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  • Overcriminalization Victimizes Animal-Loving 11-Year-Old and Her Mother

    Last month, a hyper-aggressive U.S. Fish and Wildlife Service agent, accompanied by a Virginia state trooper, arrived at Alison Capo’s door to announce that our friendly federal government intended to make her a federal criminal. The reason? Alison’s daughter Skylar rescued a woodpecker from being eaten by a cat. The penalty? A $535 fine and possible incarceration—a maximum of six months to a year in federal prison—because of a dangerously flawed federal law called the Migratory Bird Treaty Act.

    According to WUSA, eleven-year-old Skylar came upon a baby woodpecker just before a cat was about to make the bird his next meal. The aspiring veterinarian told the TV station, “I couldn’t stand to watch it be eaten.” So Skylar asked her mother if she could care for the bird and then release it. Mom agreed, and the family went on its way, stopping at a home improvement store in Fredericksburg, Virginia. Rather than keeping the bird in the hot car, they brought the woodpecker inside the cool store.

    It was there that one of the U.S. Fish and Wildlife Service’s undercover (!) agents spotted the mom–daughter crime duo. Nervously, the undercover wildlife woman held up her badge and proceeded to reprimand Alison and Skylar for illegally taking and transporting the bird.

    Under the Migratory Bird Treaty Act (16 U.S.C. § 703 et seq.), the woodpecker is a protected species. The problem is that the act provides only convoluted definitions of which birds are protected that makes identifying the protected species a difficult task. And unfortunately for the Capos, there isn’t an “eleven-year-old girl who cares about animals” exception.

    When the Capos got home, they released the woodpecker and notified the Fish and Wildlife Service. Two weeks later that same agent, accompanied by the Virginia state trooper, showed up at the Capo residence and, according to Alison, delivered a citation stating that she violated federal law, owed the federal government a $535 fine, and could be imprisoned.

    But not long after the story garnered national attention, the Fish and Wildlife Service decided the situation was a “misunderstanding” and explained that Alison should never have received the ticket because it was, they claimed, “processed unintentionally.”

    Nonetheless, several lessons can be learned from this bizarre episode. First, and perhaps most disconcerting, is that it doesn’t take much for one to become a federal criminal. In this particular example, the offense that Alison Capo was accused of carries no criminal-intent (mens rea) requirement. That means that even those Americans who act innocently and unintentionally yet technically violate the law are subject to criminal penalties. The Without Intent report, published by The Heritage Foundation and National Association of Criminal Defense Lawyers, found that there are dozens of laws passed every year by Congress that lack adequate criminal-intent requirements, resulting in more innocent people being jailed for conduct that is neither violent nor inherently wrongful.

    Second, the American people don’t support the federal government’s unjust enforcement actions using flawed laws, yet public opinion is rarely brought to bear. In this instance, the negative press and public backlash was enough for the U.S. Fish and Wildlife Service to nullify the ticket. But what of those innocents who are charged but cannot get in front of a camera to tell their stories?

    This case ended well for the Capo family, but it does not mean that justice has actually been served. The Migratory Bird Treaty Act remains on the books despite its overbreadth and serious other flaws. There is nothing stopping another family from enduring the same outrageous investigation and potential jail time.


    Similar cases already exist. Three-time Indy 500 winner Bobby Unser was not as lucky as Alison Capo. Unser, while snowmobiling on a mountain trail, got lost in a blizzard and nearly died of hypothermia. After recovering, Unser voluntarily sat down with U.S. Forest Service officials, who questioned him under the pretense of helping him locate his lost snowmobile. After hours of such questioning, the Forest Service revealed that they were estimating that Unser wandered into the prohibited national wilderness area when he was in the blizzard and charged him criminally. Unser fought through the federal courts but was ultimately unsuccessful, so he must add to his illustrious resume that he is now a federal criminal.

    The Heritage Foundation is publicizing outrageous stories such as these and bringing more attention to the problems of overcriminalization. In One Nation Under Arrest, Senior Legal Fellow Brian Walsh helped bring to light many unfortunate tales of overcriminalization and its innocent victims. The Wall Street Journal recently delved into the topic as well.

    Children can learn important lessons by caring for animals. The Josephson Institute of Ethics provides an animal-care curriculum that teaches children the virtues of empathy and respect. But there is no readily available curriculum to teach America’s children that caring for animals could lead the out-of-control federal government to teach your mom or dad a lesson in federal prison. The federal government’s approach to criminal law and criminal law enforcement strongly suggests such a curriculum is needed.

    Raija Churchill contributed to this report. She is currently a member of the Young Leaders Program at The Heritage Foundation. For more information on interning at Heritage, please visit: http://www.heritage.org/about/departments/ylp.cfm

    Posted in Legal [slideshow_deploy]

    37 Responses to Overcriminalization Victimizes Animal-Loving 11-Year-Old and Her Mother

    1. Wes says:

      This is what happens when the people don't rein in their Representatives that are supposed to be keeping guard over these bureaucrats..You give most people a badge and unless they are watched closely these things happen more and more….Common sense is most uncommon these days….

