Pigeons and the law

Wade Eaton, BridgeTower Media Newswires

What could pigeons possibly have to do with the law? It turns out that the bird’s presence in our lexicon is extensive.

Take, for example, the phrase “stool pigeon.” In the current context the phrase describes a person involved in a criminal enterprise who reports back to the police with incriminating evidence, hoping to reduce his own punishment.
The first reported case mentioning stool pigeons was in 1927 (Cain v. United States, 19 F.2d 472 (8th Cir. 1927). See generally, Donnelly, Judicial Control of Informants, Spies, Stool Pigeons, and Agent Provocateurs, 60 Yale Law Journal 1090 (1951). The origin of the phrase dates back to the 16th century. It referred to the practice of sportsmen placing a dead pigeon on a stump to attract other birds, which the sportsmen would then capture or kill.

After the practice of shooting pigeons was outlawed in England in 1921, enthusiasts moved to shooting clay pigeons. Why these objects retained the reference to the bird is somewhat curious, since the new targets looked more like hockey pucks than pigeons. Apparently, there remained some confusion surrounding the relationship between the two terms. Eventually a Missouri appellate court set the record straight:

“Clay pigeons are not live birds.” Ode v. Board of Zoning Adjustment of Platte County, 796 S.W.2d 81, 84 (1990).

A further reference to a deceased pigeon is now occasionally used by counsel when referring to an opponent’s legal argument. It came from the lips of Abraham Lincoln during an 1858 debate with Stephen Douglas: “[it’s] as thin as the homeopathic soup that was made by boiling the shadow of a pigeon that had starved to death…”. See, e.g., Kluver v. PPL Montana LLC, 293 P.3d 817 (2012). A less accurate reference to Lincoln’s observation comes in Louisiana Department of Transportation and Development v. Stein, 570 So.2d 513 (1990): “Upon a closer reading of the majority opinion, it inescapably brings to mind the observation of Abraham Lincoln that no matter how hard one tries you cannot make pigeon soup out of the shadow of a clay pigeon.”

Another legal term referring to pigeons is the “pigeon drop.” It refers to a scam (also known as Spanish Handkerchief scam) in which a mark, or “pigeon,” is invited to share in a large sum of money recently “found” by the perpetrator. The victim is then persuaded to give up a significant amount of money in order to secure the rights to a portion of the larger sum. Once the victim provides the requested cash, the perp is never seen again. See, e.g., People v. Wilson, California Court of Appeal, 2nd Appellate Dist., 3rd Div. (2018).

District Judge Haight, in his opinion finding a defendant guilty of employing the scam, noted that “[a] prototype of the game was described in a novel, ‘Trick Baby,’ found in the possession of the defendant. I think it likely that some version of the pigeon drop game was played on the streets of ancient Babylon, Sodom, and Gomorrah.” United States v. Jones, 648 F. Supp. 225 (S.D.N.Y. 1986).

And then is the oft-used phrase “pigeon hole,” which appears to have several meanings. The most popular of these refers to the need to separate one group of issues from another similar one. Early use of this meaning is found in Carino v. Insular Government of Philippine Islands, 212 U.S. 449 (1909) (“It is nearer to law than to equity, and is an assertion of legal title; but we think it unnecessary to put it into either pigeon hole.”)

A more recent case involved a nearby institution of higher learning. Cf. Weise v. Syracuse University, 522 F.2d 397 (2nd Cir. 1975): “We are not, however, engaged in an all-or-nothing, pigeon-hole form of juris-prudence, and it is not necessary to put sex discrimination into the same hole as race discrimination…”

A much different use of the phrase appears in several municipal regulations. It refers to a type of recreation which is not held in high esteem. For example, the City of Rock Island, Illinois, prohibits “… any game of bagatelle, pigeon-hole, pinball or horserace. The term, `bagatelle, pigeon-hole or pinball’ as used in this section shall mean a game played with any number of balls or spheres upon a table or board having holes, pockets or cups…” Hagen v. City of Rock Island, 18 Ill. 2d 174 (1959).

Last, but not least, is the Pigeon Hole Theory of the Law of Torts. More than a hundred years ago, a controversy raged in England over whether there was a law of “tort” based on general principles, or only a law of “torts” based on specific remedies which had been historically recognized, each residing in its own pigeon hole. See, Morrison v. National Broadcasting Company, Inc., 24 A.D.2d 284 (1st Dept. 1965).

The question was settled for our legal system by Justice Holmes in Aikens v. Wisconsin, 195 U.S. 194 (1904). The Court endorsed the concept of the prima facie tort: “the intentional infliction of temporal damage … which, as a matter of substantive law, whatever may be the form of pleading, requires a justification if the defendant is to escape.” So much for the Pigeon Hole Theory of the Law of Torts.

There are, of course, a host of cases directly involving pigeons, some of which involve the Migratory Bird Treaty between the United States and Great Britain in 1919. Some are well worth exploring, but that is for another day.

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Wade Eaton served as an assistant attorney general and is a former partner at Chamberlain D’Amanda in Rochester.