A jury of six ordinary Americans did something no judge, federal or state, has been willing to do anywhere in the country, whether in New York, California, Pennsylvania, Iowa, Maryland, or Wisconsin–it ruled in favor of a farmer-food club operator providing raw milk and other nutrient-dense foods privately to its members.
And the jurors made their decision to find Alvin Schlangen not guilty of three misdemeanor counts having to do with distributing raw milk and other foods in probably the most food-repressive state in the country: Minnesota.
The Minneapolis jury took about a full day in total to come to its decision after no doubt going through many of the same discussions those of us here on this blog have gone through as to whether government enforcers can, in the name of food safety, interfere with private food arrangements and thereby restrict the foods people put into their bodies.
When the jury rendered its decision on Thursday afternoon, Schlangen remained stone-faced, seemingly disbelieving what had just happened…until he turned around. Behind him, in the spectator area, there were hugs and kisses and crying among the 30 or 40 members of his food club and other supporters who have stood by the slender low-key farmer.
Schlangen’s disbelief was understandable. Ever since the alleged outbreak of illnesses from raw milk attributed to Michael Hartmann’s farm in May 2010, Schlangen has born the brunt of what can only be termed a rampage by Minnesota authorities. That rampage saw them break into his van and steal thousands of dollars of members’ food, and obtain search warrants to confiscate food, computers, and other property at his farm and a Minneapolis warehouse storage area.
At the trial, agents with the Minneapolis Department of Agriculture testified about their activities secretly following Schlangen and monitoring his activities. All this, even though no one even suggested Schlangen’s milk or other products made anyone ill.
They also testified that raw milk is highly risky, with James Roettger, a senior inspector, actually saying that it should be consumed on the same day it is produced, suggesting that raw milk kept any longer could become dangerous.
In the end, the jurors chose to believe Schlangen, who took the stand in his own defense, and two of his food club members who testified as to the private nature of the food club arrangement, and how members take an active interest in the food production.
Schlangen told the jurors that “society is undernourished.” When asked by his attorney how the food club works, he said, “140 members are involved in a voluntary food system. It’s about finding a legal way to connect the food source with people.” He said the original idea came from Aajonus Vonderplanitz, the California nutritionist who initially drew up the cow leasing and membership agreements for Rawesome Food Club in California, and used them for other food clubs around the country.
Schlangen’s lawyer, Nathan Hansen, sought to counter the state’s contention that Minnesota law requires consumers to travel to the farm personally to obtain their milk. He asked Schlangen how a person with a physical disability could get raw milk, and he answered that 5% of his members don’t have the ability to drive, and thus depend on him.
Schlangen also alleged misconduct by police in executing a search warrant, saying a St. Paul officer’s name was substituted for a Minneapolis officer’s name on one warrant. And he said the MDA had searched his van a week earlier, before they had a search warrant. “I always understood that if you needed a warrant to access the vehicle, you have to have it before, not after”.
Schlangen also said that the prosecution had alluded to the fact that his eggs were not being kept mechanically cool when agents did a search of his Minneapolis storage area March 9, 2011–he countered that with the temperature about 35 degrees on that date, his concern was to “keep the product from freezing, not from getting too warm”. He added, “They used that argument to take my own farm production from me that day”.
One of Schlangen’s members, Kathryn Niflis Johnson, testified that she drank raw milk because, “I believe in the health benefits. And pasteurized milk is a processed food.”
When she was asked the mechanism by which she obtains the milk from Schlangen, she said, “As a member we lease/own the animals. We place an order and food products are delivered by Alvin. We pay the proportional amount for labor and overhead it takes to produce the food.”
She was also asked if she had ever visited Schlangen’s farm. Yes, she said, with her 14-year-old daughter, who was with her in the courtroom.
“Have you ever received rotten/spoiled food?” Hansen inquired.
“No, this food has made us healthy, not sick.”
Johnson, who explained she was trained as a registered nurse, who currently works as a natural health educator, told Hansen she drinks raw milk daily.
“Is your intention to violate the law?” Hansen inquired.
“No, just the opposite. We wish to comply, but it’s difficult when it can be interpreted in so many ways. We introduced a bill into the legislature two years ago that would change or clarify the law.”
