Petition for Writ of Certiorari — The Alliance to End Chickens as Kaporos, et al., Petitioners v. New York City Police Department, et al.

No. ______

In the

Supreme Court of the United States

__________________

THE ALLIANCE TO END CHICKENS AS KAPOROS, ET AL.,

Petitioners,

v.

THE NEW YORK CITY POLICE DEPARTMENT, ET AL.,

Respondents.

__________________

On Petition for Writ of Certiorari to the

State of New York Court of Appeals

__________________

PETITION FOR WRIT OF CERTIORARI

__________________

Nora Constance Marino

Counsel of Record

175 East Shore Road

Suite 230

Great Neck, NY 11023

516-829-8399

516-829-4699 (fax)

nora@marinojustice.com

Counsel for Petitioners

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

QUESTIONS PRESENTED

1. Can the New York State Judicial Branch refuse

to issue a writ of mandamus when the executive branch

defies the legislative branch;

2. Can the New York State Judicial Branch give

the Executive Branch fact finding powers;

3. Can the New York State Judicial Branch defy

the legislative branch and assume power it does not

have, by in effect rewriting a clearly written statute

that is unambiguous, by way of its failure to issue a

writ of mandamus;

4. Can the New York State Judicial Branch blur

the lines that govern separation of powers;

5. Can the New York State Judicial Branch allow

violations of the Establishment Clause.

ii

PARTIES TO THE PROCEEDINGS AND

CORPORATE DISCLOSURE STATEMENT

Petitioners, Plaintiffs-Appellants below, are The

Alliance to End Chickens as Kaporos, Rina Deych,

individually, and Rina Deych, as member of The

Alliance to End Chickens as Kaporos, Lisa Renz,

individually and Lisa Renz, as member of The Alliance

to End Chickens as Kaporos, Michal Arieh, Joy Askew,

Aleksandra Sasha Bromberg, Steven Dawson, Vanessa

Dawson, Rachel Dent, Julian Deych, Dina Dicenso,

Frances Emeric, Krystle Kaplan, Cynthia King,

Mordechai Lerer, Christopher Mark Moss, David

Rosenfeld, Keith Sanders, Lucy Sarni, Louise Silnik,

Daniel Tudor.

Petitioners are a not-for-profit organization and

individuals.

Respondents, Defendants-Respondents below, are

The New York City Police Department, Commissioner

William Bratton, in his official Capacity as

Commissioner of the New York City Police

Department, The City of New York, New York City

Department of Health and Mental Hygiene.

Central Yeshiva Tomchei Tmimim Lubavitz, Inc.,

Shlomie Zarchi, Abraham Rosenfeld, National

Committee for the Furtherance of Jewish Education

and Affiliates, Rabbi Shea Hecht, Rabbi Shalom Ber

Hecht, Rabbi Shloma L. Abromovitz, Yeshiva of

Machzikai Hadas, Inc., Martin Gold, Congregation Beis

Kosov Miriam Landynski, Lmm Group, LLC., Isaac

Deutch, Lev Tov Challenge, Inc., Anthony Berkowitz,

Yeshiva Sheareth Hapletah Sanz Bnei Berek Institute,

iii

Mor Markowitz, Nellie Markowitz, and Bobover

Yeshiva Bnei Zion, Inc. d/b/a Kedushat Zion, Rabbi

Heshie Dembitzer were Defendants below, but no

appeal on any level took place regarding the issues

involving these parties.

iv

TABLE OF CONTENTS

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . i

PARTIES TO THE PROCEEDINGS AND

CORPORATE DISCLOSURE STATEMENT . . . ii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . vi

OPINIONS BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

CONSTITUTIONAL

AND

STATUTORY

PROVISIONS INVOLVED. . . . . . . . . . . . . . . . . . 1

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . 2

A. AFFIDAVIT OF DR. McCABE . . . . . . . . . . . . 5

B. DR. HYNES AFFIDAVIT . . . . . . . . . . . . . . . . 7

BASIC PROCEDURAL HISTORY . . . . . . . . . . . . . . 8

LAWS VIOLATED BY KAPOROS . . . . . . . . . . . . . . 9

A. THE ANIMAL CRUELTY STATUTE . . . . . 15

B. THE HEALTH CODES . . . . . . . . . . . . . . . . . 18

MANDAMUS WAS AND IS WARRANTED . . . . . . 19

REASONS FOR GRANTING THE PETITION . . . 22

A. THE VIOLATION OF THE SEPARATION

OF POWERS . . . . . . . . . . . . . . . . . . . . . . . . . 23

B. CASTLE ROCK IS DISTINGUISHABLE . . 25

v

C. THE RUSE OF DISCRETION . . . . . . . . . . . 28

D. ESTABLISHMENT CLAUSE. . . . . . . . . . . . 31

E. THE SUBJECT DECISIONS CONFLICT

WITH PAST USSC DECISIONS . . . . . . . . . 33

F. FREEDOM OF RELIGION IS NOT AN

ISSUE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

APPENDIX

Appendix A Memorandum in the State of New

York Court of Appeals

(November 14, 2018) . . . . . . . . . . . App. 1

Appendix B Opinion and Order in the New York

Supreme Court, Appellate Division,

First Department

(June 6, 2017) . . . . . . . . . . . . . . . . App. 5

Appendix C Decision and Order in the Supreme

Court of the State of New York

(September 14, 2015) . . . . . . . . . App. 29

vi

TABLE OF AUTHORITIES

CASES

Board of Ed. Of Kiryas Joel Village School District

v. Grumet,

512 U.S. 687 (1994). . . . . . . . . . . . . . . . . . . . . . . 34

Boung Jae Jang v. Brown,

161 A.D.2d 49 (N.Y. App. Div. 1990) . . . . . . 29, 30

Burton v. Wilmington Parking Auth.,

365 U.S. 715 (1961). . . . . . . . . . . . . . . . . . . . . . . 29

Chicago v. Morales,

527 U.S. 41 (1999). . . . . . . . . . . . . . . . . . . . . . . . 26

Cottonreader v. Johnson,

252 F.Supp. 492 (M.D. Ala. 1966) . . . . . . . . . . . 29

County of Allegheny v. ACLU,

492 U.S. 573 (1989). . . . . . . . . . . . . . . . . . . . . . . 32

Davis v. Beason,

133 U.S. 333, 10 S. Ct. 299, 33 L. Ed. 637 (1890)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Donaldson v. Seattle,

65 Wash.App. 661 (1992) . . . . . . . . . . . . . . . . . . 27

Employment Div., Dep’t of Human Res. of Oregon v.

Smith, 494 U.S. 872, 110 S. Ct. 1595, 108 L. Ed.

2d 876 (1990). . . . . . . . . . . . . . . . . . . . . . 33, 34, 37

Gillette v. United States,

401 U.S. 437 (1971). . . . . . . . . . . . . . . . . . . . 31, 34

vii

Hammer v. Am.Kennel Club,

1 NY3d 294 (2003) . . . . . . . . . . . . . . . . . . . . . . . 17

Jimmy Swaggart Ministries v. Board of

Equalization,

493 U.S. 378 (1990). . . . . . . . . . . . . . . . . . . . . . . 31

Joy Builders, Inc. v. Ballard,

20 A.D.3d 534 (2d Dept 2005) . . . . . . . . . . . . . . 21

Klostermann v. Cuomo,

61 N.Y.2d 525, 463 N.E.2d 588 (1984) . . 19, 20, 30

Korn v. Gulotta,

72 N.Y.2d 363 (1988) . . . . . . . . . . . . . . . . . . . . . 30

Larson v. Valente,

456 U.S. 228 (1982). . . . . . . . . . . . . . . . . . . . . . . 34

Lukumi Babalu Aye, Inc. v. City of Hialeah,

508 U.S. 520 (1993). . . . . . . . . . . . . . . . . 35, 36, 37

Matter of Barhite v. Town of DeWitt,

144 A.D.3d 1645 (4th Dept 2016) . . . . . . . . . . . . 22

Matter of Flosar Realty LLC v. New York City Hous.

