DA won’t file charges in black bear shooting | AspenTimes.com

DA won’t file charges in black bear shooting

A man who shot and killed a black bear because it was a nuisance then dumped the carcass in the Roaring Fork River won’t face any criminal charges, according to authorities.

Deputy District Attorney Lawson Willis said he didn’t believe he could convict the shooter, Patrick Fox, under his reading of the law.

“We all hate the killing of a bear that’s unnecessary, but what’s necessary varies from person to person,” said Wills.

He felt the law, particularly the way it was rewritten by the Colorado Legislature this year, gives people leeway in shooting a bear or mountain lion. The law was amended to allow the “taking” of a bear or mountain lion when property is threatened. Previously a killing was defensible only when life was threatened.

The new law doesn’t take effect until Aug. 6. However, the district attorney’s office elected to apply it to Fox’s May 30 incident because it wanted to comply with the intent of the new law, according to Wills.

He acknowledged that the wildlife division and other people may not agree with the decision. Wills recently informed wildlife division officers about the decision.

“They are not particularly pleased,” he said.

Wildlife officer Kelly Wood investigated the incident. She referred questions about the district attorney’s decision to DOW spokesman Todd Malmsbury. He said the wildlife division thoroughly investigated the incident and turned over a detailed report to the district attorney’s office.

Malmsbury said the wildlife division understands the prosecutors had “a difficult decision to make.” He wouldn’t say if the division disagreed with the decision. “As far as I know, we didn’t have a specific recommendation,” he said.

Facts of the case released by the district attorney indicate the yearling bear was a nuisance rather than a threat to Fox. The bear had “taken residence” on Fox’s property at 0167 Grange Way “in part due to the availability of dog food left out in the area,” according to the district attorney’s press release.

Wills said he didn’t know if the dog food was left outside by Fox or someone else. The wildlife division’s education campaign to reduce human conflicts with bears stresses the importance of cutting off access to food sources.

Fox’s property is located where the bird is flipping someone off from a rooftop visible from Highway 82. Fox’s home plus rental properties on the site are bunched together.

The bear had been on Fox’s property for at least two days prior to the shooting, according to the press release. Fox tried to scare the bear off using pepper spray capsules released from a gun.

“The animal had become domesticated in that he was interested in and following people, and even became comfortable in the presence of a neighborhood dog,” the district attorney’s press release said.

Fox told investigators he was concerned about the bear’s continued proximity to humans, including a handicapped resident, and destruction of his trees. The bear apparently broke limbs on a choke cheery tree while stripping it for food.

Wills stressed that the bear didn’t pose an imminent threat to life, although Fox was concerned because it came within 40 feet of the handicapped resident of the property.

“There was no aggressiveness in the way it’s normally thought of,” Wills said. When asked if the bear would have been considered more of a nuisance than a threat, he agreed.

The case contrasts with others recently in the state where a black bear attacked a man in a tent in Rocky Mountain National Park and where a bear has been aggressively chasing people near Boulder. There wasn’t a clear-cut case of self-defense in this case, Wills said.

Fox didn’t call the wildlife division for help in scaring off or relocating the bear, according to Wills. He also failed to report the incident. A bear shooting is supposed to be reported to the DOW within five days. Wills noted it was reported by a neighbor the day after the incident.

“While the action of Mr. Fox certainly cannot be condoned with respect to his failure to notify the Division of Wildlife, either before or after the event, and his destruction of the bear carcass, the Office of the District Attorney believes it cannot prove beyond a reasonable doubt that the shooting was not necessary to prevent the bear from inflicting damage to the real property or human life,” the prosecutor’s press release concluded.

Neither Fox nor his attorney, Arnold Mordkin, returned telephone calls seeking comment. Fox’s only previous comment was that he hoped people would wait until all facts were in before forming an opinion.

When asked if the bear-shooting incident was morally wrong if not legally wrong, Wills said he can only address the legal issues.

Charges were filed but not pursued in summer 2000 against a Basalt man who shot a bear that was invading his partially built cabin on Basalt Mountain. The case was handled by a different district attorney’s office. Prosecutors decided it would be difficult to prove the man didn’t act out of self-defense.

[Scott Condon’s e-mail address is scondon@aspentimes.com]

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