Shoot, Shovel, Shut up Backfires, Self Defense Applies on Appeal

Image by Troy Nemitz

On May, 11 2014, grizzly bears were harassing Brian Charette's horses near Ronan, Montana, on the Flathead Indian Reservation. Charette killed one of the bears from less than 30 yards away, as it was climbing a fence, coming toward him and his home.

He and his friend, to avoid the hassle, tied the bear to a pickup truck, and buried it in a field. Shoot. Shovel. Shut up. From helenair.com:

Charette told investigators that three bears had been harassing his horses in a pasture about 30 yards from his home that May. He said he shot and killed one of the bears when it chased his dogs toward the home and appeared to be climbing a fence into his yard.

Charette and a friend tied the bear's carcass to a truck, dragged it away from the property and buried it in a field.

About seven months later, Charrette and his wife had divorced.  His ex-wife's new boyfriend reported the bear shooting to authorities.

The tribal police/game wardens investigated. Charrette confessed. He was prosecuted under federal law, which does not allow for jury trials of offenses which have punishments of less than six months in jail.

Charrete was found guilty in 2016. A plea bargain was not allowed, because Charrette refused to back off a possible self defense claim.

Charrete appealed to the Ninth Circuit. The Ninth Circuit reversed, writing that the circuit judge used the wrong standard for self defense in the case. The reversal occurred on June 18, 2018, four years after the shooting.

The precedent set follows current law, where the frame of mind of the person claiming self defense must be considered. Did the person subjectively fear for their life or the life of another person?

Charette followed the much ballyhooed Shoot, Shovel, Shut up doctrine. The case illustrates weaknesses inherent in that approach.

It is difficult to know who may be a witness or not. A trusted witness may talk to someone else at a later date.  Big animals require big holes. Grizzly bears are high profile cases. Three and a half years of ongoing court cases are a significant punishment.

One of the reasons for prosecution was that Charette did not report the shooting within five days, as required by federal law.

It is a little known aspect of the law that a jury trial is not a right in federal court, if the potential sentence is less than six months in jail. That decision was rendered in 1970.  In contrast, a jury trial is a right in civil cases involving claims of $20 or more. Many states use the federal standard for jury trials.

In today's world, with multiple cameras, including game cams, license plate readers, and Global Positioning System (GPS) phone tracking, anonymity becomes more and more difficult.

Reporting incidents to authorities may be a hassle. It may also be the wisest course to follow.

©2018 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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