About Me

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I am a consultant and general counsel to International Ride Training LLC as well as a practicing attorney in Avon, Connecticut. A particular focus of mine is the legal needs of the amusement and tourism industry. My focus on the amusement industry derives from my pre-law career as an operations manager with Cedar Fair Entertainment Company and Universal Orlando. Having started my career as a ride operator at Cedar Point in 1992, I progressed through the seasonal ranks and ultimately became the Manager of Ride Operations and Park Services at Worlds of Fun in Kansas City. I also worked in Universal's operations department during the construction and development of Islands of Adventure. Today, I am an active member of the New England Association of Amusement Parks & Attractions and the International Association of Amusement Parks & Attractions. I have been invited to speak at amusement industry meetings and seminars and have worked on a variety of matters relating to this industry.

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Wednesday, February 8, 2012

PETA’s Frivolous Suit Against SeaWorld Alleging Orca Slavery: It Doesn’t Get Much More Black and White Than This (UPDATED 2/9/12)

On Monday, a federal magistrate judge heard argument on whether to dismiss a relatively recent lawsuit brought against SeaWorld by People for the Ethical Treatment of Animals (“PETA”) that raises an unprecedented and patently frivolous claim – even for an organization known for taking some pretty unreasonable positions.  The lawsuit is captioned Tilikum v. SeaWorld Parks & Entertainment, Inc. and it is pending in the U.S. District Court for the Southern District of California before Magistrate Judge William McCurine, Jr..  Now, I suspect many of you who read my blog (and thus, presumably have an interest in the amusement industry) will immediately recognize the named plaintiff despite the fact that he is not, in fact, a human being.  Tilikum is an orca – the very orca that killed SeaWorld trainer Dawn Brancheau last year after a performance at SeaWorld in Orlando.  Tilikum and four other orcas, speaking (not surprisingly) through actual human beings (a procedure that I won’t get into in this article), “claim” that they are being held against their will and subjected to slavery and involuntary servitude in violation of the 13th Amendment to the United States.  The basis of such a claim?  The 13th Amendment never specifically says that it only applies to “people” so, naturally, it must also apply to orcas.  The breadth of the Plaintiffs’ argument is as utterly astounding as it is facially foolhardy and frivolous.  This is the very definition of a lawsuit brought for no other purpose than to bring publicity to the plaintiff and to harass SeaWorld.   

Of course, the fundamental problem with PETA’s lawsuit is so simple and straightforward that it should go without saying:  animals are not people.  People (more particularly, people in the United States) have Constitutional rights.  Animals (even those living in the United States) have no Constitutional rights.  When my dog leaves me a little “present” on the living room floor, I am not infringing his right to free expression by swatting him with a newspaper.  A flock of birds flying south for the winter is not exercising a constitutional right to assemble peaceably.  And I certainly would not expect that a chimpanzee in a zoo has the right to take up arms as part of an animal-organized militia.  Even so, PETA’s lawsuit says that since no one, anywhere, at any time, has ever asked any court, state or federal, whether the 13th Amendment applies to orcas, that whether it does or not is an unsettled legal question.  In the famous words of Seth Myers and Amy Pohler ... REALLY?

Is it an unsettled legal question that a cat is not a dog?  Is it an unsettled legal question that the earth is round?  Is it an unsettled legal question that my name is Erik?  I’m willing to bet there’s no case law on any of those issues ... but they are not reasonable arguments to make in court.  Everyone knows a cat is a not a dog.  The spherical nature of the planet has been accepted now for a long time.  There is no reasonable dispute about my name.  But, PETA seems to be saying:  anything that has not been tested in Court should be up for debate.  Not so.   There are certain issues that are so clearly not up for debate, that they have no place in Court.  The fact that everyone except you recognizes this does not mean that it is an unsettled legal issue – it means that you are taking a patently unreasonable position that wastes the court’s time and just serves to harass the defendant you have sued.     

