U.S. Ninth Circuit Court of Appeals upholds 2008 California anti-downer law

From ANIMAL PEOPLE, April 2010:


SAN FRANCISCO–The U.S. Court of Appeals for the Ninth
Circuit on March 31, 2010 upheld both California legislation
prohibiting the slaughter of downed livestock and the principle that
states may enforce livestock handling and slaughter standards more
stringent than those required by federal law.
Introduced by assembly member Paul Krekorian (D-Burbank) at
request of the Humane Farming Association, the California law made a
misdemeanor of buying, selling, processing, or butchering a
non-ambulatory animal for human consumption. Downed animals must
instead be euthanized.

The law stipulates that, “While in transit or on the
premises of a stockyard, auction, market agency, dealer, or
slaughterhouse, a nonambulatory animal may not be dragged at any
time, or pushed with equipment at any time, but shall be moved with
a sling or on a stoneboat or other sled-like or wheeled conveyance.”
Summarized U.S. Court of Appeals chief judge Alex Kozinski,
who authored the March 31 verdict for a three-judge panel, “On
January 30, 2008, the Humane Society of the United States released
a video depicting images of nonambulatory cows-unable to stand or
walk-being kicked, electrocuted, dragged with chains and rammed
with forklifts” at the Westland/ Hallmark slaughterhouse in Chino,
California. “Health professionals warned that meat from these
‘downer’ cows was more likely to be diseased,” Kozinski wrote. “The
video triggered the largest beef recall in U.S. history.”
Endorsed by California governor Arnold Schwarznegger in July
2008, the California anti-downer law was to take effect on January
1, 2009. Some pig producers and pig slaughterhouse owners contended
that the law would prevent the slaughter of 2.5% of the pigs they
receive. Suing on their behalf, the National Meat Association won
an injunction from U.S. District Judge Lawrence J. O’Neill that kept
the law from taking effect. O’Neill agreed that the California law
is preempted by the Federal Meat Inspection Act.
Reversing O’Neill, Kozinski noted that federal jurisprudence
includes “a strong presumption against preemption,” except when a
law specifically says that it pre-empts state law. This is
especially true, Kozinski wrote, of “matters like health and animal
welfare, which have historically been regulated by states.”
Further, Kozinski wrote, “Two circuits have held that the
Federal Meat Inspect-ion Act doesn’t preempt state laws.” Kozinski
cited the appellate verdicts that in 2007 upheld the Texas and
Illinois bans on horse slaughter.
Concluded Kozinski, “In effect, the district court reasoned
that states may ban the slaughter of certain species,” as the Texas
and Illinois rulings affirmed, “but once a state allows a species to
be slaughtered, it cannot impose further restrictions. Hogwash.
California’s prohibition of the slaughter of nonambulatory animals
does not duplicate federal procedures; it withdraws from slaughter
animals who are unable to walk to their death.”
Kozinski agreed with O’Neill that the National Meat
Association “is likely to succeed on its preemption claim” against
the humane handling provision of the California law, but that alone
would not be enough to void the law, since “it hasn’t shown a
likelihood of irreparable injury or that the balance of the equities
and the public interest tip in its favor for this provision. The
district court therefore abused its discretion in granting a
preliminary injunction,” Kozinski finished, “and the injunction is
hereby vacated.”
Said Humane Farming Association founder Brad Miller, “The
Appeals Court agreed with us on every point. In other words, the
nation’s first comprehensive ban on the transport and butchering of
downed pigs and other farm animals remains intact.
“The battle is likely to continue back in the lower court,”
Miller acknowledged, since the National Meat Association is expected
to try again to overturn the humane handling provision that Kozinski
found vulnerable, “but this is a good indicator,” Miller said, “of
how things will go if and when we need to appeal any future bad

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