In our last newsletter, we shared three real-life stories of people fighting off a wild bear attack. These scenarios beg the question: How can a person legally defend themselves against an attacking animal?
Arkansas does not have a specific statute that provides legal justification for killing an animal in self-defense, but the laws of the state do provide a defense. One such defense can be found in the state’s game and fish code.
For example, it is illegal to kill a game animal out of season or without a permit. However, there is an exception if the killing was done in self-defense.
ARKANSAS STATE GAME AND FISH COMMISSION CODE BOOK
Chapter 1.00-G BURDEN OF PROOF FOR VIOLATION EXCEPTIONS
In connection with any action alleging a violation of a Commission regulation, any person claiming the benefit of any exception or permit under this Code shall have the burden of proving that the exception or permit is applicable and was valid and in force at the time of the alleged violation.
Any person asserting self-defense as justification for violation of a Commission regulation shall have the burden of proving that he acted under a good faith belief that he was protecting himself or other persons from imminent bodily harm or serious injury.
For one such hunter, the law was on his side.
A few years ago, Douglas Ramer of Bastrop, Louisiana was legally deer hunting on private property in Arkansas when a 128-pound mountain lion approached his deer stand. Feeling threatened, Ramer shot and killed the animal. Ramer notified Arkansas Game and Fish Commission (GFC) of the shooting and no charges were filed following an investigation.
One caveat to the regulation is that according to a press release from officials at GFC, “non-game wildlife (except migratory birds and endangered species) that present reasonable threat to people or property may be shot during the daylight hours or trapped without a depredation permit.”
According to the New Jersey Division of Fish & Wildlife (DFW), there about 2,400 bears in New Jersey and can be found in every county in the state, leading to an increased possibility of an encounter between a human and a bear. In fact, the DFW reported 146 dangerous black bear encounters in 2015. Though rare, such an encounter can turn deadly as happened to one hiker a few years ago that came upon a bear while out hiking in the woods with four of his friends. All five young men ran away, splitting off into different directions. Unfortunately for 22-year-old Darsh Patel, the 300-pound bear chose him to chase. Patel was unprepared to defend himself and was mauled to death.
What if an animal attacks a human in the Garden State? What are the protections the law allows in the use of force in self-defense in those situations?
New Jersey, like most states, does not have a specific statute that addresses using deadly force in self-defense against an animal attack, but it does have relatively strong animal cruelty laws that may come into play.
The laws that protect animals are contained primarily within Title 4 of the New Jersey Statutes Annotated (NJSA 4:22-10 to 4:22-60).
In summary, the law prohibits the needless killing of a living animal or the inflicting of unnecessary cruelty, either directly or indirectly.
A person found to be in violation of a cruelty statute is guilty of a disorderly persons offense, subject to a fine between $250 to $2,000, or imprisonment for up to six months, or both. The only exceptions spelled out in the statutes are for scientific experiments and for legal hunting. There are no exemptions stated for legal self-defense actions.
Nonetheless, under New Jersey law, you are entitled to defend yourself against injuries caused by animal attacks. Under NJSA Section 2C 3:4, the use of force is justified as self-defense in circumstances where a person is protecting themselves or others against the threat of bodily harm and death, and this includes using deadly force. There are, however, limitations on when such use of deadly force is justified. You cannot avail yourself of the protections of the law if you taunted the animal or provoked the attack or if there was another more reasonable way to protect yourself other than by using deadly force.
In 2015, a 24-year-old deer hunter was in a tree stand when he realized a small, 100-pound black bear was climbing the tree towards his stand. Shouted to scare the bear away to no avail. It kept climbing. As it got within three feet of the tree stand, the hunter fired his shotgun, killing the bear. The young man reported the shooting to Fish & Wildlife authorities who conducted an investigation and determined the physical evidence supported the hunter’s claim he shot in self-defense, even though the agents declined to classify the incident as an attack because “we’re not sure if the bear understood what was in the tree, but you could call it an aggressive bear,” said a Department of Environmental Protection spokesperson.
In this case, the shooting was deemed justified.
