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Fowl Statutory Language Puts the Innocent at Risk

Posted By Daniel Dew On October 26, 2012 @ 4:56 pm In Legal | Comments Disabled

Eating a dead animal that you find on your property may be gross, but it may also be criminal. A Texas man recently learned this lesson [1].

A white-winged dove flew into the side of Ryan Adams’s home and died on impact. White-winged doves are popular among hunters because of their tender meat. Adams prepared the dove using a recipe from a popular gamesman cookbook. He described each bite as “an intoxicating event.”

After Adams published an account of his unusual culinary adventure on his blog [1], someone alerted the Texas Department of Parks and Wildlife, which then contacted Adams and informed him that it is unlawful in Texas to possess any wildlife resource that was not taken legally.

A spokesman for Texas Parks and Wildlife stated that the law requires a hunting license and the use of a proper weapon and ammunition. It seems that killing an animal with your house (or simply finding it dead by the side of your house) does not fall within the definition of “taken legally.”

Texas Parks and Wildlife’s interpretation of the statute is not an obvious one. At what point is a dead animal no longer a “wildlife resource” subject to the statute? If a gamesman has a trophy white-winged dove on his wall and someone steals it, is that a violation of the law?

This is the problem with broad statutory language defining criminal conduct; it is not always interpreted and enforced reasonably.

There is good news for Adams, however, as Texas Parks and Wildlife is handling this with the discretion that we wish all government agencies would exercise. It recognized that this was an honest mistake and is chalking it up as a learning experience and has stated that it will not pursue any action against Adams.

However, the ordeal may not be over for Adams. White-winged doves are migratory birds and therefore fall under the Migratory Bird Treaty Act [2]. Similar to the Texas law, this federal law prohibits the possession of migratory birds unless they are taken legally.

Does finding a dead bird fall within U.S. Fish and Wildlife Service’s (USFWS) definition of “taken legally”? It is difficult to tell from the statute. The real question is whether USFWS will act reasonably and rationally the way Texas Parks and Wildlife did.

People should not have to rely on the judgment of investigators and prosecutors to know what the law means. Each statute should clearly define the conduct that it seeks to prohibit. The Texas statute and the Migratory Bird Treaty Act do not adequately describe the conduct that is prohibited, as it is unclear what “taken legally” means. If the statute were written more precisely, perhaps birds that are already dead would not fall under the statute.

Legislatures should also include proper mens rea (guilty mind) requirements [3] in every statute. If the statute required a willful act, then the government would have to prove that the actor acted with a bad purpose or purposefully broke the law. Including an appropriate mens rea requirement would allow for the prosecution of poachers and protect the person who just wants to eat a dead bird he found outside his house, and people like Ryan Adams could be left to pursue their culinary adventures without fear of ending up in jail.


Article printed from The Foundry: Conservative Policy News from The Heritage Foundation: http://blog.heritage.org

URL to article: http://blog.heritage.org/2012/10/26/fowl-statutory-language-puts-the-innocent-at-risk/

URLs in this post:

[1] learned this lesson: http://dfw.cbslocal.com/2012/10/11/dove-dinner-lands-texas-man-in-hot-water-with-law/

[2] Migratory Bird Treaty Act: http://blog.heritage.org/2012/02/06/a-bird-brained-use-of-the-migratory-bird-treaty-act/

[3] mens rea (guilty mind) requirements: http://www.heritage.org/research/reports/2010/05/without-intent?query=Without+Intent:+How+Congress+Is+Eroding+the+Criminal+Intent+Requirement+in+Federal+Law

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