Ohio MARTIN T. MEEHAN, Massachusetts
RIC KELLER, Florida WILLIAM D. DELAHUNT, Massachusetts
JEFF FLAKE, Arizona ANTHONY D. WEINER, New York
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
LOUIE GOHMERT, Texas
Michael Volkov, Chief Counsel
David Brink, Counsel
Caroline Lynch, Counsel
Jason Cervenak, Full Committee Counsel
Bobby Vassar, Minority Counsel
C O N T E N T S
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MAY 18, 2006
OPENING STATEMENT
Page
The Honorable Howard Coble, a Representative in Congress from the
State of North Carolina, and Chairman, Subcommittee on Crime,
Terrorism, and Homeland Security............................... 1
The Honorable Robert C. Scott, a Representative in Congress from
the State of Virginia, and Ranking Member, Subcommittee on
Crime, Terrorism, and Homeland Security........................ 2
WITNESSES
Mr. Wayne Pacelle, President and Chief Executive Officer, Humane
Society of the United States
Oral Testimony................................................. 4
Prepared Statement............................................. 7
Mr. Mark E. Pollot, Executive Director, Foundation for
Constitutional Law, on behalf of United Gamefowl Breeders
Association
Oral Testimony................................................. 20
Prepared Statement............................................. 21
Mr. David R. Hunt, Deputy, Franklin County Sheriff's Office,
Columbus, OH
Oral Testimony................................................. 26
Prepared Statement............................................. 28
Ms. Francine A. Bradley, PhD, Department of Animal Science,
University of California at Davis, Davis, CA
Oral Testimony................................................. 31
Prepared Statement............................................. 33
APPENDIX
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Mike Pence, a Representative
in Congress from the State of Indiana.......................... 52
Written Supplement to Testimony of Mark L. Pollot................ 53
Prepared Statement of W. Ripley Forbes, Director of Government
Affairs, American Humane Society............................... 56
Letter from Kurt P. Henjes, Assistant General Counsel for
GlaxoSmithKline, to the Honorable Howard Coble................. 59
Statement from the American Veterinary Medical Association in
support of H.R. 817............................................ 60
ANIMAL FIGHTING PROHIBITION ENFORCEMENT ACT OF 2005
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THURSDAY, MAY 18, 2006
House of Representatives,
Subcommittee on Crime, Terrorism,
and Homeland Security
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 11:31 a.m., in
Room 2141, Rayburn House Office Building, the Honorable Howard
Coble (Chairman of the Subcommittee) presiding.
Mr. Coble. Good morning, ladies and gentlemen. We will
convene the hearing. There will be a floor vote imminently, I
am told, and we don't have a reporting quorum present, so Mr.
Scott and I are going to give our opening statements, and then
perhaps we'll be able to move along after that.
This hearing is to examine the issue of animal fighting in
this country and whether Congress should take additional steps
to address the issue. Animal fighting is not restricted to
cockfighting, but also includes pitting dog against dog, or
dogs against other animals, such as bears or wild hogs. Often
small knives are attached to the animal for use in the fight.
In 1976 Congress passed a law to ban the sponsor or exhibit
of animals that were moved to interstate or foreign commerce in
an animal fighting venue. The law also made it illegal to
transport an animal in interstate or foreign commerce for
participation in an animal fighting venue.
On May 13th, 2002, Congress enacted amendments to the
Animal Welfare Act. The changes made it a crime, regardless of
State law, for exhibiting, sponsoring, selling, buying,
transporting, delivering or receiving a bird or other animal in
interstate or foreign commerce for the purpose of participation
in an animal fighting venue such as cockfighting or
dogfighting. For States where fighting among live birds is
allowed under the law, the act only prohibited the sponsor or
exhibit of a bird for fighting purposes if the person knew that
that bird was moved in interstate or foreign commerce.
Currently dogfighting is prohibited in all 50 States and
cockfighting is outlawed in most States under specific laws
prohibiting it or general prohibitions against animal fighting.
In a few States the practice is not specifically outlawed.
However, general animal cruelty statutes may be interpreted to
outlaw such activities. In two States cockfighting is legal.
Dogfighting and cockfighting are legal in some United States
territories. Although the possible fines were increased in 2003
from $5,000 to $15,000, the possible term of imprisonment of
the Animal Welfare Act dealing with animal fighting has not
been updated since the original enactment in 1976.
H.R. 817, the ``Animal Fighting Prohibition Enforcement Act
of 2005,'' would establish criminal penalties under title 18,
authorizing jail time of up to 2 years for violations of
Federal animal fighting law, rather than the misdemeanor
penalty up to 1 year which currently exists under title 7.
Supporters of this legislation believe that the increased
penalties will encourage law enforcement to target animal
fighting operations and discourage the promotion of animal
fighting events. Because most States already have laws against
animal fighting and the animal fighting industry relies on
transport of animals over State lines, supporters of the bill
believe a combined Federal-State approach is essential to give
law enforcement officers the tools to crack down on animal
fighting.
Opponents of this legislation, however, contend that it is
an unnecessary infringement of States' rights. The States that
choose to allow fighting among live birds should be allowed to
continue these fighting venues as long as the State
legislatures and voters determine it is lawful. The Federal
Government does not need to enact additional legislation to
combat these venues, according to the opponents.
I look forward to hearing from our distinguished panel
today. And even though there's a vote on now and we still don't
have a reporting quorum present, I think, Bobby, let's go ahead
and we'll hear from the distinguished gentleman from Virginia,
the Ranking Member, for his opening statement. Then we will
briefly adjourn and go vote and return.
Mr. Scott.
Mr. Scott. Thank you, Mr. Chairman. I'm pleased to join you
in convening this hearing on H.R. 817, the ``Animal Fighting
Prohibition Enforcement Act of 2006.'' I'm a cosponsor of this
bill, along with 226 of my House colleagues, including 28 of
the 40 Members of the Judiciary Committee and 51 Members of the
Senate, where an identical bill has already passed by unanimous
consent. This bill has been supported by over 500 organizations
and almost 400 local law enforcement agencies.
What the bill does is to modify already existing Federal
law to make it a felony with a fine of up to 2 years
imprisonment as opposed to the current penalties of a
misdemeanor with a fine and up to 1 year of imprisonment for
transporting animals involved in interstate--for transporting
animals interstate for fighting. DOJ priorities mean that this
is rarely a prosecution under this law because even if there
is, the misdemeanor plea gets bargained, leaving many violators
willing to consider this merely a potential cost of doing
business.
I believe that such a violator is much more likely to think
twice about risking a felony record and as much as 2 years in
prison. I'm generally not in favor of more Federal criminal law
enforcement in areas of traditional State jurisdiction, and not
generally in favor of raising criminal penalties to entice DOJ
to do its job. I prefer to direct DOJ to enforce the law and
provide the resources to do so. However, I believe a few
prosecutions with felony convictions can have a major impact,
and that's why I'm supporting the bill.
One of the more recent concerns regarding interstate and
international transport of birds for cockfighting is the fear
that it could cause the transmission of bird flu, and
apparently, this has already occurred in Asia.
So, Mr. Chairman, I'd like to use the remainder of my time
to show a brief video clip providing important documentation of
that concern.
Mr. Coble. Without objection.
[Videotape played.]
Mr. Coble. I thank the gentleman. We will depart for our
vote, and I implore the Members, if you can, to come back so we
can mark up our four pending bills, and then we will hear from
out distinguished panel.
So you all rest easy in the meantime.
[Recess.]
Mr. Coble. Folks, I apologize for this, but this is the
nature of the beast oftentimes, what oftentimes goes awry, but
you all rest easy. We ought to be able to get started pretty
soon.
[Pause.]
Mr. Coble. Folks, we're doing this procedurally
irregularly, but I think that's what we're going to have to do.
We're just going to have to wait until a reporting quorum shows
up. At that time, we will suspend and mark up. And, Mr.
Lungren, if you need to go to your meeting, you may do so. We
look forward to seeing you back later.
Ladies and gentlemen, we have four distinguished witnesses
with us today. Our first witness is Mr. Wayne Pacelle. Am I
pronouncing that correctly, Mr. Pacelle?
Mr. Pacelle. Close enough, Mr. Chairman.
Mr. Coble. Thank you. Mr. Pacelle is the Chief Executive
Officer of the Humane Society of the United States, where he
began working as a Vice President of Government Affairs and
Media in 1994. Prior to his work with the humane society he
served as Executive Director of the Fund for Animals. Mr.
Pacelle was graduated from Yale University with a dual major in
history and studies in the environment.
Our second witness is Mr. Mark Pollot, the Executive
Director of the Foundation for Constitutional Law, and an
attorney and independent consultant on constitutional,
environmental, international and public policy matters. Mr.
Pollot was formerly with the Special Assistant to the Assistant
Attorney General for the Environment and Natural Resources
Division of the United States Department of Justice. Mr. Pollot
was graduated summa cum laude from the University of San Diego
School of Law.
Our third witness is Corporal David Hunt. Corporal Hunt is
an investigator with the Franklin County, Ohio Sheriff's
Department Special Investigations Unit, of which he is a
supervisor and lead detective for all gambling and dogfighting
investigations. In 1997 and 2003, Corporal Hunt received awards
of merit for his work in these fields. His investigations of
illegal dogfighting have resulted in 59 arrests and over 50
convictions. Corporal Hunt attended the Sinclair Community
College in Dayton, Ohio, and as the professional football
players like to say, Corporal Hunt, THE Ohio State University
in Columbus, Ohio.
Our final witness is Dr. Francine Bradley. Dr. Bradley has
received numerous awards relating to the field of poultry
health, and is a member of the Poultry Science Association's
Long Range Planning Committee, the World's Poultry Science
Association Executive Committee, and serves as chair of the
World's Poultry Science Association Lab Station Committee. She
received her BA, MS and PhD degrees from the University of
California at Davis, where she currently works in the
Department of Animal Science.
We are pleased to have you all with us today, and it is the
custom of the Subcommittee to administer an oath to our
witnesses, so if you all would please stand and raise your
hands.
[Witnesses sworn.]
Mr. Coble. Let the record show that the witnesses have
responded in the affirmative, and we will start, Mr. Pacelle,
with you. We need to remind you, as we have previously advised
you, we operate under the 5-minute rule. When you see the amber
light appear on the panel in front of you, that is your warning
that you have a minute remaining. Now, after the red light
comes on, we may--Mr. Scott and I may dispatch Corporal Hunt
and have him take you into custody. We won't be that cruel, but
when the red light appears, that is your warning to wrap it up
if you would.
Mr. Pacelle, why don't you start us off?
TESTIMONY OF WAYNE PACELLE, PRESIDENT AND CHIEF EXECUTIVE
OFFICER, HUMANE SOCIETY OF THE UNITED STATES
Mr. Pacelle. Thank you, Mr. Chairman, and thank you so much
for holding the hearing with Ranking Member Scott. Appreciate
your bringing this issue to the attention of the Committee.
Also want to thank Representative Green for introducing this
legislation, and thank all of the Members of the Subcommittee
who are cosponsors of this bill.
I represent the Humane Society of the United States, which
is the Nation's largest animal welfare organization. Nine in a
half million members and supporters in the United States, 1 of
every 31 Americans, is directly associated with the HSUS. We
fight to protect animals, and we work very much on the issue of
animal cruelty, and I really believe that it is a universal
value these days that animal cruelty is wrong and that society
should do something about it. This is codified in all 50
States. There are 50 States with anti-cruelty laws that target
malicious acts of animal cruelty, and it's not surprising then
that all 50 States now have anti-dogfighting laws and 48 States
have anti-cockfighting laws, codifying this basic notion that
staged animal fights are wrong and inhumane.