Then there is the case of Bob Ehling of Sparta, NJ. In October of 2014, the 76-year-old man was in bed reading while his wife was enjoying breakfast in the kitchen. She screamed when she was a 300-pound mama bear on the other side of the sliding glass balcony door. Bob jumped out of bed, grabbed his shotgun, and went out a side door onto the balcony and found himself about 5 feet from the bear. Fearing for his safety, he shot and killed the bear. At that point, he realized one of the bear cubs was climbing up the post to reach its mama. As it reached the deck, the bear turned its attention to Bob, so Bob dispatched the young bear as well.
Upset, Bob went inside and sat down at the table to calm down when he heard a growl and looked out the door and saw a second bear cub heading his way. He shot and killed it, too.
The police arrived and were sympathetic to Bob’s plight. Run-ins with bears were not uncommon for the local police. However, when agents from Fish and Wildlife showed up, things turned bad for Bob.
The agents took 57 color photos of the scene, one of which depicted a bag of sunflower seed inside the sliding door that the agents proffered the bear was after.
A few weeks after the agents left, Ehling got four summonses in the mail to appear for trial in Municipal Court. Three counts were for hunting bears out of season, and the fourth was for discharging a firearm within 450 feet of a residence. (We’ve told you before how strict New Jersey gun laws are!) Each had a fine of about $100.
Bob decided he would fight the charges in court and assert self-defense. The judge did not buy the defense, stating there was no evidence Bob was being threatened and his actions were more like those of a vigilante. After a day and a half of trial, Judge James Devine found Bob guilty and ordered him to pay more than $4,000 in penalties.
Bob appealed his conviction to the Superior Court in Sussex County where he had a somewhat better outcome. Judge William McGovern affirmed the charges of shooting the cubs but rejected the state’s argument that self-defense is not a valid argument against the charge of hunting out of season. The bear was “reasonably perceived as posing a risk of harm to his wife,” said McGovern. He added further that the “concern that perhaps the bear would use its muscle power and force and its weight break through the sliding glass door, I don’t think that was fantasy.”
This is an example of what can happen if you use deadly force in self-defense against an attacking animal. You will have to establish your actions were reasonable under the circumstances. As can be seen in Bob’s case, two different judges had very different takes on what was reasonable under those circumstances.
Had the stories of the bear attacks happened in the Palmetto State, things might have gotten messy for the victims of the attacks.
That’s because there is no law that specifically provides for the killing of an animal in self-defense. So, if you are out camping and a bear attacks you, you could face legal troubles for killing the bear.
The current law makes it a misdemeanor to kill a bear or elk or deer out of season. Violations can result in up to a $2,500 fine and imprisonment for up to 30 days for killing a deer and up to 60 days for killing a bear. (See South Carolina Code Sections 50-11-340, 360, and 430(E)(1) and (F)(1)-(2))
The law is not clear when it comes to self-defense against animal attacks, though such attacks are unusual.
One such case involved a deer-stand hunter who shot a bear climbing the tree to the stand. In that particular case, the Department of Natural Resources chose not to prosecute, although it could have.
That is why State Senator George “Chip” Campsen, III, (R-Isle of Palms), filed S.21 on December 13, 2016, which amends the Code to provide that a person may use a firearm to kill any animal or alligator any time of year in self-defense, defense of another, or defense of domestic animals.
The bill, if passed, would require a person who uses deadly force against a big game animal or alligator to report the incident to the Department of Natural Resources so it can recover the carcass. Failure to report the incident or to keep the carcass would be a misdemeanor subject to a fine up to $1,000.
Interestingly, the bill specifically states a person cannot claim self-defense in the killing of a deer.
The bill was introduced and read the first time in the Senate on January 10, 2017, and immediately referred to the Committee on Fish, Game and Forestry where it still languishes.
Sen. Campsen, who just so happens to be the Chairman of that committee, said his bill would codify what the practice of the DNR is in cases like that of the deer-stand hunter. He hopes his bill can gain some traction this legislative session.
Until recently, the Volunteer State did not have a self-defense law to protect a person from potential legal consequences for killing a threatening animal.
But that changed in 2015 when two state lawmakers had personal connections with individuals that faced fines for killing an animal (or in one case, a snake) in self-defense.
