Originally created 03/28/04

Lawyer doubts legality of rule



AIKEN - More than 100 people who were arrested last year in a cockfighting raid will challenge the constitutionality of the law used to cite them.

Lexington attorney Billy Walker confirmed last week that he is representing 107 of the 118 people charged Nov. 22 with cockfighting at an arena set up in a remote patch of farmland in the Monetta area. A preliminary hearing is set for April 6 before Monetta Summary Court Judge Gibson Fallaw.

Mr. Walker said he will challenge the state's right to cite spectators who are not active participants in the actual baiting and fighting of the cocks, which are equipped with razor-sharp spurs and generally fight to the death.

South Carolina law 16-17-650, a version of which was first drafted in 1877, makes it a misdemeanor "for any person to engage in or be present at cockfighting in this state." The offense is punishable by a fine of $100 plus surcharges and 30 days in jail.

Mr. Walker, who would not identify his clients, citing attorney-client confidentiality, said the defendants maintain they were not participants in the cockfighting.

"Essentially, mere presence where cockfighting is taking place is considered a crime," Mr. Walker said. "There's got to be some criminal intent for it to be a crime. Suppose you're asleep in the stands?"

Mr. Walker said he will file a motion to dismiss the charges on the grounds that the law is unconstitutional. Should Judge Fallaw deny the motion, he will appeal the case to a circuit court judge, he said.

Mr. Walker said that to his knowledge, last year's raid was the first prosecution of cockfighting in South Carolina in 10 years.

Cockfighting to some is considered a part of the heritage of South Carolina, where the state university's mascot is the fighting gamecock and it is legal to breed and raise fighting cocks, a fact that animal rights activists call a "major loophole."

Nicole Paquette, the general counsel for the Animal Protection Institute, dismisses the heritage argument.

"Regardless of whether it's part of the state's heritage, it's an outdated form of entertainment that uses animal cruelty, and I think that says something about a person who takes pleasure in that," she said. "Our heritage was slavery, too, and we got rid of that."

Ms. Paquette said that as long as cockfighting remains a misdemeanor in South Carolina, participants will continue to flout the law. Thirty states and the District of Columbia have made cockfighting a felony. Dog fighting, however, is a felony in all states.

"I would assume that goes back to dogs being seen as companion animals," Ms. Paquette said. "People have a different perception of birds. It's not your basic family pet."

Judge Fallaw said only about 10 people cited in the case have forfeited their bond by skipping their court date, essentially paying a $257.50 fine. Although the 107 defendants have asked for trials, the issue will probably never be tried on the facts of the case, but rather on interpretation of the law, Mr. Walker said.

Reach Stephen Gurr at (803) 648-1395, ext. 110. or stephen.gurr@augustachronicle.com.