In 1975, when grizzly bears in the lower 48 states were regulated as “threatened” by the federal Fish and Wildlife Service of the Department of the Interior, the standard required to use deadly force against them, in defense of self and others, was unclear. In 2017 and 2021, the Court of Appeals for the Ninth Circuit created a binding precedent that clarified the standard to be used when a person claimed defense of self and/or others against grizzly bears in the lower 48 states.
The standard is different and lower than the standard to be used for self-defense against humans.
From the opinion by the Ninth Circuit issued in 2017, bold added:
“We hold the ‘good faith belief’ defense for a prosecution under 16 U.S.C. § 1540 is governed by a subjective, rather than an objective, standard, and is satisfied when a defendant actually, even if unreasonably, believes his actions are necessary to protect himself or others from perceived danger from a grizzly bear. Because the district court applied an objective standard, we vacate Wallen’s conviction and remand for further proceedings consistent with this opinion.”
The Wallen case occurred on May 27, 2014. Dan Calvert Wallen shot three grizzly bears on his family property in Ferndale, Montana, with a banged-up .22 rimfire rifle.
The bears had killed most of his chickens. He had chased the three adolescent bears from his property with a truck, but the bears returned. Wallen pleaded not guilty and asked for a jury trial. Because the charges were misdemeanors, with a maximum penalty of six months in jail and/or restitution for the bears, a jury trial was not allowed. In the bench trial, Wallen was found guilty by Magistrate Judge Jeremiah Lynch, sentenced to three years of probation, and $15,000 in restitution. The District Court Judge, Dana L. Christensen, upheld the verdict by the Magistrate.
Wallen appealed the case to the Ninth Circuit. The three-judge panel found that the Magistrate and the District Court Judge, Dana L. Christensen, had not used the proper standard for defense of self and others against the bears. At the second trial, Magistrate Lynch again found Wallen guilty because he found Wallen’s testimony to be less than credible. Lynch increased the restitution for the three bears from $15,000 to $25,000. At the District Court, Judge Christensen agreed with Judge Lynch for the second time. Wallen appealed to the Ninth Circuit for the second time.
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On the second appeal to the Ninth Circuit, the three-judge panel again found the Magistrate and the District Court judge had acted in error. Too much emphasis was placed on Wallen’s credibility, while ignoring quite a bit of evidence that Wallen was indeed fearful of the bears. From the opinion of the second appeal to the Ninth Circuit:
On remand, the trier of fact could not convict based on an adverse credibility finding without then completing the analysis by connecting that finding to the elements of the good faith defense, including taking 5 account of evidence as to Wallen’s state of mind other than his own statements.
The Ninth Circuit sent the case back for a third trial. In a separate concurrence, Judge Van Dyke, a member of the Ninth Circuit three judge panel, reminded the Magistrate and the District Judge the federal prosecution had misspoke (lied) to the district court and the Ninth Circuit panel, claiming Wallen never said he was fearful, felt threatened, or that his family was threatened by the bears when he shot them. From footnote 1 of the concurrence:
1 The government misspoke by telling the district court and our court that on the night of the bear shooting, Wallen never said that he was fearful, felt threatened, or that his family was threatened by the bears when he shot them. The record shows that the local game warden repeatedly testified that Wallen told him on the night of the shooting that “he was afraid of [the bears]” and afraid for “[h]is children and the neighbors that were playing in the yard.” In his review of the magistrate judge’s decision, Judge Christensen relied on the government’s misstatement as a “significant” reason for his decision affirming Wallen’s conviction.
Judge Van Dyke reminded the Magistrate Judge and the District Judge that they needed to apply the strict standards of criminal law to a possible third trial.
In 2021, the federal prosecutor in the case asked for dismissal of the case, and asked the restitution money, $25,000, be returned to Wallen. In the docket for the case, the money is reported as being returned on February 10, 2021.
The precedent is now well established in the Ninth Circuit. To convict a person who claims they killed a grizzly bear in defense of self and/or others, the government must prove the defender did not believe they were threatened or that others were in imminent danger by the bear.
The subjective belief on the part of the person making the defense of self and others claim is the key criteria. The person making the claim does not have to show they were objectively threatened. They need to show they believed they and/or others were in imminent danger.
Self-defense against humans has a higher standard. The person claiming the defense has to show they had a “reasonable belief” they and/or others were in imminent danger from the other person.
Defense of self and others is a clear exception to the ban on firing guns in National Parks.
Most of the grizzly bears in the lower 48 states are within the area served by the Court of Appeals for the Ninth Circuit. The exception is Wyoming. The Ninth Circuit standard will likely be advocated and/or used in future Wyoming cases.
Grizzly bears are not classified as threatened in Alaska. The state statute covering defense of life and property (DLP) cases applies to defensive shootings of bears in Alaska.
About Dean Weingarten:
Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering, and retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.
They need to delist those bears, I remember the first time I went out west and was in somewhere on Beartooth Pass there was a car commercial being filmed and a police officer had traffic temporarily held up. I spoke with the officer and we talked about the areas beauty, camping and fishing. He mentioned that as much as he liked it he did not bring his son fishing and camping in the Beartooth. They did so over in the Big Horn National Forrest, they had black bears and other animals over that but no Grizzlies there. Now days things… Read more »
Ok, so we have the defense case defined for Grizzly bears and humans, what about for the Federal Government? They are different from the other two.
HLB
I’ve never actively hunted for bear and still have no desire too, however I have encountered bears when deer hunting or hiking and never had an issue with them. Once I saw the bear I whooped at it and clapped to make it aware I was close by. The bear would take off at warp speed to clear out of the area never to be seen again. Unless the bear attacks, it’ll get to continue to do what bears do.
Interesting read but I thought it took a howitzer to kill a grizzly. Could it be shot placement outweighs caliber? Suppose there IS a difference between killing power and stopping power. Wouldn’t help you much if said bear died twenty minutes after eating you but there seems to be quite a few examples of bears killed by 22lr. Interesting.
The it has never happen to me excuse gets really old.
Like saying never been in a vehicle crash don’t need seat belts.
Never fell out of a boat don’t need a PFD.
Never had a house fire don’t need a fire extinguisher.
Dean: It’s good to know that the 9th Circuit believes the lives of my family (and me) are worth more than a grizzly bear. From the material published by the IGBC and most state departments of wildlife, I get a strong impression I and other humans should bear all of the risk of a grizzly attack. Your excellent analysis, and my own reading of bear spray use for my sole defense of life raises very serious doubts about the efficacy of the capsicum squirt bottles. FWIW, do you plan to update your excellent articles about pistols vs bear spray any… Read more »
The killing of animals has almost always had a lower standard in history then the taking of a human life.
The anti’s would love to see that standard raise to be on par with taking a human life.
In most places the lower standard has held.
if not the raising of livestock for food would be put in jeopardy.
There are people and organizations that would love to see that.
The part where he kills the bear to where he got charged is missing and is the most important part. THIS IS WHERE THINGS GO WRONG.
Once you call you have only yourselves to blame because by now we all know they aren’t there for you.
think penalty for judges and magistrate should be a un armed walk across the state across wooded lands
Dean, I’ve read a lot of your articles over the years, and I was just wondering; What is this fascination with bears? I’m starting to see a pattern, I just don’t know where it’s gonna lead. lol.