State Representative Jeremy Faison (R-Crosby) had a friend that killed a copperhead snake with a shovel after the reptile neared his children that were playing in his backyard back in 2013.
“You are not allowed to kill an animal in Tennessee. Period,” Faison told News 2, “Unless you have a license to kill it. If we have laws that say I can kill a human being if I am threatened by danger, then we ought to be able to at least take the life of an animal if my family or my life is in danger.”
Sen. Frank Niceley (R-Strawberry Plains) recalls a similar story about a family friend that faced a fine from the Tennessee Wildlife Resource Agency (TWRA) after shooting a threatening bear that came upon him while he was out boar hunting.
“Asking some prosecutors, I discovered Tennessee does not have a self-defense law to protect against you against threatening animals,” said Niceley.
These incidents spurred the two lawmakers to introduce companion bills in their respective legislative chambers that would provide protection to those individuals that have to take the life of an animal that posed a threat to themselves or to others.
The measures, House Bil 0135 and Senate Bill 0205 were introduced in 2015. The Senate adopted HB 0135 in place of its own bill, and the measure passed both chambers in April of 2015. The Governor signed HB 135, and it became law effective July 1, 2015.
In Tennessee, the law provides a person is legally justified in killing or injuring a threatening wild animal when the person reasonably believes the action is necessary to protect themselves or another person against an imminent attack that would likely result in serious bodily injury or death.
The law also requires that a person notify TWRA within 24 hours if they kill or seriously injure a big game animal, provided it is reasonable to contact the agency within that time period.
The law went a step further in making it a defense to criminal prosecution to kill or injure a threatening wild animal to protect a person’s property, including agricultural products, livestock, and domestic animals, from imminent harm. It does not make it a legal justification to kill a wild animal to protect property, merely a defense that can be raised at trial.
The law, however, is not absolute. You are not justified in killing a threatening wild animal if you can safely retreat, except if the animal is in your house, tent, camper, or other occupied living structure. Nor are you afforded the protection of the law if you knowingly or recklessly provoke or attract the wild animal.
In summation, you are justified in killing a wild animal that is threatening you or another person, so long as you cannot safely retreat and you did not provoke the attack. While it is not a legal justification to kill a wild animal to protect property, it is a defense that can be raised in a criminal prosecution.
Utah law is spelled out in R657-63-3, the self-defense statute. The law provides
(1) A person is legally justified in killing or seriously injuring a threatening wild animal when the person reasonably believes such action is necessary to protect them self, another person, or a domestic animal against an imminent attack by the wild animal that will likely result in severe bodily injury or death to the victim.
(2) In determining imminence or reasonableness under Subsection (1), the trier of fact may consider, but is not limited to, any of the following factors:
(a) the nature of the danger;
(b) the immediacy of the danger;
(c) the probability that the threatening wild animal will attack;
(d) the probability that the attack will result in death or serious bodily injury;
(e) the ability to safely retreat;
(f) the fault of the person in creating the encounter; and
(g) any previous pattern of aggressive or threatening behavior by the individual wild animal which was known to the person claiming self-defense.
(3) (a) A person shall notify the division within 12 hours after killing or wounding a wild animal under Subsection (1). (b) No wild animal killed pursuant to Subsection (1) or the parts thereof may be removed from the site, repositioned, retained, sold, or transferred without written authorization from the division.
(4) (a) A person is not legally justified in killing or seriously injuring a threatening wild animal under the circumstances specified in Subsection (1) if the person:
(i) has the ability to safely retreat from the threatening animal and fails to do so, except when the animal enters a home, tent, camper, or other permanent or temporary living structure occupied at the time by the person or another person; or
(ii) intentionally, knowingly, or recklessly provokes or attracts the wild animal into a situation in which it is probable it will threaten the person, another person, or a domestic animal.
As you can see, Utah requires a person to retreat first if it can be safely done before resorting to deadly force, provided the attacking beast hasn’t entered your occupied home, camper, tent or other living structure. That’s a whole different ballgame.
Alaska has a specific statute that allows for the taking of a game animal in self-defense.