How long would it take her to drive to a farm to get her milk? About two-and-a-half hours each way. “So that would be five hours round trip each week.”
When Michelle Doffing, the prosecuting lawyer, conducted cross examination, she asked Johnson if she had “bought” other products from Alvin, and Johnson said, “I don’t know if ‘bought’ is the right word, but I usually get eggs and milk and maybe other things in the past…You have to understand that this is a whole new model and that we don’t necessarily have the right words to describe what we are doing”.
Schlangen had prepared himself for the worst. In a statement Wednesday evening to his supporters, he said, “If this jury is confused about their power to do the right thing in this case, the thought of doing some jail time does not affect my determination to continue to volunteer for services to my food community. I’ve been told that in a misdemeanor case (such as this) it is common to take a few days to process and set an appeal bond to allow for a managed amount of cruelty (like putting a hen in a cage) based on the seriousness (or lack of) in the verdict. Thanks to all of you for being part of my (our) community! I’ve been hesitant to ask, but is there a member of our FFC coop family that would consider holding this volunteer position on a temporary basis? I’ll explain the reason for this in more detail very soon. Above all of the b.s. that is going on this week, think positive, healthy thoughts! WE WILL PROGRESS, no matter the verdict!”
Schlangen could have been sentenced to three months in jail for each of the three misdemeanor counts. The judge had suggested at the start of the trial, when Schlangen refused a deal whereby he would plead guilty to one misdemeanor and get off with paying $200 in court costs, that a harsh sentence could be in the offing when he said he wouldn’t be bound by any of the plea-deal terms if Schlangen was found guilty.
What will be the repercussions of this decision? Most immediately, a second trial of Schlangen, due to take place in Stearns county, about an hour north of Minneapolis, with similar charges, could be called into question. The prosecution could decide to drop the charges rather than risk rejection by a second jury, or it could decide to call on bigger legal guns and go at Schlangen more aggressively in its court presentation.
But beyond Minnesota, the decision is likely to reverberate as well. The enforcers in Wisconsin have no doubt been watching the Minnesota proceedings closely in determining how to approach the upcoming trial of Vernon Hersbherger in January.
Will this decision cause authorities to pull back from their aggressive actions to interfere with private food arrangements? I wouldn’t count on it. They are very determined to control our food decisions, and will no doubt come up with other techniques for control.
Indeed, the MDA issued a defiant statement immediately following the jury’s decision indicating it won’t let up in its repressive tactics. It said that “we strongly disagree with this ruling. The law on this matter is clear, and the jury was tasked with making a narrow finding of whether, in their view, the state had provided sufficient evidence to show beyond a reasonable doubt that the actions of Alvin Schlangen violated state law. This is the highest burden of proof in the legal system, and the fact that the jurors deliberated for as long as they did shows that they found the decision a difficult one to make.
“This narrow ruling does not wipe away the fact that many children and adults have gotten dangerously sick from consuming raw milk. It also does not wipe away the other legal rulings that have upheld MDA enforcement actions. Protecting the integrity of our food supply remains our top priority, and Minnesotans expect us to do that job using modern science and the law as our guide. We will continue to work in their best interests.”
So they’ll be bullying people “for the kids,” huh? As I said, don’t expect any backing down, even in the face of a court action.
But in the meantime, Schlangen has won an important victory. It’s a shot in the arm to the Farm-to-Consumer Legal Defense Fund, which bankrolled Schlangen’s defense. And it most definitely will provide inspiration and guidance for other farmers and food club operators who may be deciding whether and how to fight back.
It’s a shot in the arm, as well, to the Raw Milk Freedom Riders, which helped organize support for Schlangen over the last six months.
The decision has already changed the atmosphere at Schlangen’s food club. After supporters had calmed down in the courtroom, someone asked in a hushed voice about today’s milk/food delivery which had been postponed until tomorrow. Someone else piped up: “Hey! We can talk about it out loud now, can’t we?” A new day in Minnesota.
(Thanks to Kathryn Niflis Johnson and Susie Zahratka for providing information on the court proceedings. Another photo of the courtroom scene immediately following the verdict can be found with a Minneapolis Star Tribune article.)