Auth.,

127 A.D.3d 147 (1st Dept 2015) . . . . . . . . . . . . . 21

New Alliance Party v. Dinkins,

743 F.Supp. 1055 (S.D.N.Y. 1990) . . . . . . . . . . . 29

New York City Coalition to End Lead Poisoning v.

Koch, 138 Misc. 2d 188 (Sup. Ct. N. Y. Co. 1987)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 20, 24

North v. Foley,

238 A.D. 731 (3d Dept 1933) . . . . . . . . . . . . . . . 21

viii

Olivieri v. Ward,

801 F.2d 602 (2nd Cir. 1986) . . . . . . . . . . . . . . . 29

People v. Arroyo,

3 Misc.3d 668 (2004) . . . . . . . . . . . . . . . . . . . . . . 17

People v. Beattie,

96 A.D.383 (1904) . . . . . . . . . . . . . . . . . . . . . . . . 17

People ex rel. Freel v. Downs,

136 N.Y.S. 440 (1911) . . . . . . . . . . . . . . . . . . . . . 17

People v. Volker,

172 Misc.2d 564 (1997) . . . . . . . . . . . . . . . . . . . . 17

Reynolds v. United States,

98 U.S. 145, 25 L. Ed. 244 (1878). . . . . . 33, 34, 37

Robinson v. Lioi,

536 F. App’x 340 (4th Cir. 2013) . . . . . . . . . . . . 27

Romer v. Evans,

517 U.S. 620, 116 S. Ct. 1620, 134 L. Ed. 2d 855

(1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Town of Castle Rock v. Gonzales,

545 U.S. 748 (2005). . . . . . . . . . . . . . 25, 26, 27, 28

Turczyn v. City of Utica,

No. 6:13-CV-1357 GLS/ATB, 2014

WL 6685476 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Williams-Yulee v. Florida Bar,

135 S. Ct. 1656 (2015). . . . . . . . . . . . . . . . . . . . . 36

ix

STATUTES AND REGULATORY MATERIAL

28 U.S.C. § 1257 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

CRR-NY 45.4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

NYC Administrative Code §18-112(d) . . . . . . . . . . . 14

New York’s Agriculture and Markets Law, Article 26

§350 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

§350(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 16, 23

§353 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 17

§353-a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 24

§355 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

§359 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

§371 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

New York Agriculture and Markets Law, Article 5-A,

§96-a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

§96-b(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

§96-b(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

New York City Charter, Chapter 22

§435(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 18

§558(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

N.Y.C. Department of Sanitation Rules and

Regulations, §16-118(6) . . . . . . . . . . . . . . . . . . . 15

x

NYC Health Code

§153.09 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

§153.21(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

§161.09 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

§161.11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

§161.19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

§161.19(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

§173.13(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

N.Y.S. Labor Law §133(2)(o) . . . . . . . . . . . . . . . . . . 14

New York City Street Activity Permit Office,

http://www1.nyc.gov/site/cecm/about/sapo.page 15

24 RCNY §161.03(a). . . . . . . . . . . . . . . . . . . . . . . . . 15

OTHER AUTHORITIES

http://www1.nyc.gov/assets/cecm/downloads/pdf/N

YC_CECM_Comprehensive_Event_Permitting

_Guide_2018%20FINAL.pdf. . . . . . . . . . . . . . . . 32

New York City’s Street Activity Permit Office,

http://www1.nyc.gov/site/cecm/about/sapo.page 32

1

OPINIONS BELOW

The lower court opinions are attached hereto. They

are from New York State Supreme Court, New York

County, dated September 14, 2015; New York

Appellate Division, First Department, dated June 6,

2017; New York State Court of Appeals, dated

November 14, 2018.

JURISDICTION

On February 5, 2019, the Honorable Ruth Bader

Ginsberg granted an extension to file the within

petition to April 15, 2019. The basis for jurisdiction is

28 U.S.C. 1257.

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

This matter involves Articles 1, 2, and 3, of the

United States Constitution, specifically, the Separation

of Powers, and the role of each branch of government.

It also involves the Establishment Clause.

INTRODUCTION

This matter is proper for consideration in this

Honorable Court in that is involves important issues

regarding constitutional separation of powers and

constitutional checks and balances. To allow the New

York State (hereinafter, “NYS”) Court of Appeals’

(hereinafter, “COA”) decision to stand will allow an

imbalance of the constitutionally carefully crafted

separation of powers. It will allow the executive

branch of government to have and to utilize new fact

finding authority and power that should be reserved

2

exclusively for the judiciary branch. It will allow the

executive branch of government to ignore and

affirmatively disregard the clear intent of the

legislative branch. Finally, it will allow the judicial

branch of government to surrender their power and

their obligation not only to act as sole fact finders, but

also to be the checks and balances on the executive

branch, and to make sure the executive branch follows

the clear intent of the legislative branch.

This matter is further proper for consider in this

Honorable Court in that the NYS court decisions allow

blatant violations of the Establishment Clause to occur,

and they also blatantly disregard past United States

Supreme Court (hereinafter, “USSC”) decisions.

STATEMENT OF THE CASE

The following facts are all contained within the

record on appeal, which of course would be provided

should this petitioner for writ of certiorari be granted.

Appellants/Petitioners shall be referred to as

plaintiffs, and respondents shall be referred to as

defendants.

This case involves a lower court petition1 asking the

NYS Supreme Court (NYS’s lowest court) to issue a

writ a mandamus to compel the New York City Police

Department (“NYPD”) and other city agencies

including the New York City Department of Health

1

Petitioners were initially plaintiffs, in that the action commenced

was a plenary action. The lower court, sua sponte, converted said

plenary action into an Article 78 action. It is submitted, this is

inconsequential for all intensive purposes.

3

(hereinafter, “DOH”) to enforce fifteen laws that are

violated during a religious ritual known as Kaporos.

Kaporos is an annual three-day religious ritual

practiced by ultra-orthodox Hasidic Jews following

Yom Kippur. Sixty thousand chickens are trucked into

residential neighborhoods, stacked in crates and left on

the street for days, without food or water, in the

elements, waiting for their death, as they will be

sacrificed in the ritual. Practitioners2 grasp live

chickens by the wings, breaking bones and tearing

ligaments, and swing the chickens above their heads.

The birds’ throats are slit, in makeshift illegal

temporary slaughterhouses, for the purpose of

absolving the participants of their sins. This all takes

place on public streets and sidewalks.

The event, in essence, involves the illegal erection

and unregulated operation of slaughterhouses on public

streets and sidewalks, causing a public nuisance and

major health hazard, as well as criminal animal

cruelty. No permit is issued or applied for.

Fifteen known laws are violated by Kaporos. While

practitioners self-servingly claim they give the

slaughtered chickens to the poor for consumption, they

offer no evidence in support. On the contrary,

photographic and testimonial evidence confirms that

dead birds’ carcasses are stuffed into large black

garbage bags and left on the street for the New York

City Department of Sanitation to haul away.

Moreover, even if it were true that the carcasses were

2

Those who host and participate in the event are referred to as

practitioners.

4

donated to the poor for consumption, that would violate

a plethora of additional laws and regulations,

regarding inspections, handling, refrigeration, labeling,

and possession of poultry products.

The event is massive. For the 2015 event, which

was upcoming at the time the lower court petition was

filed, just one non-city defendant alone (a

practitioner/host of the event) had purchased 50,000

live chickens for the then-upcoming Kaporos event.3

The live chickens are sold on the street.

