Post by: wolfbait on May 28, 2010, 06:42:49 AM
Verdict in grizzly bear shooting shows that people must justify a sense of threat.
By Cory Hatch and Sarah Lison, Jackson Hole, Wyo.
May 26, 2010
The successful prosecution of a Jackson Hole hunter who claimed self-defense after killing a grizzly could set a precedent in Greater Yellowstone, where the grizzly population is expanding and loaded guns are now allowed in national parks, experts say.
A jury last week found 41-year-old Stephen Westmoreland guilty of a misdemeanor charge of illegally taking a grizzly bear stemming from an incident in September when he shot a bear in Ditch Creek. He claimed self-defense in a trial that hinged on the behavior of the bear, among other things.
Mark Bruscino, bear management program supervisor for the Wyoming Game and Fish Department, testified at the trial about how bears act before they attack a person and told jurors that most often bruins will retreat during an encounter.
“This whole thing adds up to that people need to make sure they are in a self-defense situation,” Bruscino said in an interview after the trial. “You can’t kill wildlife based on an undemonstrated fear of an unrealistic threat.”
Last year, seven grizzly bears were killed by hunters and hikers in self-defense situations in the Greater Yellowstone Ecosystem. Teton County Attorney Steve Weichman, who prosecuted the Westmoreland case, said it is one of the first instances in the country where a person was convicted of taking wildlife when claiming self-defense.
Westmoreland shot the animal at 40 yards after he encountered it feeding on a moose carcass. The animal died on the other side of the moose from Westmoreland and without charging.
In their verdict, jurors seemed to acknowledge that Westmoreland had no malicious intent when he killed the animal. But they were convinced he was not defending himself from a real threat.
“Under the circumstances, we feel the defendant acted out of fear instead of self-defense,” the verdict said.
The case shows we need to understand the best ways to avoid conflicts with and defend ourselves from grizzly bears,” Weichman said. “We need to understand when we’re in danger and when we’re not. What we need to do, especially if we’re carrying firearms, is understand grizzly bears if we’re in grizzly country.”
“Just killing a grizzly bear because it scares you is not going to fly,” he said. “That’s the message of this case.”
The conviction is important given a new rule in national parks that allows loaded firearms under some circumstances, Weichman said.
“We are possibly stepping into a new era of grizzly bear management brought to us by an increase in the grizzly bear population and an increase in armed backcountry users,” he said. “The obvious application of this case is in the national parks.”
The fact that the jury included some who hunt should also send a message to those who hunt in bear country, Weichman said.
“I wasn’t looking for bear lovers, I was looking for people who loved the sport of hunting,” he said. “If that jury was nothing but bear lovers who had only arrived here five years ago, then it would say that the new Jackson is outvoting the old Jackson, further stressing the dialogue between various interest groups impacted by grizzly bear management decisions.”
“It would be polarizing,” Weichman said. “This verdict sent a message of healing and reconciliation.”
The self-defense argument in this case is similar to the argument used in self-defense cases between people, he said. State law could be clarified to help make cases of self-defense against a bear less ambiguous.
“This should not be interpreted as a message that you cannot defend yourself,” Weichman said.
Options such as bear spray and bear flares are good ways for backcountry users to fend off a bear attack.
“You are not going to be prosecuted if you killed a bear in self-defense, but you need to be prepared to establish reasonable grounds for your claim of self-defense,” he said.
Westmoreland’s defense attorney, David DeFazio, rejected the notion of a precedent following the conviction.
“Either it’s going to cause someone to pause before acting – and I mean before firing a shot – or they’re going to fire a shot and never pick up the phone,” he said.
Westmoreland called authorities to turn himself in.
What the verdict reveals is the community’s deep-seated respect for wildlife, DeFazio said.
“I think that this trial has shown that even with a fair cross-section of county residents, there is an inherent respect for wildlife that rises above a level that I had anticipated,” he said. “That level also rises above the respect that might be found in other counties around the state.”