    2. DeclareTruth says:

      So-o-o – what is an "undercover" (what the heck?) U.S. Fish and Wildlife Service agent doing hanging out in a home improvement store? And I know it's a different agency, but to think I thought it was funny many years ago when my uncle said that D.N.R. stood for "Damn Near Russia" !! What a wise man.

    3. yeoldgrump says:

      Where in The Constitution does it give federal government and/or its agencies the power to control what happens or does not happen to wild birds or animals? Answer, it isn't there. The law is not constitutional.

      • recce1 says:

        The undercover agent was likely shopping at the store.

      • recce1 says:

        yeooldgrump, au contraire. The law cited was the Migratory Bird Treaty Act . In Article VI, paragraph 2 the Constitution states, "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Thus any treaty signed and passed becomes as binding on the country as the rest of the Constitution.

        Think about it, what if the US accepts a UN treaty banning private ownership of guns, require giving children the right to disobey parents about going church or even prohibitions on having sex with adults, giving up close offshore drilling and mining rights to the UN, closing down much of our energy production, or disallowing parents to bring up their children in one's faith? What if we sign a treaty allowing Sharia Law to be considered in our courts?

        By the way, the Obama administration has tried to get around the Constitution's super majority vote for approval of treaties by submitting them as statutes and then declaring them treaties, a process of fast-tracking.

    4. Tom Williams says:

      I know that our wise government is just acting in the best interest of the planet. I also know that these agencies are staffed with wise people who aren't tapping the keyboards with too-long manicured nails and with very high IQ's. Thank god these criminals were caught. Now some precious time can be spent patrolling neighborhoods, to make sure scoff-law children aren't trying to sell lemonade without the requisite 500.00 permit. Kudos! Finally my dollars are at work! Outstanding. I salute you. There is absolutely nothing wrong with this level of enforcement. I am trying to make it a habit of not locking my doors so that arms of the government are free to come in and check on me. I'm not doing anything wrong so it does not bother me in the least. We should be prepared to give up our freedom for liberty. Yes! Recycling day happens again next week. I hope somebody sends me an adviser to help me make the correct choices.

    5. victoria says:

      Is this supposed to be a journalistic article? Seems very one sided and very government bashing. It is hard to see past this writer's venom. I am very disappointed that Heritage would print something like this.

      • recce1 says:

        If you kept up with the number of instances of our federal government far exceeding it Constitutional mandate and using fear, intimidation, and persecution to get citizens to cower and remain silent about government wrongdoing you thank Heritage for informing people. However, what do you think Heritage's calling is, to sing the praises of big and oppressive government?

    6. Suzanne says:

      This is insane. Now this is a total waste of taxpayers money. Lobbing should be against the law.

      • recce1 says:

        It is too late. The law derives from a treaty and all agreed to treaties become the Law of the Land, even if they void other parts of the Constitution. Read Article VI, Paragraph 2 and weep.

    7. Ken Pugh says:

      You gotta be frikken kidding me, but then again it's the Federal Government we're talking about here, Pathetic.

    8. Margaret says:

      As federal agencies feel the pain of fewer funds with budget cuts things are only going to get worse

    9. Lynn says:

      This is just another reason why under any deficit reduction plan, federal and state regulatory employees should undergo an immediate SGR salary cut of 29% just like Medicare physicians face. How many new federal patronage "jobs" have been created or saved by the Obama regime? Oh by the way, the cat which was about to eat the woodpecker got off without any fines or penalties?–Shocking!

    10. Dave says:

      When the government acts in a stupid manner, it loses support with its citizens. Government workers are not the most highly regarded and when you read a story like this, you realize that common sense is not a requirement for employment, in fact, it may be an eliminating factor if you possess it.

    11. when I see this kind of stuff it just infuriates me and I lose faith in our law enforcement community

    12. John Brooks Murray says:

      Too bad the mother daughter combo were not selling lemonade from a stand at the time, after baking pies for their church bake sale … when will these hardened mother daughter criminal types stop perpetrating their outrageous crimes against our benevolent federal grovernment …

      from an outraged American Libertarian, John Brooks Murray

    13. kim says:

      This is outrageous. Unfortunately, most Americans probably have experienced government overreach of this type at one time or another. It happens all too often. And, unfortunately most people don't realize this is what you get when you vote for big government-loving Democrats…

    14. Rational says:

      you need to look up man in Chesterfield County Virginia who was raising deer for food and Fish and Wildlife Services killed his entire herd of deer. The deer are not wild and are of a specific bread etc. There was no negotiation they simply came and killed the deer. He was told if he did not cooperate he would be arrested.
      He was out time and investment. It seems to me Fish and Wildlife has become the Gestapo. What's next?