Mathematically, the event generates hundreds of

thousands of dollars for particular synagogues.

Many of the plaintiffs are Jewish, and live or work

in the neighborhoods where Kaporos takes place,

specifically, Crown Heights and Borough Park (the

“subject locations”). Kaporos causes a major health

risk due to unsanitary and toxic conditions, and also

causes emotional trauma, as plaintiffs and others are

forced to bear witness to horrifyingly violent bloody

acts and gruesome animal cruelty.

Photographic/video evidence and testimony

contained in the record supported the following: Dead

chickens, dying chickens, blood, feathers, feces, toxins,

and garbage such as used latex gloves and filthy tarps

cover and contaminate public streets and sidewalks.

Bloody streams run into the streets and into the

sewers. There is no oversight and no system for

cleanup. There is an unbearable stench in the air;

3

A statement verifying this fact was made in open court during

oral argument.

5

there are no adequate clean up and containment

measures; streets are illegally blocked off by NYPD.

There is a large NYPD presence every year at this

event. It is the NYPD who post “no parking” signs on

particular streets, blocks off streets, and sets up

NYPD-owned barricades, all to assist practitioners.

NYPD also provides orange cones to the practitioners,

which are used to “bleed out” the birds. Thus, NYPD

does not “oversee” the event, but with their provision of

materials, patrol cars, and manpower, NYPD actually

aids and abets in the event.

Protests occur annually at the event and tensions

rise. Complaints have been made via 911 and 311, as

well as in-person to police in patrol cars. The

complaints fall on deaf ears, as the city continues, to

turn a blind eye to this animal slaughter massacre that

puts the health of all city residents in jeopardy.

In the NYS proceedings, two expert affidavits were

submitted (inter alia), in support of plaintiffs’ claims.

A. AFFIDAVIT OF DR. McCABE

A twenty-five-page affidavit was submitted from

Michael J. McCabe, Jr., Ph.D., DABT, ATS, a renowned

expert on matters involving toxicology, microbiology,

immunology, human disease causation, and

environmental health sciences. McCabe set forth the

enormous health risks associated with this event. He

opined that the practice of Kaporos poses an imminent

threat to the health and safety of the residents of the

subject locations, as well as city-wide. The activities of

Kaporos subject the public to toxic and bio-hazardous

materials associated with but not limited to chicken

6

blood, feces, feathers, and animal carcasses, causing a

significant public health risk. There are inadequate

clean up and containment measures.

McCabe continued, poultry is a source of infectious

diseases for humans and human pathogens. Public

health concerns with respect to chickens as vectors for

disease transmission are not limited to food borne

illnesses. Salmonella and Campylobacter species of

bacteria are the most important agents numerically;

however avian viruses including certain strains of

influenza and other bacterial pathogens such as

Arcobacter, Chlamydophila, and Escherichia, that are

found in poultry are dangerous human pathogens also.

Campylobacter, mainly Campylobacter jejuni and C.

coli, are recognized worldwide as a major cause of

bacterial food-borne gastroenteritis.

McCabe continued, the chaotic unrestricted access

of the Kaporos event is in marked contrast to the

biosecurity protocols that are implemented at

[regulated] poultry facilities; such protocols are aimed

at protecting the health of the animals as well as the

people coming in contact with them.

McCabe continued, contaminants can become

attached to the bottom of shoes and wheels and are

then transported to other areas. Brooklyn has major

mass transportation systems such as subways, buses,

and even access to airports, which increases the

likelihood of the threat of a substantial, city-wide, and

even world-wide outbreak of the illnesses described

herein. The open-air construct of the makeshift

slaughterhouses also permit airborne transmission of

contaminants. The Kaporos activities taking place in

7

the subject locations pose a significant public health

hazard that could be catastrophic.

B. DR. HYNES AFFIDAVIT

Plaintiffs also submitted an affidavit from Dr. John

G. Hynes, an expert licensed veterinarian, who treats

chickens specifically. After reviewing the animal

cruelty statutes and other materials, he opines that the

treatment of the chickens before and during Kaporos

constitutes criminal animal abuse.

Hynes opined that the birds’ agonizing treatment

begins with huge tractor-trailers full of

chickens stacked up to 16 crates high with

approximately 20 birds to a crate. This method of

transport is inhumane and constitutes animal cruelty.

Once at the subject location, crates are thrown off the

trucks, causing trauma, terror, and injury. The

birds then remain at the ritual sites for several days,

crammed in crates, without food, water, or protection

from the elements. Many die before they even reach

the slaughter period.

Hynes continued, the transportation and harboring

of the chickens causes extreme distress, typically

exhibited by shock, metabolic collapse and death. This

is compounded by the withholding of food and water.

These actions constitute animal abuse and torture, in

violation of the New York State animal cruelty

statutes.

Hynes continued, the holding and swinging of birds

by their wings leads to tearing of ligaments, causing

agony. The actual slaughter, in most instances, is done

improperly and inhumanely. Images and testimony

8

confirms birds with their throats partially cut running

around or flapping about in garbage bags before

bleeding to death. Plaintiffs witnessed bloody chickens

writhing on the street and chickens that were dead or

dying in crates. Such a slaughter is inhumane. If the

carotid artery is not completely severed, the bird (as

with any animal, including humans) experiences a

long, painful death.

BASIC PROCEDURAL HISTORY

In 2015, a group of residents, fed up with the

inaction by city agencies, and the NYPD’s affirmative

participation in aiding and abetting in the event, sued

the city to demand enforcement of the laws that are

routinely violated, laws that were designed to protect

them, and animals. An action was filed in NYS

Supreme Court (the state’s lowest court). The city

moved to dismiss under the theory that the police

department had “discretion” as to what laws they

enforced, and how they enforced them; and that

consequently, plaintiffs failed to state a cause of action.

The court agreed and dismissed the complaint, without

affording plaintiffs any discovery.4

Plaintiffs appealed to the Appellate Division, First

Department. The lower court decision was affirmed,

but by a split decision; three of the five appellate

justices agreed with the lower court; there were two

4

The plaintiffs also named civilian practitioners and requested an

injunction against them. That relief was denied; however,

plaintiffs did not appeal that portion of the decision. Thus, that

issue was not before the appellate courts in New York, and is not

an issue now.

9

dissents. The split decision gave plaintiffs access to be

heard in NYS’s highest court, the Court of Appeals, as

a matter of right. The COA affirmed the lower courts,

and the matter remained dismissed.

Despite the clear language of the subject statutes,

language that unequivocally and unambiguously

requires the violated statutes to be mandatorily

enforced, the NYS courts chose to relinquish their own

fact finding powers, and instead, give the NYPD fact

finding powers, by allowing them to make fact finding

decisions on the street. (See below.)

This petition now ensues, to have the case heard in

the USSC.

LAWS VIOLATED BY KAPOROS

There are fifteen laws that are violated during the

Kaporos event. In addition to mandatory health codes

and animal cruelty statutes, slaughterhouse rules and

regulations are violated, as well as licensing

regulations, administrative codes, sanitation

regulations, and street activity permit rules. The

health codes and the animal cruelty statutes are

mandatory, as is evidenced by the unambiguous, clear,

and plain text language of the statutes. Thus,

enforcement of these laws is not discretionary.