That respect led the jury to convict Westmoreland given facts that fell within a “gray area,” he said. Westmoreland respects the jury’s verdict, Game and Fish, and everyone involved in the trial, DeFazio said. He was commenting only on why he personally thought jurors reached the verdict they did, he said.
There will never be a clear-cut rule that an outdoorsman can follow when it comes to shooting a bear in self-defense, DeFazio said.
“Despite the fact that this jury chose to discount Mr. Westmoreland’s fear, fear and instinct will always be what guides someone to act,” DeFazio said.
During the trial, 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.
DeFazio said hunters, hikers and other backcountry users are not going to engage in “some sort of scientific calculation based on their observations” before deciding whether to pull the trigger.
“People aren’t going to just pull out a checklist and weigh whether or not the positives outweigh the negative factors before deciding to act,” he said. “They’re going to act on instinct and fear.”
Some conflicting opinions remain about what certain signs mean, he said.
“Whether or not upright ears indicates aggressive behavior is still in question, and whether or not to fire a warning shot seems to still be in question within the Game and Fish Department – as was exhibited within the trial,” he said.
Bruscino said people will learn from the verdict.
“The main message, obviously, is people just can’t kill a grizzly bear because of proximity and a perceived threat,” he said.
Game and Fish has responded to many legitimate cases when grizzly bears were killed because of real threats to human safety.
“Grizzly bears occasionally pose a danger to people,” he said. “There’s no doubt about that. There are bona fide self-defense situations that occur. We consider the totality of the circumstances when the incidents occur.”
Those circumstances include the distance between the bear and the human, the bear’s behavior at the time and any potential escape routes that the person could use to avoid a conflict.
“Was the bear in close proximity and showing aggression?” he said. “We have to look at that on a case-by-case basis. There is no definition in law or regulation that defines what warrants self-defense in any detail.”
Louise Lasley, public lands director of the Jackson Hole Conservation Alliance, said there is increased potential for conflict now that there are more bears and more guns in the backcountry.
“I hope this unfortunate incident alerts everyone to added danger when faced with a grizzly bear if you should actually kill it,” she said. “There are effective alternatives to shooting and killing grizzly bears when we feel threatened. I would hope that people recognizing the effects of these alternatives and the ramifications for killing a bear will be more likely to use those alternatives rather than their guns.”
Lasley said she’s not sure there should be additional legislation mandating that hunters carry bear spray.
“I think there should be more enforcement of existing legislation when grizzly bears are shot,” she said
http://www.jhnewsandguide.com/article.php?art_id=6025 (http://www.jhnewsandguide.com/article.php?art_id=6025)
Post by: Atroxus on May 28, 2010, 07:00:52 AM
Post by: wolfbait on May 28, 2010, 07:17:14 AM
“I hope this unfortunate incident alerts everyone to added danger when faced with a grizzly bear if you should actually kill it,” she said. “There are effective alternatives to shooting and killing grizzly bears when we feel threatened. I would hope that people recognizing the effects of these alternatives and the ramifications for killing a bear will be more likely to use those alternatives rather than their guns.”
Lasley said she’s not sure there should be additional legislation mandating that hunters carry bear spray.
“I think there should be more enforcement of existing legislation when grizzly bears are shot,” she said)
I think Louise Lasley should be set in the middle of grizz country with a can of bear spray and she can show us how it works. ;)
Post by: KimberRich on May 28, 2010, 07:17:58 AM
Post by: GoldTip on May 28, 2010, 07:44:01 AM
Post by: rasbo on May 28, 2010, 07:48:10 AM
Post by: MikeWalking on May 28, 2010, 07:56:16 AM
Quote
Westmoreland shot the animal at 40 yards after he encountered it feeding on a moose carcass. The animal died on the other side of the moose from Westmoreland and without charging.
In their verdict, jurors seemed to acknowledge that Westmoreland had no malicious intent when he killed the animal. But they were convinced he was not defending himself from a real threat.
“Under the circumstances, we feel the defendant acted out of fear instead of self-defense,” the verdict said.
I would liked to have known if the bear had spotted him, or showed any attention to him. The 7 grizzlies I have crossed paths with couldn't leave fast enough, except for one that needed a closer look to see what I was, and when he did figure out it was me advising him to leave he did, quickly, pooping as he went. Of course that's not always the case. I got put into a spot in the Brooks in 2003 a few weeks after two people were killed in their tent, no chance to defend themselves not too many miles away. Just before pick up another hiker many miles West of me was mauled and survived only because of his Spray.
Like KimberRich said he was alone there, only he knows, in hindsight if he needed to shoot. I hope his Honesty buys some credit at sentencing.
Post by: WDFW Hates ME!!! on May 28, 2010, 08:02:39 AM
Post by: littlemac on May 28, 2010, 08:26:42 AM
The way they guard a kill isn't letting them leave it to often and I've had both black and grizz closer than 40 yards. Always on the ready but those times once they had a whiff of me (us) they were gone.
Hard call second guessing the situation.
I recall an Alaskan show where the guys shot the ground in front of the bear a couple times after it showed a charge. It started to leave and wheeled on them, dead at 10 yards.
No question if the guy in Yellowstone was alone and felt threatened, better to get the misdemeanor citation than your ass chewed by a grizz.
Post by: MikeWalking on May 28, 2010, 08:31:48 AM
Post by: Atroxus on May 28, 2010, 08:38:42 AM
I guess we don't know the whole story and i commend him for reporting himself, but 40 yards is a long ways away to feel threatened by a bear.
For an animal that can run at something like 30+Mph I would think that 40 yards more than close enough for a bear to be a serious threat. If I see a bear at 40 yards that is not afraid of me and is coming closer, I am not going to take any chances I am going to shoot it. Call me a coward if you want, but I would rather be a live coward than a dead bear snack.
Post by: Special T on May 28, 2010, 09:20:36 AM
Post by: littlemac on May 28, 2010, 09:28:42 AM
Grizzly Bear Charge (http://www.youtube.com/watch?v=bBK8mRo96Ns#ws)
Post by: GoldTip on May 28, 2010, 09:38:25 AM
Post by: Kain on May 28, 2010, 12:20:01 PM
Post by: boneaddict on May 28, 2010, 12:26:55 PM
Post by: Atroxus on May 28, 2010, 12:37:40 PM
The key to this verdict as stated in the article is the bear was "40 yards away when it was shot and had not charged." That is a great plenty of distance for a bear to be away from you and remain quite handily out of harms way. I grew up on the western border of Glacier park. My parents still live there surrounded by national forests. In the last week my father has been within 40 yards of non charging grizzly bears 3 times. Hell, he could have re-carpeted his entire house with Grizzly hide twice and added in the 36x48 shop once with the non charging grizzlies he's had within 40 yards in the last 5 years. Hell, I was 15 yards from a Grizzly just last summer here in Washington. The point is, if you hunt in Grizzly country you can't be scared of them, period. Aware and respectful, yes, very much so. But this was a fair verdict, and to be honest, I am rather surprised they didn't nail him further if there was no evidence of a charge.
So by that logic if a bad guy with a knife is closing slowly from 21 feet you shouldn't shoot because he's not charging? I haven't done the math but I pretty sure that at 40 yards if the bear had charged it could have closed the distance pretty fast at over 30Mph, possibly fast enough to seriously injure or kill the guy before he could kill it. IMO any large predator that shows no fear of humans should be put down immediately before they make a snack out of one of us. We weren't there so the only one that really knows for sure how things went down is the guy that shot the bear. Who are we to say his life wasn't in danger. Obviously he *believed* it was, and reacted accordingly. Penalizing someone for acting in self defense even if that penalty is "only a misdemeanor" seems ludicrous to me.
