Wednesday, October 25, 2017

US v. Wallen, No. 16-30033 (10-25-17) (Fisher w/O’Scannlain, Friedland).  

This is a case about the three grizzly bears, and their being shot by the defendant.  The 9th vacated the conviction under the Endangered Species Act because the magistrate judge, at the bench trial, used the wrong standard for self-defense.  The 9th holds that the “good faith belief” defense for a 16 U.S.C. § 1540 prosecution is “subjective” and not “objective.” It is satisfied when “a defendant actually, even if unreasonably, believes his actions are necessary to protect himself or others from perceived danger from a grizzly bear.”

The case arose when three grizzly bear cubs were seen around homes in Ferndale, Montana (bear country). The cubs were human food conditioned, liked food like chicken feed, and were not afraid of approaching humans to get food.  The cubs killed a number of the defendant’s chickens.  The bears then came back, and scared the family. The defendant chased them away with his truck.  Later, when the bears returned again, the defendant shot them.  A neighbor said at no point did the bears appear to behave aggressively to him or humans. The defendant never called authorities.  He also gave contradictory stories about the bears.

A magistrate court tried and convicted the defendant.  The court denied his request for a jury trial, and used an objective standard for self-defense.  The sentence was five years probation (sixty days at a halfway house), and $15,000 in restitution.

On appeal, the 9th quickly disposed of the jury argument. The maximum penalty of imprisonment was six months, and does not get a jury trial because it is a petty. Lewis v. US, 518 US 322 (1996). The other consequences, such as probation and restitution, were not sufficiently severe to warrant a jury.

The 9th did find that the “good faith” self-defense required a subjective standard. The defendant can argue that he had a good faith belief that the bear cubs threatened him or his family.  The 9th examined the objective standard in other offenses, and the special good faith in this defense, added by Congress in 1978 after an elderly couple shot a bear they said threatened them.

This is not a license for any belief.  A good faith subjective belief can still be unreasonable. Upon retrial, the court can consider acts that would show it was unreasonable to believe the bears posed a danger.

The 9th lastly refused to grant a jury trial because the judge had sat as a trier of fact.

Congrats to John Rhodes, AFPD, D. Montana (Missoula).  
The decision is here:


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