The animal cruelty statutes, which are located in

New York’s Agriculture and Markets Law (hereinafter,

“AML”), Article 26, are as follows:

§353: A person who overdrives, overloads,

tortures or cruelly beats or unjustifiably injures,

maims, mutilates or kills any animal, whether

10

wild or tame.., or deprives any animal of

necessary sustenance, food or drink, or neglects

or refuses to furnish it such sustenance or drink,

or causes, procures or permits any animal to be

overdriven, overloaded, tortured, cruelly beaten,

or unjustifiably injured, maimed, mutilated or

killed, or to be deprived of necessary food or

drink, or who willfully sets on foot, instigates,

engages in, or in any way furthers any act of

cruelty to any animal, or any act tending to

produce such cruelty, is guilty of a class A

misdemeanor… of the criminal procedure law,

shall be treated as a misdemeanor...

§350(2): defines “torture or cruelty” as “every

unjustifiable act, omission or neglect causing

pain, suffering or death.” It also defines “animal”

in §350(1) as including every living creature

except a human being.

§355: A person being the owner or possessor, or

having charge or custody of an animal, who

abandons such animal, or leaves it to die in a

street…, or who allows such animal, if it

becomes disabled, to lie in a public street… more

than three hours…, is guilty of a misdemeanor.

§359: A person who carries or causes to be

carried in or upon any vessel or vehicle or

otherwise, any animal in a cruel or inhumane

manner, or so as to produce torture, is guilty of

a misdemeanor.

These statutes are made mandatory by way of Section

371, which reads:

11

§371: A constable or police officer must…

issue an appearance ticket pursuant to

section 150.20 of the criminal procedure

law, summon or arrest, and bring before a

court or magistrate… any person offending

against any of the provisions of article

twenty-six …

Section 371 makes every section of AML Article 26

mandatory, as it clearly used the word “must”, rather

than “may” or “can”. The statute unambiguously states

that a police officer “must… issue a… ticket…,

summon, or arrest… any person offending against any

of the provisions of Art. 26….”

This is not

discretionary; yet, the NYPD refuses to issues tickets,

summonses, or effect arrests in the face of this

incredible animal cruelty and torture that takes place

right before them. In fact, they assist in effecting the

crime.

Likewise, the New York City health codes are also

mandatory, by way of the New York City charter. The

violated health codes are as follows:

NYC Health Code §153.09: No person shall

throw or put any blood…, offensive animal

matter…, dead animals…, putrid or stinking…

animal matter or other filthy matter of any kind,

and no person shall allow any such matter to

run or fall into any street, public place, sewer. . .

NYC Health Code §153.21(a): Every person

who has contracted or undertaken to remove any

diseased or dead animal . . . or who is engaged in

such removal shall do so promptly. The

12

operation shall be conducted in a clean and

sanitary manner and shall not create any

hazard to life or health. The offensive matter

shall not lie piled… in any street.

NYC Health Code §161.09: A permit shall not

be issued for the sale or keeping for sale of live…

poultry on the same lot as a multiple dwelling…

NYC Health Code §161.11: (a) A permit

required by § 161.09 shall not be issued unless

the applicant proves… that the place for which

the application is made does not constitute a

nuisance because of its proximity to a

residential, business, commercial or public

building, and that the place will be maintained

so as not to become a nuisance. (b) The… person

in charge of any place where animals are kept

pursuant to a permit required by § 161.09,

shall… conduct such place so as not to create a

nuisance by reason of the noise of the animals,

the escape of offensive odors, or the maintenance

of any condition dangerous or prejudicial to

public health. (c) Every place where animals are

kept pursuant to a permit required by § 161.09

shall have implements and materials…, as may

be required to maintain sanitary conditions.

Such places shall have regularly assigned

personnel to maintain sanitary conditions.

NYC Health Code §161.19: (a) (a) No person

shall keep a live rooster… in the City of New

York except (1) in a slaughterhouse authorized

by federal or state law that is subject to

13

inspection… or (2) as authorized by §161.01 (a)

of this Article [permitted].

NYC Health Code §161.19(b): person who is

authorized by applicable law to keep for sale or

sell livestock… or poultry shall keep the

premises in which such animals are held and

slaughtered and the surrounding areas clean

and free of animal nuisances.

These statutes, also, are mandatory via the New

York City Charter. Chapter 22, §558(e) of the New

York City Charter states, “Any violation of the health

code shall be treated and punished as a misdemeanor.”

Section 435(a) of the NYC Charter says the NYPD

“shall have the power and it shall be their duty... to

guard the public health”. Thus, due to the word “shall”,

the health code also must be mandatorily enforced.

In addition to these mandatory laws, there are other

discretionary laws that are also violated. While they

are not the subject of this litigation or this appeal, they

are set forth, briefly:

STATE LAWS

New York Agriculture and Markets Law

(“AML”), Article 5-A, §96-a: Licensing of

Slaughterhouses:

Whereas unsanitary

conditions in the slaughtering of animals… have

been found to exist…, and whereas such

conditions endanger the health and welfare of

the people.., it is hereby declared… that the

supervision of the slaughtering of animals and

fowl is in the public interest, and that this

article is enacted in the exercise of the police

14

power of the state and its purposes are the

protection of the public health.

AML Art. 5-A, §96-b(1): License Required:

No person… shall operate any place or

establishment where animals or fowls are

slaughtered… unless such person… be licensed

by the commissioner...

AML Art. 5-A, §96-b(2): License Required:

In a city with a population of one million or

more, the commissioner shall not license any

person… to operate… any establishment where

animals… are slaughtered… within a fifteen

hundred foot radius of a residential dwelling....

N.Y.S. Labor Law §133(2)(o): “No minor of

any age shall be employed in or assist in . . . any

occupation in or about a slaughter…

establishment...”

CRR-NY 45.4 [precautions be taken to

prevent the spread of avian influenza]: All

persons entering any premises containing live

poultry within the State… with any poultry

truck… shall take every sanitary precaution

possible to prevent the introduction or spread of

avian influenza…

CITY LAWS

NYC Administrative Code §18-112(d):

[U]unlawful to erect, establish or carry on…

upon any lot fronting upon [the subject

locations]… any slaughter- house . . . The term

“slaughterhouse”… includes the activity of

15

carrying on the slaughter of animals “in any

matter whatever.”

24 RCNY (Rules of the City of New York”)

§161.03(a): A person who owns, possesses… [an]

animal shall not permit the animal to commit a

nuisance on a sidewalk of any public place.

N.Y.C. Department of Sanitation Rules and

Regulations, §16-118(6): No… offensive animal

matter.., or other filthy matter of any kind shall

be allowed by any person to fall upon or run into

any street or public place...

New York City Street Activity Permit

Office (“SAPO”):

http://www1.nyc.gov/site/cecm/about/sapo.p

age

SAPO issues permits for street festivals, block

parties…, and other events on the City’s streets,

sidewalks and pedestrian plazas while

protecting the interests of the City, the

community and the general public. SAPO

permits include… Religious Events...”

A. THE ANIMAL CRUELTY STATUTE

As set forth above, the animal cruelty statute is a

mandatory statute by way of AML, Art. 26, §371, which

states: “A constable or police officer must… issue an

appearance ticket…, summon or arrest, and bring

before a court.. having jurisdiction, any person

offending against any of the provisions of article

twenty-six”. Thus, clearly, no discretion is permitted.

The State’s legislature was obviously careful in

16

choosing its word when crafting this statute, and by

using the word “must”, as opposed to “may” or “can”,

the legislature does not permit any discretion on behalf

of the executive branch (law enforcement) when it

comes to enforcing this statute. Moreover, the statute

clearly states that anyone charged with animal cruelty

should be brought before a court, a trier of fact for

determination, inter alia, as to whether or not the

cruelty can be deemed justifiable.

This is a key point, because the Appellate Division

majority erroneously concluded that because the

legislature defined animal “torture or cruelty” as “every

unjustifiable act, omission or neglect causing pain,

suffering or death [AML, Art. 26, §350(2)] [emphasis

added], it determined that it is up to the street cop to

determine whether or not an act of torture or cruelty is

“justifiable”. It was this reasoning that enabled them

to further determine that because it is up to the street

cop to determine “justifiability” of animal cruelty, that

this then creates “discretion”.

