You have requested my official opinion whether cockfighting is exempt from the provisions of O.C.G.A. § 16-12-4 (e), Georgia’s cruelty to animals statute, if blood or tissue samples are taken from game birds at such events and submitted for testing.

According to information I have been provided, cockfights are being conducted by individuals who charge spectators, in order to gain access to the cockfights, a $90.00 “membership fee” plus an entry fee of $25.00 for each event. Owners must pay a fee of $60.00 to enter each game bird in the contests. The operators of the cockfights do not permit strangers to enter the building where the cockfights occur. The cockfights are conducted in the traditional manner, with each bird being equipped with artificial spurs or gaffs which the birds use to cut, and sometimes kill, each other. The game birds fight in enclosed areas called pits and are accompanied by their owners and a referee. Spectators watch the cockfights from bleachers.

Blood or tissue samples are drawn from approximately 25% of the birds brought to the event and are forwarded to a Georgia poultry laboratory for testing.1 A person employed by the operator of the cockfight and certified as a “testing agent” by the Georgia Department of Agriculture extracts the samples. According to the administrative director of the laboratory, any tests performed at the lab are for the detection of disease and to monitor the health of the poultry industry in Georgia. The tests are free, except in rare instances where a bird is about to be exported to another country. The lab does not do “endurance testing,” and there is no scientific advantage to testing a bird either before or after it has engaged in a cockfight. According to one testing agent, there is no scientific connection between the cockfights and the blood and tissue testing; rather, the cockfights serve only as a means to encourage owners to bring their birds to a location where the blood tests can be performed. Your letter suggests that the cockfight operators believe this is sufficient to constitute “poultry research” and bring their cockfighting enterprise under the exemption provided in O.C.G.A. § 16 12 4 (e) as a “scientific” or “research” practice.

It is my official opinion that cockfights operated under the factual scenario set forth above are illegal and violate Georgia’s cruelty to animals statute, O.C.G.A. § 16-12-4 (b), which provides that “[a] person commits the offense of cruelty to animals when he or she causes the death or unjustifiable physical pain or suffering to any animal by an act, an omission, or willful neglect.” In Brackett v. State, 142 Ga. App. 601 (1977), the court held that cockfighting falls within the ambit of Georgia’s cruelty to animals statute, distinguishing cases from other states that had construed their statutes as not including fowls as “animals.” The court stated:

In contrast, our legislature appears to have expressed its intent by the committee note which declares the statute “covers all animals” and adds, “the public’s sensibilities are as likely to be outraged by wanton acts of inhumanity to goldfish, lions, turtles and dolphins as when the acts are suffered by more frequently encountered or more valuable animals.” We conclude that the statute was meant to include fowls as animals, and cruelty to a gamecock therefore is proscribed conduct.

Id. at 602.

In Morgan v. State, 195 Ga. App. 52 (1990), the court affirmed convictions for cruelty to animals under the following facts:

An undercover GBI agent, F. L. Gillis, had been at the arena for over an hour before the raid occurred and had paid Mobley, the gateman, to gain entrance. While inside the barn where the fighting pit was located, Gillis observed several live gamecock fights as well as persons engaged in open gambling and placing of bets. When the rest of the law enforcement officers arrived, the persons attending and participating in the cockfights fled into the surrounding woods. . . .

. . . .

. . . The fight was staged on Morgan’s property on which the arena and bleachers were erected, Mobley was collecting the admission fees, and gamecocks with spurs and other fighting equipment were found on the premises. Thus, the evidence was sufficient to show that appellants were involved in the operation of organizing a cockfight, which is proscribed conduct under O.C.G.A. § 16 12 4.

Id. at 52-54.

Likewise, in Chaney v. State, 232 Ga. App. 297 (1998), convictions for cruelty to animals were affirmed under these facts:

The officer found buildings containing chickens, game cocks (sic), and roosters, and a shelter hidden from the highway view by a felt curtain.

At this shelter, the officer observed two cock fights (sic). The shelter was equipped with five rows of wooden bleachers down two sides of the shelter, and under the shelter there were three “pits” which were formed by lengths of tin roofing or other metal laid in a circle or square to a height of approximately two or three feet so as to be completely separated from the surrounding areas. There was a round main pit and two square side pits. A set of weighing scales was placed nearby with a note pad and a composition book containing the entrants’ weights and numbers listed. The shelter was lit by fluorescent lights and was serviced by a barbecue grill and concessions selling hamburgers and hot dogs. The officer testified that as he arrived, cock fights (sic) were in progress in two of the three pits. In one square side pit, two fighting roosters were equipped with spurs which were attached to the chickens’ feet with leather bands; these spurs were made of stainless steel and were curved “like an ice pick.”

Id. at 297-98. Georgia appellate decisions, therefore, establish beyond peradventure that cockfighting constitutes cruelty to animals under the language of O.C.G.A. § 16-12-4 (b).

