Brooklyn residents participate in the Jewish religious holiday of Kaporos in October 2016.
Brooklyn residents participate in the Jewish religious ritual of Kaporos in October 2016. (Reuters/Stephanie Keith)

An animal rights group cannot use a mandamus action to compel New York City to stop ultra-Orthodox Jews from openly practicing the ritual of Kaporos, in which chickens’ throats are sliced on public streets, a divided appeals court ruled Tuesday.

A 3-2 panel of the Appellate Division, First Department, decided that the 17 statutes and regulations at issue—most focused on the slaughter of animals, public health and animal cruelty—involve law enforcement’s discretion and therefore fall outside of what can be compelled by a writ of mandamus.

“There is no express provision designating Kaporos as a prohibited act. There are disputes about whether the conduct complained of is in violation of the implicated laws and regulations,” Justice Judith Gische wrote in The Alliance to End Chickens as Kaporos v. The New York City Police Department, 156730/15.

“Rituals involving animal sacrifice are present in some religions and although they may be upsetting … the United States Supreme Court has recognized animal sacrifice as a religious sacrament and decided that it is protected under the Free Exercise Clause of the Constitution, as applied to the states through the Fourteenth Amendment,” she said.

Gische, joined by Justices Karla Moskowitz and Paul Feinman, affirmed Manhattan Supreme Court Justice Debra James’ 2015 dismissal of the action against the city defendants, which included various departments and officials. James did not dismiss the action against other private defendants, including Brooklyn-based Orthodox Jewish rabbis, members of yeshivas and religious institutions.

In 2015, certain Brooklyn residents and the Alliance to End Chickens as Kaporos, an advocacy group associated with United Poultry Concerns, a nonprofit promoting compassionate treatment of fowl, filed suit.

In the Article 78 proceeding, they contended that each year, before Yom Kippur, ultra-Orthodox Jews take to Brooklyn’s streets to practice Kaporos, a ritual they decried as creating a health hazard and cruelty to animals amid a “carnival”-like atmosphere.

According to the ruling, the ritual dates back to biblical times and involves grabbing a live chicken and swinging it three times overhead while saying a prayer that asks God to transfer one’s sins to the birds. The chicken is then killed by slitting its throat, in accordance with kosher dietary laws. Its meat is donated to the poor and others.

Every year, thousands of chickens are sacrificed in “full public view,” the ruling stated. Moreover, the plaintiffs contend the practice involves the construction of makeshift slaughterhouses in which “dead chickens, half dead chickens, chicken blood, chicken feathers, chicken urine, chicken feces [and] other toxins … consume the public streets.”

Gische explained that “with the exception of Agriculture and Markets Law §371 … there is nothing in the plain text of any of the laws and regulations relied upon by plaintiffs to suggest that they are mandatory. … Nor is there anything in the legislative history.”

Addressing the Agriculture and Markets Law, she wrote that “notwithstanding the use of the word ‘must’ in the statute, it is still subject to the definition of animal cruelty as otherwise defined in the Agriculture and Markets Law,” and therefore “implicates discretion.”

In dissent, Justice Ellen Gesmer, joined by Justice Richard Andrias, argued that “the actions at issue are mandatory not discretionary.”

Pointing to the Agriculture and Markets Law, for instance, Gesmer wrote that “while the city defendants may exercise discretion in the process of determining whether a violation has occurred and, if so, how to respond to it, they have, at a minimum, an obligation to determine whether or not a reported violation has occurred.”

She added that “the motion court incorrectly found that plaintiffs had not shown that any of them had tried to file a complaint with regard to violations under the Agriculture and Markets Law.”

The dissenting justices said they would reverse the dismissal of the mandamus cause of action against the city defendants, except to the extent that it sought to compel the city to uphold the law as a general matter, and would permit discovery.

Kaporos creates an unbearable stench and a health hazard, and “plaintiffs’ toxicology expert states … that these conditions create a risk of public exposure to, and spreading of, Salmonella, Campylobacter, strains of influenza, and other pathogens, toxins, and biohazards, which can cause respiratory complications, dermatitis, and infectious diseases in humans,” Gesmer wrote.

Nora Constance Marino, of the Law Offices of Nora Constance Marino in Great Neck, who represented the plaintiffs, said she thought “the dissent got it right, throughout, and captured the essence of the case.”

As one example, she said, the dissent pointed out that health codes at issue are mandated by the New York City Charter. “That’s not a discretionary issue for the police department,” she said.

Marino added that there was “not a violation of anyone’s constitutional rights because none of the laws [at issue] are targeted at a specific religious sect.”

She said the plaintiffs intend to appeal.

Damion Stodola and Jane Gordon, of the city Law Department, represented the city.

