Ninth Circuit Overturns Conviction in Shoot, Shovel and Shut Up Grizzly Shooting

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

To avoid the hassle of reporting the shooting, he and a friend adopted the shoot, shove and shut up approach. They buried the Grizzly in a field.

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

Tribal police and game wardens investigated and Charrette confessed to the shooting.

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.

He was prosecuted under federal law, which doesn’t allow for jury trials of offenses which carry a punishment of less than six months in jail. A plea bargain wasn’t allowed in the case because Charrette refused to back off his self defense claim. Charrete was found guilty in 2016 and he appealed the conviction to the Ninth Circuit.

Earlier this month, the Ninth Circuit reversed the conviction and sent the case back to the District Court.

The judges said U.S. Magistrate Judge Jeremiah Lynch set the wrong standard for a self-defense claim in Charette’s 2016 bench trial. The magistrate judge ruled that to claim self-defense, Charette must have had an objectively reasonable belief that he was protecting himself or others from danger.

But the appellate panel, citing a ruling in a previous case, said the magistrate judge should have used a subjective standard, which would have allowed Charette to claim self-defense based only on a “good-faith belief” that he was protecting himself or others, even if that belief was unreasonable.

Faced with the higher “objective” standard, Charette chose not to testify in his defense at trial, the 9th circuit opinion said.

“It is difficult to fathom how Charette could raise an effective self-defense claim without testifying as to his mental state when he decided to shoot the bear,” Judge Richard Tallman wrote in the opinion.

The precedent set follows current law, where the frame of mind of the person claiming self defense must be considered. The question is whether the person subjectively feared for his life or the life of another person.

Charette was required by federal law to report the shooting of a Grizzly within five days. Instead, he chose to shoot, shovel and shut up. This case illustrates the weaknesses inherent in that approach and he’s admitted to violating that law.

Reporting incidents to authorities may be a hassle, but it’s usually 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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comments

  1. avatar Stateisevil says:

    People, never talk to the Police. They are there to have a warm body to prosecute. What an idiot. “I’ve done nothing wrong, and I don’t talk to the police” and shut up.

    1. avatar Omer says:

      He didn’t talk to the cops. His ex-wife’s boyfriend talked to the cops. He just didn’t deny or lied about shooting and disposing of the bear.

      1. avatar Jonathan - Houston says:

        He confessed to the game wardens and tribal police when they showed up asking questions. That’s “talking to police.” Don’t do that.

        Not denying or not lying to federal agents is a good course of action, if you’re already talking to them, which you shouldn’t be. Here’s why: it is very easy to lie or deny inadvertently, or to have your otherwise innocent statements be misconstrued later on, which could give rise to the charge later on that you did lie or deny. None of that would have happened if he had not talked to the police. Let them get a warrant.

        Really? His ex-wife? Her new boyfriend? How credible are they going to be?

        1. avatar Elmer F. says:

          Happened a few miles from my home. You just don’t shoot grizzlies . A coverup is even worse. Might as well poach bald eagles. By the way, they are much smaller and taste way better! Like chicken as a matter of fact.

        2. avatar Felix says:

          You botched the punch line. They taste like spotted owl.

        3. avatar Marty says:

          If the ex knows where the bear was buried, pretty creditable.

          For once, the 9th circus court did something right, A Grizzly coming towards you from 30 yards, is a solid ‘self defense argument, fence or no fence.

    2. avatar OkayestGuy says:

      How about instead of “not talking to the police” we don’t break the damn law and trying to cover it up. You’re not simply trying to “avoid the hassle”. You’re just a douche.

  2. avatar uncommon_sense says:

    This happened on an Indian Reservation which are supposedly sovereign nations. How can there be a trial according to federal law for a matter which happened in another nation?

    1. avatar Esoteric Inanity says:

      Reservations are only outside of State, county and local jurisdiction. Federal law typically still applies in most cases. However, as a courtesy, federal agencies usually allow tribal police a fair amount of leeway/involvement where enforcement is concerned.

