Sidebar:
Semi off topic. But GREAT on you. Kinda warmed my heart today (no homo). Buy you a beer
Damn good well thought out post man, appreciated reading that.Yes, poaching is prevalent, but, as a lawyer, I think a lot of that is caused by regulations that create malum prohibitum offenses, rather than simply sticking to malum in se offenses. And I think over regulation has a corrosive effect on a lot of people’s respect for the law.
Fish & Game regulations are full of pointless rules that overreach and make criminals. As are our legal codes in general.
The drunk driving analogy above was very apt, because it gets to the heart of the malum prohibitum versus malum in se distinction.
We have a driving culture which basically decriminalizes driving “a few over.” Speeding is a malum prohibitum offense. Yes, it is strongly guided by safety factors, but the exact limits are often set for other factors (e.g. fuel efficiency was behind the 55mph speed limit). In most places I have been, cops turn a blind eye to a driver going 72 or 75 in a 70. As they should, given our culture. We tolerate that minor violation. Is the driver going 72 in a 70 less safe than an old man, who can’t see well at night, so he is driving along at 45 on the interstate? A man would have to be pretty self-righteous to take away every speeder’s driver’s license. But if the state put the resources towards it, they could have a driving culture where most people drove “5 under to be on the safe side.” It would take a lot of resources in the short term and cause a lot of problems, but it could be done. When I used to drive on military bases, I didn’t speed at all. Most MPs would pull you over for going one MPH over. At Pendleton, they gave a 3-star a ticket for going 48 in a 45.
Contrast speeding with drunk driving. I don’t and won’t drive if I have more than one drink in a day. That’s my personal comfort level with myself and the legal limit. I know other people who won’t drive at all if they had any alcohol. And I defended a number of people who thought that three, six, or even a dozen was fine. I handled the administrative separation for one young Marine who was a “three strikes life sentence.”He killed two people in separate drunk driving incidents and got a third DUI while out on probation. Jail was the right place for that young man.
But back in the 1950s, “drinking and driving” was called “proficiency testing” by military pilots. It took a decade of strong enforcement of crushing administrative consequences to change that culture. A lot of “good soldiers” end their careers by blowing a 0.09%. And a lot of self righteous pricks have tried to NJP Marines who blew a 0.07% or who got acquitted of DUI (“I don’t care what the law says, that was poor judgment!”).
Good legal codes don’t unnecessarily penalize behavior. There should always be a clear and logical justification for the rule. And there has to be a grey area for different degrees of offenses that are malum prohibitum (like speeding “five over” versus “25 over”).
This is a gross oversimplification, but I think our hunting culture generally looks at the law a lot more like speeding than drunk driving.
In the hunting realm, to me, it’s not worth the risk of getting caught to violate it, but I don’t see a clear and logical justification for a law that says this inline muzzleloader is a primitive weapon, but this antique Sharps rifle isn’t (the middle one).
I think it’s a stupid rule, but I still follow it because I love hunting too much to risk it (not to mention my bar license).
As a prosecutor, I would have a really hard time devoting resources to going after two hunters who went out together and filled their combined bag limit. I don’t care who pulled the trigger. If it was a homicide, both would be equally culpable of the offense. If two guys go out to rob the liquor store and the clerk gets shot, both are guilty of felony murder. Two people went hunting, two deer are in the freezer, the state knows two deer were taken in this county. Where’s the real harm?
I just can’t get worked up about “party hunting.” Especially in parts of the world - like western Pennsylvania or upstate New York - where a family group goes out to the hunting camp for a week. That culture often turned a blind eye to party hunting. But, if they shot over the “combined bag limit”, I would care more. That’s getting into “hurting the resource.” I would personally rather see every kill honestly reported and “real over harvesting” punished, than waste time on prosecuting most “party hunters.” But I also recognize that it’s a fine line between “four guys going hunting and come back with four deer and each guy reports one deer” (how people I knew in upstate New York hunted) and “dad shoots 2 deer for himself, 2 for his wife, and 2 for each of his kids because the family lives on venison” (how it generally was where I grew up), and “influencer or rich guy pays 27 people to put in for tags, then hunts on their tags.”
I would also have a hard time prosecuting someone who shot a deer with a .224 caliber 77-grain TMK in Virginia. But give me someone who is “drinking and hunting” or shooting bull elk just for their heads or hunting on private property without landowner permission or hunting out of season or without owning a tag for that species…I’d prosecute them all week and feel like I had done good work.
Just my perspective on it from a legal point of view.
As a hunter, I would love it if our F&G regulations were slimmer and more strictly enforced. And I personally try to stay on the bright line side of the rule, even the ones I think are arbitrary.