Criminal culpability for cockfighting cannot be avoided where blood or tissue samples are taken from some of the game birds for later laboratory testing. Subsection (e) of O.C.G.A. § 16 12 4 was added to the law as part of the Animal Protection Act of 2000.2 It provides for certain exemptions from the cruelty to animals statute:

The provisions of this Code section shall not be construed as prohibiting conduct which is otherwise permitted under the laws of this state or of the United States, including, but not limited to, agricultural, animal husbandry, butchering, food processing, marketing, scientific, research, medical, zoological, exhibition, competitive, hunting, trapping, fishing, wildlife management, or pest control practices or the authorized practice of veterinary medicine nor to limit in any way the authority or duty of the Department of Agriculture, Department of Natural Resources, any county board of health, any law enforcement officer, dog, animal, or rabies control officer, humane society, veterinarian, or private landowner protecting his or her property.

It has been contended that this subsection would preclude prosecution because scientific research associated with testing blood or tissue taken from the game birds is part of the overall event. However, the only alleged connection between the testing and the cockfights is that the cockfights are a “draw” so game bird owners will bring their birds to a location for testing. The cockfights themselves are not an integral part of any scientific or medical testing for the birds. Officials with the Georgia Poultry Laboratory Network have informed GBI investigators that the only testing that is sponsored or authorized by the network is for the identification or eradication of diseased birds, i.e., “disease testing.” The laboratory does not do “endurance testing.” Officials further confirm that there is no advantage in testing a bird after a cockfight. Indeed, the Department of Agriculture identifies “poultry engaged in cockfights” as posing a great risk of introducing Newcastle disease into domestic flocks. GEORGIA DEPARTMENT OF AGRICULTURE, EXOTIC NEWCASTLE DISEASE (2003). It appears that the blood or tissue testing may in fact be nothing more than a subterfuge to make what is clearly criminal behavior appear legitimate.

At the time of the passage of the Animal Protection Act of 2000, cockfighting was prohibited criminal conduct under Georgia’s cruelty to animals law. See, e.g., Chaney v. State, 232 Ga. App. 297 (1998). It was not conduct “otherwise permitted under the laws of this state or of the United States” as provided in O.C.G.A. § 16-12-4 (e). This statutory language simply means that any conduct that was legally permitted under the laws of Georgia or the United States at the time the Act was passed would not be considered a criminal violation under the Animal Protection Act of 2000. Conversely, conduct that had theretofore been recognized as cruel to animals would continue to be so. Therefore, cockfighting continues to be prosecutable as cruelty to animals under subsection (b), notwithstanding the assertion that it has some association with scientific or medical testing in the factual context described above. Moreover, since cockfighting had long been recognized in Georgia as constituting cruelty to animals at the time the Animal Protection Act of 2000 was passed, it cannot be maintained that it would now be exempt from prosecution as a legitimate “exhibition” or “competitive practice.”

The Animal Protection Act of 2000 also created the crime of aggravated cruelty to animals. O.C.G.A. § 16-12-4 (c). This Code section provides that any person who “knowingly and maliciously causes the death or physical harm to an animal by rendering a part of such animal’s body useless or by seriously disfiguring such animal” commits the offense of aggravated cruelty to animals and, upon first conviction, may be punished by imprisonment for not less than one and not more than five years and a fine not to exceed $15,000. I express no opinion whether cockfighting, as described in the above scenario, constitutes the felony of aggravated cruelty to animals as defined in O.C.G.A. § 16-12-4 (c). That determination will depend upon the specific facts of each case.

Finally, you have asked for my opinion whether the facts described might implicate the provisions of the Georgia Farm Animal, Crop and Research Facilities Protection Act, O.C.G.A. §§ 4 11 30 through 33. I have reviewed the Act and determined that it is primarily designed to protect owners from the illegal disruption, theft, or destruction of their stock, crops, or animal facilities. In my view, this Act would have no substantive applicability to cockfighting. However, O.C.G.A. § 4-11-32 (d) does provide that the Act shall not be construed so as to prohibit the Department of Agriculture or any other federal, state, or local agency from taking action in the exercise or any power or duty imposed by law, rule, or regulation.

Therefore, it is my official opinion that, under the circumstances set forth herein, cockfighting constitutes cruelty to animals in violation of O.C.G.A. § 16 12 4 (b) and is not exempt from prosecution pursuant to subsection (e) thereof under the guise of “scientific research” by virtue of the fact that blood or tissue samples are taken from some of the game birds and sent to a laboratory for disease testing.

Prepared by:

Deputy Attorney General

1 The laboratory to which the samples are sent is part of the Georgia Poultry Laboratory Network of the Georgia Department of Agriculture. 2 Enacted at 2000 Ga. Laws 754, the Animal Protection Act of 2000 amended various provisions of the Georgia Code in Title 4 and Title 16 dealing with animal control and cruelty to animals.