      Despite what many Indians want to think or say, they are still U.S. citizens and fellow countrymen. They have also proven to be a damn fine asset since the Indian Wars, up to and especially including WW1, WW2, Korea, Nam etc.

    2. avatar Jonathan - Houston says:

      The game wardens probably were federal agents with the Interior Dept., but the res police are local by any definition. It’s funny how when it’s federal immigration law, all we hear out of sanctuary city police departments is how they’re local and they don’t enforce federal law. Yet, when it comes to ursicide, everyone is down with making a federal case out of it.

    3. avatar neiowa says:

      “sovereign nation” only when it suits them. Wards of the taxpayer when they want hiways constructed to their casinos (which are to have no oversight), when they want free healthcare, access to Fed surplus, GSA handouts, welfare, food stamps, etc etc etc. Must be demtard progs.

      1. avatar Mark N. says:

        The Indians in my area have a casino and a hotel, plus plans to build another by the freeway, and contribute generously to local city projects. They provide their own heath care clinic–several actually–and provide housing to many of their members on the reservation land.

    4. avatar New Continental Army says:

      “Sovereign nations” is a fancy term the feds use to make them feel better about themselves. Make no mistake, the federal government has solid control of the land.

  3. avatar former water walker says:

    His mistake was having an ex-wife. Buried the wrong critter😩😄😏

    1. avatar Sal Chichon says:

      😉😉

      You aren’t wrong.

    2. avatar neiowa says:

      Who has a “boyfriend” with a big mouth. Timeline on the old ball and chain is interesting. Suppose the “boyfriend” was hanging around the ranch when the bear assumed ranch temp?

      1. avatar Geoff "Mess with the Bull, get the Horns" PR says:

        Or the ex was just a c*nt who wanted to twist the knife a bit more in the ex…

    3. avatar james e michael says:

      I wish this site had a like button .

      1. avatar Geoff "Mess with the Bull, get the 'Good and Hard' Horns" PR says:

        I damn sure don’t.

        People will be making comments just to see how many ‘likes’ they get.

        Fvck that noise…

    4. avatar Daniel Lawrence Whitney says:

      I don’t care who you are that’s funny

    5. avatar JD says:

      Ha! Exactly what I said to myself after reading the article.

  4. avatar P Hall says:

    Good for Brian Charette. Common sense prevailed.

    1. avatar Baldwin says:

      Ok P Hall…never, ever credit the 9th Circuit with applying common sense during decision making. Now they’ll have to go back start all over again and render a moronic PC decision to make amends for having judged wisely.

  5. avatar Gov. William J Le Petomane says:

    ‘Reporting incidents to authorities may be a hassle, but it’s usually the wisest course to follow.’

    I respectfully disagree. His mistake was letting his philandering wife in on the secret.

  6. avatar jwm says:

    2 people can keep a secret as long as 1 is dead.

    Shoot, shovel and shut up is as bad advice as just drag the bad guy inside after you shoot him.

    1. avatar Gov. William J Le Petomane says:

      Right, you’re supposed to drag the bad guy into the crawlspace…

      1. avatar Deliverance says:

        Then have your way with him.

      2. avatar Wood says:

        Or open a restaurant…

      3. avatar jwm says:

        See what you started. Next you’ll be asking if the dude shot it with a Creedmoor.

        1. avatar Gov. William J Le Petomane says:

          I’ve seen enough Hollywood movies to know that a .45 Colt Peacemaker will blow a bad guy backwards through a plate glass window. If you shoot the bad guy with a Creedmoor there’s no need to bury him in your crawl space since the Creedmoor will simply launch his carcass into orbit.

    2. avatar LarryinTX says:

      Oh, the fail. Problem here was simply “shoot, shovel”. Dimbulb forgot “shut up.” Tell me he didn’t already know the bride was a cheating bitch when he told her all about the grizzly. Right? Right. What was that again? “Play stupid games …”

  7. avatar Duncan says:

    On three occasions my brother has had to shoot grizzlies in defense of himself and others. Shots we at 25, 15 and 8 feet.
    Because of the extreme hassle a friend got from the authorities for shooting a bear that was mauling his mule, my brother choose the shoot (consume what was editable), shove and shut up.
    Law enforcement is not your friend.