In 1976 when the Congress adopted a law in the Animal
Welfare Act banning the interstate transport of fighting
animals, no State made dogfighting or cockfighting a felony.
Now 48 States in these last 30 years have adopted felony-level
penalties for dogfighting and 32 States have adopted felony-
level penalties for cockfighting. The march is inexorable
toward all 50 States having strong anti-cruelty laws that treat
the most vicious forms of animal cruelty with felony-level
penalties.
So the questions before us today are should the penalty
provisions of the Federal Animal Fighting Law, which bans the
interstate transport of foreign commerce in fighting animals,
should they be updated to reflect the emerging national
consensus that this form of animal abuse is a social ill and
that people who violate our animal fighting laws should face
meaningful penalties? The second question is should the Federal
animal fighting law be better aligned with State animal
fighting laws, given in the last 30 years, we haven't updated
the jail penalties for the animal fighting law, and the States
have done so to the tune of 48 of the 50 have done so.
You know, we have many controversial questions in our
society about the use of animals, but animal fighting is not
one of them. This is an inhumane and barbaric act, and it has
very few defenders in this country. That's why you have 500
organizations supporting the legislation, you have no credible
organizations opposing this legislation.
I want to make three very brief points about why we should
strengthen this law, in addition to those opening remarks. One
is the animal cruelty. These are staged animal fights where
animals are not just suffering for a moment, sometimes they're
suffering for hours. The longest ever dogfight, according to
our information, lasted a full 5 hours with pit bulls attacking
each other over that time. Many of the dogs die from
hemorrhaging or shock, even if they're a winner in the fight,
later on.
Hog-dog fights, an appalling practice where hogs have their
tusks cut off. They're released in a pen, and then pit bulls
are set upon the hog to attack the animal just for the
titillation of the people watching. I think all of you know
this is one of the cock-fighting magazines, The Feathered
Warrior. You'll see in this magazine all sorts of ads for the
knives and the ice-pick like devices called gaffes, which are
affixed to all of the birds' legs to enhance the bloodletting,
gouged eyes, punctured lungs, all sorts of grievous wounds
inflicted on these birds.
So the animal cruelty is the most compelling argument and
it's the reason that the Humane Society is primarily interested
in this bill. But we cannot help but notice that these animal
fighting ventures are associated with other criminal
activities. Just last week there were two people murdered at a
cockfight in Starr County, Texas. We've seen public corruption
associated with cockfighting: Law enforcement officers in
Hawaii arrested for providing a protection racket for
cockfighting; the South Carolina Department of Agriculture
Commissioner was providing a protection racket; and in
Tennessee some of the most shocking information, two major
cockfighting pits shut down this last year.
I want to read just a few excerpts to give you a flavor of
what is going on in these cockfights. This is from the U.S.
Attorney in the Eastern District of Tennessee from the brief
filed in court. ``On March 15, 2003, a cooperating witness
reported observing approximately 182 cockfights at the Del Rio
cockfight-pit. On average, between $2,000 and $20,000 was
gambled by the spectators on each fight.''
So if you take 182 cockfights with an average of $10,000,
it's $1.82 million gambled at a single cockfighting derby on a
single evening.
Another excerpt: ``The cooperating witness observed a girl
approximately 10-years-old with a stack of $100 bills gambling
on several different cock fights. Vehicles were observed in the
parking lot bearing license plates from North Carolina, South
Carolina, Alabama, Georgia, Kentucky and Virginia.'' Affirming
the point that this is an interstate activity. People are
congregating from multiple States to engage in these criminal
enterprises.
A third quick quote: ``On May 17th, a cooperating witness
attended the Del Rio cockfights and observed that a full
capacity crowd of approximately 600 to 700 people were present
at the fights.''
You saw also the video about the bird flu. My testimony
refers to the very real link between bird flu and cockfighting.
Just in conclusion, Mr. Chairman, the House and Senate
passed felony penalties during consideration of the Farm Bill
in 2002, so what Mr. Green's legislation does is simply affirms
what the House and Senate already tried to do. U.S. Attorneys
have told us it's tough for them to make cases with misdemeanor
penalties. They want the felony level provisions. We want to
provide it to them. Local law enforcement, we work with them
all the time. They want this tool. You'll hear from a law
enforcement officer today. We urge you to support this
legislation. We're grateful for the hearing.
[The prepared statement of Mr. Pacelle follows:]
Prepared Statement of Wayne Pacelle
Mr. Coble. Thank you, Mr. Pacelle.
I stand corrected, best-laid plans of mice and men oft
times go awry. We are plagued with a malfunctioning panel and
you will not see the amber light.
So, Mr. Pollot, when the red light impacts your vision, you
know that the time has expired. Mr. Pollot, good to have you
with us. I stand corrected, I am told that it is now
functioning. Very well, proceed, Mr. Pollot.
TESTIMONY OF MARK L. POLLOT, EXECUTIVE DIRECTOR, FOUNDATION FOR
CONSTITUTIONAL LAW, ON BEHALF OF UNITED GAMEFOWL BREEDERS
ASSOCIATION
Mr. Pollot. Mr. Chairman, before I begin----
Mr. Coble. Mr. Pollot, activate your mic, if you will.
Mr. Pollot. Mr. Chairman, before I begin, I ask your
permission that my full statement be entered into the record.
Mr. Coble. Without objection.
Mr. Pollot. Mr. Chairman, Members of the Subcommittee,
thank you for the opportunity to speak to you today. My name is
Mark Pollot. I am appearing on my own behalf and on behalf of
the United Gamefowl Breeders Association, which has 100,000
members, and exists to work to improve the perpetuation and
quality of various breeds of gamefowl, and to improve marketing
methods, cooperate with universities and agencies in poultry
disease control, and to develop and enhance general good health
of gamefowl.
I have both a medical and a legal background, some of it in
government. My experience in both areas has provided me with a
broad understanding of constitutional and regulatory issues, as
well as an understanding of both epidemiological and public
health and safety principles, and issues applicable to this
bill.
I review proposed regulations and statutes by examining the
language of the proposed regulation or law to understand its
intent and its policy, and its history. Then I ask the
following questions: 1) Is the policy underlying the regulation
of law sound? 2) Is the policy well executed? 3) Is the policy
understandable to the regulated public? And 4) Does it comport
with the Constitution?
I reviewed H.R. 817 using these criteria, and I
respectfully submit that it has problems in each of these areas
that I believe argue against its passage. Other ways can be
found to achieve the policies underlying H.R. 817 that do not
have the problems presented by this bill, and which do not have
unintended consequences that will undermine its policies.
On review it seems clear that H.R. 817 would further its
primary policy, assisting some States to enforce their domestic
laws in a manner that is constitutionally prohibited,
inconsistent with principles of federalism, unnecessarily
intrusive on the ordered liberty of individual citizens, and
counterproductive to some of the stated goals of the
legislation.
First. Principles of federalism prohibit such enactments as
they intrude in an unconstitutional manner on the sovereign
right of States to make economic and social policy decisions
within the boundaries of the States. Congress should be
reluctant to favor some States' policy choices over those of
other States, especially with those States permitting such
activities that derive veterinary and public health and safety
benefits by making sure that those activities are conducted in
the open where they are subject to regulation, inspection, and
oversight.
Second. Individual citizens and the residents of the United
States have constitutionally protected liberty interests which
are adversely affected by H.R. 817, including the
constitutionally recognized right to travel in the United
States, which includes the right to travel for economic
purposes. The principles of law in this area deny government
the ability to prohibit persons from taking or sending the
stock or tools in trade of their business from a place in which
the use, possession, and ownership of the stock or tool is
lawful to another place where it is lawful.
Third. H.R. 817 imposes an unconstitutional first amendment
burden on individuals. While certain time, place and manner
restrictions can be placed on speech, the limitations imposed
by H.R. 817 go beyond any currently allowed restrictions on
speech. It infringes both on the rights of the speaker and on
the rights of citizens to receive such information. Further,
the language of 817 is sufficiently vague as to deny proper
notice of illegal behavior.
Fourth. Animal and public health would be adversely
affected by this bill. Directly or indirectly banning an
activity does not end it in some cases, but drives it
underground. Then regulatory, legal, social and other oversight
mechanisms either cannot catch problems before they become
major, or do so with only great difficulty and inefficiency. As
a result, the very consequences the ban seeks to avoid emerge.
The solution here is to bring such activities into the same
regulatory universe as all other animal-related industries
inhabit. Concern about assisting States in banned fowl-related
activities which are banned, is better addressed by providing
law enforcement assistance grants for internal domestic law
enforcement.
Finally, H.R. 817 diverts Federal resources to effectuate
the policy choices of individual States. Given the important
matters that face the United States today, ranging from
homeland security to immigration and serious crime, it seems
inappropriate to apply Federal funds and law enforcement
personnel and resources to effectuate a policy adopted by
individual States, who presumably believe that that policy
deserves the dedication of its law enforcement resources.
For all of the foregoing reasons, we respectfully ask your
opposition to H.R. 817. I await your questions.
[The prepared statement of Mr. Pollot follows:]
Prepared Statement of Mark L. Pollot
i. introduction
Chairman Coble, Ranking Member Scott, members of the Subcommittee,
my name is Mark Pollot and I am appearing on behalf of myself and more
than 100,000 members of the United Gamefowl Breeders Association
represented throughout 33 states. The United Gamefowl Breeders
Association (``UGBA'') was founded in 1975 to represent the interest of
gamefowl breeders across the nation. The UGBA's primary mission is to
exchange better methods and ideas toward the perpetuation and
improvement of the various breeds of gamefowl, to improve marketing
methods, to cooperate with Universities and other agencies in poultry
disease control, and to further develop and enhance the general good
health of gamefowl.
ii. background
The bill before this committee (H.R. 817), denominated the ``Animal
Fighting Prohibition Enforcement Act of 2005'', would be, if enacted,
the successor to provisions of the Animal Welfare Act (``the Act'').
The current provisions of the Act, enacted into law as a result of
language which was inserted into the 2002 Farm Bill without ever
receiving a Congressional mark-up in either the House or Senate
Agriculture Committee, make it a misdemeanor for a person to, among
other things, transport game fowl in interstate or foreign commerce for
the purposes of exhibiting game fowl in a fighting venture.\1\
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\1\ These prohibitions apply even if the fighting venture takes
place in states and foreign countries where such activities are
perfectly legal. The significance of this fact will be discussed below.
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The principal supporter of the gamefowl provisions of the Act was
the Humane Society of the United States (``HSUS''). The HSUS and a
variety of other animal rights activists and groups, including some
which are considered domestic terrorist organizations, have pressed for
these prohibitions on philosophical grounds. These philosophical
grounds include a shared belief that a wide variety of human uses of
animals should be prohibited such as, among other things, hunting,
fishing, trapping, rodeos, horse racing, and even the raising of
animals for food and clothing purposes. These groups, either directly
or through other organizations, have been successful in getting many
state legislatures to enact prohibitions on some of these activities,
but have been unsuccessful in getting the legislatures of other states
to go along (e.g., Louisiana and New Mexico). It was for this reasons
that the HSUS and other animal rights activists turned to Congress to
get it to impose their views on those states in which they failed to
succeed.
