How would you handle this?

[Them]

Serious question: do you guys actually read these things before posting them?

Whether criminal or civil liability is at issue, here's the only applicable language: "Harasses, intimidates, or interferes with an individual engaged in the lawful taking of. . . shellfish . . . with the intent of disrupting lawful pursuit or taking thereof."

Setting aside the caselaw one would need to review to really get a more solid answer on what that means in practice (and I suspect those cases deal with much more clear-cut encounters than this one), there's the threshold question of whether Mayer was still engaged in the taking of the GPO when Bob confronted him. Seems unlikely, since it had already been removed from the water, but perhaps the caselaw would suggest that hauling the dead deer to your truck is a protected activity during which nobody may talk to you.

Next, the question of whether Bob's words and actions only while Mayer was still so engaged (i.e., not after) were sufficient to harass, intimidate, or interefere with Mayer's taking of the GPO. What, exactly, did Bob say? How, exactly, did he say it? How did Mayer feel about it, and how did it affect Mayer and his taking? Do I still need to explain why Mayer's credibility is important?

Finally, assuming the act is proven, there's the intent element. Was Bob intending to disrupt the taking itself, or just give Mayer a piece of his mind over his doing it? Again, credibility is a factor.

You are right that any existing case law would be interesting. However...

1) It is not much of a stretch to say someone walking from the water with his catch in his hands is at that moment engaged in the act of taking. Otherwise a burglar would cease to be engaged in burglary as he walked out of a house carrying loot.

2) Regardless of what Bob said, in 2012 a reasonable and educated person would have felt intimidated when a stranger, especially one who has just confronted them, started snapping photos of them/their vehicle with license plates. Intimidation does not require any specific language and it need not be verbal. If someone walked up to you and expressed displeasure at your actions, and then started snapping photos, would you find that intimidating? Most people would, and they'd be right...there is obviously a lot of harm that can come of such photos. Mayer's credibility is exactly as important as a domestic violence victim's credibility at that point - not. There is photographic and computer evidence, and the question is what would people judging the evidence think, not what Bob or Mayer thought.

3) Given Bob's subsequent actions, his intent to stop the hunting at this location is pretty much a matter of record. Can he establish that this intent came after the confrontation? Why would he confront if he didn't have that intent?

As I said, it's unlikely that Bob will face charges over this, but a reasonable lay reading of the regulation suggests he could be convicted if he was charged.

 

[chillyinCanada]

The kid was proud to have his picture taken, initially. And that is quite an amazing picture, which no doubt in my mind, is one of the reasons this is all getting so much press. Someone should feel free to correct me if I'm wrong, but as I originally understood it, Bob and his dive buddy were not the only people there at that moment. Thought I saw something that showed that others were intrigued by his walking up the beach with that huge octopus and he was pretty pleased with himself. It wasn't until he realized the intent of Bob's challenge that things went sour. (After which, the pictures got posted and went viral.)

 

[danvolker]

And I love to eat Hogsnapper...and have been planning on shooting a few for a dinner party we will be having soon. if I heard that the local dive community had agreed that no one would shoot hogs on the "Playground" (a patch reef area around 120 feet deep that was historically incredibly productive for Hogsnapper) because everyone wanted a good re-charge area for them to recover, I would respect that....


The fact is, back in the 80's and up to mid 90's, their were huge numbers of hogs on the Playground around twilight...it may well have in a breeding oriented area, but in any event, commercial spearing and private pretty much decimated the Playground as a site for hogs as in the old days....This was a "local problem" , and it should have been dealt with by the local dive community, as laws tend to have much greater scope than just one small area, and this was well before many divers had ever heard of MPO's....the need was clear....this would have been smart for hunters, and hunting for hogs would be much better today if we had exercised more thought and restraint back in the 80's and 90's....if we had not just relied on whether the shooting was legal or not.

 

[Dr. Lecter]

1) It is not much of a stretch to say someone walking from the water with his catch in his hands is at that moment engaged in the act of taking. Otherwise a burglar would cease to be engaged in burglary as he walked out of a house carrying loot.