    1. avatar Ed Schrade says:

      Seems that requiring the self reporting of killing the bear should be listed as self incrimination and protected under the fifth amendment.

      1. avatar Esoteric Inanity says:

        Perhaps if the person killed the bear with the intention of committing an illegal act. Otherwise 5A protections against self incrimination wouldn’t apply provided that the killing was done under lawful circumstances. In such a case reporting said incident to the proper authorities is in fact in line with lawful intentions.

        1. avatar neiowa says:

          Yeah, because that is how the treehugges and the envirowackos working for gov’t see things.

        2. avatar Esoteric Inanity says:

          “Yeah, because that is how the treehugges and the envirowackos working for gov’t see things.”

          True, presumption of innocence is a lost concept to many nowadays, but one still wouldn’t be entitled to 5A protections under such circumstances. As the saying goes: “Innocent men have nothing to fear nor hide”. lol rather a ridiculous notion this day and age this one must admit, especially considering the plethora of 4A abuses in the last 50 years.

      2. avatar Jonathan - Houston says:

        Killing a bear is no ipso facto illegal. So the simple requirement of reporting the killing cannot be self-incrimination, because it is not necessarily a crime in the first place. Even though grizzlies are protected under the Endangered Species Act everywhere outside of Alaska, you may still kill one legally if it is threatening your life. You may have one killed, by summoning federal wildlife authorities to come do it, if it is threatening your livestock. There are legal limits to the annual number allowed to be killed legally.

        The additional problem here is the concealment of evidence. That’s a crime in itself. There is a legal doctrine call misprision which makes concealment of a felony a felony of its own. Not reporting the killing and concealing the evidence of the actions, even if the killing itself is not a crime, is itself a crime.

        There are other legal exceptions to the 5th amendment out there, too.

        1. avatar Gov. William J Le Petomane says:

          ‘There is a legal doctrine call misprision which makes concealment of a felony a felony of its own.’

          I don’t think the illegal killing of the bear would be a felony, so does the concealment of a misdemeanor constitute a misdemeanor of it’s own? Also, if the killing was justified than the concealment of the non-crime can’t be criminal.

      3. avatar FedUp says:

        It’s like gun registration. If you are in illegal possession of a firearm, you have a 5th Amendment Right to not register it. If you’re otherwise legal, you can go to jail for not registering it, because declaring your legal firearm is not self-incrimination.

        I’d think it works that way for game violations too. If you illegally kill a griz, you have the right to remain silent. If you legally kill a griz, they can convict you for remaining silent.

    2. avatar Esoteric Inanity says:

      Seems that Duncan’s brother failed to completely understand the last “S” in Shoot, Shovel, Shut Up. As Shutting Up means that knowledge of the incident spreads no further and yet it has made it to the www. A friendly word of advice, anonymity on the net isn’t what it used to be.

      1. avatar Duncan says:

        True, however, that brother followed those bears to the happy hunting grounds (cancer) many years ago.
        The authorities are welcome to send all the officers needed to track him down.

        1. avatar Esoteric Inanity says:

          A shame, Esoteric Inanity has lost several loved ones to cancer. It truly is a wretched disease. This one gives his condolences.

        2. avatar Duncan says:

          Thank you Esoteric Inanity. My sympathy for your losses as well. Unfortunately my brother is just one on a long list. That disease is most insidious.

  8. avatar Tom in Oregon says:

    “Reporting incidents to authorities may be a hassle, but it’s usually the wisest course to follow.”

    Not always Dean. About a year or so ago, a fella was coyote hunting in eastern Oregon. He saw a rather big one and shot it. He realized it was a wolf and reported the mistaken kill to ODFW. They prosecuted him.

    1. avatar Tom in Oregon says:

      Mr. Witty in this case had to forfeit his rifle and was fined $1,000 and had to donate another $1,000 to odfw.