The animal rights activists succeeded in getting the federal
government to insert itself into what is essential a state law
enforcement issue (a matter that I will discuss in more detail below)
to a degree in the 2002 Farm Bill by inserting language which was not
debated and explored in the appropriate committees. They enlisted the
help of other groups, including commercial agriculture interests and
regulators, by convincing them that gamefowl activities posed threats
to other commercial bird industries \2\ and that those threats could
effectively be nullified by prohibitions of the type found in the Farm
Bill amendments and in H.R. 817. However, if one cuts past the rhetoric
and self-serving rationales offered by those pressing Congress for
passage of the (now-enacted) gamefowl provisions of the Animal Welfare
Act and reviews the legislative history underlying the 2002 Farm Bill
amendments, the purpose of these amendments was to assist states
prohibiting gamefowl activities in enforcing their domestic laws at the
expense of other states.\3\ In other words, Congress has enacted a
statute which supports the economic policy decisions of some states at
the expense of those states who have made a different economic policy
choice. H.R. 817 would further this policy which UGBA believes, with
substantial reason, to be constitutionally prohibited, inconsistent
with the principles of federalism, unnecessarily intrusive on the
ordered liberty of individual citizens, and even counterproductive to
some of the stated goals of the legislation. It does this by increasing
the penalties associated with gamefowl activities and imposing thereby
more strict limitations.
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\2\ Note that I use the term ``other commercial bird industries''
in this discussion. The HSUS and other institutional supporters of the
original Farm Bill amendments and H.R. 817 treat the gamefowl industry
as being something other than a commercial industry when it suits them
to create the impression that gamefowl activities and other related
activities adversely affect legitimate commercial activities. However,
while many involved in the gamefowl universe do not pursue these
activities as a commercial venture (but as a hobby, a way of life, or a
culturally bound pursuit), others do so as a commercial activity in
whole or in part, an activity as deserving of protection and
recognition as any other commercial bird activity.
\3\ That this is the actual purpose of H.R. 817 as well as the Farm
Bill amendments is reinforced by the fact that the title given to H.R.
817 is the Animal Fighting Prohibition Enforcement Act. Gamefowl
fighting is not prohibited by either the Farm Bill amendments nor H.R.
817. The prohibitions were enacted by individual states within their
borders. Such states could not constitutionally extend such bans beyond
their borders. What H.R. 817, and the Farm Bill amendments before H.R.
817, did was to make it easier for those states that did enact bans to
enforce their domestic laws by imposing the will of those states onto
other states with the complicity of the United States.
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iii. h.r. 817 should not be enacted
A. PRINCIPLES OF FEDERALISM AND COMITY PROHIBIT SUCH ENACTMENTS
The Federal Constitution is built on the principle of federalism.
As the United States Supreme Court has noted, each state was from the
beginning, and is today, a separate sovereign which retains all the
aspects of sovereignty except those surrendered in the Constitution.
Some prohibitions on invading that sovereignty are expressly stated in
the Constitution, such as the language of the 9th and 10th Amendments
such as, among other things, the immunity of states from suit in
federal courts. Others are inherent in the structure and the history of
the document itself. Some grants of federal authority in the
Constitution, such as the Commerce Clause of Article I, Sec. 8, have
allowed certain inroads into state sovereignty and, indeed, have been
held in the past to grant extraordinary regulatory power over the
economic lives of the states, the courts have, in the recent past,
began to narrow that authority, bringing it closer to the historical
bounds it was to be confined to by the framers and ratifiers of the
Constitution. Even where the power of the United States extends over
the states, the courts have held that such power should not be
exercised lightly or without due deference to the rights of states to
make their own decisions within their own borders.
Among the decisions that remain in the hands of the states are
those decisions going to the functions of the states and the economic
and social policy choices that will affect their states. In other
words, states are entitled to choose what economic and social
activities they will follow within their borders, decisions that cannot
be dictated by the United States absent a constitutional amendment. In
many areas, the United States has been allowed to influence the policy
choices of states by offering them incentives (such as block grants
with conditions attached which can be entered into voluntarily), but
not to dictate directly.
Very clearly, the framers and ratifiers of the Constitution had no
intention of allowing some states to impose their wills and legal and
policy choices on other states. It was for fear that other states would
attempt to do so that constitutional provisions such as the Full Faith
and Credit clause exist. Indeed, it was the fear of states imposing
their economic policy choices on other states that prompted the framers
and ratifiers to include the Commerce Clause in the Constitution. It
was there to prevent states from engaging in trade wars, imposing
tariffs on other states to strong arm them into adopting policies
desired by the first state, and the like. It would be ironic indeed if
states were able to do indirectly, through federal legislation, what
they clearly cannot do directly, and yet this is exactly what H.R. 817
seeks to do and what the Farm Bill Amendments did.\4\
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\4\ Some may point to litigation that was brought in the United
States District Court in Louisiana as proof that the Farm Bill
Amendments were constitutional and so, therefore, must be the
provisions of H.R. 817. They should not take comfort in this fact. The
Louisiana case was a single case bought in a single District Court and
is binding only in that district. It was not appealed. However, there
were a number of issues that were not raised in that case which will
certainly be raised in future litigation either in the same District
with different parties or in other Districts. Those questions going to
the constitutionality of the existing law and H.R. 817, if enacted, may
well cause a different result. Further, courts of appeal considering
these questions may well come to a different result. In other words, a
final decision regarding the constitutionality of the Farm Bill
Amendments and H.R. 817 has not been rendered. Any number of persons
have pointed to cases that they felt answered a question in the way
they wanted only to have the rug pulled from under them in later cases.
---------------------------------------------------------------------------
It is my considered opinion that the Farm Bill Amendments are
unconstitutional, and will ultimately be found to be so, as would be
the provisions of H.R. 817, if it is enacted. However, even were this
not so, Congress should be very reluctant to act, given the
constitutional principles of federalism and comity, in such a way as to
allow the policy preferences of any number of states to be imposed on
states of a different view through federal legislation. States which
allow gamefowl activities derive benefits from doing so. For example,
they derive revenue from such activities, whether they are direct
gamefowl activities or indirectly related activities such as veterinary
services, feed production and manufacture and the like. Likewise, they
derive veterinary and public health and safety benefits by making sure
that gamefowl and related activities are conducted in the open where
they are subject to regulation, inspection, and oversight.\5\
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\5\ As will be discussed in more detail below, attempts to ban some
activities have the effect of driving them underground, where they can
no longer be effectively monitored and controlled by regulatory
authorities. Most persons, including UGBA members, are law-abiding and
would abide by legal limitations amounting to a ban. However, there
will always be those who will not. It should be remembered that many
gamefowl activities, as well as many other activities, are culturally
driven and tend to continue to take place underground if the law seeks
to ban them. When this happens, the mechanisms that ensure public and
veterinary health and safety cannot do their jobs.
---------------------------------------------------------------------------
Congress should be reluctant to start down a path in which it
assists those states having one policy preference over the interests of
those states who do not share the same policy views. It is not hard to
imagine that, should rodeos become the next target, that states who
accept animal rights activists' views that rodeos are as bad as
gamefowl activities will seek to impose similar limitations on the
industries which can be said to support rodeos. Likewise it is not
difficult to envision states that oppose gaming or gambling from trying
to impose limitations on their residents traveling to other states to
gamble, or from prohibiting slot machines from being shipped in
interstate commerce to states in which gaming is legal, all to enforce
their policy preferences on other states.
B. H.R. 817 VIOLATES THE CONSTITUTIONAL RIGHTS OF INDIVIDUAL CITIZENS
AND RESIDENTS
Individual citizens and residents of the United States have liberty
interests at stake here as well.
For example, there is a constitutionally recognized right to travel
in the United States which includes the right to travel for economic
reasons which cannot be inappropriately burdened by the states or the
federal government. For this reason, it has been held to be
unconstitutional for a state to impose time-bound residency
requirements for professional licensure in a state. The same principles
that guide existing case law in this area would deny government the
right to prohibit the regulated public from taking or sending the stock
or tools of their business, trade or their hobby or sport in interstate
travel from a place in which the use, possession, or ownership of the
stock or tool was lawful to a place in which the activity using such
stock or tool is lawful. Again, by analogy, imagine a law which
prohibited shipping a gaming machine from a place in which its
possession or manufacture was legal across state lines to a place which
its possession and/or use is lawful.\6\ This is precisely what H.R. 817
purports to do. It is my professional and personal opinion that H.R.
817, if enacted, would unconstitutionally interfere with the
constitutional right to travel of UGBA members and others.
---------------------------------------------------------------------------
\6\ Similarly, imagine a law which prohibits persons from traveling
from a state in which gaming or gamefowl activities are not lawful to
one in which one or both are legal for the purposes of engaging in the
gaming or gamefowl activities. A more obvious constitutional violation
cannot be imagined. A law prohibiting individuals from carrying tools
or possessions necessary for the enjoyment of gaming or gamefowl
activities to a state in which such activities are allowed is scarcely
less obviously unconstitutional. It cannot be overlooked here that the
animal right organizations and activists supporting this legislation
have as a stated goal the criminalization of other lawful activities
involving interaction with animals such as hunting, fishing, trapping,
rodeos and horse racing. Wayne Pacelle, Chief Executive Officer of the
Humane Society of the United States, has made it clear that HSUS's
``goal is to get sport hunting in the same category as cockfighting and
dogfighting. Our opponents say that hunting is a tradition. We say
traditions can change.'' (Bozeman Daily Chronicle, Oct. 8, 1991). It is
clear that if successful here, HSUS will attempt to obtain similar laws
as to these other targeted activities.
---------------------------------------------------------------------------
Similarly, H.R. 817 imposes a first amendment burden on individuals
which cannot be sustained. While commercial speech can be subjected to
somewhat more stringent regulations that other types of speech, the
power of the government to prohibit even commercial speech is limited.
Certain time, place, and manner restrictions can be placed, but the
limitations imposed by H.R. 817 go beyond any currently allowed
restrictions on commercial speech. Indeed, it infringes not only on the
rights of the speaker by prohibiting him or her from advertising
activities which are legal in the states in which they are carried out
in states in which such activities would be illegal (again, imagine Las
Vegas from being prohibited from advertising casinos in states in which
casino gambling is not permitted), but also the right of citizens to
receive such information. Furthermore, the way H.R. 817 is drafted,
persons could be held to violate the law if they simply cite places
where such activities are permitted in the context of an article
arguing that such activities should not be banned anywhere. Congress
should be leery of pushing such boundaries.
These are not the only constitutional problems I see in H.R. 817,
but they serve as a significant example of the problems within H.R.
817.\7\
---------------------------------------------------------------------------
\7\ Although it is not my purpose in this testimony to address
every problem that H.R. 817 presents, but merely to focus on legal
issues, I nevertheless stop here to note that H.R. 817, and its
predecessor, the Farm Bill amendments, are utterly insensitive to the
cultural impacts of its provisions. Gamefowl activities have been
historically a part of the social fabric of many societies and
cultures. The United States is not unique in this regard. Not only will
H.R. 817 have a substantial impact on the economics of those involved
directly and indirectly in the gamefowl industry, but also will have
social and even religious impacts on them. I find it ironic that
Congress has imposed a requirement of sensitivity to such matters in
federal statutes such as the National Environmental Policy Act
(``NEPA''), but refuses itself to take such considerations into account
in an area which is primarily philosophically driven. Legitimate public
policy considerations, such as animal health, can be readily and easily
dealt with as we do in every other activity involving animals, without
decimating an activity which is a way of life for many.
---------------------------------------------------------------------------
C. ANIMAL AND PUBLIC HEALTH CONCERNS WILL BE DISSERVED BY H.R. 817
Animal and public health issues have been cited as reasons why H.R.
817 should be enacted. I respectfully submit that animal and public
health would be adversely affected by H.R. 817. The reasons for this
are fairly clear.
Prior to becoming an attorney, I was a registered nurse for nearly
20 years. I am therefore familiar with the principles of epidemiology
and public health. Many of these principles are as applicable to animal
health as to human health except that individual humans can report
their illnesses and possible illnesses directly and a variety of
mechanisms exist to ensure that important public health information is
gathered and transmitted to appropriate officials. Animals, however,
are dependant on humans to recognize and report potential health
problems and to ensure that such mechanisms that exist to catch and
treat animal disease are in play. Voluntary compliance is important
both in human and animal health regimes. Indeed, a primary purpose of
the UGBA is to promote animal health as illustrated by my above
description of the organization.
