Legal Outcome Reform

Obey the law—forget about the grizzly

It was a dark and stormy night in northern Montana. John Shuler heard a sound outside; he knew the sound; he had heard it before. It was the sound of grizzly bears; they had come to kill and eat his sheep..

John Shuler jumped up, grabbed his rifle by the door, and headed out into the darkness. Outside he ran toward the sheep pens where he saw three grizzlies. He fired shots into the air and the bears disappeared into the night. Thinking the danger was over, he turned to go back into the house.

Suddenly, he was confronted by the mother of all bears, or, at least, the mother of these three. She rose onto her hind legs, spread her mighty paws, and roared a vicious roar. John Shuler knew one thing for sure; if he did not act fast, he was dead. He opened fire and the bear fell dead.

The next day, he called the U.S. Fish and Wildlife Service. “I killed one of your grizzlies,” he said. Presently, Fish and Wildlife Service employees arrived at Shuler’s tiny ranch where they pronounced the bear dead, your government at work. John Shuler thought the episode was behind him; regrettably, it had only begun. The Fish and Wildlife Service charged Shuler with violating the Endangered Species Act, which protects grizzly bears as “threatened,” and sought a $7,000 fine.

Although there is a self-defense exception in the Endangered Species Act, the Fish and Wildlife Service asserted that Shuler did not act in self defense. The Fish and Wildlife Service has a curious view of when grizzly bears pose a risk of death or serious bodily harm. Thus, when a grizzly bear rears up on its hind legs, spreads its mighty paws, and roars a vicious roar, it is not the sign of an imminent attack and is a terrible time to shoot.

What about when the grizzly bear gets down on all fours and charges at forty miles an hour? Is that a good time to shoot? “No,” says the Fish and Wildlife Service, “that is a terrible time to shoot, because it might be a false charge.” A person would feel awful if he shot a grizzly bear that charged past him, his heart beating out of his chest, knowing he had to go home and change his clothes. So that is bad time to shoot too.

John Shuler’s case went first to an Administrative Law Judge, an ALJ. The ALJ made an excellent factual finding. He found that Shuler had been in fear of death or serious bodily injury, which is required to use deadly force in self defense. However, as a matter of law, he found that Shuler could not claim self defense because he had, in the ALJ’s words, “introduced himself into the zone of eminent danger.” Urban audiences ask me what might be the zone of eminent danger for them. I tell them that, if they awoke in the middle of the night and heard a noise in the kitchen, they could not, under the ALJ’s ruling, arm themselves and go downstairs. That would be “the zone of eminent danger”: Lorena Bobbitt could be there; or Bruce Babbitt. We thought the ALJ’s decision “goofy”; that is a legal term.

We appealed to the Ad Hoc Board of Appeals with the U.S. Department of the Interior in Washington, D.C. Their two smart fellows pronounced the ALJ’s ruling “goofy,” after all, they opined, Shuler had the right to go outside. However, he was still at fault, they said, because he had taken his dog with him and the dog went on point, which, in their view, provoked the bear!

I read a book called Mark of the Grizzly, which I am sure you can find in the bookstore in Laramie or in Boulder. All of the people in the book had close encounters of the worst kind with grizzly bears. Half the people in the book survived; half got killed. All I know about grizzlies, I learned from that book. What I learned was that nearly everything about humans provokes grizzly bears. I did not learn that dogs going on point made them mad.

Eventually, we got in front of a federal judge in Montana who ruled that John Shuler had been placed in fear of death or serious bodily injury, that he had acted in self defense, and that he was not guilty of violating the Endangered Species Act. At last, John and Carmen Shuler were out from under the fine that would have forced them to sell their tiny ranch. That is the good news.

The bad news is that it took us eight years and it cost Mountain States Legal Foundation, in the hourly rate the federal government would have paid us for our services, services that Shuler did not have to pay, $250,000. This figure means that the self-defense provision of the Endangered Species Act does not exist because, if the government is going to litigate these cases each time it assesses a $7,000 fine, the citizen is better off paying the fine!

There is another real world consequence to the John Shuler story. A few years later, a man from Evanston, Wyoming, went hunting near Dubois, Wyoming. Now, I was born and raised in Cheyenne, Wyoming; my dad was a railroader and my mom was a nurse’s aide. We always said [Du-boice]. I also know that Governor Cliff Hansen has tried to convince the University of Wyoming president, Phillip L. Dubois, to call himself [Du-boice] rather than [Du bwah]. That reminds me of the year the Colorado Avalanche acquired the greatest goalie of all time, Patrick Roy [wah]. A Denver reporter asked Coach Crawford how long Patrick [Roy] had called himself Patrick [Wah]. Coach Crawford deadpanned: “Every since he was a little [bwah].”

Back to the Evanston man hunting near Dubois. Suddenly, he heard the sound that all in grizzly bear country fear: the sound of a grizzly bear charging. He looked up, saw the bear, and, armed with a powerful hunting rifle, did an amazing thing. He laid his rifle down, took a can of pepper spray off his belt, and stood at the ready. When the bear got to him, he sprayed the pepper spray. The bear stopped, took a big whiff, and then charge through the mist.

The bear grabbed the man by his big western belt buckle—you wonder why we wear these things—and started flinging him around. Suddenly, a shot rang out and the bear fell dead. The man’s hunting partner had come running and fired a life-saving shot. But the man was badly hurt. I saw a picture of him in the newspaper and he looked awful banged up. But the most amazing thing was what he was quoted as saying. He said, “I wanted to do the right thing.” “I didn’t want to lose my hunting license so I put my rifle down.”

Months later I called him and introduced myself. He said, “I know who you are; I’ve heard all about you and your client John Shuler.” I asked if he had said what he was quoted as saying and, if so, why. He said the quotes were accurate. Then, he added, “I didn’t want to have happen to me what had happened to John Shuler.” It is awful when a man fears his government more than he fears the most dangerous animal in North America.

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A Texas judicial discipline panel issued a public reprimand in April to a former judge, Robert Hollman, who heard child-support actions in Odessa until he resigned early in 2000 following a female employee's sexual-harassment complaint. According to the panel, Hollman played an almost-daily, nonconsensual "bondage game" with the woman in which he bound her hands and ankles together and gagged her and then timed her as to how quickly she could escape.

Gunmaker bankruptcies: three, and counting. The first wave of business casualties consists of Southern California makers of inexpensive handguns: Sundance Industries of Valencia has joined Lorcin Engineering of Mira Loma and Davis Industries of Chino in seeking protection from creditors. According to Peter Boyer's article in the May 17 New Yorker, the cost to the gun industry of defending against the campaign of city lawsuits recently orchestrated by trial lawyers has been projected to reach $1 million a day -- that's just defense costs, aside from any chance of losing, and given this country's lack of a loser-pays rule it's money the manufacturers can never expect to recoup no matter what vindication they may obtain in the end. Lawyers for the cities reportedly intend to argue that their claims against the gunmakers -- speculative, newly concocted and retroactive though they are -- should be given better treatment in bankruptcy proceedings than the ordinary claims of other creditors, on the grounds that they're meant to advance the "public welfare", whereas the other creditors' claims are grounded in the mere obligation of law actually on the books. (Paul M. Barrett, "Lawsuits Trigger Gun Firms' Bankruptcy Filings", Wall Street Journal

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