What a terrible analogy, where to begin.... First, the burglar is in fact no longer engaged in burglary once he's out of the house. Burglary: "The criminal offense of breaking and entering a building illegally for the purpose of committing a crime." This has a few legal ramifications, because it means that the crime of burglary is complete, but they're not important to why the analogy is useless here. Second, what you seem to mean is that the burglar doesn't cease being a burglar just because he's done with his crime--he's marked as such because he committed it. Hunters, however, don't legally become a hunters forever just because they took an animal. The statute is clear that one must be engaged in pursuit or taking of the relevant animal; octopus being a shellfish, it seems pretty taken once it's on dry land.

2) Regardless of what Bob said, in 2012 a reasonable and educated person would have felt intimidated when a stranger, especially one who has just confronted them, started snapping photos of them/their vehicle with license plates.

For intimidation, context is everything and the issue is what he feared would happen in that moment -- not what might happen later on as an indirect consequence of the photos/interaction. No reasonable 20 year old man physically capable of wrestling a 70 lb octopus (that he has subsequently described as "aggressive" and very dangerous) would be intimidated by a single old, pudgy man standing a respectful distance from him (pictures; anything else is Mayer's credibility) and delivering an angry and somewhat profane lecture (but no threats), while others took pictures.

You seem to think adults have some kind of privacy interest in their identities and license plate numbers after they've ventured out in public, and that violation of that privacy by taking pictures can be legal intimidation. You are mistaken.

3) Given Bob's subsequent actions, his intent to stop the hunting at this location is pretty much a matter of record. Can he establish that this intent came after the confrontation? Why would he confront if he didn't have that intent?

Read the statute. It does not criminalize speech and actions that are broadly intended to advocate against legal hunting -- nor, given the First Amendment and its strict limits on laws against speech that harasses/interferes/intimidates, could it. It does not prevent you from telling a hunter you think he's a Bambi-murdering piece of if you see him in the woods while he's hunting -- unless your doing so scares away his quarry and/or is sufficiently close to action that it is capable of harassing/intimidating/interfering with him.

Bob's speech and confrontation was, as explained above, not legally sufficient to intimidate this strapping young male. From the pictures, he is not blocking Mayer's path such that he cannot haul his catch back to his truck or otherwise actively interfering with Mayer's taking. And what speech is considered harassing/interfering is interpreted very narrowly (that pesky First Amendment again) and in light of the context in which it occurs. If Bob had told him he was a dirt bag who shouldn't be hunting there while Mayer was legally sighting in and squeezing a trigger, that would probably be harassment/interference. But hearing mere advocacy and name-calling from one guy for a short period of time while he's trudging back to his truck? Not a chance.

a reasonable lay reading of the regulation

Your entire analysis is a study in why that phrase is often a contradiction in terms.

 

[MXGratefulDiver]

You are right that any existing case law would be interesting. However...

1) It is not much of a stretch to say someone walking from the water with his catch in his hands is at that moment engaged in the act of taking. Otherwise a burglar would cease to be engaged in burglary as he walked out of a house carrying loot.

2) Regardless of what Bob said, in 2012 a reasonable and educated person would have felt intimidated when a stranger, especially one who has just confronted them, started snapping photos of them/their vehicle with license plates. Intimidation does not require any specific language and it need not be verbal. If someone walked up to you and expressed displeasure at your actions, and then started snapping photos, would you find that intimidating? Most people would, and they'd be right...there is obviously a lot of harm that can come of such photos. Mayer's credibility is exactly as important as a domestic violence victim's credibility at that point - not. There is photographic and computer evidence, and the question is what would people judging the evidence think, not what Bob or Mayer thought.

3) Given Bob's subsequent actions, his intent to stop the hunting at this location is pretty much a matter of record. Can he establish that this intent came after the confrontation? Why would he confront if he didn't have that intent?

As I said, it's unlikely that Bob will face charges over this, but a reasonable lay reading of the regulation suggests he could be convicted if he was charged.

FWIW ... I did not take any pictures that night. There were other people in the parking lot at the time who did ... both divers and non-divers. Since you've seen them let me ask ... does that big smile on his face appear intimidated?

... Bob (Grateful Diver)

 

[Them]

What a terrible analogy, where to begin.... First, the burglar is in fact no longer engaged in burglary once he's out of the house. Burglary: "The criminal offense of breaking and entering a building illegally for the purpose of committing a crime." This has a few legal ramifications, because it means that the crime of burglary is complete, but they're not important to why the analogy is useless here. Second, what you seem to mean is that the burglar doesn't cease being a burglar just because he's done with his crime--he's marked as such because he committed it. Hunters, however, don't legally become a hunters forever just because they took an animal. The statute is clear that one must be engaged in pursuit or taking of the relevant animal; octopus being a shellfish, it seems pretty taken once it's on dry land.