It has been my experience, both as an RN and as an attorney
(including my time at the United States Department of Justice) that
banning activities such as gamefowl activities does not end the
activity, but merely drives it underground. Once it is driven
underground, it is difficult, if not impossible, to ensure that the
potential health problems created by the activity will be timely
discovered and addressed.
This is not to suggest that no ban of any kind on any activity
should ever be enacted. I do suggest that every situation be separately
evaluated to decide whether more harm than good will result from the
ban. Likewise, I do not suggest that the gamefowl breeders who are
members of the UGBA would intentionally or otherwise violate the
provisions of H.R. 817. Most people are law-abiding, at least when they
know and can understand the law (which is by no means a given).
However, as my experience shows, there will always be some who, from
conviction or for economic, cultural, and other reasons, will simply
continue the banned activity underground. Indeed, where activities are
heavily bound with culture (as is the case here), a defiance of the
ban, whether de facto or de jure will be a virtual given.
When this happens, all of the potential adverse effects of the
banned activity are likely to emerge. The regulatory, legal, social,
and other oversight mechanisms, both formal and informal, either cannot
function to catch problems before they become major, or can only do so
with great difficulty and inefficiency. As a result, the very
consequences the ban seeks to avoid emerge. In this case, some may
suggest that H.R. 817 is not a ban and that, therefore, what I have
said here is irrelevant. However, a review of H.R. 817 demonstrates
that it is so onerous and so pervasive that it amounts to a de facto
ban. The solution here in not to place onerous limitations on the
activities in question, but to bring them into the same regulatory
universe that all other animal related industries inhabit, such as
regular inspections, mandatory vaccinations, and the like.
Further, to suggest that gamefowl breeding and related activities
pose a unique threat that must be met with the stringent limitations
amounting to ban is disingenuous at best. The birds involved in
gamefowl activities are, to the best of my knowledge and understanding,
no more prone to Exotic Newcastle disease, avian flu viruses, or
arboviruses than any other commercially raised fowl and are no less
subject to disease control measures than any other fowl. If these
things are true, it is clear that the stated health concerns are more
motivated by a dislike for the gamefowl industry or for fear of
political repercussions than by a fear of disease itself. For those who
are motivated by a genuine concern for animal and public health safety
issues, I respectfully submit that their concerns can be met in the
same fashion that public and animal health and safety concerns are met
when other fowl are at issue that by enacting H.R. 817. Indeed, UGBA
members are as concerned as anyone about animal and human health
issues. Their livelihoods, lifestyles, and culture are as threatened as
anyone elses by an outbreak of avian flu virus, Exotic Newcastle
disease or any other disease condition involving fowl.
The decisions about whether an activity such as gamefowl breeding
and related activities should be allowed and under what circumstances
are best left to the states who have the best idea what works for their
state and their citizens and who can ensure that the activities are
carried out in a safe and appropriate manner. The legislative authority
of the United States should not be used by some states to impose their
policy views on other states simply because it would make enforcement
of their own policy preferences within the borders of their own states
simpler.
D. H.R.817 INAPPROPRIATELY DIVERTS FEDERAL RESOURCES
H.R. 817 diverts federal resources to effectuate the policy choices
of individual states. Given the important matters that face the United
States today, ranging from homeland security to immigration and serious
crime, it seems inappropriate to apply federal funds and law
enforcement personnel and resources to effectuate a policy adopted by
individual states who presumably believe that the policy deserves the
dedication of law enforcement resources. It is not unreasonable to
suggest that a state should not adopt a policy that it is not willing
to dedicate its own resources to strenuously enforce.
iv. conclusion
For all of the foregoing reasons, we respectfully ask for your
opposition to HR 817.
Mr. Coble. Thank you, Mr. Pollot.
Corporal Hunt, before we hear from you, Mr. Scott and I are
pleased to welcome the distinguished gentlemen from California,
Wisconsin and Massachusetts, Lungren, Green and Delahunt,
respectively.
Corporal Hunt.
TESTIMONY OF DAVID R. HUNT, DEPUTY, FRANKLIN COUNTY SHERIFF'S
OFFICE, COLUMBUS, OH
Mr. Hunt. Thank you, Mr. Chairman, Members of the
Committee. As mentioned, my name is Corporal David Hunt, and
I'm a Deputy with the Franklin County Sheriff's Office in
Columbus, Ohio. I'm in my 25th year with the Sheriff's Office,
the past 14 years of which assigned to the Special
Investigations Unit conducting vice and narcotics
investigations. I have been investigating illegal dogfighting
since February of 2002.
I am here today to speak in support of H.R. 817, the
``Animal Fighting Prohibition Enforcement Act of 2005.'' Having
worked illegal animal fighting investigations for the past 4
years, I continually see the need to make this activity a
felony offense at the Federal level. Dogfighters often travel
across State lines to engage in large-scale dogfights, where
the purses are in the tens of thousands of dollars. Other
peripheral criminal activity such as drug trafficking, gambling
and illegal firearms possession is typically associated with
dogfighting.
In January 2003, my agency executed a search warrant on
such an event in progress, arresting 40 individuals. Three
fights were scheduled that evening with people attending from
New York, Washington, D.C., Virginia and Alabama. Two of the
dogs slated to fight that night were from Buffalo, New York,
with another dog coming from Richmond, Virginia. Over $30,000
in cash was seized at the fight, as each fight had a $10,000
purse. Additional cash from gambling, drugs and a .50 caliber
handgun were also confiscated.
In July of 2003, a patrol deputy with my agency stopped a
vehicle from South Carolina that was found to be transporting 9
scarred pit bull dogs. Subsequent investigation revealed that
this subject was a canine courier service utilized by
dogfighters for transporting fighting dogs for sale, trade and
breeding. One of the dogs was destined to a convicted
dogfighter in Columbus. Interview of the driver revealed that
he had picked up and dropped off fighting dogs in Georgia,
Alabama, Louisiana, Missouri and Illinois prior to being
stopped in Ohio. Under Ohio statutes, no criminal charges could
be filed.
In October 2003, a dogfighter from Williamson, West
Virginia brought a pit bull to Columbus to deliver to a
confidential informant working for me. This meeting, which was
audio and videotaped documented the dogfighter talking about
fighting dogs, breeding dogs for fighting, past dogfights, and
even inviting the CI to attend a match in West Virginia.
This case was presented to the U.S. Department of
Agriculture, Office of the Inspector General, who agreed to
adopt it for Federal prosecution. Upon meeting with an
Assistant U.S. Attorney for the Southern District of Ohio, the
USDA agent and myself were advised that the U.S. Attorney's
Office would not accept this case as it was a Federal
misdemeanor. We were further advised that the only Federal
misdemeanor that would be prosecuted I the Southern District of
Ohio was interference with a flight crew.
The investigation was then referred to the Franklin County
Prosecutor's Office, who agreed to prosecute the West Virginia
dogfighter. This subject eventually pled guilty to State
charges and cooperated on other dogfighting investigations.
Many underground fighting publications chronicle fights that
occur across the United States, and are typically attended by
fighters from other States. Many dogfighters in Central Ohio
routinely travel to Louisiana to purchase desired fighting dog
bloodlines. I currently have investigations that reach into
States that border Ohio, and have to rely on the appropriate
local law enforcement agency for assistance. Most law
enforcement officers are unaware or uneducated on dogfighting.
Thus, many of these investigations fail to come to fruition.
My office has an excellent relationship with the USDA
Office of Inspector General, as well as the Federal Bureau of
Investigation. Making this law a Federal felony will
significantly assist local law enforcement. Teaming up with
Federal law enforcement will aid in the pursuit of those
individuals who routinely cross State lines to engage in this
vicious illegal activity.
Thank you very much.
[The prepared statement of Mr. Hunt follows:]
Prepared Statement of David R. Hunt
Mr. Coble. Thank you, Mr. Hunt.
Dr. Bradley.
TESTIMONY OF FRANCINE A. BRADLEY, PhD, DEPARTMENT OF ANIMAL
SCIENCE, UNIVERSITY OF CALIFORNIA AT DAVIS, DAVIS, CA
Dr. Bradley. Mr. Chairman, before I begin, I ask your
permission that my full statement be submitted for the record.
Mr. Coble. Without objection, it will be done.
Dr. Bradley. Thank you. Chairman Coble, Ranking Member
Scott, Members of the Subcommittee, my name is Dr. Francine
Bradley. I'm the Extension Poultry Specialist at the University
of California at Davis. While the university has not taken a
position on H.R. 817, I am appearing on my own behalf as a
poultry scientist with intimate knowledge of the gamefowl
community. This is my 25th year as a poultry scientist with the
university. I work with poultry producers of every scale and
direct the statewide 4-H poultry program. I serve as Director
of the Pacific Egg and Poultry Association, a commercial
poultry trade association, a Director of the Pacific Poultry
Breeders Association, and I'm the Treasurer of the World's
Poultry Science Association.
The term ``game fowl'' refers to breeds of chickens that
were historically bred for the purpose of cockfighting or
directly developed from that stock. They include the Old
English Game, the Modern Games, the Aseels and others. Game
fowl breeds are popular with poultry fanciers, that is, those
people who raise birds for show. Game fowl were used to create
one of today's most significant commercial breeds, the Cornish.
Both male and female game fowl will fight, as will any chicken
or chicken-like bird. Game fowl are popular exhibition breeds.
The enforcement of H.R. 817, if passed, would fall to
officers of the law, with the assistance of local animal
control authorities. The same bird that can be used for an
organized cockfight can also be exhibited at a poultry show.
Law enforcement officers are neither poultry scientists nor
poultry judges. They cannot distinguish between a bird that
will be fought and one that will be shown. No one can. Animal
control officers are well trained in the area of household
pets. They receive no mandatory training from qualified poultry
scientists about the identification or management of poultry.
In fact, there are animal control officers who particularly
dislike chickens and the people who keep them. An additional
problem that I have witnessed over and over again is that some
misinformed individuals automatically assume that chickens
owned by a Hispanic, a Samoan, or a Filipino must be
cockfighting birds. While it is illegal to fight chickens in
most of the United States, it is not illegal to own them.
In 2003, the game fowl breeders in California approached
the University of California and the California Department of
Food and Ag to obtain a documentation process for the disease
prevention efforts many of them were already taking. They also
wanted to encourage other game fowl breeders to participate in
such programs. At the direction of the State Veterinarian, I
worked with CDFA veterinary staff to develop the Game Fowl
Health Assurance, GFHA, program. Since September of 2003,
thousands of game fowl cultures have been tested by the
California Animal Health and Food Safety Lab. To date, no
sample from, nor whole bird submission of game fowl, has tested
positive for any catastrophic or reportable poultry disease.
The game fowl owners in this voluntary program attend
multiple educational sessions. They receive training in
biosecurity, culturing their birds, using the diagnostic lab,
and vaccination. In subsequent years they attend continuing
education classes and maintain their flock sampling through
culture and whole bird submission.
For many, this is the first Government or university
program they've ever participated in, and as each new game fowl
breeder starts the program, the word spreads and interest
grows. Passage of H.R. 817 would have disastrous implications
for those of us in the science and veterinary communities. If
owning game fowl can be perceived as violation of H.R. 817,
game fowl breeders will not self-identify. They'll not come
forward for educational classes, and most importantly, they
won't use the Federal or State disease hotlines, and they won't
be submitting their birds to their local diagnostic labs.
