Legal Standard for Self Defense Against Grizzly Bears

Image of grizzly bear  by Troy Nemitz, used with permission.   

In 1975, when grizzly bears in the lower 48 states were regulated as “threatened” by the federal Fish and Wildlife Service of the Department of the Interior, the standard required to use deadly force against grizzly bears, in defense of self and others, was unclear. In 2017 and 2021, the Court of Appeals for the Ninth Circuit created binding precedent which clarified the standard to be used in cases when a person claimed defense of self and/or others against grizzly bears in the lower 48 states.

The standard is different and lower than the standard to be used for self defense against humans.  From the opinion by the Ninth Circuit issued in 2017, bold added:

We hold the “good faith belief” defense for a prosecution under 16 U.S.C. § 1540 is governed by a subjective, rather than an objective, standard, and is satisfied when a defendant actually, even if unreasonably, believes his actions are necessary to protect himself or others from perceived danger from a grizzly bear. Because the district court applied an objective standard, we vacate Wallen’s conviction and remand for further proceedings consistent with this opinion.

The Wallen case was engendered on May 27, 2014 when Dan Calvert Wallen shot three grizzly bears on his family property in
Ferndale, Montana with a banged up .22 rimfire rifle. The bears had killed most of his chickens. He had chased the three adolescent bears from his property with a truck, but the bears returned. Wallen plead not guilty and asked for a jury trial. Because the charges were misdemeanors, with a maximum penalty of six months in jail and/or restitution for the bears, a jury trial was not allowed. In the bench trial, Wallen was found guilty by Magistrate Judge Jeremiah Lynch, sentenced to three years of probation, and $15,000 in restitution.  The District Court Judge, Dana L. Christensen upheld the verdict by the Magistrate.

Wallen appealed the case to the Ninth Circuit. The three judge panel found the Magistrate, and the District Court Judge,  Dana L. Christensen, had not used the proper standard for defense of self and others against the bears. At the second trial, Magistrate Lynch again found Wallen guilty, because he found Wallen’s testimony to be less than credible. Lynch increased the restitution for the three bears from $15,000 to $25,000. At the District Court, Judge Christensen agreed with Judge Lynch for the second time. Wallen appealed to the Ninth Circuit for the second time.

On the second appeal to the Ninth Circuit, the thee judge panel again found the Magistrate and the District Court judge had acted in error. Too much emphasis was placed on Wallen’s credibility, while ignoring quite a bit of evidence that Wallen was indeed fearful of the bears.  From the opinion from the second appeal to the Ninth Circuit:

On remand, the trier of fact could not convict based on an adverse credibility finding without then completing the analysis by connecting that finding to the elements of the good faith defense, including taking 5 account of evidence as to Wallen’s state of mind other than his own statements.

The Ninth Circuit sent the case back for a third trial. In a separate concurrence, Judge Van Dyke, a member of the Ninth Circuit three judge panel, reminded the Magistrate and the District Judge the federal prosecution had misspoke (lied) to the district court and the Ninth Circuit panel, claiming Wallen never said he was fearful, felt threatened, or that his family was threatened by the bears when he shot them. From footnote 1 of the concurrence:

1 The government misspoke by telling the district court and our court that on the night of the bear shooting, Wallen never said that he was fearful, felt threatened, or that his family was threatened by the bears when he shot them. The record shows that the local game warden repeatedly testified that Wallen told him on the night of the shooting that “he was afraid of [the bears]” and afraid for “[h]is children and the neighbors that were playing in the yard.” In his review of the magistrate judge’s decision, Judge Christensen relied on the government’s misstatement as a “significant” reason for his decision affirming Wallen’s conviction.

Judge Van Dyke reminded the Magistrate Judge and the District Judge they needed to apply the strict standards of criminal law to a possible third trial.

In 2021, the federal prosecutor in the case asked for dismissal of the case, and asked the restitution money, $25,000, be returned to Wallen. In the docket for the case, the money is reported as being returned on February 10, 2021.

The precedent is now well established in the Ninth Circuit. To convict a person who claims they killed a grizzly bear in defense of self and/or others, the government must prove the defender did not believe they were threatened or that others were in imminent danger by the bear. The subjective belief on the part of the person making the defense of self and others claim is the key criteria. The person making the claim does not have to show they were objectively threatened. They need to show they believed they and/or others were in imminent danger.

Self defense against humans has a higher standard. The person claiming the defense has to show they had a “reasonable belief” they and/or others were in imminent danger from the other person.

Defense of self and others is a clear exception to the ban on firing guns in National Parks.

Most of the grizzly bears in the lower 48 states are within the area served by the Court of Appeals for the Ninth Circuit. The exception is Wyoming. It seems likely the Ninth Circuit standard will be advocated and/or used in future Wyoming cases.

Grizzly bears are not classified as threatened in Alaska. The state statue covering defense of life and property (DLP) cases apply to defensive shootings of bears in Alaska.

©2025 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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