This reasoning flies in the face of the wording of the

statute, Section 371, which also addresses the issue of

justifiability, wherein it states, “A constable or police

officer must… issue an appearance ticket pursuant to

section 150.20 of the criminal procedure law, summon

or arrest, and bring before a court or magistrate…

any person offending against any of the provisions

of article twenty-six…” [AML Article 26, Section 371.]

Clearly, the legislative intent was that it was for the

fact finder, the judicial branch of government, to

determine if the offending act against an animal was

“justified” or not. It is written right in to the statute.

17

McKinney’s Practice Commentary to AML §350, 353

correctly points out, “Where a specific conduct

exemption is needed, the legislature has acted

accordingly”, and refers to §353-a, which sets forth

exemptions: “Nothing contained in this section shall be

construed to prohibit or interfere in any way with

anyone lawfully engaged in hunting, trapping, or

fishing, as provided in article eleven

of

the

environmental conservation law, the dispatch of rabid

or diseased animals, as provided in article twenty-one

of the public health law, or the dispatch of animals

posing a threat to human safety or other animals… or

any properly conducted scientific tests… involving the

use of living animals… conducted in [approved]

laboratories...” Moreover, further exemptions must be

carved out by case law. See, People v. Beattie, 96

A.D.383, 390, reasoning that the shoeing of horses

could not constitute cruelty; People v. Arroyo, 3 Misc.3d

668, discussing social exemptions for hunting, fishing,

branding, and skinning.

The McKinney’s commentary continues, “Absent

such a specified exemption, the generalized

question of whether conduct is ‘unjustifiable’ is a

factual inquiry, appropriate for the trier of fact

alone, based upon prevailing social mores and

norms. See People v. Volker, 172 Misc.2d 564; see also

Hammer v. Am.Kennel Club, 1 NY3d 294; People ex rel.

Freel v. Downs, 136 N.Y.S. 440, 444-45. [Emphasis

added.]

The executive branch of government (the NYPD or

other city agencies) does not maintain the power or

authority, to determine if an act of cruelty is justifiable.

18

Period. Yet, in this case, the judicial branch of

government handed such power to them, in stark

contrast to the intent of the legislature, and disturbing

and blurring the clear lines between the separation of

powers. It is respectfully submitted, this act of the

judiciary violates the constitution.

B. THE HEALTH CODES

The city’s health codes are also mandatory, by way

of the New York City Charter (“Charter”). As the

dissent pointed out in the Appellate Division, “the DOH

is required to enforce the health Code”, and “pursuant

to section 435(a) of the NYC Charter, the NYPD ‘shall

have the power and it shall be their duty’….to guard

the public health”.

This notion was affirmed in New York City Coalition

to End Lead Poisoning v. Koch, 138 Misc. 2d 188 (Sup.

Ct. N. Y. Co. 1987), where the First Department

unanimously affirmed the lower court’s decision (139

A.D.2d at 404), adopting the lower court’s reasoning,

and finding the health codes were in fact to be

mandatorily enforced. There, plaintiffs moved to

compel defendants to enforce statutes designed to

address lead poisoning in children. One of the statutes

was §173.13(d) of the NYC Health Code, which

authorizes the DOH to order the removal of paint. The

court found this statute to be mandatory pursuant to

the Charter “which defines the ‘[f]unctions, powers and

duties of the department’ of health (DOH) (emphasis

added), including the enforcement of the Health Code,

[and] imposes mandatory duties on DOH and its

commissioner.”

19

MANDAMUS WAS AND IS WARRANTED

When a statute has the word “must” or “shall”, it

must and shall be enforced. There is no discretion.

The judicial branch of government is the checks and

balances on the other branches. The judicial branch

can strike down a statute enacted by the legislature if

said statute violates the constitution. The judicial

branch can also compel the executive branch to follow

the law as it is written. The tool for the latter is a writ

of judicial mandamus. The subject case is a prime

example of when mandamus is appropriate. Here, the

executive branch is blatantly disregarding, even

defying, the legislative branch. Here, the judicial

branch needed to step in and issue a writ of

mandamus, to fulfill its obligation as the branch of

checks and balances of government. Instead of doing

that, however, the NYS judicial branch awarded,

improperly, new, and inappropriate, fact finding

powers to the executive branch. The NYS judicial

branch had no authority to do so, and this act violates

the constitution and separation of powers.

Mandamus will lie to compel a body to perform a

mandated duty, not how that duty shall be performed.

Klostermann v. Cuomo, 61 NY2d 525 (1984). It lies “to

enforce a clear legal right where the public official has

failed to perform a duty enjoined by law” (New York

Civ. Liberties Union, 4 NY3d 184). Here, plaintiffs

have a clear legal right to have the specified duties

performed by the public officials.

In NYS, writs of mandamus have been issued for

rea sons far less compelling than those set forth herein,

where the public health is at risk. Klostermann v.

20

Cuomo, 61 N.Y.2d 525, 531, 463 N.E.2d 588, 590

(1984)involved individuals treated at a state hospital

who were subsequently released. They claimed that

the respondents violated their constitutional and

statutory right to receive residential placement,

supervision and care. The lower courts dismissed

complaints on the grounds that the controversies

presented were nonjusticiable because their resolution

would involve an excessive entanglement of the courts

with the executive and legislative branches of

government; the lower courts denied mandamus. The

NYS COA reversed, and issued a writ of mandamus,

stating that the relevant statute was not discretionary,

and had to be mandatorily complied with. Klostermann

stated, “if a statutory directive is mandatory, not

precatory, it is within the court’s competence to

ascertain whether an administrative agency has

satisfied the duty that has been imposed on it by the

Legislature and, if it has not, to direct that the agency

proceed forthwith to do so.”

In New York City Coalition to End Lead Poisoning

v. Koch, 138 Misc. 2d 188, plaintiffs moved to compel

defendants to enforce statutes designed to address lead

poisoning in children. One of the statutes was a health

code which authorizes the DOH to order the removal of

paint. The court found this statute to be mandatory

pursuant to the Charter “which defines the ‘[f]unctions,

powers and duties of the department’ of health (DOH)

(emphasis added), including the enforcement of the

Health Code, [and] imposes mandatory duties on DOH

and its commissioner.”

21

In Matter of Flosar Realty LLC v New York City

Hous. Auth. (127 A.D.3d 147 [1st Dept 2015]), a matter

against the New York City Housing Authority

(“NYCHA”) seeking to compel NYCHA to “process

renewal leases requesting increases in Section 8 rent

subsidies”, the court held that the petition “states a

claim for mandamus relief to the extent it seeks an

order directing NYCHA to make a determination with

respect to the rent increase requests.” The applicable

statues used “must” language, and, it was held that

because of that, “NYCHA does not have discretion to

simply not act and indefinitely continue suspension of

the subsidies.”

In Joy Builders, Inc. v. Ballard (20 A.D.3d 534 [2d

Dept 2005]), the petitioner sought “mandamus to

compel the respondent [Superintendent of Highways

for the] to issue a road excavation permit” for the

purpose of “connecting [a] sewer line” when the

respondent “failed to act on the application”. The court

reversed a denial of mandamus as it found that the

town code “sets forth certain requirements concerning

the form and content of an application for an

excavation permit, and provides that ‘[u]pon

compliance with the foregoing requirements, a permit

shall be issued’...” Again, the operative word is “shall”,

warranting mandamus.