“The decision was legally correct,” Law Department spokesman Nicholas Paolucci said. “The court agreed the laws provide government officials with discretion as to their enforcement.”

An animal rights group cannot use a mandamus action to compel New York City to stop ultra-Orthodox Jews from openly practicing the ritual of Kaporos, in which chickens’ throats are sliced on public streets, a divided appeals court ruled Tuesday.

A 3-2 panel of the Appellate Division, First Department, decided that the 17 statutes and regulations at issue—most focused on the slaughter of animals, public health and animal cruelty—involve law enforcement’s discretion and therefore fall outside of what can be compelled by a writ of mandamus.

“There is no express provision designating Kaporos as a prohibited act. There are disputes about whether the conduct complained of is in violation of the implicated laws and regulations,” Justice Judith Gische wrote in The Alliance to End Chickens as Kaporos v. The New York City Police Department, 156730/15.

“Rituals involving animal sacrifice are present in some religions and although they may be upsetting … the United States Supreme Court has recognized animal sacrifice as a religious sacrament and decided that it is protected under the Free Exercise Clause of the Constitution, as applied to the states through the Fourteenth Amendment,” she said.

Gische, joined by Justices Karla Moskowitz and Paul Feinman, affirmed Manhattan Supreme Court Justice Debra James’ 2015 dismissal of the action against the city defendants, which included various departments and officials. James did not dismiss the action against other private defendants, including Brooklyn-based Orthodox Jewish rabbis, members of yeshivas and religious institutions.

In 2015, certain Brooklyn residents and the Alliance to End Chickens as Kaporos, an advocacy group associated with United Poultry Concerns, a nonprofit promoting compassionate treatment of fowl, filed suit.

In the Article 78 proceeding, they contended that each year, before Yom Kippur, ultra-Orthodox Jews take to Brooklyn’s streets to practice Kaporos, a ritual they decried as creating a health hazard and cruelty to animals amid a “carnival”-like atmosphere.

According to the ruling, the ritual dates back to biblical times and involves grabbing a live chicken and swinging it three times overhead while saying a prayer that asks God to transfer one’s sins to the birds. The chicken is then killed by slitting its throat, in accordance with kosher dietary laws. Its meat is donated to the poor and others.

Every year, thousands of chickens are sacrificed in “full public view,” the ruling stated. Moreover, the plaintiffs contend the practice involves the construction of makeshift slaughterhouses in which “dead chickens, half dead chickens, chicken blood, chicken feathers, chicken urine, chicken feces [and] other toxins … consume the public streets.”

Gische explained that “with the exception of Agriculture and Markets Law §371 … there is nothing in the plain text of any of the laws and regulations relied upon by plaintiffs to suggest that they are mandatory. … Nor is there anything in the legislative history.”

Addressing the Agriculture and Markets Law, she wrote that “notwithstanding the use of the word ‘must’ in the statute, it is still subject to the definition of animal cruelty as otherwise defined in the Agriculture and Markets Law,” and therefore “implicates discretion.”

In dissent, Justice Ellen Gesmer , joined by Justice Richard Andrias, argued that “the actions at issue are mandatory not discretionary.”

Pointing to the Agriculture and Markets Law, for instance, Gesmer wrote that “while the city defendants may exercise discretion in the process of determining whether a violation has occurred and, if so, how to respond to it, they have, at a minimum, an obligation to determine whether or not a reported violation has occurred.”

She added that “the motion court incorrectly found that plaintiffs had not shown that any of them had tried to file a complaint with regard to violations under the Agriculture and Markets Law.”

The dissenting justices said they would reverse the dismissal of the mandamus cause of action against the city defendants, except to the extent that it sought to compel the city to uphold the law as a general matter, and would permit discovery.

Kaporos creates an unbearable stench and a health hazard, and “plaintiffs’ toxicology expert states … that these conditions create a risk of public exposure to, and spreading of, Salmonella, Campylobacter, strains of influenza, and other pathogens, toxins, and biohazards, which can cause respiratory complications, dermatitis, and infectious diseases in humans,” Gesmer wrote.

Nora Constance Marino, of the Law Offices of Nora Constance Marino in Great Neck, who represented the plaintiffs, said she thought “the dissent got it right, throughout, and captured the essence of the case.”

As one example, she said, the dissent pointed out that health codes at issue are mandated by the New York City Charter. “That’s not a discretionary issue for the police department,” she said.

Marino added that there was “not a violation of anyone’s constitutional rights because none of the laws [at issue] are targeted at a specific religious sect.”

She said the plaintiffs intend to appeal.

Damion Stodola and Jane Gordon, of the city Law Department, represented the city.

“The decision was legally correct,” Law Department spokesman Nicholas Paolucci said. “The court agreed the laws provide government officials with discretion as to their enforcement.”