Cockfighting has been illegal in most of the United States
for decades. It's been illegal in foreign countries in many
parts of the world for centuries. Yet, this activity has not
been legislated out of existence. The best way to keep our
Nation's birds healthy is to have access to and communication
with all bird owners. When the GFHA program was being
developed, my veterinary advisors told me that we should test
the game fowl for Exotic Newcastle Disease. The fame fowl
breeders told us they wanted the birds tested for avian
influenza. They said--and this was in 2003--that they though
avian influenza was going to become more important than Exotic
Newcastle Disease.
Your Judiciary Subcommittee has ``Homeland Security'' in
its title. Homeland Security is conducting avian influenza
sessions across the Nation. In April we had one such session in
the Central Valley of California. The game fowl community was
represented. One game fowl breeder took off from work and made
a 700-mile round trip to attend. Game fowl breeders are
actively participating in disease prevention and Homeland
Security programs.
Passage of H.R. 817 will drive the game fowl community into
dark corners. As scientists, educators and veterinary
professionals, my colleagues and I will have difficulty working
with these individuals, who will now be in fear of harsh fines
and prison time.
Disease organisms do not distinguish between types of
chickens. Avian influenza is an equal opportunity disease. All
bird owners must be educated and protect their birds. Every
living creature has value. A single game fowl specimen may be
worth $1,000 or more. Many game fowl breeders have birds from
genetic strains that have been maintained by their families for
generations. To them the birds are priceless. To suggest that
game fowl owners care less for the health of their animals than
do other bird owners is preposterous. To promote the health of
the Nation's poultry and to allow our effective educational
programs to continue, I respectfully ask you to oppose H.R.
817.
Thank you.
[The prepared statement of Dr. Bradley follows:]
Prepared Statement of Francine A. Bradley
i. introduction
Chairman Coble, Ranking Member Scott, members of the Subcommittee,
my name is Dr. Francine Bradley. I am the Extension Poultry Specialist
with the University of California at Davis. While the University of
California has not taken a position on H.R. 817, I am appearing on
behalf of myself, as a poultry scientist with intimate knowledge of the
game fowl community. This is my 25th year as a poultry scientist with
the University of California. I work with poultry producers of every
scale and direct the statewide 4-H poultry program. I serve as a
Director of the Pacific Egg and Poultry Association (a commercial
poultry trade association), a Director of the Pacific Poultry Breeders'
Association (an association of poultry fanciers), and the Treasurer of
the World's Poultry Science Association (an international body of
poultry scientists).
ii. background
The term game fowl refers to those breeds of chickens (both large
and bantam) that were historically bred for the purpose of cock
fighting or directly developed from that stock. Those breeds include
the Old English Games, the Modern Games, Aseels, and others. Game fowl
breeds are popular with poultry fanciers, that is, those individuals
who raise birds for exhibition purposes. Game fowl were used to create
one of today's most commercially significant chicken breeds, the
Cornish. Both male and female game fowl will fight, as will any chicken
or chicken-like bird, and they are also exhibited.
iii. the dangers in enacting h.r. 817
The enforcement of H.R. 817, if passed, would fall to officers of
the law, with the assistance of local animal control authorities. As I
mentioned in the previous section, the same bird that be used for
organized cock fighting, could also be exhibited at a poultry show. Law
enforcement officers are neither poultry scientists nor poultry judges.
How will they distinguish between a bird that will be fought and one
that will be shown? They cannot; no one can do this. Animal control
officers are well trained in the areas of cats, dogs, and other small
pets. They receive no mandatory training from qualified poultry
scientists about the identification or management of poultry. In fact,
there are animal control officers who particularly dislike chickens and
the people who keep them. An additional problem that I have witnessed
over and over involves the ethnicity of the poultry owner. There are
some who automatically assume that chickens plus an owner who is
Hispanic, Samoan, or Filipino equals cock fighter. While it is illegal
to fight chickens in most of the United States, it is not illegal to
own them.
In 2003, game fowl breeders in California approached the University
of California and the California Department of Food and Agriculture
(CDFA) to obtain a documentation process for the disease prevention
efforts many of them were already taking. In addition, they wanted to
encourage other game fowl breeders to participate in health maintenance
programs. At the direction of our California State Veterinarian, I
worked with CDFA veterinary staff to develop the Game Fowl Health
Assurance (GFHA) Program. Since September of 2003, thousands of game
fowl cultures have been tested by the California Animal Health and Food
Safety (CAHFS) laboratories. To date no sample from, nor whole game
fowl, has tested positive for any reportable or catastrophic poultry
disease.
The game fowl owners in this voluntary program attend multiple
educational sessions during their first year. They receive training in
biosecurity, culturing their birds, using the diagnostic laboratories,
and vaccination methods. As they move into their second and subsequent
years of certification, the game fowl breeders attend continuing
education classes and maintain their flock sampling through culture and
whole bird submissions.
For many in the GFHA Program, this is the first government or
university sanctioned activity in which they have participated. As each
new game fowl breeder starts the program, the word spreads and interest
grows. Passage of H.R. 817 would have disastrous implications for those
in the science and veterinary communities. If owning game fowl can be
perceived as violation of H.R. 817, game fowl breeders will not self
identify. They will not come forward for educational classes. Most
importantly, they will not use government services such as the CDFA or
United States Department of Agriculture (USDA) disease hot lines. They
will not be submitting sick birds to the diagnostic laboratories in
their states.
iv. h.r. 817 does not promote better biosecurity for the nation's
poultry
Cock fighting has been illegal in most of the United States for
decades. It has been illegal in some foreign countries for centuries.
Yet, this sport has not been legislated out of existence, neither here
nor around the world.
The best way to keep all the nation's birds healthy is to have
access to and communication with all bird owners. When the GFHA Program
was being developed, my veterinary advisers at CDFA suggested that the
game fowl only be tested for Exotic Newcastle Disease. The game fowl
breeders told us they wanted their birds to be tested for Avian
Influenza also. They said, and this was in 2003, that their feeling was
that Avian Influenza would turn out to be more of a problem than Exotic
Newcastle Disease!
Your Judiciary Subcommittee has Homeland Security in its title.
Homeland Security is conducting sessions dealing with Avian Influenza
across the nation. In late April, one such Avian Influenza Workshop was
held in the Central Valley of California. The game fowl community was
represented. One game fowl breeder took off from work and made a 700
mile round trip to attend. Game fowl breeders are actively
participating in disease prevention and Homeland Security programs.
Passage of H.R. 817 will drive the game fowl community into dark
corners. As scientists, educators, and veterinary professionals, my
colleagues and I will have difficulty working with these individuals
who will now be in fear of harsh fines and prison time.
Disease organisms do not distinguish between a commercial meat bird
and a bantam chicken. Avian Influenza is an equal opportunity disease.
All bird owners must be educated and protect their birds. Every living
creature has value. The feed store chick purchased for fifty cents may
be a child's favorite pet. Leghorn hens may be the basis for a family
business and livelihood. Poultry fanciers have as much passion for
their chickens as others do for their dogs. A single game fowl specimen
may be worth one thousand dollars or more. Many game fowl breeders have
birds from genetic strains that have been maintained by their families
for generations. To them the birds are priceless. To suggest that game
fowl owners care less for the health of their animals than do other
bird owners is preposterous.
To promote the health of the nation's poultry and to allow our
effective educational programs to continue, I respectfully ask you to
oppose H.R. 817.
Mr. Coble. Thank you, Doctor. Thank you all for your
testimony. We impose the 5-minute rule against us as well.
We're not exempted from the red light, so if you all could keep
your questions tersely, we would appreciate that.
Mr. Pacelle, given the fact that there's already criminal
penalties in Federal law in title 7 for moving animals in
interstate or foreign commerce for the purposes of animal
fighting, why do you feel this legislation is necessary?
Mr. Pacelle. Thank you, Mr. Chairman. I believe it's
necessary for a few reasons. One is that there still remains a
thriving underground dogfighting, cockfighting, and hog-
dogfighting set of industries. There are three above-ground
cockfighting magazines here. You can see in the pages of these
magazines, which you can subscribe to, the sale of fighting
birds is advertised, and it's obviously going across State
lines. Here we have just the direct flouting of Federal law
here, and we have seen in so many cases with the huge amount of
money to be won for purses and in side bets at cockfights and
dogfights, these folks are willing to deal with a $5,000 fine
or a $1,000 fine routinely.
Mr. Coble. Mr. Pacelle, what's the name of that
publication, and where is it published, if you know?
Mr. Pacelle. Yes, there are three of them. This is The
Feathered Warrior, and then this is The Gamecock, and the third
is called Grit and Steel. Two of them are published in Arkansas
and one is published in South Carolina.
Mr. Coble. I thank you.
Mr. Pollot, you contend that the enactment of this bill
would result in the forcing of the views of supporting States
upon the nonsupporting States. Now, in this contention, Mr.
Pollot, are you suggesting--strike that. Are you saying that it
is your belief that this activity does not affect interstate or
foreign commerce?
Mr. Pollot. No, Your Honor, I'm not suggesting that. There
are--excuse me, Your Honor, I'm too used to talking to judges.
Mr. Coble. That's all right.
Mr. Pollot. Mr. Chairman, no.
Mr. Coble. You just promoted me.
Mr. Pollot. I'm not suggesting that. I mean, clearly, they
are interstate commerce, but even the Interstate Commerce
Clause has limitations. Federalism is in fact one of those
limitations. I note that during the recent Senate confirmation
hearings on two Supreme Court Justices, Members of this
Committee expressed concern because they saw that courts are in
fact narrowing to a degree the very broad Commerce Clause
authority that some courts have given over the years. These
questions that I raise are not questions that have been raised
in either of the two pieces of existing litigation in this.
There is a belief expressed by the Supreme Court that States
are separate sovereigns, entitled to their own domestic laws,
and there is no constitutional basis, I believe, for Congress
to choose the policy for States that it likes, and thereby,
enact a law that some--in effect, takes away the decisions of
the sovereign State to decide what goes on within its own
borders.
Mr. Coble. I thank you, sir.
Let me get back to you, Mr. Pacelle. I'll give you a chance
to respond to that. I want to ask Corporal Hunt a question.
Corporal Hunt, it is my firm belief that international drug
traffickers and domestic drug traffickers, for that matter,
contribute very generously to terrorism. With this in mind, in
your experience, are the operators of these animal fighting
events generally engaged in other types of criminal activity,
and if so, what types?
Mr. Hunt. Thank you, Mr. Chairman. Absolutely. Every
dogfighting search warrant--and I can only address dogfighting.
I've only done two cockfighting investigations in my career.
But specifically articulating to dogfighting, every search
warrant I have executed, I've recovered drugs at. Dogfighting
appears to be quote, unquote ``sport'' of many drug
traffickers. They have a lot of disposable income. There's also
the machismo pride involved with it. The two really go hand in
hand. So I would tend to agree with you on that.
Mr. Coble. Could it in fact lead to terrorism too, perhaps?
Dr. Bradley, let me--Mr. Pacelle, I can tell by his body
language he wanted to be heard--I'll get to you subsequently,
Doctor.
But go ahead, Mr. Pacelle.
Mr. Pacelle. Thank you, Mr. Chairman. I just want to say
that the Federal law that has existed since 1976 and was
upgraded in 2002, does not ban cockfighting or dogfighting in
any State, it just bans the interstate transport and the
foreign commerce in animals for fighting purposes. So in
Louisiana, if Louisiana chooses to continue to allow
cockfighting--and the Senate Ag Committee just passed a bill to
make it a felony in that State, so I think it's just a matter
of time--Louisiana can still stage cockfights legally under
this law. It doesn't ban what's happening in a State, it simply
bans the interstate transport of the animals. So Louisiana
can't send birds to other States, and birds cannot come from
other States and go into Louisiana.
Mr. Coble. I thank you. My red light appears, Mr. Scott.
