North Carolina’s ‘civil’ approach to ‘ag gag’ getting federal review

PETA v. Joshua H. Stein, the North Carolina case involving a civil statute, is supposed to wrap up its discovery phase this month.

The case over the Tar Heel state’s 4-year-old Property Protection Act was sent back to the U.S. Distict Court for the Middle District of North Carolina this past December by the 4th U.S. Circuit Court of Appeals.

At that time, Judge Thomas D. Schroeder granted the defense motion to dismiss three counts of the amended complaints that it said violated the 11th Amendment to the U.S. Constitution. But two other federal constitutional claims will be heard by the District Court.

The People for the Ethical Treatment of Animals (PETA), the Center for Food Safety, the Animal Legal Defense Fund, Farm Sanctuary, Food & Water Watch, Government Accountability Project, Farm Forward, and the American Society for the Prevention of Cruelty to Animals are plaintiff’s in the case against North Carolina Attorney General Joshua H. Stein and University of North Carolina Chancellor Carol Folt.

The civil dispute is over the Property Projection Act passed over former N.C. Governor Pat McCrory’s veto in 2015. Interest has continued the long-running federal case because while many view it as a so-called “ag-gag” statute, it does not involve criminal law.

Many of the activists groups on the plaintiffs’ side of this case have been successful in getting federal courts to strike down other state’s “ag gag” laws that were intended to impose criminal penalties on offenders.

North Carolina, however, took a different tact by using its civil law powers to obtain much the same objectives. And while the North Carolina law did not initially meet the definition animal activists used for an “ag-gag” law, they’ve been aggressive in their opposition to the measure.

The Property Protection Act went into effect on Jan. 1, 2016. It provides for “civil remedies for interference with property.” It establishes a new civil “right of action” for the owner or person in lawful possession of a property if that property is wrongfully taken or “carried away.”

The target of the recovery may be any person who enters the non-public area of another’s premises, including an employee who captures or removes data, paper records or documents and then uses the information to beach the person’s “loyalty to the employer.”

The same liability falls on the employee for collecting images or sounds or electronic surveillance in the non-public areas. Under the law, employers could seek up to $5,000 per day for every day that violations continue.

“Ag-gag” laws that were already struck down imposed jail time and fines under state criminals law to achieve their means. Stein is the second North Carolina attorney general to defend the case. He took over for Jan. 1, 2017, for Roy Cooper, who became governor. Both are Democrats.