The law provides in pertinent part:
“Nothing prohibits a person from taking game in defense of life or property if the necessity for the taking is not brought about by harassment or provocation of the animal, or by an unreasonable invasion of the animal’s habitat, or is not brought about by the improper disposal of garbage or a similar attractive nuisance; and all other practicable means to protect life and property are exhausted before the game is taken.” (See 5AAC 92.410(a)((1)-(3).
Game taken in defense of life or property is the property of the state, and anyone taking such game is required to immediately salvage the meat, (or skull and hide of a bear, wolf, wolverine, or coyote) and surrender the meat or hide to the Alaska Department of Fish and Game.
One such incident happened to a young 14-year-old deer hunter, Kavin Roberts, in October 2015 when he was attacked by a charging Kodiak Brown Bear. The bear was within 15 yards when Kavin was able to bring down the animal with his deer rifle. Having never killed a bear before, Kavin had to recruit help from locals and Wildlife Troopers to properly skin and salvage the bear.
And like all government bureaucracies, the State requires the person killing a game animal in self-defense to complete a report and submit it to the Department of Fish and Game.
We can look to the Montana Constitution for guidance.
“All persons are born free and have certain inalienable rights. They include the right to a clean and healthful environment and the rights of pursuing life’s basic necessities, enjoying and defending their lives and liberties, acquiring, possessing and protecting property, and seeking their safety and happiness in all lawful ways. In enjoying these rights, all persons recognize corresponding responsibilities.” MONT.CONST. art. II, § 3
Do the protections afforded by the Montana Constitution extend to protecting oneself from an animal attack?
The short answer is “yes,” but with restrictions.
If a black or grizzly bear or mountain lion attacks, and if you have a firearm and know how to use it safely and effectively, Montana law allows you to kill the animal to defend yourself, another person or a domestic dog. If you do kill an animal in self-defense, you must report it to Montana Fish, Wildlife and Parks (FWP) within 72 hours.
A pheasant hunter had a close encounter of the bear kind and lived to tell about it. He had just shot a bird when a 900-pound female grizzly bear came charging at him. The 69-year-old hunter yelled and fired a warning shot into the air, but it had no effect on the beast. It kept coming at him. Feeling he had no choice, the hunter shot and killed the bear as it got within ten feet of him.
Wildlife officials from FWP conducted an investigation and determined the shooting to be a justifiable case of self-defense.
A West Yellowstone man had an elk carcass in his garage that apparently attracted the interest of a grizzly that wandered in to investigate. As the bear made its way up the front porch, the homeowner shot and killed the grizzly. After an investigation, FWP determined that the shooting was in self-defense and no charges were filed.
But for one camper and his family, things turned out differently. Shalako Katzer and his brother observed a grizzly in their campground. The brother fired two rounds from his rifle and the bear retreated. Katzer, thinking the bear might return, decided he and his brother would track it down.
They came upon the bear and Katzer killed it with a round from his .45 caliber pistol.
Katzer was convicted of violating the Endangered Species Act for knowingly taking a threatened species. He was sentenced to six months incarceration and ordered to pay $5,000 in restitution. Grizzlies in Montana outside the Greater Yellowstone Ecosystem are still on the endangered species list and protected by federal law.
Obviously, grizzly bears can pose a safety risk to humans, but that risk can be diminished or eliminated through proper precautions and appropriate behavior, argued the United States Attorney Mike Cotter in his prosecution of Katzer.
“It (the sentence) tells them that the Department of Justice takes enforcement of federal wildlife protection laws seriously and that individuals who seek to harass and kill these protected animals, not out of self-defense, but apparently for sport, will pay the consequences,” Cotter said.
That was also the case of a 75-year-old man, Everett Skunkcap, who shot and killed a grizzly sow and her two young cubs that had wandered within 100 feet of him and his grandchildren. His claim of self-defense did not hold up, and he agreed to a plea agreement for killing one of the bears in exchange for dropping charges for killing the other two bears.
Apparently, Skunkcap had bragged to wildlife officials months before the shootings that he had shot and killed another grizzly that had wandered onto his property and that he would do it again rather than call the Fish and Wildlife Service for assistance in managing the bears.
He was ordered to pay $30,000 in restitution and had a six-month jail sentenced suspended if he made the restitution payment.
Lesson to be learned here is that his prior conduct and words were used against him.