I'll get you the next round, Dr. Bradley.
Mr. Scott?
Mr. Scott. Thank you, Mr. Chairman.
Mr. Pacelle, is there anything in this bill that is legal
now that would be illegal if the bill passes?
Mr. Pacelle. Yes. The bill creates one new criminal
activity, which is the interstate transport and foreign
Commerce in cockfighting implements, which have no other known
purpose but to be affixed to the birds' legs. So the knives and
the gaffes which are attached with a little strap to the birds'
legs, you could not use them in interstate or foreign commerce.
And these magazines are full of ads for these cockfighting
implements.
Mr. Scott. The transport of the animal itself is already
illegal, and the only thing that's changed is the penalty?
Mr. Pacelle. That's correct.
Mr. Scott. Mr. Pollot, if that's the case, why would it be
unconstitutional to pass the bill? Are you assuming that the
present law is unconstitutional?
Mr. Pollot. Yes, Congressman and Mr. Chairman, I am. And I
suspect there will be further litigation on that point. It kind
of brings up the issue that in the written testimony Mr.
Pacelle has pointed to two cases that I briefly referred to
before as establishing that these bans are constitutional.
However, first of all, one thing we know is that there is
no such thing as black letter law. Reality is, for example, on
the death penalty, the Supreme Court has been back and forth
over that for many, many, many decades, and who knows what will
happen? Secondly, these are two cases in two courts in the
United States, and they are binding only in those courts. One
of them was a takings case, which presumes the legality of the
regulation and determines whether or not a fifth amendment
taking has occurred. And thirdly, the cases that have been
brought raise only certain issues, constitutional issues, not
the constitutional issues I raise, and the one thing we can say
for sure is that as general practice, courts do not answer
questions that have not been asked.
Mr. Scott. Well, one of your claims is that it restricts
transportation. Leaving one State to do something that's legal
in another State, would that be a violation of the
Constitution?
Mr. Pollot. It would be a violation of the individual's
right. I think it has federalism implications. Let me be clear
that there are absolute prohibitions in the Constitution like
the ninth and tenth amendments on Federal action, but there are
also policies in the Constitution that even where it is lawful
for Congress to do something, Congress should be wary of doing
so. But there are also individual liberties in the
constitutional right to travel.
Mr. Scott. Well, there's another bill that's gone through
this Committee where you're trying to prohibit escorting or
transporting a child from one State to another to avoid the
local State abortion laws, doing something that's legal in the
other State. Would that be unconstitutional under the same
rationale?
Mr. Pollot. Constitutional questions are often very fact
specific. Something having to do with the transportation of a
minor across State lines for immoral purposes is a far
different question than----
Mr. Scott. Wait a minute. Immoral? If it's legal in the
other State, would that--how do you get immorality and----
Mr. Pollot. Well, first of all, by taking a minor across
the State line to do anything that would avoid medical
liability, medical oversight laws, raises different questions,
which I have not, obviously, had the time to analyze. I would
say that I cannot venture a strong opinion on that unless I had
the opportunity to sit down. But I don't think that my position
here automatically means that some other law involving health
and safety issues that have national importance beyond a policy
like that involved in cockfighting, which by the way, I have to
say the organization I'm representing has nothing to do with
cockfighting. It's a gamefowl breeders association.
Mr. Scott. What are game fowl?
Mr. Pollot. A game fowl, as described by Dr. Bradley over
here, I think that's a fair assumption, a fair definition of
what game fowl are. They are not bred solely for fighting,
despite what many people believe. I, myself, have sat in on a
show.
Mr. Scott. In fact, what else are they bred for?
Mr. Pollot. For show. The word ``fancier'', as Dr. Bradley
pointed out, refers to people who breed particular animals for
show. I have three dogs, all of which are considered hunting
breeds. I don't hunt with those breeds. I have two Westies and
a Lab. My possession of them is no way an indication that I
hunt with them. I happen to like those dogs.
Mr. Scott. Mr. Pacelle, did you want to comment?
Mr. Pacelle. Thank you. The idea that the United Gamefowl
Breeders Association is not a pro-cockfighting organization is
entirely absurd. UGBA formed in 1975 to fight the law that
Congress passed in 1976 on cockfighting. Most of the leaders of
the UGBA have been arrested for illegal cockfighting
activities. In fact, the gentleman who was running the Del Rio
pit, who I mentioned, he was a past president of the United
Gamefowl Breeders Association, and his wife was the secretary
of the organization. A gentleman in Ohio, in Vinton County, Red
Johnson, was arrested for running an illegal cockfighting pit
in Ohio. He was also a past president of the UGBA. This is a
cockfighting organization through and through.
Now, that's not to say that game fowl can have another
purpose, but the people at the UGBA are not interested in
shows, they're interested in cockfighting. We fight them at the
State level. Dr. Bradley has appeared in many States opposing
anti-cockfighting legislation. This whole kind of show of that
these people are into game fowl for show purposes is a charade.
Mr. Scott. Mr. Chairman, my time is up, but he did refer to
Dr. Bradley by name and----
Mr. Coble. Without objection.
Mr. Scott. Thank you.
Dr. Bradley. I just want to comment that the game fowl
breeds are described in the American Poultry Association's
American Standard of Perfection. The game fowl members of
organized game fowl organizations do show their birds. Within
the last month, I was at a show in Southern California, all
game fowl breeds, and they were being judged by the President
of the American Poultry Association.
Mr. Coble. The gentleman's time has expired.
The primary sponsor of the bill before us, the
distinguished gentleman from Wisconsin, Mr. Green.
Mr. Green. I thank the Chairman for yielding me time. Just
something that I don't think we went through in the initial
testimony, but it's important. The organizations that are
endorsing this legislation include the U.S. Department of
Agriculture, the National Chicken Council, the American
Veterinary Medical Association, so as Wayne indicated, the
support is pretty broad-based, and these are organizations that
are among the most reputable organizations with respect to
animal safety and health that we have in the Nation.
A question for Mr. Pollot, just so I am clear as to what
your position is, your organization's position on cockfighting.
Obviously, we're talking here about the Federal legislation
before us. Do you and your organization support cockfighting
bans at the State level?
Mr. Pollot. To the best of my knowledge, the UGBA has not
advocated, publicly supported, or otherwise taken a position on
cockfighting.
Mr. Green. So they're neutral on the subject of
cockfighting at the State level.
Mr. Pollot. That is not why they exist. If you look at
their by-laws----
Mr. Green. I'm not asking why they exist. I'm asking
whether they support cockfighting bans at the State level?
Mr. Pollot. I imagine there are probably members of the
UGBA who do and members who don't. To the best of my knowledge,
they have not taken any kind of an official position on it, and
if they have, I'm unaware of it, and I can't really speak for
individual members.
Mr. Pacelle. I'm sorry, but Mr. Pollot is just plain wrong,
and is unfamiliar with what the UGBA is. I mean this is the
group that we fight at the State level on cockfighting. They
don't emerge on dogfighting issues, but at every anti-
cockfighting hearing, whenever a bill is advanced at the State
level, it's the UGBA or its State affiliates, the Louisiana
GBA, the Virginia GBA, all of those State affiliates, they're
all cockfighters. That's not to say again that game fowl cannot
be used for show purposes, just like pit bulls. You can use a
pit bull and show a pit bull for show, or you can use a pit
bull for a fight. But the fact that you could do that doesn't
mean that these people are not involved in animal fighting,
which is what they are.
UGBA was formed to fight the Federal bill that former
Representative and former Speaker Tom Foley introduced in 1975
to ban the interstate transport of fighting animals.
Mr. Green. I guess I bring it up, because, obviously, Mr.
Pollot has been making legal arguments about federalism and
constitutionality. What you're saying, Wayne, is that in your
experience, while they may raise those arguments here at the
hearing, as an organization they have been actively involved in
the underlying substance. They are fighting cockfighting bans
is what you're saying.
Mr. Pacelle. Without any question, and we'd be happy to
submit letters and other materials from the UGBA and the State
GBAs to support this contention.
Mr. Green. I would appreciate that.
Yes, Mr. Pollot?
Mr. Pollot. I imagine, I mean just as I belong to
organizations that I have a difference of opinion on some
matters than other members of my organization, I can join an
organization for the primary purpose of the organization, and
disagree with those members. I am more than a little bit
concerned about an attack on the organization. I think the
focus here ought to be on the merits of the----
Mr. Green. I don't think I'm attacking the organization.
I'm just trying to understand where the organization is coming
from, because obviously the arguments that have been made have
been arguments of federalism and constitutional arguments. That
is obviously a different matter than the underlying subject of
cockfighting here. And I think it is important that we do
understand, as Members, the background, the context and the
larger position that's held by the organizations that are
coming before us.
Mr. Pollot. Mr. Chairman and Congressman Green, first of
all, Congressman Green, I was not suggesting that you were. I
am suggesting, however, that Mr. Pacelle is using an ad hominem
attack.
Maybe it will help clarify my position somewhat. I think
nobody who believes in the principles of federalism--and that
includes the UGBA members--can disagree with the proposition
that States have the right, as a matter of public policy, to
decide whether to allow----
Mr. Green. I don't think anybody here is doubting whether
or not States have the right here. The question is whether
organizations support--my time is running out.
What I would like to get at real briefly--and, Mr. Pacelle,
you can perhaps respond to this--we had testimony that somehow
enforcing a Federal ban on animal fighting with interstate
transportation related to animal fighting will hurt our ability
to fight animal diseases. Perhaps as an organization somewhat
concerned about animal health, you might be able to respond to
that.
Mr. Pacelle. Yes. I do want to say that--regarding the
previous question--we are critical of the UGBA. We believe that
the UGBA is an organized criminal association, to be quite
honest with you. But on the animal health issues, it's quite
plain that the National Chicken Council, which is not a group
that the Humane Society is normally aligned with--this is the
poultry producers of the United States--they support this
legislation because they view cockfighting and the movement of
birds across the country and across national boundaries as a
threat. These birds are in underground commerce, and they're
the birds that are not part of any regimented program. They're
not part of any legitimate industry, and therefore, may spread
diseases.
I want to say just finally, Mr. Green, that in California,
Exotic Newcastle Disease, which is a respiratory disease--it's
a bird influenza--there was an outbreak in 2002, and it
extended to 2003. The source of the disease is not clear. It is
apparent that it came from Mexico, but it was the network of
backyard cockfighting operations that spread the disease. The
Federal Government spent $200 million trying to contain the
disease and reimbursing owners of birds that were destroyed.
Four million birds were destroyed.
So you have the USDA----
Mr. Coble. Mr. Pacelle, if you can wrap up, we're going to
have a second round.
Mr. Pacelle. Sure. I'm sorry. That's sufficient.
Mr. Coble. We'll have a second round. And, Dr. Bradley, we
have not intentionally ignored you, but you want to insert your
oars into these waters now?
Dr. Bradley. Yes, sir, I'd like to.
Mr. Coble. If you can do that briefly, then I want to
recognize Mr. Delahunt.
Dr. Bradley. Thank you, Mr. Chairman. This issue of Exotic
Newcastle Disease in Southern California and Congressman
Green's reference to the USDA, there has been mention made of
former Secretary Ann Veneman's comments, both in your talking
points and written testimony. She misspoke in my opinion, and I
wrote her an extensive letter on the point, by saying that they
were implicated. Other people have taken this to mean that they
were at fault. It is important to note in the Exotic Newcastle
Disease outbreak of 2002, the very first isolation in
California was in companion birds--those are pet birds--that
were in a pet store in Northern California.