    15. Don't these people have something better to do

      Like catching the REAL crooks

      Who gave this idiot a badge

    16. Bobbie says:

      !!!!!!!!!! This young child shows natural instinct to "protect" a specie from another and then government overreaction will do anything to get a buck anywhere they can. How could she be at any fault when she was "protective" of a specie in harms way? People handle with compassion to explain. Something government workers with too much authority and money on their mind only, doesn't have.

      • Gayle says:

        I'm willing to bet if the young child stood by and let nature take its course, she'd be in hot water for not stepping in to rescue a protected species.

    17. Catherine says:

      PERHAPS, MAYBE, OR URR == SEEMS TO ME—- WE HAVE TOO MANY FEDERAL DEPARTMENTS. We need people paying attention to our country, our money, our men fighting, our pride, and not some 11 year old. Maybe the Federal Agent had nothing better to do with her time. But she has to be there, so Look Busy.

    18. Chris says:

      Does anyone get it that's there is too much Goverenment, wake up America !!!!!

    19. Todd says:

      Why was a U.S. Fish and Wildlife agent "undercover" in a home improvement store?

      There is a fraud, waste and abuse of federal taxes case if I ever heard of one.

    20. Silverpoodle says:

      How many millions of acres have been added to the National Forests, beaches? Is this all a means of restricting our movements, you betcha !!

    21. Mark says:

      nothing new here, Anyone remember that it was the U.S. Forest Service who burned out the homesteaders in my fathers time? Took their land and burned them out with no compensation whatsoever. Amazing how long people will let this go on, thinking, at least its not me. If you're not part of the solution, then you're part of the problem.

    22. Gayle says:

      There is a saying "No good deed goes unpunished." This is a prime illustration of why people tune out to what is around them and adopt a damned if you do, damned if you don't, so dammit, I won't attitude. No wonder our society is falling apart….

    23. teresa gunter says:

      next time read about birds.

    24. Alpon says:

      Big government is bad government. They have way too much power.

    25. Bruce M. Sheldon says:

      It is about time that the American people rise up and say this is enough, every law is written with what is called it's intent, as to what the law is all about. But the problem is we have people who are hired to enforce these law's that are power hungry. There main reason to be there is ( I have this power over other people and I am going to make them pay ) yes that is there thinking as they are using the gray matter between there ears as SILLY PUTTY . They are NOT taking into account the intent of any law that was written and why it was written. The problem with all of this is we the people are to afraid to take the stand that enough is enough.

      • Jean says:

        Cuts and more cuts ought to start from the top ie. our current President, then our congressmen now and hence fourth.

    26. J.D. says:

      The government has become to big and to powerful. The reason the Americas was created was to get away from tyranny and unlawful persecution. Yet everyday we as Americans allow BIG GOVERNMENT more and more power to control "what we say, what we do, and how we say, and do it." It is time that Americans take back control of our country. We need to stand up to our politicians and say "No More" we will not stand by and become a people of fear. We need to stand up and make it known that frivilous laws, and spending will no longer be tolerated. Politcians need to rememeber "WE THE AMERICAN PEOPLE PUT YOU IN OFFICE, and WE THE AMERICAN PEOPLE CAN TAKE YOU OUT."

    27. rich says:

      obviously this child's actions must be curtailed. Why, she could continue on this destructive path and develop more care and concern for the weak and defensless. Very counter to the principle taught in our schools about the origin of all life—-you know "survival of the fittest". We don't want the weak to survive…do we comrad ?
      Actually nice to see a young person demonstrate compassion for something weaker than themselves. Maybe someday our society will again care for the most defenseless among us – our unborn children.

    28. recce1 says:

      Far too many posters are calling for changing the law not realizing that it derives from a treaty. As Article VI Paragraph 2 states any treaty the US accepts becomes the Law of the Land and can trump any other part of the Constitution, including the Bill of Rights.

      That's the danger of not insisting on the people getting to see what's in proposed treaties or senators not being required to have them read in full before a quorum and then not having senators sign off as having read a treaty and understanding it. For those who would say that would take too long, that's part of their job. It's too bad we can't impeach senators.

    29. HawkWatcher says:

      I know this is an older article, but people need to learn how to read and understand the Constitution before they post. I see much ado over nothing.

      A treaty cannot trump the Constitution. Let's break down the grammar of the cited Article. The descriptive clause at the end of the second paragraph in Article VI clarifies the preceding definitions of the "Supreme Law of the Land" with these words: "…any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

      If a treaty isn't contrary to the Constitution and/or State laws, it is lawful. If contrary, it is not lawful. The UN is not going to take away our guns, and no treaty can diminish our rights.

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