Law Review: Shooting grizzly bear in self defense
California’s state bear, the grizzly, is protected by the federal Endangered Species Act. Is there ever an occasion where you can shoot a grizzly bear? That’s the question Brian Charette found out the hard way.
‘GRIZZLY IN MY YARD’
On the morning of May 11, 2014, in rural Montana, Brian Charette awoke to his dogs barking. He spotted an adult grizzly bear with two yearlings in a pasture beyond his fenced-in yard, approximately 30 yards from his home. Because the bears were chasing his horses, Charette grabbed his .270-caliber rifle and went outside. As the sow began to chase his dogs back towards the house “appearing to be climbing the fence,” he shot it. Dead.
Charette and a friend dragged the dead bear away from his property and buried it. He did not report the incident.
Unfortunately for Charette, his ex-wife’s then boyfriend contacted law enforcement, and almost a year later the government charged him with unlawfully taking a threatened species in violation of federal law. The local magistrate found Charette guilty, the district court affirmed, and Charette appealed to the Ninth Circuit Court of Appeals.
ENDANGERED SPECIES ACT
The United States Code prohibits the taking of any grizzly bear in the 48 conterminous states except in self defense. Section 1540(b)(3) provides that a person is not subject to prosecution for violating the Endangered Species Act “if the defendant committed the offense based on a good faith belief that he was acting to protect himself or herself, a member of his or her family, or any other individual from bodily harm from any endangered or threatened species.” The self defense law applies to taking grizzly bears if the taking is reported within five days.
The term “take” in case you are interested, means “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect or attempt to engage in any such conduct.”
The issue in United States of America v. Brian F. Charette was whether Charette was acting in self defense.
I WANT A JURY TRIAL
Charette argued that his Sixth Amendment right to a jury trial was violated because, although the taking of a grizzly bear is a petty offense, the custodial/fines/restitution/supervision penalties are so severe that he deserved a jury trial. The offense would have merited a $25,000 fine and/or not more than six months in jail.
The Court of Appeal summarily ruled Charette was not entitled to a jury trial.
In presenting his self-defense case, Charette argued that the law required that he have a good faith belief that he was acting to protect himself, which would be a subjective belief that he himself was fearful for his life, yet he’d been convicted on a different standard. The trial court applied what is called an objective reasonable man standard, meaning “would a reasonable person have feared for his life,” but Section 1540(b)(3) did not use that standard, but used a subjective standard: what was Charette thinking.
On that basis, his conviction was overturned and the case sent back for a new trial.
Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. Jim’s practice areas include: real estate, development, construction, business, HOA’s, contracts, personal injury, accidents, mediation and other transactional matters. He may be reached at email@example.com or http://www.portersimon.com.