The Hedgehog
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Merry Christmas!
MT Sheep Hunter Fined
- Thread starter Nemont
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Wow... I cannot believe the debate this has sparked. So here is my 2 cents worth.
I'm not writing to anger or disregard others opinions about this. However there is something I was asked years ago that may have some bearing. For 5 years of my life I was a Reserve Deputy for the Sheriff's office. During my academy one of my instructors posed a question, "Why do we make laws?" There were many answers given. Some good and some not. His response was simply, "The point of a law is to make society run smoothly." And in it's simplest form that is why any unfair act or something perceived as out of order becomes against the law to do. Many have forgot WHY a law is a law. But it is important to know. It seems inconsequential to point that out until you are hit with having to make a life changing decision as an officer. This is also where the "criminal intent" argument comes to light. Also bringing forth the saying, "there are exceptions to every rule" as well as "officer discretion". My mettle was tested one night when I discovered a drunk driver who after leaving a party realized he had more than he thought he had and then pulled over to sleep it off. By the letter of the law he goes to jail. By the spirit of the law he did the rite thing after making a mistake. He pulled over instead of continuing home through a populated area and killing someone. What would you do? What lesson are you going to teach in the next 5 minutes of this man's life? I won't say what I did but really ask yourself what you would do.
To that end, yes the man made some poor choices. But he tried to make up for it. How? Well now fish and game can account for a bighorn ram and ewe that have died, an investigation into a found dead ram and ewe did not need to be conducted saving time and money, and several other consequences of hiding it have been averted. He is attempting to help society run smoothly even though he made a mistake. Does he deserve to go Scot free? Probably not. But charging him with the same as a guy who blatantly and purposefully poaches one and tries to take it home is not fair to him or society as a whole. After reading this article many on this forum have now decided that honestly does have a price tag attached to it. How does that help if another incident occurs? It's easy to say it won't happen to you however I can attest to the fact given the nature of the occupation I am currently in that shit happens to people who didn't see it coming. I would be willing to bet that at some point in your life you have unintentionally broken a law. Crossing an unmarked property (Trespassing), speeding when you didn't see a sign, opening mail and then realizing it's not yours (felony by the way), or letting you hunting dog off a leash while hunting. All hard laws in the books but we tend to give a little under certain situations.
With all that in mind I pose this to you. Why is killing a sheep without a tag the law? And given why it is against the law does this situation warrant the same punishment as purposefully poaching one? But yet again, Just my 2 cents worth.
I'm not writing to anger or disregard others opinions about this. However there is something I was asked years ago that may have some bearing. For 5 years of my life I was a Reserve Deputy for the Sheriff's office. During my academy one of my instructors posed a question, "Why do we make laws?" There were many answers given. Some good and some not. His response was simply, "The point of a law is to make society run smoothly." And in it's simplest form that is why any unfair act or something perceived as out of order becomes against the law to do. Many have forgot WHY a law is a law. But it is important to know. It seems inconsequential to point that out until you are hit with having to make a life changing decision as an officer. This is also where the "criminal intent" argument comes to light. Also bringing forth the saying, "there are exceptions to every rule" as well as "officer discretion". My mettle was tested one night when I discovered a drunk driver who after leaving a party realized he had more than he thought he had and then pulled over to sleep it off. By the letter of the law he goes to jail. By the spirit of the law he did the rite thing after making a mistake. He pulled over instead of continuing home through a populated area and killing someone. What would you do? What lesson are you going to teach in the next 5 minutes of this man's life? I won't say what I did but really ask yourself what you would do.
To that end, yes the man made some poor choices. But he tried to make up for it. How? Well now fish and game can account for a bighorn ram and ewe that have died, an investigation into a found dead ram and ewe did not need to be conducted saving time and money, and several other consequences of hiding it have been averted. He is attempting to help society run smoothly even though he made a mistake. Does he deserve to go Scot free? Probably not. But charging him with the same as a guy who blatantly and purposefully poaches one and tries to take it home is not fair to him or society as a whole. After reading this article many on this forum have now decided that honestly does have a price tag attached to it. How does that help if another incident occurs? It's easy to say it won't happen to you however I can attest to the fact given the nature of the occupation I am currently in that shit happens to people who didn't see it coming. I would be willing to bet that at some point in your life you have unintentionally broken a law. Crossing an unmarked property (Trespassing), speeding when you didn't see a sign, opening mail and then realizing it's not yours (felony by the way), or letting you hunting dog off a leash while hunting. All hard laws in the books but we tend to give a little under certain situations.
With all that in mind I pose this to you. Why is killing a sheep without a tag the law? And given why it is against the law does this situation warrant the same punishment as purposefully poaching one? But yet again, Just my 2 cents worth.
James Riley
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Here is my answer to your question:
1. It doesn't warrant the same punishment;
2. According to the judge, it did not result in the same punishment (could have been worse and the fact that some with criminal intent get less is not relevant; they should get worse);
3. Don't confuse restitution with punishment. Two different animals.
4. As pretty much everyone has agreed, legislative removal of judicial discretion can result in what most feel is an unwarranted punishment;
5. We lack enough facts to discern why the officer, the D.A. and Judge decided as they did;
6. There is a question, in my mind anyway, regarding the issue of purposely, knowingly, and intentionally (pki) as laid out in Ben Lamb's post. Specifically, is criminal intent required, or just intent to do the act? That is why I'd like to read the judges findings of fact and conclusion of law.
Let's say you have identical twin full curl rams. Both are in belly deep grass. One is broad side, facing left, standing; his brother is immediately behind him, broadside, facing left, laying down. The shooter is 200 meters away. He pki sights on the standing ram, he pki squeezes the trigger, he pki to kill the ram in his scope. The rifle bucks and while doing so, the standing ram drops and the laying ram stands up with his brother's blood-splatter on his back. The scope settles back on the scene. The shooter pki sights on the standing ram, he pki squeezes the trigger, he pki to kill the ram in his scope. The rifle bucks and the standing ram drops.
The shooter did not have criminal intent. But he did have pki. The law, if I remember what Lamb posted, does not reference criminal intent. It just requires pki. The result is what actually happened whether it was known to be the result prior to the act. So the question is, did MT intend pki to go to the criminality, or merely to the act? To me, the legislature's language is somewhat unwieldy and that is why the findings would be important to read. Usually, ignorance of the law is no excuse so intending a criminal act is not required. But sometimes the law wants criminal intent for more severe punishment. It's the mens rea aspect.
Maybe one of you attorney's could parse the statute or apply some MT-specific law on the pki language. I confess I don't know so I'm defaulting to the MT judge and not some article on the internet written by someone who's legal knowledge is not specified.
But in the end, he could get NO punishment and still be responsible for restitution. It's the State-assessed value of the ram that most seem to see a just cause for hiding their mistake.
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James Riley
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I decided to go back and try to parse the language that Lamb cited. Here's the best I could do without any understanding of how MT has applied or interpreted that law:
When engaged in statutory interpretation it often helps me to reduce the language to the specific facts of the case (dealing with “and” an “or”, etc.) Here I reduce the language as follows:
“A person may not attempt to . . . kill . . . more than one game animal . . .”
“. . . the court . . . shall find that the illegal killing . . . was done knowingly or purposely . . .”
“ . . . a person acts knowingly with respect to conduct . . . when the person is aware of the person's own conduct . . . .”
“ . . . a person acts purposely with respect to . . . conduct . . . if it is the person's conscious object to engage in that conduct . . . .”
That does not, to me, require the shooter's knowledge of society's position on the act, or knowledge of society's position on the result of the act.
However, I find a little ambiguity with two questions:
1. Is knowledge of “more than one game animal” an element of the offense?
On the face of it I'd say no. Otherwise the legislature could have said “A person may not knowingly . . .”
2. Does an attempt to shoot more than one game animal constitute a purpose to shoot more than one game animal?
On the face of it I'd say no. Otherwise the legislature could have said “A person may not purposefully . . .” Besides, that purpose would be established by the result unless the purpose outweighed the harm sought to be prevented by the law. How could the purpose outweigh the harm unless, say, the shooter was under attack or had some other compelling reason to shoot the second animal?
Also, the language says “knowingly or purposefully”. Thus, we don't even need to get to the “purposefully” issue. Otherwise it would say “knowingly and purposefully.”
So, the court's findings on k and p don't seem tied to the criminality or even the second ram (result); rather, the court's findings on k and p can be limited to the conduct/act.
As a defense attorney I would argue that the "illegal killing" is not illegal unless there is knowledge of the illegality. However, that seems to be putting the cart before the horse. The language "illegal killing" does not come up until the restitution question arises. It seems to me the question of illegality was already determined by the law prior to getting to the restitution question. Thus, adding k and p at the restitution phase goes to the act and not the illegality. I could be wrong.
Happy Holidays.
When engaged in statutory interpretation it often helps me to reduce the language to the specific facts of the case (dealing with “and” an “or”, etc.) Here I reduce the language as follows:
“A person may not attempt to . . . kill . . . more than one game animal . . .”
“. . . the court . . . shall find that the illegal killing . . . was done knowingly or purposely . . .”
“ . . . a person acts knowingly with respect to conduct . . . when the person is aware of the person's own conduct . . . .”
“ . . . a person acts purposely with respect to . . . conduct . . . if it is the person's conscious object to engage in that conduct . . . .”
That does not, to me, require the shooter's knowledge of society's position on the act, or knowledge of society's position on the result of the act.
However, I find a little ambiguity with two questions:
1. Is knowledge of “more than one game animal” an element of the offense?
On the face of it I'd say no. Otherwise the legislature could have said “A person may not knowingly . . .”
2. Does an attempt to shoot more than one game animal constitute a purpose to shoot more than one game animal?
On the face of it I'd say no. Otherwise the legislature could have said “A person may not purposefully . . .” Besides, that purpose would be established by the result unless the purpose outweighed the harm sought to be prevented by the law. How could the purpose outweigh the harm unless, say, the shooter was under attack or had some other compelling reason to shoot the second animal?
Also, the language says “knowingly or purposefully”. Thus, we don't even need to get to the “purposefully” issue. Otherwise it would say “knowingly and purposefully.”
So, the court's findings on k and p don't seem tied to the criminality or even the second ram (result); rather, the court's findings on k and p can be limited to the conduct/act.
As a defense attorney I would argue that the "illegal killing" is not illegal unless there is knowledge of the illegality. However, that seems to be putting the cart before the horse. The language "illegal killing" does not come up until the restitution question arises. It seems to me the question of illegality was already determined by the law prior to getting to the restitution question. Thus, adding k and p at the restitution phase goes to the act and not the illegality. I could be wrong.
Happy Holidays.
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Straight Arrow
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This poor expired equine likely won't even be worth rendering due to the prolonged extensive beating.
James Riley
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If I can't argue with others then I will argue with myself. I know you wish I wouldn't do it here but when you are crazy like I am, you like to think out loud.
Good thoughts Mr Riley. In your Hypothetical situation the shooter still did not Purposefully, Knowingly, and Intentionally shoot a ram he did not have a tag for. He did P.K.I all actions resulting in a ram dying he didn't have a tag for. Which is different and what I was getting at. I'm not really arguing but pointing out a difference in an action resulting in wrongdoing and intentional wrongdoing. With Lamb's post on page 2 of this post it defines "Knowingly and Purposefully"
Here is the restitution law on the ram.
87-6-907. Restitution for illegal killing, possession, or waste of trophy wildlife. In addition to other penalties provided by law, a person convicted or forfeiting bond or bail on a charge of purposely or knowingly illegally killing, taking, possessing, or wasting a trophy animal listed in this section shall reimburse the state for each trophy animal according to the following schedule:
(1) mountain sheep with at least one horn equal to or greater than a three-fourth curl as defined by commission regulation, $30,000;
Granted my experience with this is in Idaho, not Montana so I can see where things may be different. I agree restitution should be made and restitution is not punishment. It's like backing into someone's car. Even though you didn't mean to you still have to make it rite. But $30,000? How do they get that number? Is it the cost of implantation and relocation? Like you said in your Lamborghini situation, how do they come up with the cost. In reality the state may just be out the tag cost next year. So... a few hundred to a couple thousand dollars. Could it not be paid back in volunteer hours, assisting fish and wildlife, or simply using this experience teaching hunter safety classes for a given time. All more valuable in my mind than $30,000 that goes somewhere in a states budget. Restitution for wildlife doesn't even go back to Fish and Wildlife in a lot of states.