    2. avatar Esoteric Inanity says:

      Esoteric Inanity recalls a similar incident that occurred in Idaho around 11 years ago.

  9. avatar Danny338 says:

    Sixth Amendment:
    In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed,…

    Bench trials are unconstitutional, i.e. illegal and not valid.

    1. avatar Mad Max says:

      Maybe it isn’t considered a “criminal” prosecution??

      The extra-constitutional regulatory state running amok again?

      Maybe, with Kennedy replaced with an Originalist, the SCOTUS will finally reign-in the abusive fourth branch. Eliminating the Chevron Deference will be a good start.

  10. avatar GS650G says:

    He should have kept his mouth shut. If the ex wifes new dick ran his mouth about a dead bear his lawyer could have blamed the boyfriend. Just as plausible, the ex wife. But don’t confess and admit it. That makes their job too easy.

  11. avatar VerizonAudio says:

    Should have let the wife deal with the bear.

    1. avatar Esoteric Inanity says:

      Or rather, bear deal with wife.

      1. avatar Southern Cross says:

        And the toy-boy, er… boyfriend too.

  12. avatar piper says:

    I guess burn them to ashes from now on, instead of burial. The bears that is, not the ex’s. lol

    1. avatar LarryinTX says:

      I haven’t tried it, but I gather burning them to about “medium” would be preferable.

  13. avatar rdsii64 says:

    Back in the day snitches got stitches.

  14. avatar Dan says:

    I don’t object per se to the requirement of reporting a shooting of a grizzly in self defense. The problem arises when said “experts” in power decide THEY get to decide whether or not you were in such a grave
    situation that your actions were warranted. “Monday Morning Quarterbacking” at it’s worst. Just like
    self defense shootings of two legged varmints to the badgemonkeys and prosecutors in control whether
    or not you get ground into gristle by the machinery of “the legal system” has FAR MORE to do with their personal beliefs and political agenda than the facts of the matter. And this happens because of the INSANITY called ‘qualified immunity’ where a government apparatchik is essentially beyond accountability for ANY screwup they commit…or ANY willful abuse of power they commit.

  15. avatar Sarkus says:

    I live a few miles from where this happened. He was stupid. State and tribal fish and game would not have harassed him. In fact, they would have gladly tried to help him if he had reported the problems he was having before the incident in question. They trap, relocate, and in some cases kill grizzly bears here regularly.

    1. Thank you for the local information. It is one of the wonderful things the Internet facilitates.

      1. avatar Carrucan says:

        Hey Dean. I wanted to send you a note about your excellent gunwatch blogspot. I subscribe to the RSS feed and read aloud the DGUs daily to my semi-anti-gun wife. I check out the original sources if they are especially interesting. What a great service you provide there. Thanks for collecting the incidents. I know that is a lot of work for you. Perhaps an article on your methods of research for the articles would be in order. Thanks Dean!

  16. avatar James69 says:

    He shot the grizz with a Judge….

  17. avatar BD says:

    Your best bet here is to arm the grizzly with an AR. Everyone knows that guns make you suicidal or homicidal and go off accidentally. If suicidal, then problem solved. If homicidal, then the grizzly will end up prison; problem solved. If accidental, which happens all the time continuously, then all AR’s are automatic and the multiple shots will surely end your problem and perhaps the grizzly’s neighbors. And, the beauty of this, is you cannot be convicted. The Constitution guarantees the right to bear arms. Solved. Unless you get a liberal judge in the ninth circuit how secretly believes that grizzlies are a protected class and don’t feel like bears, then the bear arms defense goes out the window along with your savings account.

    Or, alternatively, if you choose to step over that line and kill the grizzly….
    If you are going to tell someone about your illegal act, then make sure that the way you tell them is to involve them in it. “Here, honey, take this shovel and follow me.”

  18. avatar Gun Owning American says:

    Pigs must be starting to grow wings.

  19. avatar Chris T in KY says:

    More people now don’t trust the court system. They would rather not report a crime.

  20. avatar Steve Eisenberg says:

    Bald eagle tastes like loon.

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