The grizzly bear was as recently as 1974 considered to be an endangered species. Through careful management, the population of bears has grown to a level that allowed it to be removed from the endangered species in the Greater Yellowstone Ecosystem list a year ago. The numbers have reached such a level that Wyoming is considering establishing a hunting season for the grizzly bear as early as the fall of 2018. Bad news bear.
As a result of the increased bear population, there has been more and more contact between humans and grizzlies to such a degree that humans are the number one agent of death for the grizzly, averaging about 10 killings a year predominantly for self-defense.
A report issued by the U.S. Fish and Wildlife Service, though incomplete, indicated that between 2004 and 2014 there were 112 hunter-killed grizzlies. An analysis of the records revealed that since 2008, 61 of 86 grizzly killings were done in self-defense.
Wyoming recognizes the grizzly bear as a federally protected species and anytime one is killed, an investigation is conducted to determine if the killing was justified. Sometimes it wasn’t.
One such justified shooting occurred when a couple of elk hunters encountered a grizzly that had dragged off the carcass of an elk they had shot. The bear charged at the hunters and got within ten feet before the men were able to draw their handguns and fatally shoot the animal four times. Law enforcement investigators determined the shooting was done in self-defense.
“The wound tracks and their entry locations matched the story told,” the investigation report said. “The bear was facing them when it was shot.”
However, for a hunting guide, the result was not as favorable.
A few years ago, a nuisance bear had been coming into the outfitter’s camp on a daily basis but was scared away by the hunter’s dog. On one occasion, however, the bear ignored the dog and continued on into the camp. The guide ran to his tent and grabbed a shotgun, and yelled at the bear one more time to scare it away. When the bear did not move, the guide shot and killed the bear as it stood there.
In this case, the investigators determined that the guide was not in imminent danger at the time he pulled the trigger. As a result, he was found guilty of a misdemeanor and fined $1,000.
And then there’s the case of Stephen Westmoreland, who was convicted of killing a grizzly without a license just north of Jackson Hole, Wyoming a few years ago.
Westmoreland had been deer hunting when he came upon a grizzly feeding on a moose carcass. Westmoreland, covered in blood from a deer he had killed, field dressed, and carrying its head, felt he had no choice but to shoot the bear.
The bear was less than 40 yards away when it noticed Westmoreland. He knew the bear could be upon him in three or four seconds, giving him no time to flee. Further, he reasoned that if he waited till the bear charged him, shooting a moving target would be more difficult. He chose to shoot the bear where it stood.
At his trial, the prosecution put on evidence that refuted his self-defense claim, including testimony from a Wyoming Fish and Game bear management supervisor, Mark Bruscino. Bruscino pointed out that Westmoreland was not carrying any bear spray and could have simply pointed his rifle at the bear and waited to see if it charged.
Additionally, Bruscino described a continuum of bear behavior. A grizzly that encounters a human will flee 99 percent of the time, he said. After that, bear behavior might include disinterest in a human, curiosity followed by a retreat, stress behaviors such as excessive salivation and panting, bluff behavior such as false charges and finally an attack.
In his defense, Westmoreland stated he did not have time to go through that analysis. He felt the threat was immediate.
The jury disagreed and found him guilty of killing a grizzly bear without a license. He was fined $500. The charge could have brought a year in jail and a $10,000 fine.
How many of you could have calmly waited till the bear rushed at you or gone through all the progressions described by Bruscino like an NFL quarterback looking for an open receiver?
Wyoming law does not impose a duty to retreat before resorting to deadly force if you are in your home. However, if outside your home, the duty to retreat still applied if retreat could be done safely. Prosecutors could argue that a defendant was not acting in self-defense if they failed to leave a situation that a reasonable person would have before acting against a potential attacker.
Fortunately, at the end of March 2018, a bill was passed that changed the law making it no longer necessary to retreat before using deadly force when in a public place.
The laws can be tricky and in a stressful situation, even more confusing. At what point does the threat become imminent? The reasonableness of your actions will be determined by a jury.
As an aside, the U.S. Fish and Wildlife Service noted that the .44 magnum handgun is apparently the weapon of choice when it comes to protection against bear attacks, having been used in over 25% of all self-defense shootings.