Why has no court ever addressed the issue of whether the 13th Amendments prohibition on slavery reaches animals generally or orcas specifically?  I can assure it is not, as PETA claims, because this is innovative thinking or a natural progression of constitutional rights.  It is because the rest of the world realizes that animals – even intelligent animals like orcas and dolphins (watch – I’m going to get emails accusing me of being insensitive to less intelligent animals now) – are not people.  Nor are they “people-like” such that it would be appropriate even to consider granting them the rights people have.  They do not have the cognitive ability to make reasoned decisions about what is right and wrong, to self-regulate their behavior to function as part of a homogenous society (and I’m talking about more than just living with other whales), or to be held liable for their actions.  This is an especially pertinent point considering that, if orcas were entitled to the same “rights” as people, they would also be subject to the same liabilities.  If Tilikum is entitled to the same freedom as humans, shouldn’t Tilikum also be liable for killing Dawn Brancheau just like a human would be? 

Now, while I have no idea how PETA gets around the argument that with great freedom comes great responsibility (to paraphrase Spiderman), PETA’s answer to criticism over orca-intellect would probably be something akin to what the whales have alleged in their complaint (never thought I would write that phrase).  They point to whale studies that show group interaction, some form of communication between the whales, familial structure, and other signs of intelligence.  And I doubt anyone disputes that those things exist, but that still does not make whales people or “people-like”.  That still does not mean that they are imbued with the cognition necessary to enter into a social contract entitling them to fundamental rights.  How do I know?  Well, if I am to be honest, I guess I don’t.  But here is what I do know.  There are only two ways this could go:  1)  orcas, while very intelligent among animals, still lack the cognitive capacity necessary to have “rights” like people, or 2) orcas are actually so much more intelligent than any of us (anyone ever read “So Long and Thanks For All The Fish” or seen Star Trek IV?) that we are incapable of comprehending them.  If the latter were true, one would think they would have either figured out a way to dumb it down by now so they could communicate with us lesser life forms or simply conquered and enslaved us as (according to PETA) we have apparently done to them.  Since the latter hasn’t happened, I’m left assuming that the former is probably true. 

I am all in favor of advocacy for a cause.  It is, in fact, how I make my living.  But I am not in favor of advocating a frivolous position that taxes the time and energy of a federal court and detracts from making decisions that will affect the rights of actual people.  And that is what is happening here.  If PETA wants to bring a lawsuit claiming that SeaWorld or some other organization mistreats animals under the various state laws governing such things – go ahead.  The fact that PETA has not done that here is pretty telling as to the strength of such a lawsuit, but at least that would be a legally reasonable argument.  But here, this argument is, in my opinion, frivolous.  It should not have been brought.  PETA, a sophisticated organization with vast experience in legal matters, should have known better.  Matthew Strugar, PETA’s lawyer, who drafted and filed this lawsuit, definitely should have known better.  One only hopes that the Judge McCurine will know better, see this for what it is, and dispose of it quickly so that the really important work can get done.

UPDATE 2/9/12:  Less than a week after hearing arguments, the Federal District Court has dismissed PETA's case against SeaWorld holding that "the only reasonable interpretation of the Thirteenth Amendment's plain language is that it applies to persons, and not to non-persons such as orcas."  I haven't had a chance to read the opinion yet, but this is plainly the best result.  Read more about the ruling here.


  1. This article oozes bias.

  2. It is an opinion piece, so I would expect that it would "ooze bias." The fact that you have noticed this is validation that I've done what I set out to do.

  3. In my own honest opinion, even though I heard about this just recently(within the past few months), I do believe that this lawsuit is pointless. While I am more on the side of agreeing with advocates such as PETA, some of their actions are really ridiculous and don't make common sense, even to someone such as me who has little(I've read the Constitution a few times as well as some other legal documents, decisions, etc. It's not hard to do, the real trick is interpretation of the Constitution and other such legal documents and decisions) to no legal training. The director of the Non-Human Rights Project--an interesting group of people, I find it fascinating to read about them--whom have been planning slightly similar legal actions such as this for many years--they're trying to do it with the writ of habeus corpus--has said that this lawsuit was doomed from the beginning. In truth, it's this lawsuit that has hurt the Non-Human Rights Project chance of success in the state of California in pursuing writs of habeus corpus.

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