The three indexed chicken cases, the first three cases in
chickens, two involved game fowl, one was a backyard egg-laying
flock. It's very important to know, the reason that we knew
about the disease in chickens was because the two people who
owned the game fowl, one gentleman, as soon as his birds became
sick, took them to the diagnostic laboratory in San Bernardino,
just what he should do. The gentleman took his birds to a
private poultry practitioner also in Southern California, also
what he should do. The owner of the backyard egg-laying flock,
which by the way, was a veterinarian, not a poultry vet, she
had 21 chickens. She waited until 18 died until she told
anyone.
So I put forward to you the people who acted responsibly
were the game fowl owners.
Mr. Green. Mr. Chairman, could I just--I mean the question
that Mr. Pacelle was responding to was whether or not this
legislation would make it harder to enforce animal safety, not
the other issues that have been brought up.
Mr. Coble. I thank the gentleman.
Now, folks, as we all know, one of the purposes for
hearings is to present Members the opportunity to examine both
sides of the issue. This panel is serving this purpose very
well. We're getting both sides, and that's the purpose of it.
We appreciate you all being forthright.
I'm pleased to recognize the distinguished gentleman from
Massachusetts, Mr. Delahunt.
Mr. Delahunt. Yes, thank you, Mr. Chairman.
Mr. Pollot, what's your opinion of cockfighting, your
personal opinion?
Mr. Pollot. My personal opinion is it doesn't interest me
in the slightest.
Mr. Delahunt. Do you approve of it?
Mr. Pollot. I've never seen one. I don't have enough
information to approve or disapprove.
Mr. Delahunt. Okay. Dr. Bradley?
Dr. Bradley. All chickens fight. You can't make a chicken
fight that doesn't want to fight.
Mr. Delahunt. I understand that, but I'm asking you your
opinion of organized cockfighting.
Dr. Bradley. I never advocate breaking the law. In areas,
States and countries where it's legal----
Mr. Delahunt. I'm not asking you----
Dr. Bradley. Would you allow me to explain?
Mr. Delahunt. No. I don't have enough time. So the rules
here are that I ask the question, and if you could give me a
succinct direct answer, it would be profoundly appreciated. I'm
just simply asking you your personal opinion. I'm not asking
you about a legal analysis.
Dr. Bradley. I apologize.
Mr. Delahunt. No, no need to apologize.
Dr. Bradley. I am not opposed to cockfighting where it's
legal, but I believe in the type of rules where it's not
necessary that the birds fight to the death.
Mr. Delahunt. Okay. Thank you. That's very informative.
Dr. Bradley. You're welcome.
Mr. Delahunt. I'd like to, you know, inform my own
understanding. I haven't had a chance to really read the
statute, but in terms of showing, if you will, game fowl, as
opposed to the fighting of the birds. The law, as it currently
exists, does not prohibit showing game fowl. Is that correct,
Mr. Pollot?
Mr. Pollot. I believe that that's correct.
Mr. Delahunt. Is that correct?
Dr. Bradley. Yes, sir.
Mr. Delahunt. And that's your understanding too, Mr.
Pacelle?
Mr. Pacelle. Without any question. Just as like with pit
bulls, you can show pit bulls. You just can't fight them. And
with game fowl, you can show game fowl, you just can't fight
them.
Mr. Delahunt. I guess my concern, when I listen to you,
Professor Bradley, about the response of a law enforcement
agency, I would suggest--and in a previous career I was the
chief prosecutor in a jurisdiction in Massachusetts--you know,
no responsible prosecutor would seek to charge an individual
for showing game fowl. There has to be significant additional
evidence that would prove beyond a reasonable doubt that there
was an intent to have these game fowl engage in cockfighting. I
mean I have difficulty understanding your argument.
Dr. Bradley. Right. Well, I'm happy that people are better
educated about game fowl in your State than in mine. My
experience has been it's often the case you'll have a police
officer going down an alley, say, looking for a stolen car,
looking over back fences. These chickens, person comes out of
the house and it's a person of color, there is an assumption
made, oh, those kind of people----
Mr. Delahunt. Can I interrupt again?
Dr. Bradley. Yes.
Mr. Delahunt. Do you have any data?
Dr. Bradley. I've testified in these cases, sir.
Mr. Delahunt. Where that has only been----
Dr. Bradley. There was no paraphernalia, no cockfighting
pit. The birds were confiscated, taken by animal control. Many
died in the possession of animal control.
Mr. Delahunt. There had to be, there had to be additional
evidence indicating some sort of organized plan to engage in a
banned, prohibited practice of game fighting.
Dr. Bradley. No, sir.
Mr. Delahunt. Were there convictions on those cases that
you testified in?
Dr. Bradley. Many of them, luckily, there weren't
convictions.
Mr. Delahunt. Okay. Mr. Pacelle?
Mr. Pacelle. Again, some of the investigators at the Humane
Society of the United States have been at odds with Dr.
Bradley. In criminal cases she is often advanced as the expert
witness, you know, by the cockfighters involved. And I believe
in all of those cases, it did lead to prosecution. And I'm not
aware of any individual cases where you didn't have an
abundance of evidence, whether it's the fighting implements,
betting slips, scarred or wounded animals. All of that in the
aggregate is what the prosecutors rely on. And when we advance
information to law enforcement officials, it's incumbent on
them to assemble a sufficient amount of evidence to make the
prosecution stick.
Dr. Bradley. In several of the recent cases they didn't get
to court because they were thrown out because there wasn't
sufficient evidence, but this was after the people's birds had
been taken, had been mistreated, housed improperly. Some of
them died in the care of animal control.
Mr. Delahunt. My time is up.
Mr. Coble. As I say, I think this issue is important to
warrant a second round, and we will do that. I am pleased to
recognize the distinguished gentleman from Ohio, Mr. Chabot.
Mr. Chabot. Thank you, Mr. Chairman. And I'll try to keep
my questions relatively brief.
I would just note that the Hamilton County Sheriff's
Department in Cincinnati is contained within Hamilton County,
is one of the 390 local sheriff's departments that have
endorsed the specific legislation that we're talking about here
today. Since the Hamilton County folks are not here, but the
Franklin County, Ohio folks, where Columbus, our capital, is
located, is represented by Corporal Hunt, perhaps, Corporal, I
could ask you a couple of questions.
What benefit do you see from having Federal law enforcing
the animal fighting laws that we've been discussing here, why
should the Feds get involved, and what benefits do you see from
us doing that?
Mr. Hunt. Thank you, Congressman. As referenced in my
testimony, I have had at least one situation where I did take a
case to the United States Attorney's Office for the Southern
District, and it was declined because it was a Federal
misdemeanor. Their policy was that they don't prosecute Federal
misdemeanors. So I think if the legislation were to pass as a
felony, obviously, you had to have the prosecutorial entity on
board. There's certainly a desire to enforce these laws, not
only at the local, but at the Federal level. We just need the
proper tools to do it. And as I mentioned, having the U.S.
Attorney's Office on board would certainly facilitate that.
Mr. Chabot. Thank you. And finally, do you have an opinion
as to which Federal law enforcement agency would be best
equipped to assist in the enforcement of these laws?
Mr. Hunt. My initial response would be probably the Federal
Bureau of Investigation. They certainly have more resources,
but also realizing that they are extremely taxed with other
responsibilities, homeland security and whatnot, that possibly
the U.S. Department of Agriculture would have a substantially
lighter caseload to where they could pursue this more
aggressively.
Mr. Chabot. Thank you very much.
Mr. Chairman, in the interest of time, I'll yield back the
balance of my time. Thank you.
Mr. Coble. Thank you, Mr. Chabot. You have more time if you
have another question.
We'll start a second round pending the arrival of a
reporting quorum. Dr. Bradley, I had a couple questions for
you, but my friend from Massachusetts has opened the door, and
I want to pursue this a little more thoroughly. He asked your
opinion on this.
Now, folks, let the record show I have never attended a
cockfight, so I come to you without the benefit of being--I'm
not implying, Doctor, that you have. I didn't mean that. But
here's the question I want to ask. Am I correct in assuming
that some cockfights are performed without the affixing of
knives, and some don't have the knives?
Dr. Bradley. That is correct, Mr. Chairman. Different
cultures have different rules. In some cultures they fight what
they call the naked heel, or just with the natural spur that
the birds are hatched with, and they don't attach any other
implement.
Mr. Coble. You responded to Mr. Delahunt, Doctor, that you
do not endorse cockfighting where the animals are permitted to
be fought until they die. Do you favor cockfights where the
knives are affixed to the----
Dr. Bradley. That's an interesting question, Mr. Chairman.
Many people--and I don't think it's surprising--they find the
idea that you're attaching a sharp blade to a bird to fight to
be a very scary thing. It was long ago explained to me by many
in the game fowl community, that the wounds inflicted with a
gaffe or another type of knife are cleaner wounds and the birds
can recover better than with a naked heel. And at some of the
cockpits, you will have veterinarians on site that will stitch
up the birds, apply veterinary care at the end of a fight.
So the people who believe in using the attached implements
feel that it is in the interest of the welfare of the bird.
Mr. Coble. Doctor, do you know of any study or studies on
birds engaged in cockfighting that would indicate that those
birds are more or less prone to spread disease than birds that
conversely do not participate in cockfighting? Do you know one
way or the other about that?
Dr. Bradley. The disease is not specific to any type of
bird, and it's certainly not limited to chickens. It's
important to note in the video that was shown, they showed dead
swans being taken away, the natural reservoir of high-path H5N1
are wild ducks and terns. It spreads to other chickens. It can
spread to other types of birds, to mammals. But chickens, any
type of chicken is not the natural reservoir of that disease.
Mr. Coble. Thank you, Doctor.
Corporal, which Federal law enforcement agency do you
believe would be best equipped to assist in the enforcement of
these laws if this bill is enacted?
Mr. Hunt. Certainly, in my opinion, the FBI would have
greater resources available to them. There's more field
offices. There's also a greater working environment with that
agency, with local law enforcement, not that USDA doesn't, but
we routinely work with the FBI in other criminal
investigations. There's already a very strong liaison program.
So my opinion, I think the FBI would be the most suited for
that.
Mr. Coble. I think we have at least been on the fringes of
this question, but let me get it in the record. Do you believe,
Corporal Hunt, that given the fact that animal fighting is
already prohibited in most States, why do you think it needs to
be prohibited by the Federal Government?
Mr. Hunt. As I mentioned earlier, most of these parties
will travel in interstate commerce of this activity. They may
travel into smaller jurisdictions where local law enforcement
resources may be virtually nonexistent. A certain county may
only have a sheriff and two deputies. They don't have the
resources to investigate it. Whereas, if the person was
traveling in interstate, the FBI could, or the appropriate
Federal agency could adopt it.
Mr. Coble. Mr. Pollot and Mr. Pacelle, do you all want to
weigh in on this before I yield to Mr. Scott?
Mr. Pacelle. Thank you. One of the additional reasons, Mr.
Chairman, is--is now the threat of avian diseases. It's a very
compelling Federal interest to stop the interstate and
international movement of birds that could spread Exotic
Newcastle Disease, avian flu. When you're talking about
California with Exotic Newcastle Disease, 200 million Federal
dollars went in to contain this, that would be spilled milk
compared to avian influenza if cockfighting birds spread that
to the United States.
You know, in these fights in Asia that we've seen, one of
the ways that it was spread is that the knife wounds sometimes
are delivered to the lungs of the birds, so the birds lungs
fill with blood, the bird goes down. The handler then picks up
the bird, puts his mouth over the bird's head and sucks the
blood out of the lungs. I can't imagine a more direct pathway
from animal to human in terms of the spread of disease than
putting a bird's head in your mouth and sucking the blood out
of the lungs. This is a--it's dangerous international industry.
Mr. Coble. Dr. Bradley, very quickly, and then it's coming
to Mr. Scott.
