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In a blind, wearing orange with a loaded gun? You're hunting, court rules

  • Article by: Rochelle Olson
  • Star Tribune
  • December 23, 2013 - 8:13 PM

Sitting in a deer blind with a loaded shotgun while wearing blaze orange is considered hunting and requires a license, according to a droll Minnesota Court of Appeals ruling Monday that referenced the Bible, young love, an Iowa bowhunting incident last year and a magazine article called “Kill Your Thanksgiving Dinner.”

The ruling upheld the conviction of Roger B. Schmid, 81, of Avon, Minn., for hunting without a license when a game warden found him wearing orange, sitting on his ATV in a camouflaged blind in Stearns County with a 12-gauge, scoped shotgun at his side at 8 a.m. on a Sunday in November 2011.

Schmid told the game warden that he had shot a deer the night before. When the officer noticed that his deer license lacked a bonus permit to shoot a second deer, he told Schmid he would cite him for hunting without a license.

Schmid then “volleyed various persuasions of innocence” ranging from that he was hunting with friends, that he was really hunting coyote and that he was just watching nature.

The officer didn’t buy the claims.

When he went to trial on the charge, Schmid and his wife testified that he was not hunting, but merely awaiting help to retrieve the deer he had shot the night before — a story that the court noted was different from those he had told in the woods.

A jury convicted him of hunting without a license. He appealed.

“We thought he was hunting, the jury agreed and so did the Court of Appeals,” Stearns County Attorney Janelle Kendall said Monday.

In a nine-page published opinion, Judge Kevin Ross said that entering a deer-hunting area, sitting in a camouflage blind and being armed with a loaded weapon constitutes “pursuing” deer under the law.

State law prohibits “taking” a deer without a license, which means “pursuing, shooting, killing, capturing, trapping, snaring, angling, spearing, or netting a wild animal,” the ruling said. The court said “taking” includes attempting to take wild animals.

In his defense, Schmid had cited a 1990 case in which a man was acquitted of taking a deer. The court found the comparison to the previous case to be “off target,” saying that the other defendant was not in a hunting area and his gun wasn’t loaded.

Schmid also claimed he wasn’t “pursuing” deer because he wasn’t “physically chasing” them. The court said it would be “silly” to define pursuit merely as foot chases.

Parsing ‘pursue’

The court analyzed the meaning of the word “pursue,” tracing it back seven centuries to its Latin root meaning “to follow.” Analysis of the verb’s meaning cited wide-ranging sources and examples from the Declaration of Independence, the Bible, romance, state Supreme Court Justice William Mitchell and the Field & Stream article on the Thanksgiving hunt.

In the dating sense, the court noted that “a young romantic pursues a mate, ordinarily without a foot chase.” In the case of upland game birds, the court said dogs can ruffle the brush while the hunter stands still — not running on foot.

“Pursuit occurs when the hunter has taken action to close the distance between himself and the deer by entering its habitat to shoot it; that the hunter intentionally intercepts his prey rather than overtakes it from behind does not disqualify the conduct as pursuit,” the ruling said.

In a footnote, however, Ross wrote that a hunter could indeed pursue a deer on foot. “But deer can run 40 miles per hour, so it would be futile. And it can be dangerous. Last year two Iowa bowhunters spotted a deer and ran after it, arrows in hand. One fell, cutting his head, and his partner landed on top, impaling him from behind.”

His defense didn’t fly

Ross cited a Field & Stream magazine article to explain why Schmid’s proposed definition of pursuit is inadequate. A turkey hunter “creeps up on the flock, sprints to the middle of it, yells and claps so the birds flee,” he wrote. “The hunter does not chase, but waits in camouflage to shoot the hapless hens as they find their way back,” he wrote, adding that it would be “absurdly literal” to say entering the flock is hunting, but waiting under cover is not.

The court inferred criminal intent from Schmid’s behavior, “given the credibility deficit” he showed in offering multiple, conflicted explanations for his behavior.

Schmid’s attorney, John Neal, declined to comment.

Judges Heidi Schellhas and Natalie Hudson also participated in the ruling.

 

Rochelle Olson • 612-673-1747

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