It's an interesting question and I won't claim to know the answer, but; while the act of entry makes it burglary, is it only burglary during the moment of entry? Or does it "latch" at the moment of entry and stay burglary until the entire crime has finished?

If, for example, the burglar re-entered the same house to get more loot would they be charged with two counts of burglary? Would they serve two consecutive sentences? I doubt it.

For intimidation, context is everything and the issue is what he feared would happen in that moment -- not what might happen later on as an indirect consequence of the photos/interaction. No reasonable 20 year old man physically capable of wrestling a 70 lb octopus (that he has subsequently described as "aggressive" and very dangerous) would be intimidated by a single old, pudgy man standing a respectful distance from him (pictures; anything else is Mayer's credibility) and delivering an angry and somewhat profane lecture (but no threats), while others took pictures.

Does a victim need to understand that a crime was committed against them at the moment of commission, in order for it to be a crime? A fraud victim may think they are getting a bargain at the time of the fraud, only to realize later that it was not such a good thing. Does the initial error of the victim erase the crime?

You seem to think adults have some kind of privacy interest in their identities and license plate numbers after they've ventured out in public, and that violation of that privacy by taking pictures can be legal intimidation. You are mistaken.

That's simply false. I made no such claim, I have no such expectation, and nothing I have said is based on privacy expectations. Red herring, no cookie for you.

Read the statute. It does not criminalize speech and actions that are broadly intended to advocate against legal hunting -- nor, given the First Amendment and its strict limits on laws against speech that harasses/interferes/intimidates, could it. It does not prevent you from telling a hunter you think he's a Bambi-murdering piece of if you see him in the woods while he's hunting -- unless your doing so scares away his quarry and/or is sufficiently close to action that it is capable of harassing/intimidating/interfering with him.

I agree. I don't see the relevance to this discussion though.

Bob's speech and confrontation was, as explained above, not legally sufficient to intimidate this strapping young male. From the pictures, he is not blocking Mayer's path such that he cannot haul his catch back to his truck or otherwise actively interfering with Mayer's taking....

That's a theory, based entirely on the supposition that intimidation can only be physical. In other words, based on a faulty supposition. Intimidation can include threatening livelihood, family relationships, finances, mental health, etc..

Your entire analysis is a study in why that phrase is often a contradiction in terms.

Shrug. Insulting me doesn't really help your argument.

 

[Dr. Lecter]

It's an interesting question and I won't claim to know the answer, but; while the act of entry makes it burglary, is it only burglary during the moment of entry? Or does it "latch" at the moment of entry and stay burglary until the entire crime has finished?

If, for example, the burglar re-entered the same house to get more loot would they be charged with two counts of burglary? Would they serve two consecutive sentences? I doubt it.

If you'll read the definition, you'll see that two separate instances of breaking and entering with the requisite intent will in fact be two separate burglaries, even if committed at the same place back to back.

Does a victim need to understand that a crime was committed against them at the moment of commission, in order for it to be a crime? A fraud victim may think they are getting a bargain at the time of the fraud, only to realize later that it was not such a good thing. Does the initial error of the victim erase the crime?

You're showing a fundamental misunderstanding of legal intimidation. If the "victim" is not, in fact, intimidated at the requisite time, there is no crime.

That's simply false. I made no such claim, I have no such expectation, and nothing I have said is based on privacy expectations. Red herring, no cookie for you.

Then perhaps you could explain the relvance of the photographs of the license plate (apparently not taken by Bob anyway, but context does matter) vis a vis intimidation?

I agree. I don't see the relevance to this discussion though.

Just making clear that your reference to the intent of Bob's actions being clear can't be addressed to his subsequent posts advocating against hunting at Cove 2, at least as far as this statute is concerned. If you'd have said what you meant more precisely, I wouldn't need to do that.

That's a theory, based entirely on the supposition that intimidation can only be physical. In other words, based on a faulty supposition. Intimidation can include threatening livelihood, family relationships, finances, mental health, etc.

Not at all. Intimidation certainly can include all of the things you list in some other situation, but most of them are irrelevant here. The statute is limited to intimidation of a hunter actively engaged in legal pursuit or taking, which here is at most the brief interaction at the dive site. Mayer reasonably feared that Bob threatened none of those at that moment, and that moment is the limit of the statute's reach.