Until now, we have been talking about various state laws. What about federal law?
The federal law has actually had the foresight to specifically provide that a person may kill an endangered animal in self-defense, such as the regulations concerning the Red Wolf in 50.C.F.R. Sec. 17.84(c)(4)(i), the Mexican Wolf in 50 C.F.R. Sec. 17.84(k)(7)(i), or the Grizzly Bear in 50 C.F.R. Sec. 17.40(b)(i)(B).
Specifically, with regards to grizzly bears, the law provides:
(b) Grizzly bear (Ursus arctos horribilis) – (1) Prohibitions. The following prohibitions apply to the grizzly bear:
(A) Except as provided in paragraphs (b)(1)(i)(B) through (F) of this section, no person shall take any grizzly bear in the 48 conterminous states of the United States.
(B) Grizzly bears may be taken in self-defense or in defense of others, but such taking shall be reported by the individual who has taken the bear or his designee within 5 days of occurrence . . .
50 C.F.R. Sec. 17.40(b)(i)(B)
For instance, there is the case of a hiker in Glacier National Park in Montana a few years ago. Brian Murphy came upon a grizzly bear that became aggressive and attacked him. Bear spray had no effect on the bear. Fortunately, Brian was armed with a .357 Magnum revolver and was able to defend himself when the bear was within ten feet. Wounded, the bear ran away. And so did Brian.
He immediately reported the shooting to park rangers and cooperated with their investigation. After the investigation was completed, Brian was charged with illegally discharging a firearm inside a national park under 36 CFR 2.4 (a) (1) (iii), which makes it illegal to use a firearm in a national park. Brian’s attorney was able to convince the judge that the shooting was done in self-defense and therefore a legal exception under the law. The judge agreed and dismissed the case.
Under the federal Endangered Species Act, the law is a little more succinct and provides:
Notwithstanding any other provision of this Act, no civil penalty shall be imposed if it can be shown by a preponderance of the evidence that the defendant committed an act 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. 16 U.S. Code § 1540(a)(3).
However, like almost every law, there are exceptions and a gray area.
What if a bald eagle swoops down and starts to attack me?
With regards to the bald eagle, the law can be very complex. In 2007, the bald eagle was removed from the endangered species list, but that doesn’t mean it is open season to kill one, even in self-defense.
The bald eagle is still protected by specific federal laws: the Lacey Act of 1900, the Bald and Golden Eagle Protection Act of 1940 and the Migratory Bird Treaty Act of 1918. Essentially, federal law prohibits anyone without a proper federal permit from:
“… knowingly, or with wanton disregard for the consequences of his act take, possess, sell, purchase, barter, offer to sell, purchase or barter, transport, export or import, at any time or in any manner any bald eagle commonly known as the American eagle or any golden eagle, alive or dead, or any part, nest, or egg thereof…” 16 U.S. Code § 668(a)
Violation of this provision can result in up to a civil penalty of $5,000 fine, imprisonment for up to one year, or both, for a first offense. A felony conviction can result in up to a $250,000 fine and up to two years in prison. Penalties increase for subsequent violations.
However, 16 U.S. Code § 668a allows for the “taking” of bald eagles under certain circumstance, provided that the individual first has obtained a permit issued by the Secretary of the Interior, which may be issued after review of an application in compliance with 50 CFR § 22.23.
The application requires you to provide a detailed description of the damage or injury you are experiencing, and economic damages you have sustained before you can submit the application. The permit, if issued, is intended to provide short-term relief until long-term, nonlethal control techniques can be implemented.
The U.S. Fish and Wildlife Service helps to enforce the law and manages permits.
For a Virginia man, he learned his lesson the hard way. This past October, Smithfield resident Allen Thacker was sentenced to house arrest and fined for shooting a bald eagle he considered a menace without first obtaining a federal permit.
Unlike some state statutes, like Texas statutes, federal law is more clear and comprehensible (with the possible exception of bald eagles). Therefore, if you are carrying your concealed handgun in a national park and you find yourself face to face with an aggressive Grizzly Bear, you can use your gun to protect your life.
To View the law for defense against animals in other states click on the state names below: