MT: Denied a Jury Trial, Man found Guilty of "Illegal" Grizzly Killings with a .22

In this case in Montana, a man, Dan Calvert Wallen, who shot three grizzly bears who were repeatedly raiding his property and killing his chickens, was denied a trial by jury, and convicted by the judge of illegally "taking" an unlawful species.  The penalty for each offense is up to six months in jail and a $25,000 fine.

What is clear to anyone that studies bear problems, is that these were problem bears, and would have to be dealt with sooner or later.   The Montana Fish, Wildlife, and Parks service had attempted to trap the bears but had failed to do so.

Once bears have become habituated to humans, and associate them with food, they can no longer be trusted.  It is only a matter of time until a hungry bear wonders what that weak, slow, and obviously ineffectual two legged critter might taste like, or needs to be shown its proper place in the pecking order.  Either way results in a serious bear/human conflict.   The essence of the above reality has been put into a motto of wildlife managers: a fed bear is a dead bear.

In the case in Montana, the shooter killed all three bears with a .22 rifle.  From dailyinterlake.com:

Wallen shot the grizzly bears at his home in Ferndale in May 2014. After being denied a request for a trial by jury, Wallen went to trial March 10.

He will be sentenced May 12 in Missoula.

Court documents say Wallen shot three grizzly bears with a .22 rifle on May 27, 2014, but only one dead bear was found that day. The other bears were found on May 28 and June 4 near Wallen’s home.

In his testimony, Wallen described feeling threatened by all three bears and remembered physically shaking after the bears were gone, court documents say. During an earlier interview during the investigation, Wallen signed an affidavit stating that he was fearful for himself and his family.

However, discrepancies in his accounts of the incident caused the court to find lack of credibility in Wallen’s statements, court records say.

Many people do not realize how deadly a .22 is.   Many head of big game has been killed with the .22 long rifle cartridge.  It is a favorite of both subsistence hunters and poachers, who are often the same person.   But the "bullet proof" or at least "bullet resistant" capabilities of bears has been hyped to the thousand yard line and beyond.   The shooter, Wallen, said that he shot to scare the bears away.  At least one of the bears was hit in the hind quarter.  I wonder if he thought that the .22 would not cause them serious damage.  

In addition to the bears being acclimated to humans, the trio were three half grown cubs about 150 pounds each. The cubs and the adult female had a long history of conflict with humans.  At some point the adolescent grizzly bears had been left by the female, about two weeks previous to the shooting.  As the bears were about the size of adult black bears, and "black bears" come in all shades of color from black to brown, there may have been some confusion about which species they were.  It seems unlikely, and the judge said, that according to the law, it does not matter.  From the ruling:

Ninth Circuit Model Criminal Jury Instruction 5.6 (2010).  To Establish that Wallen acted "knowingly," the government was only required to prove that Wallen knowingly "shot an animal which turned out to be a grizzly bear," not that "he knew he was shooting a grizzly bear at the time he pulled the trigger."

It may be that a "request for a jury trial" is not sufficient in federal court.  Perhaps a "demand for a jury trial" is required.  I hope that lawyers who read this will comment on it and educate us.   Could if be that the judge "persuaded" Mr. Wallen that he really did not want a jury trial?    It seems likely that everyone in the area knew about these problem bears and their predations.

I do not know if there will be an appeal.  They are expensive, and it is politically correct to value three rogue bears over a single American gun owner's freedom, safety, and property.  Perhaps Mr. Wallen was confused when  he talked to law enforcement.  Perhaps he was scared; what informed citizen would not be cautious and concerned in that situation?

I do not see his changes in storyline as being evidence of guilt.  I would like to see the case go to a jury, but that seems unlikely.  It was the burden of the government in this case to prove that the defendant did not act in self defense, or defense of others, beyond a reasonable doubt.  The judge thought that the changes in the story line met that criteria.   Perhaps we need a federal version of the "Castle Doctrine" with respect to bears.

I have a different opinion.  The bears were "problem bears" with numerous complaints.  They repeatedly showed up on Mr. Wallen's property, killed his chickens, and were not easily persuaded to leave.  As rogue bears in close proximity to people, they were, by definition, a clear and present danger.   Someone was going to have to deal with these dangerous animals eventually.   It was the misfortune of Mr. Wallen that he became that unlucky person.

Bears that have grown up being habituated to humans must be dealt with.  As the wildlife managers say, "A fed bear is a dead bear".

©2014 by Dean Weingarten: Permission to share is granted when this notice is included.
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