Trial sets precedent
Verdict in grizzly bear shooting shows that people must justify a sense of threat.
By Cory Hatch and Sarah Lison, Jackson Hole, Wyo.
Date: 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.