In North v. Foley (238 A.D. 731 [3d Dept 1933]), the

petitioners/taxpayers sought mandamus to compel

respondents/mayor; comptroller; treasurer;

commissioner of public works, to compel them to

“permit petitioners and their attorney or accountant to

examine and inspect certain books, records and

22

vouchers under the care, custody and control of such

officials.” The court held that “the Legislature intended

to assert the right of all citizens to examine and inspect

the public records….” Legislative intent prevailed.

In Matter of Barhite v Town of DeWitt (144 A.D.3d

1645 [4th Dept 2016]), petitioners/police officers sough

mandamus to “compel [respondents/town] to place

them in the seniority level that corresponds with their

years of service.” The court granted the petition as

“Civil Service Law § 70 (2) states that transferees such

as petitioners ‘shall be entitled to full seniority credit

for all purposes.’” Again, the word “shall” is operative.

REASONS FOR GRANTING THE PETITION

Despite the utter lack of ambiguity of the animal

cruelty statute requiring mandatory enforcement,

based on the clear language of the statute and the use

of the word “must”, and despite the charter

unambiguously requiring the health codes to be

mandatorily enforced, by use of the word “shall”, the

City of New York, the NYPD, and the DOH fail to

enforce any of these mandatory laws during Kaporos.

It has been speculated that the reason for this

abdication is politically driven.

This matter is of proper substance for the USSC, as

it involves the constitutional issue of separation of

powers. Here, the executive branch of government (the

NYPD and DOH) blatantly and improperly disregarded

the clear and unambiguous will of the legislature.

When that occurs, it is the role, the obligation, of the

judiciary, to intervene and direct compliance with the

law as written by the legislature. In this matter, the

23

judiciary abandoned its obligation to direct the

executive branch to follow the clear and unambiguous

directives of the legislature. What makes matters

worse and even more problematic, is that the NYS

judicial branch, instead of issuing a writ of mandamus,

chose to afford new fact finding powers to the executive

branch, by allowing street cops to determine if an act of

animal cruelty is justified – a role that should be

exclusively in the hands of the judiciary.

This is a clear violation of both the state and federal

constitution.

A. THE VIOLATION OF THE SEPARATION

OF POWERS

As this Honorable Court obviously knows, there are

three branches of government: the legislative branch,

the executive branch, and the judicial branch.

Separation of powers is the principle that each branch

of government enjoys separate and independent powers

and areas of responsibility. The separation of powers

is the cornerstone of our constitution on both State and

Federal levels.

In the instant case, what the NYS judicial branch

and NYS COA did was two fold. First, it inserted itself

into the legislative realm of power, thus violating the

separation of powers doctrine. The NYS judiciary

disregarded the “must” wording of §371 the animal

cruelty statute by melding that statute with §350(2),

which defines cruelty as being an “unjustifiable” act,

and then making the leap that it is up to law

enforcement to make that determination regarding

justifiabilty – despie the fact that §371 cleraly states

24

that a court or magistrate is to make that

determination. This was, in effect, a rewrite of the

statute. Now, under this “new” rule, if a police officer

responds to a call of animal abuse wherein someone is

bludgeoning their dog, and the perpetrator states that

the dog urinated on the carpet, the police officer can

determine if that reason is “justifiable”, and can choose

not to issue a summons or effect an arrest. This was

clearly not the intent of the legislature, as the statute

states the officer “must” issue a summons or effect an

arrest.

Following that summons or arrest, the

determination of justifiability, should lie only with the

judicial, fact finding, branch of government.

Likewise, the NYS judiciary completely ignored the

charter, which makes the health code ministerial as

well, and again, the judiciary obliterated its meaning

and effect. This issue was already visited by the NYS

judiciary, New York City Coalition to End Lead

Poisoning v. Koch, 138 Misc. 2d 188, where the First

Department unanimously affirmed the lower court’s

decision (139 A.D.2d at 404), and found the health

codes were in fact to be mandatorily enforced.

By way of the subject ruling, the NYS judiciary

handed fact-finding power to the NYPD, the executive

branch of government. Section 353-a of Article 26 of

the AML clearly sets out exceptions to the animal

cruelty statute, and religious rituals is not one of them.

Thus, unlike a scenario where a police officer comes

across someone fishing or hunting, there is no reason

for the NYPD to not effect arrests or issue summons

during the slaughter event Kaporos; and on the

contrary, §371 requires that they do, by using the word

25

“must”. Yet, instead of issuing a writ of mandamus,

the NYS judiciary took no action, thus, allowing the

executive branch to now enjoy fact finding power and

authority. This cannot lie.

The subject decisions have far more profound and

far reaching effects. This decision strikes at the very

core of our three-branches-of-government system of

checks and balances, and is precisely why we have the

judicial tool of writ of mandamus, to be used, inter alia,

when the executive branch ignores clear legislative

intent, as is the case here.

Should this Court not hear this case, it is

respectfully submitted, a slippery slope will be created

that could have dramatic, if not devastating, effects on

the balance of power. Fact finding powers and

authority lie with the judicial branch of government,

exclusively. What the NYS judiciary has done is to give

fact finding powers to the executive branch, police

officers, and allowed the executive branch to disregard

the legislative intent overall. This issue must be

addressed by this USSC.

B. CASTLE ROCK IS DISTINGUISHABLE

The COA decision said, “Enforcement of the laws

cited by plaintiffs would involve some exercise of

discretion”, and cited a USSC case (also cited by the

defendants), Town of Castle Rock v. Gonzales, 545 U.S.

748, 760-761 [2005]). This reliance is misplaced.

In Castle Rock, a father took his daughters from

their mother’s yard in violation of a restraining order.

Despite repeated phone calls from the mother

informing them that a restraining order had been

26

violated, the police did nothing. Eventually, the

daughters were found to have been murdered by their

father. The court determined that the restraining

order was not subject to mandatory enforcement.

Defendants cited Castle Rock, stating that “‘for a

number of reasons, including legislative history,

insufficient resources, and sheer physical impossibility,

such statutes are not ‘interpreted literally’, and they

‘clearly do not mean that a police officer may not

lawfully decline to make an arrest.’”

The absurdity of this statement lies in the fact that

in Kaporos, there are no “insufficient resources” and no

“sheer physical impossibilit[ies]” to enforce either the

animal cruelty statute or the health codes – the police

are already there, using their resources, their

manpower, their vehicles, their materials, to aid and

abet the event and facilitate the crimes.

Castle Rock discussed “discretion”, stating, “The

deep-rooted nature of law-enforcement discretion, even

in the presence of seemingly mandatory legislative

commands, is illustrated by Chicago v. Morales, 527

U.S. 41 (1999), which involved an ordinance that said

a police officer ‘’‘shall order’ persons to disperse in

certain circumstances. This Court rejected… the

possibility that ‘the mandatory language of the

ordinance ... afford[ed] the police no discretion.’ It is,

the Court proclaimed, simply ‘common sense that all

police officers must use some discretion in deciding

when and where to enforce city ordinances.’”

27

However, and importantly, Castle Rock continued,

“The practical necessity for discretion is

particularly apparent in a case such as this one,

where the suspected violator is not actually

present and his whereabouts are unknown. Cf.

Donaldson v. Seattle, 65 Wash.App. 661 (‘There is a

vast difference between a mandatory duty to arrest [a

violator who is on the scene] and a mandatory duty to

conduct a follow up investigation [to locate an absent

violator]... [which] would be completely open-ended as

to priority, duration and intensity’).” [Emphasis

added.]

This is entirely distinguishable to, and in favor of,

the instant case. Here, the violators are present, their

whereabouts are known, and the crimes are committed

in the face of the police officers. Moreover, this is all

planned ahead of time; it has been predetermined, by

the NYPD that there will be a police presence, but no

enforcement. Not only does the NYPD show up and fail

to enforce, but it provides materials, vehicles,

manpower, and uses these tax-payer funded resources

to actually assit in the event.

There are numerous cases decided post Castle Rock

wherein courts declined to follow it. In Robinson v.

Lioi, 536 F. App’x 340, 345 (4th Cir. 2013), the court

said, “[t]he instant case is distinguishable from Castle

Rock. Lioi attempts to characterize his conduct in this

case as a mere failure to act. However, according to the

complaint, that is a gross mischaracterization… Lioi’s

alleged conduct in this case was not confined to a

failure to execute the arrest warrant [as in Castle

Rock]. Lioi affirmatively acted to interfere with

28

execution of the warrant... Whereas Castle Rock is,

fundamentally, a case about inaction, Plaintiffs in the

instant case have alleged affirmative misconduct on

Lioi’s part...’ Pinder, 54 F.3d at 1177. Accordingly,

Plaintiffs’ claims are not foreclosed by Castle Rock.”

See, also, Turczyn v. City of Utica, No. 6:13-CV-1357

GLS/ATB, 2014 WL 6685476, “Unlike Castle

Rock…[where] police had limited interaction with

either the victim or killer prior to the victim’s

demise…, the allegations here go substantially farther.

Turczyn alleges several occasions when Shanley knew

of Anderson’s threatening acts and did nothing….”

Here, too, plaintiffs in the instant case have alleged

affirmative misconduct on NYPD’s part. Here, NYPD

knows of the illegal acts, and helps to facilitate them.

Here, NYPD has advance knowledge that these crimes

will take place; they know the date, time, and location;

they plan for and aid in the commission of these

crimes. These facts are diametrically opposed to the

facts in Castle Rock.

C. THE RUSE OF DISCRETION

The Appellate Division majority and COA found

that the laws cited by plaintiff involve “some exercise

of discretion”. This is not accurate. The animal cruelty

statute and the health codes use words “must” and

“shall”, allowing for no discretion.

Moreover, the police officers who are assigned to

Kaporos are not exercising “discretion”. They are

following specific orders to facilitate the event. They

are not there to “keep the peace”; they are there to

protect and assist religious practitioners, and provide

29

the practitioners with materials they need. There is no

discretion; rather, the record reflects that some of the

police officers take issue with the event, but they

actually have no discretion to issue summons and/or

arrests, should they want to, because they have been

ordered not to. Thus, the “discretion” argument is a

ruse.

In the instant matter, the Appellate Division

dissent aptly found, “[what takes place during Kaporos

regarding the NYPD] would appear to be an abdication,

rather than, as the majority states, a ‘proper exercise’

of the City defendants’ obligations”.

Boung Jae Jang v. Brown, 161 A.D.2d 49 (N.Y. App.

Div. 1990), addressed discretion: “although the Police

Department enjoys a broad measure of discretion in

committing resources and devising tactical strategies,

law enforcement personnel are not…, at liberty to

effectively ‘abdicate [their] responsibilities by either

ignoring them or by failing to discharge them whatever

[their] motive may be’ (see, Burton v. Wilmington

Parking Auth., 365 U.S. 715)… Under the

circumstances, the Supreme Court was not required to

surrender its authority to act, merely because it is

generally contended that the Police Department must

be accorded discretion in exercising a law enforcement

function. We note, moreover, that the Federal courts

have not hesitated to direct law enforcement personnel

to undertake specific measures… (see, e.g., New

Alliance Party v. Dinkins, 743 F.Supp. 1055 [(S.D.N.Y.

1990)]…, citing Olivieri v. Ward, 801 F.2d 602 [(2nd

Cir. 1986)]; see also, Cottonreader v. Johnson, 252

F.Supp. 492 [(M.D. Ala. 1966)]).”

30

Boung Jae continued, “The Court of Appeals has

observed, [the] function of mandamus [is] to compel

acts that officials are duty-bound to perform, regardless

of whether they may exercise their discretion in doing

so’ (see, Klostermann, [supra]; see also, Korn v. Gulotta,

72 N.Y.2d 363)…. mandamus is essentially a judicial

command to perform a ministerial act specifically

required of a public or corporate officer or body by law,

which, as we have held, may embody a ruling… laid

down in the form of a judicial determination (see, State

Div. of Human Rights [Geraci] v. New York State Dept.

of Correction Servs., supra, 90 A.D.2d at 65–66).

It is undisputed that the police are present during

Kaporos, and that they are there for the benefit of

religious practitioners. Defendants claim that to

prevent the NYPD from providing materials to effect

crimes, and aid and abet in the operations of illegal

slaughterhouses, extreme animal cruelty, and

dangerous health code violations, would “impermissibly

intrude into the police’s discretionary judgment”. No

law enforcement agency, including the NYPD, has

“discretion” to facilitate crimes, and the animal cruelty

statute and health codes are not discretionary.

Likewise, any argument regarding “resource

allocation” can also not be taken seriously. Defendants

claimed that “in a diverse city of 8.5 million residents

and 50 million annual visitors, NYC’s law enforcement

apparatus must be wielded with prudence and

pragmatism.

Given the sheer scale of NYPD’s

responsibility, the charter necessarily grants NYPD the

traditional discretion to set enforcement priorities and

allocate resources.” First, the charter is not cited, and

31

more importantly, in this situation, the absurdity of

this statement is evident in that the NYPD is already

present at Kaporos, and uses massive amounts of

resources to facilitate the event.

D. ESTABLISHMENT CLAUSE

In the record before the COA, was the issue of the

Establsihement Clause. Defendants state that NYPD’s

“act of maintaining public safety during a crowded

event on a public street” does not violate the

Establishment Clause. This is a mischaracterization.

Defendants are not “maintaining public safety”, but

rather, are disregarding their duty to enforce

mandatory laws, and, are aiding and abetting in the

violations of laws. Clearly, the city defendants are

favoring one religious sect over all others; every other

New Yorker must obtain a permit for a simple block

party, while this sect is permitted to erect make-shift

slaughterhouses in residential neighborhoods and

create massive health hazards and engage in egregious

animal cruelty, unfettered. As stated, it has been

speculated by journalists and others, that this decision

is politicaly motivated.

The USSC has long held that “the Establishment

Clause prohibits government from favor[ing] the

adherents of any sect or religious organization.” Gillette

v. United States, 401 U.S. 437 (1971); see also Jimmy

Swaggart Ministries v. Board of Equalization, 493 U.S.

378 (1990), “The Establishment Clause prohibits

sponsorship, financial support, and active involvement

of the sovereign in religious activity.” The USSC “has

come to understand the Establishment Clause to mean

that government… may not involve itself too deeply in

32

such an institution’s affairs.” County of Allegheny v.

ACLU, 492 U.S. 573 (1989).

Here, defendants are favoring religious Kaporos

practitioners; they are doing far more than providing

ordinary police protection. The actions of the NYPD

demonstrate it is not being “neutral” with “groups of

religious believers and non-believers,” but rather,

“favor[ing]” the practitioners. Everson, 330 U.S. at 17.

Here, the NYPD is clearly assisting in the financing of

the Kaporos event by providing said equipment,

manpower, and resources, resulting in excessive

government entanglement with religion.

Moreover, the practitioners are somehow exempt

from applying for or obtaining any of the necessary

permits that the rest of NYC citizens must obtain.

There are no permits obtained from SAPO5, NYPD,

DOH, Sanitation Department, Fire Department, Dept.

of Consumer Affairs, Dept. of Environmental

Protection, or any other agency who requires permits

for an event such as this, where streets are closed, a

religious event is held, goods are sold, food products are

allegedly sold, money is exchanged, and generators and

electricity are used. See, http://www1.nyc.gov/

assets/cecm/downloads/pdf/NYC_CECM_Comprehe

nsive_Event_Permitting_Guide_2018%20FINAL.pdf

This is a clear violation of the Establishment

Clause.