My point was simply to point out to some on here that quote the law and say, "The law is the law, pay up" is not always the case. It may be the judges finding that it was intentional. Who knows. But my point being, never assume that a law has no flexibility in any circumstance. In fact in the statute above it gives leeway for unintentional incidents. Which go away if you plead guilty by the way. Ignorance of a law is no excuse as you stated. But not knowing ones actions would result in a law being broken is a valid rationalization for the flexibility in a result. You don't have to be an attorney to not agree with the letter of a law in a circumstance, in fact it's part of your civic duty to question them if you ever serve on a jury. And that is precisely why you should ask why a law is a law. I should state I DO NOT condone breaking the law even if you don't agree with it. But we are human and cannot write anything in stone knowing all the circumstances that may transpire in the future. And with all that Ambiguity of the wording in laws you have pointed out, you may still argue your case to a jury of ones peers who then have the job of finding if you actually should be punished and pay restitution. This is where societies as well as your position of the law is VERY important. If the letter of the law that you're point out is all you need then why have a jury. Why not just do away with them? Because of cases just like this one and differing opinions on the laws such as mine and yours. Or you could plead guilty, lose you license and pay a $30000 fine regardless of what the result could be.
Merry Christmas.
Here is the restitution law on the ram.
87-6-907. Restitution for illegal killing, possession, or waste of trophy wildlife. In addition to other penalties provided by law, a person convicted or forfeiting bond or bail on a charge of purposely or knowingly illegally killing, taking, possessing, or wasting a trophy animal listed in this section shall reimburse the state for each trophy animal according to the following schedule:
(1) mountain sheep with at least one horn equal to or greater than a three-fourth curl as defined by commission regulation, $30,000;
Granted my experience with this is in Idaho, not Montana so I can see where things may be different. I agree restitution should be made and restitution is not punishment. It's like backing into someone's car. Even though you didn't mean to you still have to make it rite. But $30,000? How do they get that number? Is it the cost of implantation and relocation? Like you said in your Lamborghini situation, how do they come up with the cost. In reality the state may just be out the tag cost next year. So... a few hundred to a couple thousand dollars. Could it not be paid back in volunteer hours, assisting fish and wildlife, or simply using this experience teaching hunter safety classes for a given time. All more valuable in my mind than $30,000 that goes somewhere in a states budget. Restitution for wildlife doesn't even go back to Fish and Wildlife in a lot of states.
My point was simply to point out to some on here that quote the law and say, "The law is the law, pay up" is not always the case. It may be the judges finding that it was intentional. Who knows. But my point being, never assume that a law has no flexibility in any circumstance. In fact in the statute above it gives leeway for unintentional incidents. Which go away if you plead guilty by the way. Ignorance of a law is no excuse as you stated. But not knowing ones actions would result in a law being broken is a valid rationalization for the flexibility in a result. You don't have to be an attorney to not agree with the letter of a law in a circumstance, in fact it's part of your civic duty to question them if you ever serve on a jury. And that is precisely why you should ask why a law is a law. I should state I DO NOT condone breaking the law even if you don't agree with it. But we are human and cannot write anything in stone knowing all the circumstances that may transpire in the future. And with all that Ambiguity of the wording in laws you have pointed out, you may still argue your case to a jury of ones peers who then have the job of finding if you actually should be punished and pay restitution. This is where societies as well as your position of the law is VERY important. If the letter of the law that you're point out is all you need then why have a jury. Why not just do away with them? Because of cases just like this one and differing opinions on the laws such as mine and yours. Or you could plead guilty, lose you license and pay a $30000 fine regardless of what the result could be.
Merry Christmas.
belly-deep
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It is different. Lots of JOP's in MT don't have law degrees. I've seen a city court judge that could barely read. I had to ask another judge three times this year to correct an order because the plea agreement said deferred imposition and he kept writing suspended in the order.
So my expectations are not high.