Post by: Rob on May 28, 2010, 12:44:55 PM
It does sound like fear versus self defense.
I concur, you shouldn't shoot a bear because you are "afraid" of it. If you are under attack, that's plenty fine.
The way I see it, if the bear was feeding and not charging, and he had the opportunity/time to draw and fire a weapon, then he should also have been able to back away with the weapon on the bear, and still have plenty of time to pull the trigger if it starts a charge. That said, it is pretty easy to offer hindsight from afar!
I gotta say, this makes me an even bigger fan of pepper spray! Mr. Griz is such a magnificent animal, to be able to see one in the wild is one of the privileges of being out in the wild-being a part of the cycle of life. If you can protect yourself with spray and both you and the bear can walk away, so much the better.
Post by: canyelk48 on May 28, 2010, 12:52:19 PM
Post by: Atroxus on May 28, 2010, 01:03:32 PM
A friend of mine was deer hunting near Seeley Lake, MT, and was being stalked by a huge cougar. He tried yelling, waving his arms and slowing backing away; to which the cougar only closed the gap with a "cat-like" crawl. When it got to within 20 yards (about 2 leaps) he shot and killed the cat. He was alone and no one else in the area to witness this. Even though there had been a huge winter kill of deer the previous year, and the local game warden noted previous aggressive encounters with cougars due to a food shortage; my friend ended up with a $500 fine and loss of his MT hunting license for the rest of the year. So much for honesty. SSS seems to apply in these situations too.
Ugh thats ridiculous. According to what I have read mountain lions can leap up to 45 feet horizontally. In my opinion that guy should never have been fined either. I guess you may be right though, if a self-defense situation occurs maybe it is just better to SSS then risk being fined and/or losing hunting privileges for defending yourself. :bash:
Post by: GoldTip on May 28, 2010, 01:05:16 PM
The key to this verdict as stated in the article is the bear was "40 yards away when it was shot and had not charged." That is a great plenty of distance for a bear to be away from you and remain quite handily out of harms way. I grew up on the western border of Glacier park. My parents still live there surrounded by national forests. In the last week my father has been within 40 yards of non charging grizzly bears 3 times. Hell, he could have re-carpeted his entire house with Grizzly hide twice and added in the 36x48 shop once with the non charging grizzlies he's had within 40 yards in the last 5 years. Hell, I was 15 yards from a Grizzly just last summer here in Washington. The point is, if you hunt in Grizzly country you can't be scared of them, period. Aware and respectful, yes, very much so. But this was a fair verdict, and to be honest, I am rather surprised they didn't nail him further if there was no evidence of a charge.
So by that logic if a bad guy with a knife is closing slowly from 21 feet you shouldn't shoot because he's not charging? I haven't done the math but I pretty sure that at 40 yards if the bear had charged it could have closed the distance pretty fast at over 30Mph, possibly fast enough to seriously injure or kill the guy before he could kill it. IMO any large predator that shows no fear of humans should be put down immediately before they make a snack out of one of us. We weren't there so the only one that really knows for sure how things went down is the guy that shot the bear. Who are we to say his life wasn't in danger. Obviously he *believed* it was, and reacted accordingly. Penalizing someone for acting in self defense even if that penalty is "only a misdemeanor" seems ludicrous to me.
Well in my opinion you've actually answered your own question. The bear was not advancing nor had it charged and therefore did not need to be shot. By your own description every black bear, cougar, or dog or human with a knife (within 21 feet) thats within 40 yards and doesn't display a fear of me should be shot. I really hope that is not what you are suggesting? Sure the bear could have charged and caused serious injury or killed the man, thats no reason to kill first and find out later. Evidently what happens later is you get charged with a misdemeanor and convicted. How long do you give the bear to not run away before you kill it? 5 seconds, 10 seconds? 2 minutes, 5 minutes? OK, if there bear has not demonstrated he is scared of me within the next 30 seconds, I'm gonna kill him just to make sure he doesn't attack me? That's just ludicrous. Maybe "someone" needs to stay outta the Grizzly woods, cause sure as hell, sooner or later your gonna find out, some of them ain't scared of you. They are going to guard their food and not run away. If he's a coming on then hell yeah, give him the dirt nap, but if he's just guarding his food, and not demonstrating a fear of you, I'm gonna convict you every time.
