North Carolina’s 5-year-old Property Protection Act, the first state law to use civil action rather than criminal law, to discourage undercover animal welfare investigations, contains unconstitutional elements.

Chief Judge Thomas D. Schroeder, of the U.S. District Court for North Carolina’s Middle District, has found as unconstitutional, the state’s Property Protection Act that was passed by the North Carolina General Assembly in 2015 over the veto of then Gov. Patrick McCrory

His veto expressed support for what the bill was trying to accomplish, but he said as written it  “does not adequately protect or give clear guidance to honest employees who uncover criminal activity.”

“I am concerned that subjecting these employees to potential civil penalties will create an environment that discourages them from reporting illegal activities,” McCrory’s veto message said.

Others shared the Governor’s concern, and the state and the University of North Carolina were soon forced to defend the statute in federal court. 

The plaintiffs are People for the Ethical Treatment of Animals Inc. (“PETA”), Center for Food Safety (“CFS”), Animal Legal Defense Fund (“ALDF”), Farm Sanctuary, Food & Water Watch (“FWW”), Government Accountability Project (“GAP”), Farm Forward, and the American Society for the Prevention of Cruelty to Animals (“ASPCA”) 

The past five years of legal action has been like a tennis match going back and forth.

The district court originally tossed the case because the judge found there were not sufficient “facts to demonstrate standing.”

The plaintiffs went to the Fourth Circuit of the U.S. Court of Appeals to get the case restored and sent back down to the District Court for adjudication.

This time Schroeder wrote a 73-page decision, but was was quick to disclose his ruling is largely for the plaintiffs.

“The court will grant in part and deny in part the parties’ motions for summary judgment, finding that the challenged provisions of the law fail to pass muster under the First Amendment — two provisions fail facially, and the remaining two provisions fail as applied to plaintiffs,” the judge wrote.

The Act amended current law that provides a civil remedy for interference with certain property rights by creating a civil cause of action for the owner or operator of a premises as follows: 

(a) Any person who intentionally gains access to the nonpublic areas of another’s premises and engages in an act that exceeds the person’s authority to enter those areas is liable to the owner or operator of the premises for any damages sustained. For the purposes of this section, “nonpublic areas” shall mean those areas not accessible to or not intended to be accessed by the general public. 

Under the law, “an act that exceeds the person’s authority” within the meaning of section (a) “is any of the following:” 

(1) An employee who enters the nonpublic areas of an employer’s premises for a reason other than a bona fide intent of seeking or holding employment or doing business with the employer and thereafter without authorization captures or removes the employer’s data, paper, records, or any other documents and uses the information to breach the person’s duty of loyalty to the employer[;] 

(2) An employee who intentionally enters the nonpublic areas of an employer’s premises for a reason other than a bona fide intent of seeking or holding employment or doing business with the employer and thereafter without authorization records images or sound occurring within an employer’s premises and uses the recording to breach the person’s duty of loyalty to the employer[;] 

(3)  Knowingly or intentionally placing on the employer’s premises an unattended camera or electronic surveillance device and using that device to record images or data[;]

(4)  Conspiringinorganizedretailtheft,asdefinedin Article 16A of Chapter 14 of the General Statutes[; or,]

(5)  An act that substantially interferes with the ownership or possession of real property.

Id. § 99A-2(b). “Any person who intentionally directs, assists, compensates, or induces another person to violate this section” can be held jointly liable with the employee or actor. Id. § 99A- 2(c). 

Any party who prevails in an action brought under the Act can recover equitable relief, compensatory damages, costs and 

Attorneys’ fees, as well as “[e]xemplary damages as otherwise allowed by state or federal law in the amount of five thousand dollars ($5,000) for each day, or portion thereof, that a defendant has acted in violation of subsection (a).” Id. § 99A-2(d). The Act further provides that nothing in it shall be construed to “diminish the protections provided to employees under Article 21 of Chapter 95 [Retaliatory Employment Discrimination] or Article 14 of Chapter 126 [Protection for Reporting Improper Government Activities] of the General Statutes” or “limit any other remedy available at common law or provided by the general Statutes.” Id. § 99A-2(e), (g). 

The plaintiff organizations claim for part that they did undercover animal investigations and the act “negatively impacts” their  mission and goals.