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Court of Appeal:
City Can’t Be Forced to Prosecute Ritual Chicken-Killings
Freedom-of Religion Concerns Defeat Action Based on Decision Not to Enforce 1873 Penal Code Section Against Hebrew Center in Woodland Hills, Opinion Says, Rejecting Abuse-of-Discretion Contention
By a MetNews Staff Writer
The City of Los Angeles does not abuse its discretion in declining to enforce a law against killing animals in response to the slaying of chickens during a religious ritual, Div. Four of the Court of Appeal for this district has held.
Monday’s unpublished opinion affirms a judgment of dismissal by Los Angeles Superior Court Judge Robert B. Broadbelt of an action brought by Lisa Karlan and two other animal rights activists. The judgment was predicated, in part, on Los Angeles Superior Court Judge Mary H. Strobel’s earlier sustaining of a demurrer, without leave to amend, to a cause of action seeking writ relief.
The lawsuit stemmed from the performance of an ancient ritual, known as “Kapparot,” by Orthodox Jews at the Hebrew Discovery Center on Ventura Boulevard in Woodland Hills on Sept. 27, 2017. The custom, entailing a ceremonial transfer of humans’ sins to the chickens—traditionally taking place on the day before Yom Kippur—is now rarely followed.
Animal-Cruelty Statute
Los Angeles police officers declined to make arrests under Penal Code §597(a), which harks to 1873, providing that “every person who…maliciously and intentionally kills an animal, is guilty of a crime.”
The birds’ carcasses were discarded rather than the chickens being used as food, which would have negated malice.
Karlan wanted to make a citizen’s arrest but, it is alleged, then-Captain Paul Vernon (now retired) declined to facilitate her request and instead threatened to arrest Karlan and other protesters if they used an amplifying device or a projector. The appellants asserted in their opening brief on appeal that Vernon did allow the center “to blare loud music to drown out the shrieking of the chickens and the message of Appellants.”
The appellants and the respondent city agreed that no mandatory ministerial duty, enforceable in a writ proceeding, was implicated, that a court may not order a governmental entity to exercise its discretion in a particular way, and that the issue was whether the city had abused its discretion.
Appellants’ Argument
Karlan and her co-plaintiffs/appellants argued:
“Under the law, there is no First Amendment protection for religious animal sacrifice. Yet, in making enforcement decisions, Respondents were exercising their discretion in a manner that carved out a religion-based exception to the law.
“Because Respondents’ misinterpretation of the law constituted an abuse of discretion, Appellants sought a writ of mandate to correct that abuse of discretion.”
City’s Stance
The city set forth in its brief:
“The City has declined to enforce Section 597 against Kapparot due to concerns that if it did, Kapparot practitioners might invoke their free exercise rights under the state and federal Constitutions as a defense to enforcement, or as the basis for civil rights claims against the City. The City is ready, however, to protect the chickens used for Kapparot by enforcing Section 597 against reported cruelty before or after the ritual.”
It contended:
“The City’s free exercise concerns—which reasonable minds may share—are precisely the type of complex law-enforcement consideration entrusted to the City’s discretion. In deference to the separation of powers, this Court should affirm the trial court’s dismissal of Appellants’ petition for a writ that would commandeer the City’s discretion.”
Mori’s Opinion
Justice Audra Mori said in Monday’s opinion:
“When determining whether the City abused its discretion, we may not substitute our judgment for the City….We may interfere in the City’s actions only if there is an abuse of discretion ‘as a matter of law.’…
“Appellants here fail to demonstrate how the City acted unreasonably and arbitrarily.”
Mori turned against the appellants an argument they made in the trial court. They said, below:
“The point of this lawsuit is to obtain a ruling that purported First Amendment protections for religious animal sacrifice are nonexistent, and no exception to neutral laws of general applicability is required by the First Amendment for otherwise illegal conduct just because it is motivated by religion....”
The justice declared:
“Appellants’ pursuit of a definitive ruling means the issue remained unsettled at the time the City made its choice not to enforce the law.”
She added:
“Appellants have furnished no case, and we are aware of none, upholding the constitutional application of Penal Code section 597 against Kapparot rituals or mandating the enforcement of any criminal law against it. Absent any prior determination, we find nothing arbitrary or unreasonable in the City’s own decision on the issue following advice of counsel, and recognizing the potential for litigation by Kapparot practitioners if it were to enforce Penal Code section 597 against them.”
Vernon’s Conduct
Among other issues on appeal was whether the city was liable based on Vernon’s conduct in threatening the arrest of the protestors and the confiscation of their electronic equipment if they were to use it. The plaintiffs invoked the Bane Act, which provides a cause of action for interfering with the exercise of rights “by threat, intimidation, or coercion” and the Ralph Act which proclaims “the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property because of political affiliation.”
Mori said those acts “require threats of violence” and pointed out:
“The operative complaint in this case alleged Captain Vernon violated appellants’ rights to free speech and political affiliation by threatening to arrest them and confiscate a projector. Appellants identify no allegation in which Captain Vernon threatened them with violence beyond his threats of arrest. Without more, appellants have failed to plead sufficient facts to establish violations under the Bane and Ralph Act.”
The case is Karlan v. City of Los Angeles, B315168.
Earlier Decision
Although the incident giving rise to the judgment that was the subject of the appeal acted upon on Monday occurred in 2017, a later encounter at the Hebrew Discovery Center, on Sept. 16, 2018, spawned an appeal by the activists’ organization that came to be decided earlier—on Dec. 13, 2021—in Animal Protection and Rescue League v. City of Los Angeles. That opinion by Div. Four affirming a judgment of dismissal was also not certified for publication.
There, on more limited facts, it was held:
“Plaintiffs allege no facts to support the creation or adoption of a policy by the City to create a religious exception to section 597(a). Specifically, there is no allegation explaining how the City created such an exception, such as in a legal memorandum, ordinance, or legal advice given at a public meeting.”
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