Mr Riley, the question then becomes, "Is one intentionally kicking said Equine or is it simply one tripped over it in a non vicious, accidental manor due to ones lack of familiarity with it's placement in the world due to in-observation of ones surroundings?" 
Either one resulting with the booting of said pony.
Either one resulting with the booting of said pony.
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The Hedgehog
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Don't any of you have presents to wrap?
James Riley
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I agree with your thoughts on discretion. There can be arbitrary, capricious and abusive discretion (letting your buddy off while hammering some "different" guy from out of town) but that's why it's a good idea to have an attorney if you think the system might not be not fair to you, vice other similarly situated people. But the failure of justice to be blind is why some legislatures limit discretion. Many on the right tire of judges letting people off easy while many on the left tire of one guy getting hammered while another walks.
The issue of restitution and value could be left to a finder of fact during trial. And, I suppose, a defendant would be free to argue the valuation if he wanted to. But if he cops a plea then he might be stuck with the "liquidated damages" the State has come up with. Maybe it's based on what tags sell for at auction (fair market value) as opposed to what it actually costs to birth, feed, water, raise and "manage" a sheep on public land. I don't know.
As you know, though, you can get a speeding ticket even if you didn't intentionally speed. In some states (all?) they've made it a civil infraction and not a crime for that reason, but you can still be found guilty of other crimes even if you did not know your act was a crime. Usually a legislature will specify criminal intent when they want it and they did not do so here. The issue of k and p doesn't even come up until after the question of illegality has been determined, and then it is limited to the act, and not the illegality of it, when considering restitution.
I don't see any leeway for a mistake in result (killing 2 rams). The leeway is for an accident (let's say he had no kpi to pull the trigger the second time but accidentally did so; in that case he lacked kpi). There is a world of difference between mistake and accident.
Not knowing ones actions would result in a law being broken may be a valid rationalization for discretion but not all laws allow for that discretion. And if you plead there will be no jury.
I think we are in agreement on what should be. I just don't think the we have enough information about what actually was.
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James Riley
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We had a member of HT here personally vouch for the integrity of the judge in this case. Regardless, I'd say the burden of proof would be upon you to show this judge was like one of your anecdotal examples.
James Riley
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Mr Riley, the question then becomes, "Is one intentionally kicking said Equine or is it simply one tripped over it in a non vicious, accidental manor due to ones lack of familiarity with it's placement in the world due to in-observation of ones surroundings?"
I'd say I'm beating a dead horse, while those who tire of it are tripping over it when they could easily go around.
James Riley
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Hell, I haven't even started shopping yet!
. . .
Just kidding, I wrapped everything up days ago. Thinking about giving you all a break, driving in to the big city and seeing "Why Him." Maybe Texas Roadhouse for some baby backs.
JM77
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My best laugh of the day, thanks buddy and Merry Christmas!!
Topgun 30-06
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That was funny and I don't care who you are!!!
katqanna
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Montana Bighorn Sheep Conservation Strategy Plan, pg. 79:
I couldn't find any fiscal notes or exhibits to explain what they based the $30,000 on. But this appears to be part of the re-organization of the laws, because I found FWP references to a "little known" bill passed in 1999 that raised the amount to $30,000 for bighorns, but haven't tracked down the bill number yet. Holidays, so the law library is not accessible for a couple more days.
I couldn't find any fiscal notes or exhibits to explain what they based the $30,000 on. But this appears to be part of the re-organization of the laws, because I found FWP references to a "little known" bill passed in 1999 that raised the amount to $30,000 for bighorns, but haven't tracked down the bill number yet. Holidays, so the law library is not accessible for a couple more days.
belly-deep
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He can have all the integrity in the world. That doesn't mean he can write an order according to the law.
James Riley
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You're entitled to be wrong. By any reasonable standard, the burden would be upon you to show that he can't write an order according to law. Do you have one single smidgen of evidence that he can't? I mean, other than your irrelevant, limited anecdotal experience with other judges? By any reasonable standard, the presumption would be that he can write a proper finding of fact and conclusion of law. Should a person assume that everyone on HuntTalk lacks reasoning skills, just because they've witnessed your failure in this regard? That makes no sense.