5

New York City’s Street Activity Permit

http://www1.nyc.gov/site/cecm/about/sapo.page

Office,

33

E. THE SUBJECT DECISIONS CONFLICT

WITH PAST USSC DECISIONS

The subject NYS decisions fly in the face of and

blatantly disregard the holdings of several USSC cases.

Employment Div., supra, infra, found that there,

“Respondents seek to carry the meaning of ‘prohibiting

the free exercise of religion’ one large step further.

They contend that their religious motivation for using

peyote places them beyond the reach of a criminal law

that is not specifically directed at their religious

practice, and that is concededly constitutional as

applied to those who use the drug for other reasons.”

The court continued, “we have never held that an

individual’s religious beliefs excuse him from

compliance with an otherwise valid law

prohibiting conduct that the state is free to

regulate. On the contrary, the record of more

than a century of our free exercise jurisprudence

contradicts that proposition.”

To permit a religious act that violates the law, as is

what is occurring here, would be to make the professed

doctrines of religious belief superior to the law of the

land, and in effect to permit every citizen to become a

law unto himself. Government could exist only in name

under such circumstances. See, Reynolds v. United

States, 98 U.S. 145, 167, 25 L. Ed. 244 (1878); see also,

Davis v. Beason, 133 U.S. 333, 344, 10 S. Ct. 299, 301,

33 L. Ed. 637 (1890), abrogated by Romer v. Evans, 517

U.S. 620, 116 S. Ct. 1620, 134 L. Ed. 2d 855 (1996).

34

What the NYS judiciary has done is “to hold, quite

simply, that when otherwise prohibitable conduct is

accompanied by religious convictions, not only the

convictions but the conduct itself must be free from

governmental regulation.”

As USSC stated in

Employment Div., “We have never held that, and

decline to do so now. There being no contention that

Oregon’s drug law represents an attempt to regulate

religious beliefs, the communication of religious beliefs,

or the raising of one’s children in those beliefs, the rule

to which we have adhered ever since Reynolds plainly

controls. ‘Our cases do not at their farthest reach

support the proposition that a stance of conscientious

opposition relieves an objector from any colliding duty

fixed by a democratic government.’ Gillette v. United

States, supra, 401 U.S., at 461, 91 S.Ct., at 842.”

Employment Div., Dep’t of Human Res. of Oregon v.

Smith, 494 U.S. 872, 882, 110 S. Ct. 1595, 1602, 108 L.

Ed. 2d 876 (1990).

See, also, Board of Ed. Of Kiryas Joel Village School

District v. Grumet, 512 U.S. 687 (1994), “Petitioner’s

proposed accommodation singles out a particular

religious sect for special treatment, and whatever the

limits of permissible legislative accommodations may

be, it is clear that neutrality as among religions must

be honored (citing Larson v. Valente, 456 U.S. at 244).

F. FREEDOM OF RELIGION IS NOT AN

ISSUE

It should be noted, that freedom of religion is not, or

should not be, an issue in this case. While the COA

stated, in a footnote, “we need not determine whether

enforcement of the cited laws would infringe upon the

35

First Amendment rights of the non-city defendants”,

the NYS Appellate Division majority (hereinafter, the

“majority”) used Freedom of Religion as part of their

opinion in justifying the blatant violations of law that

take place during Kaporos while the police look the

other way. Thus, this topic will briefly be addressed

herein.

In raising the issue of religious freedom, the

majority cited to Lukumi Babalu Aye, Inc. v. City of

Hialeah, 508 U.S. 520 (1993). The majority said,

“There are disputes about whether and to what extent

the implicated laws can be enforced without violating

constitutional rights belonging to the non-City

defendants. Rituals involving animal sacrifice are

present in some religions and although they may be

upsetting to nonadherents…, the United States

Supreme Court has recognized animal sacrifice as a

religious sacrament and decided that it is protected…

[Lukumi, supra].”

The majority did not understand the issues in

Lukumi, nor its holding. The holding in Lukumi was

not that animal sacrifice was recognized as a

constitutionally protected activity. Rather, the holding

was that a targeted ordinance or statute is

unconstitutional. This is a profound, and important,

distinction.

The issue before the USSC in Lukumi involved an

ordinance that was enacted for the sole intent of

prohibiting a religious act, that happened to be animal

sacrifice, from taking place inside one local church. It

became known to residents of Hialeah, Florida, that a

Santeria church was planning on engaging in animal

36

sacrifice. Citizens were outraged, and an emergency

session of the local city council was held, during which

four ordinances were crafted and enacted, making the

specific killing of animals inside that specific church

illegal. Yet, the killing of animals right outside the

front door of that church was permitted.

The

ordinances were clearly religiously targeted. The

Church sued, and the case went to the USSC, which

found the ordinances to be religiously targeted, and

thus, unconstitutional. The USSC did not deem animal

sacrifice to be constitutionally protected – rather, it

deemed that these four religiously targeted ordinances

were unconstitutional, because they were religiously

targeted.

In Williams-Yulee v. Florida Bar, 135 S. Ct. 1656

(2015), USSC clarified its decision in Lukumi, making

clear that the law banning the subject animal sacrifice

was struck down only because the city looked the other

way with respect to other animal welfare issues, and

thus, the law, in its application, was discriminatory

and not neutral. The Williams-Yulee court stated, “we

invalidated a city’s ban on ritual animal sacrifices

because the city failed to regulate vast swaths of

conduct that similarly diminished its asserted interests

in public health and animal welfare [citing Lukumi].”

Lukumi is completely inapplicable in the instant

matter, as there was no constitutional challenge of a

law before any court. No one was challenging NYS’s

health codes or animal cruelty statute. Thus, to invoke

Lukumi was inapplicable and incorrect. Moreover, the

laws that are at issue, and that are violated, during

Kaporos, are not “targeted”; they are generally

37

applicable neutral laws that apply to all citizens of New

York City and New York State.

Lukumi found, “if the object of a law is to infringe

upon or restrict practices because of their religious

motivation, the law is not neutral. See Employment

Div., supra. Here, the subject laws do not infringe

upon any religious practices; the object is to protect the

public health, and protect animals, with general

applicability.

The Free Exercise Clause does not permit the

violation of any law, to be justified in the name of

religion. This Court has ruled, more than once, that

freedom of religion is limited to freedom of belief; it is

not freedom to act; that all men and women must obey

the law, and that the law of the land must trump

religious freedom. See Reynolds v. United States, 98

U.S. 145 (1878), declaring that Mormons cannot engage

in polygamy in the name of religious freedom; see, also,

Employment Div., Dept. of Human Resources of Ore. v.

Smith, 494 U.S. 872 (1990), declaring that native

Americans cannot be permitted to smoke peyote in the

name of religious freedom.

Since the health codes and animal cruelty statute do

not “target” the Hasidic community, but rather, have

general applicability to all citizens, religious targeting

is not an issue. In order to make Lukumi applicable,

the courts would have had to “strike down” the health

codes and animal cruelty statutes,6 and deem them

unconstitutional, in order to absolve the Kaporos

6

Also the sanitation codes, slaughterhouse regulations, and SAPO

requirements.

38

practitioners from their (and everybody else’s)

obligation to abide by said laws.

CONCLUSION

For the reasons set forth herein, plaintiffs/

petitioners pray that this most Honorable and Highest

Court of the land hear this very important matter that

involves serious constitutional issues.

Respectfully submitted,

Nora Constance Marino

Counsel of Record

175 East Shore Road, Suite 230

Great Neck, NY 11023

516-829-8399

516-829-4699 (fax)

nora@marinojustice.com

Counsel for Petitioners