Post by: wolfbait on May 28, 2010, 04:31:14 PM
Post by: rasbo on May 28, 2010, 04:33:14 PM
Post by: Wenatcheejay on June 02, 2010, 10:22:33 PM
Post by: ICEMAN on June 03, 2010, 06:08:51 AM
They also elaborated on how wonderful it was to have a "hunter" on the jury. Really?
This is the whole problem. IMSAO (In my stupid ass opinion) the juries should be totally random from the population. You get what you get. Instead, they get a jury that has some hunter on it, and then feel that the verdict is "healing and reconciliatory".... What? Because a hunter was on the jury, now all hunters are OK with the verdict?
Can't we all just get along? :puke:
If some country boy shot a street thug in an innercity ghetto because he felt "threatened" or feared for his life, and we prosecuted the boy in the country.... should we worry about packing a jury and getting a healing and reconcilatory verdict? Too much political correctedness and posturing in my opinion. Seat a jury, get a finding, done. Quit politicizing the damned issues. :bash:
Post by: sisu on June 03, 2010, 06:34:36 AM
How far is 40yds at 35mph?The nearest answer I can give ya Mike Walking is this: at 60mph you are going approx 88 feet per second so at 35mph you are going 51.3 feet per second. 40 yards is 120 feet, therefore the bear if not starting from a dead stop but is going 35mph at the get go will cover the 120 feet in 2.3 seconds, but this is not the case as the bear has to start its charge from a dead stop so there will be a lag time. What that lag time is no one can say but it's sufficient to say it's not long.
I've been charged by 4 black bears in Alaska. All four had bird shot or buck shot blasted over heads or between feet and all four turned tail and ran away. A fifth was in our camp site in early AM charged me, remember I can't hear well, and was scared away by my wife banging a frying pan against the side of the truck camper. That bear BTW died that afternoon when it rampaged through the camp ground. (we were on the Kenai River Camp Ground).
Grizzly bears are a different animal all together. I've been fortunate enough to not have been bothered by aggressive ones only curious ones that left once they decided I was a crazy Finn. What I have been told by some very respected guides is this: a griz will leave you alone most of the time, but IF that bear that sights you is on higher ground that you and it decides to charge. It will not be a false charge. I got this little tidbit from two guides out around Chickaloon and Glacier, Alaska. Both are very experienced and woods savvy.
Post by: MikeWalking on June 03, 2010, 06:44:33 AM
Quote
Grizzly bears are a different animal all together. I've been fortunate enough to not have been bothered by aggressive ones only curious ones that left once they decided I was a crazy Finn. What I have been told by some very respected guides is this: a griz will leave you alone most of the time, but IF that bear that sights you is on higher ground that you and it decides to charge. It will not be a false charge. I got this little tidbit from two guides out around Chickaloon and Glacier, Alaska. Both are very experienced and woods savvy.
Ditto. I've encountered 1 or 2 on each of my 5 trips into the Brooks. Only one kept coming a little to long, and once he figured out what I was he turned and walked off, pooping as he went. The others either ran (one for miles looking back, at a half mile he still looked like a clydesdale)
The only one to charge, a Sow with two cubs, turned out to actually be after the squirrels I couldn't see. She spent 20-30 minutes digging them up around a boulder 150yds away. Got some great pics around here somewhere.
After the meal. I put the camera away and a few seconds later the bigger cub swung my way stood up bawled and they all sprinted into a stand of flooded willows.
Post by: Wenatcheejay on June 03, 2010, 07:02:22 AM