Dr. Bradley. Certainly, that's a very good way to transmit
the disease. We also saw in Eastern Turkey, small children who
were so upset that their only pet, their only possession, their
chicken was sick, that they were kissing the chicken. The way
to prevent the spread of disease is to educate, not castigate
or criminalize. We have to educate people how to prevent the
spread of disease.
Mr. Coble. Mr. Pollot, very quickly.
Mr. Pollot. Mr. Chairman, two things. First, I believe it
is a far more efficient use of Federal resources to provide
such things as law enforcement assistant grants to the States
that ban this, rather than finding ways to unofficially ban it.
And I know Mr. Pacelle said that it's not a ban, but in impact
it is.
Secondly, I was also interested in Mr. Pacelle's answer to
Congressman Delahunt's comment earlier about the disease issue,
when his own words were: this is an underground commerce, and
therefore, they're not expected, they're not this, they're not
that, which emphasizes the point that if you do drive it
underground, you are far more likely to end up with a disease
problem than if you recognize it and expose it to the
regulatory universe.
Mr. Coble. I thank the gentleman.
The distinguished gentleman from Virginia, Mr. Scott.
Mr. Scott. Thank you.
Corporal Hunt, I too haven't attended one of these things.
You mentioned the fact that the purse in one of these was
$10,000? What does that mean?
Mr. Hunt. Very simply, there's a contract entered into
between the two fighters, and they will agree upon the purse or
the prize of the outcome of that particular fight.
Traditionally, each fighter will put up half of the purse,
winner take all. So in a $10,000 purse, each dogfighter or each
owner of the fighting dog is putting up $5,000 for that.
Mr. Scott. And how much is bet on the side at one of these
fights?
Mr. Hunt. It can range from the hundreds to the tens of
thousands. As I mentioned, you know, a lot of drug dealers will
be there; a lot of disposable incomes available.
Mr. Scott. Does the operator of this thing--how does he
make money?
Mr. Hunt. Sometimes he may receive a portion of the overall
event.
Mr. Scott. What do you mean a portion of the overall event?
Mr. Hunt. There's typically an admission charged. The right
that I hit, it was $30 to walk in and view the fight. So the
person promoting the event took in all the door proceeds.
Mr. Scott. Do they get any cut of the gambling proceeds?
Mr. Hunt. Sometimes that is possible.
Mr. Scott. And also, you indicated the Department of
Justice officials said they don't prosecute misdemeanors. Did
they make it clear that if it were a felony, they would
prosecute?
Mr. Hunt. I really don't recall that, Congressman. I know
we were dealing with the matter at hand, and I can't recall if
that came up or not.
Mr. Scott. But they would not prosecute because it was just
a misdemeanor.
Mr. Hunt. And again, this was an Assistant U.S. Attorney
who was the duty attorney. I don't know if that was written
policy of their office or not.
Mr. Scott. Dr. Bradley, are you concerned that if these
birds are transported interstate that diseases could in fact
get out of control?
Dr. Bradley. Any time you have bird movement, Congressman,
and birds congregating, there is the risk of disease. We all
experience that when we go to a poultry show or if you have to
have commercial birds going across State lines. That's why it's
important to have the people who own the birds, move the birds,
and receive the birds be educated about signs of disease and
where they can go for assistance.
Mr. Scott. Well, if these are being transported essentially
for illegal purposes, they're not going to--I mean, doesn't
that open you up to things you have no control over if they're
not prosecuted, if they're not deterred from transporting these
birds interstate?
Dr. Bradley. My role is not a regulatory person. I'm an
educator, so I want the ability to work with people who own
chickens, whatever type of chickens they are, so they know
about disease prevention and health maintenance.
Mr. Scott. Mr. Pacelle?
Mr. Pacelle. Dr. Bradley is essentially suggesting that we
have a regulatory program for monitoring the animal fighting
industry, and I don't think the American public is going to
tolerate decriminalizing animal fighting. The trends are in the
opposite direction. More and more States every year are
adopting felony-level penalties not only because they consider
animal fighting a social ill and that it's inhumane and
barbaric, but it's often associated with other criminal
activity. Why are these upstanding citizens suddenly--you know,
who are involved in narcotics traffic, illegal gambling,
violence against people, why are they suddenly going to be, you
know, paying attention to disease issues for their birds? I
mean, we're not going to decriminalize this. We're not going to
see repeals of State laws on dogfighting and cockfighting.
Mr. Scott. Thank you.
Mr. Coble. The gentleman's time has expired.
The distinguished gentleman from Florida, Mr. Feeney, and
we're also glad to have the other distinguished gentleman from
Florida, Mr. Keller, with us. Mr. Feeney?
Mr. Feeney. Mr. Chairman, thank you. I don't have any
questions at this time.
Mr. Coble. Very well. Mr. Keller?
Mr. Keller. Same, Mr. Chairman. No questions.
Mr. Coble. Oh, I thought you had gone, Bill. I didn't see
you. Mr. Delahunt?
Mr. Delahunt. If I could impose upon Mr. Pacelle, I would
request, Mr. Chairman, that those magazines that you held up be
introduced and made part of the record of this particular
hearing.
Mr. Pacelle. Mr. Delahunt, thank you. You know, we will
submit samples of the three aboveground cockfighting magazines
as well as many of the dogfighting magazines, Sporting Dog
Journal, American Pit Bull, Terrier Gazette. These are
appalling magazines, and, frankly, they're used through the
Postal Service to promote illegal animal fighting activities.
And I think that it raises very significant legal questions for
enforcement authorities by promoting this conduct, the
Federal----
Mr. Delahunt. Mr. Chairman, if we can make these magazines
part of the record, I'd request that you have Committee staff
refer these magazines to the Department of Justice for review
to report back to the Committee whether there are any
violations of existing criminal statutes.
Mr. Coble. Without objection, that will be done.
Mr. Delahunt. Thank you.
You know, I am interested in--Mr. Pollot, this organization
you belong to, are you on the board of directors?
Mr. Pollot. No, I'm not a member of the organization.
Mr. Delahunt. Oh, you're not?
Mr. Pollot. No. I represent the organization.
Mr. Delahunt. So you're their counsel?
Mr. Pollot. For some purposes.
Mr. Delahunt. For some purposes.
Mr. Coble. Mr. Delahunt, if you would suspend just a
moment, I thank you all for being here, and once Mr. Delahunt--
--
Mr. Delahunt. It looks like a full house here today.
Mr. Coble. We have a full house, and once Mr. Delahunt
completes his questioning, we will mark up. And if the
panelists would remain, I'd like to visit with you all before
you leave.
Mr. Delahunt. May I have another 10 or 15 minutes of time
for----
Mr. Coble. The gentleman from Massachusetts may continue.
Mr. Delahunt. What have you represented them in, Mister----
Mr. Pollot. We are looking at the constitutionality of the
existing law.
Mr. Delahunt. Okay. You don't disagree with the proposition
that the current legislation is simply an enhancement of the
penalty so that the same constitutional concerns that you
articulate don't change, there is no new legal theory, at least
that I can discern.
Mr. Pollot. Mr. Chairman and Congressman, I hate to sound
like a lawyer, but yes and no. Mr. Pacelle had pointed out
there is a provision here that is not in existing law with
respect to----
Mr. Delahunt. Oh, with respect to the----
Mr. Pollot. With the paraphernalia.
Mr. Delahunt. The knives and the----
Mr. Pollot. Right, and I'd also point out----
Mr. Delahunt. What do you call them, gaffs?
Mr. Pacelle. G-a-f-f-s.
Mr. Pollot. Like a fishing gaff, I believe.
Mr. Delahunt. Fishing gaff?
Mr. Pacelle. Like a curved ice pick.
Mr. Delahunt. What else--what other kind of instruments do
they use in these cockfights?
Mr. Pacelle. There are short knives, there are long knives,
or gaffs. Those are--you use the same implement on both birds
for an even--for an even fight. So, you see----
Mr. Delahunt. That really does sound barbaric, at least in
my opinion, knives, long knives, ice picks. You know, I have to
suggest that--and you were earlier referring to the Commerce
Clause and its implications. I really don't see an issue there.
But then you went on to talk about policy. I would suggest,
respectfully, that the United States Congress has articulated
the Federal Government's policy in terms of the transportation
of these animals for purposes of cockfighting. I mean, I wasn't
here when the law was passed, but I would have supported it.
And it seems rather clear that this is the policy of the
Government of the United States.
Mr. Pollot. Well----
Mr. Delahunt. Other than the constitutional Federal--you
know, federalism arguments that you make.
Mr. Pollot. Congressman, I'm not disputing that this may
well be the policy of the Federal Government, although it's not
uniform with respect to game fowl as opposed to other kinds of
fighting animals. However----
Mr. Delahunt. What other fighting--I'm not really into the
fighting animal subculture----
Mr. Pollot. I understand, Congressman.
Mr. Delahunt. But if you could--what other--just for my
edification.
Mr. Pollot. Well, the reason I raise that is that the law
does not--the Federal policy as it exists does not treat them
the same.
Mr. Delahunt. Is discriminatory against the animal kingdom
as to who we let fight and who we don't let fight.
Mr. Pollot. Yes, but aside from that, the Constitution----
Mr. Delahunt. I doubt, with all due respect, Mr. Pollot,
that that would rise to the level of a constitutional
classification issue based upon the Equal Protection Clause.
Mr. Pollot. I'm not suggesting--I have not raised an Equal
Protection argument at all. I mean, frankly, animals don't have
equal protection rights, and Congress is certainly free to
choose. My point--I pointed that out only to recognize that the
policy is there, but it is not uniform across the statute. The
issues I raise are federalism----
Mr. Delahunt. Well, how is it not uniform across the
statute? Because there are other----
Mr. Pollot. Certain types of activities are totally banned.
Certain types are not.
Mr. Delahunt. Like--give me an example?
Mr. Pollot. Dogfighting is, cockfighting is not.
Mr. Delahunt. Okay. What other--like I said, I'm brand new
to this subculture, so if we--what other animals do we--or they
pay to see fight?
Mr. Pacelle. Well, it's dogs for fighting, and then we
spoke earlier before you arrived, Congressman, hogs are
released, have their tusks removed and pit bulls are sicced
upon them to tear them up.
Mr. Pollot. Also bears, if I recall correctly. I did want
to----
Mr. Delahunt. I thank you, Mr. Pollot. I would just
conclude by saying, you know, I really find that all just
barbaric, disgusting, and unacceptable in a civilized society,
and with that I yield back.
Mr. Coble. I thank the gentleman.
Folks, I would like for you all--if you all can, I'd like
to visit with you after we adjourn. I thank the witnesses for
their testimony. The Subcommittee very much appreciates this.
In order to ensure a full record and adequate consideration of
this important issue, the record will be left open for
additional submissions for 7 days.
Also, any written questions that a Member wants to submit
to any of the witnesses must be submitted within the same 7-day
period.
This concludes the legislative hearing on H.R. 817, the
``Animal Fighting Prohibition Enforcement Act of 2005.'' Again,
we thank those in the audience as well as the panelists, and if
you all could, without undue inconvenience, I would like to
visit with you four very briefly after we conclude our markup.
The hearing stands adjourned.
[Whereupon, at 1:33 p.m., the Subcommittee proceeded to
other business.]
A P P E N D I X
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Material Submitted for the Hearing Record
Prepared Statement of the Honorable Mike Pence, a Representative in
Congress from the State of Indiana
__________
Written Supplement to Testimony of Mark L. Pollot
__________
Prepared Statement of W. Ripley Forbes, Director of Government Affairs,
American Humane Society
__________
Letter from Kurt P. Henjes, Assistant General Counsel for
GlaxoSmithKline, to the Honorable Howard Coble
__________
Statement from the American Veterinary Medical Association in support
of H.R. 817