Bill of Attainder Case Summary

Case Name: 30 barn owls confined at Johns Hopkins University, by and through their next friends, People for the Ethical Treatment of Animals, Inc., Martin Wasserman, Lana Weidgenant, and Evanna Lynch v. Vilsack, et al.
Index Number: 1:21-cv-00968-TSC
Court: U.S. District Court for the District of Columbia

In April 2021, PETA Foundation lawyers and local counsel filed a first-of-its-kind lawsuit in the United States District Court for the District of Columbia against U.S. Department of Agriculture Secretary Tom Vilsack and Animal and Plant Health Inspection Service Administrator Kevin Shea on behalf of 30 barn owls being used in deadly brain experiments at Johns Hopkins University (JHU). The lawsuit alleged that the taxpayer-funded tests were allowed because of an unconstitutional law and should never have been permitted under the federal Animal Welfare Act (AWA). PETA participated in the lawsuit as one of a number of “next friends” to the barn owls and was joined by Evanna Lynch, an award-winning animal welfare activist and actor who starred in the Harry Potter film franchise; Martin Wasserman, M.D., a former Maryland secretary of health and mental hygiene; and Lana Weidgenant, an animal rights and climate justice activist who was then a senior at JHU.

A Novel Lawsuit Takes Shape Under the Bill of Attainder Clause

The lawsuit took aim at the Helms Amendment to the AWA, which was drafted by notorious civil rights opponent Sen. Jesse Helms in 2002. The Helms Amendment excludes birds, rats, and mice used in experiments from the same minimal protections afforded to other species under the AWA.

The lawsuit was premised on the argument that because the absence of federal protections meant that the barn owls had no protection from being killed at the end of the torturous experiments, the Helms Amendment acts as their death sentence. Because of the Helms Amendment, student experimenters—whose trial and error during invasive procedures on the owls are chalked up to being part of the “learning process”—could operate on the birds without having to adhere to the protections guaranteed by the AWA. Likewise, during these tests, experimenters could insert electrodes into the birds’ heads and restrain them so that they couldn’t move. The owls could then be bombarded with jarring sounds and images. When their brains were damaged beyond use, the birds could be killed regardless of whether doing so would be “humane” under the AWA.

As PETA’s lawsuit pointed out, the U.S. Constitution explicitly prohibits congressionally imposed death sentences via the Bill of Attainder Clause. Helms reinforced that the goal of his amendment was to impose an unconstitutional death sentence during a sarcastic speech on the Senate floor in which he urged his fellow senators to “deliver a richly deserved rebuke” to the “so-called ‘animal rights’ crowd” and compared the animals he singled out to “food for reptiles” who merit “extermination.”

The lawsuit asked for the Helms Amendment to be abolished and for the federal government to require rigorous inspections and humane treatment of the owls in JHU’s laboratory—and the tens of millions of other birds, mice, and additional unfairly exempted animals used in laboratories across the country.

Parties File Briefs After a Motion to Dismiss

In August 2021, PETA Foundation counsel filed a more than 13,000-word brief in the district court in response to the federal government’s motion to dismiss the lawsuit. The brief explained that these barn owls presented a logical case for application of the Bill of Attainder Clause.

The barn owls—unlike corporations that challenge alleged bills of attainder that may deny them access to regulatory benefits or subsidies—would be killed. And according to precedent—both case law and evidence cited from the Constitutional Convention—the “starting point” in deciding whether an act inflicts punishment under the Bill of Attainder Clause is whether it inflicts classic forms of punishment, such as imprisonment or death. Additional precedent counseled that laws like the Helms Amendment are paradigmatic bills of attainder because they create “easily ascertainable” groups based on immutable characteristics providing “no escape” to members. Other precedent observed that bill of attainder protections are particularly salient in the context of vulnerable groups.

Recognizing the implications of the lawsuit, JHU and various animal experimentation trade groups filed a rare amicus brief with the district court. In their brief, amici tried to defend the meager non-AWA guidelines that govern experiments. This gave PETA Foundation lawyers the opportunity to argue that alternative guidelines published by the National Institutes of Health and voluntary accreditation depend on self-evaluation and impose no legal consequences for failure to comply.

The court dismissed the lawsuit in February 2022 for “lack of standing,” deciding that nonhuman animals aren’t considered “persons” and opining that PETA and others therefore don’t have “next friend” standing.

PETA Foundation Lawyers Continue Working to Save the Barn Owls

PETA Foundation lawyers also pursued administrative attempts to rescue these owls. Under Maryland law, experimenters needed a “scientific collecting” permit to possess, use, and kill the owls. PETA eventually determined that experimenters lacked these permits between 2015 and 2018 and that the permits they did have subsequently didn’t grant permission for owls to be killed—seemingly making these experiments illegal. Months of back and forth with the Maryland Department of Natural Resources resulted in a brief period in spring 2022 in which the permits were revoked. PETA is still fighting to have action taken over the fact that these experiments were apparently conducted illegally for years. A June 2022 PETA complaint still hasn’t been acted upon, and federal grants funding the experiments were recently renewed.