Shrug. Insulting me doesn't really help your argument.

If you can't tell the difference between a critique of your person and a critique of a specific example of your reasoning, far be it from me to correct you.

 

[Them]

If you'll read the definition, you'll see that two separate instances of breaking and entering with the requisite intent will in fact be two separate burglaries, even if committed at the same place back to back.

Is that how they would be treated in the real world?

I don't have any personal experience with burglary from any side, but I would be surprised if a person who went in/out of a house five times while emptying it of valuables would be charged with 5 counts of burglary.

Can you provide any real-world information to contradict that?

You're showing a fundamental misunderstanding of legal intimidation. If the "victim" is not, in fact, intimidated at the requisite time, there is no crime.

Really? So if someone was to threaten me in Farsi, I would have no recourse because by the time I had their message translated my intimidation window would be closed? Or if a child had something terrible done to him, he would have no recourse because it might take him years to figure out that what was done to him was wrong. No, that doesn't make sense. I suspect you are wrong. Can you provide any information to back up your assertion?

Then perhaps you could explain the relvance of the photographs of the license plate (apparently not taken by Bob anyway, but context does matter) vis a vis intimidation?

Sure. The act of taking photographs is itself a way to communicate. That's why stores often have monitors in a public area showing a feed from their cctv cameras...it sends a message. In the context of a confrontation, it sends the message that the photographer can identify the subject, has some handle on them. In the context of Internet activism, and in a world where posting someone's home address in the wrong context can cause them great harm even though that address is public, taking photos of someone can legitimately intimidate them.

Just making clear that your reference to the intent of Bob's actions being clear can't be addressed to his subsequent posts advocating against hunting at Cove 2, at least as far as this statute is concerned. If you'd have said what you meant more precisely, I wouldn't need to do that.

I was fairly precise. Unless you can show how Bob's intent changed to prevention of hunting after he engaged this hunter, it is reasonable to conclude that his intent has remained constant and in fact was the reason for engaging the hunter. His intent is shown by his subsequent comments and is a matter of record at this point.

Not at all. Intimidation certainly can include all of the things you list in some other situation, but most of them are irrelevant here. The statute is limited to intimidation of a hunter actively engaged in legal pursuit or taking, which here is at most the brief interaction at the dive site. Mayer reasonably feared that Bob threatened none of those at that moment, and that moment is the limit of the statute's reach.

That's the sort of question that can go either way. I say that if a person's actions at a particular time make a person feel intimidated, then intimidation took place at that time regardless of when the feelings started or how long it took the victim to realize the intent of the person being intimidating.

If you can't tell the difference between a critique of your person and a critique of a specific example of your reasoning, far be it from me to correct you.

The problem is that I can.

I identified myself as a layperson. You commented that a "reasonable lay reading" is a contradiction in terms. If lay readings are always unreasonable, that implies that laypeople (a set including me) are incapable of reasonable interpretation. ...and where I come from saying someone is unreasonable or incapable of reason is insulting.

I suppose it is possible you didn't realize that, but your subsequent response makes me doubt your innocence on that front.

 

[DepthCharge]

Not to hi-jack, but I think it is similar, what is the status of taking Wolf Eels? Just curious. Would hate to see such an alledged "friendly" creature suffer the same fate. Maybe species protection is the key rather than a total ban on all spearing of all species.
Just a thought,
John

 

[Dr. Lecter]

I would be surprised if a person who went in/out of a house five times while emptying it of valuables would be charged with 5 counts of burglary.

If you understood the meaning of the "breaking" requirement, you might not be confused.

Really? So if someone was to threaten me in Farsi, I would have no recourse because by the time I had their message translated my intimidation window would be closed? Or if a child had something terrible done to him, he would have no recourse because it might take him years to figure out that what was done to him was wrong. No, that doesn't make sense. I suspect you are wrong. Can you provide any information to back up your assertion?

Really. Each case you describe sounds like a legal wrong, but neither one would have a claim for intimidation under this hunter protection statute. If you mean to discuss the theoretical bounds of the legal definition of "intimidation", that's a separate and irrelevant conversation. Suffice to say there's a difference between an illegal threat in a language you don't understand and suffering damages from the specific wrong of intimidation.

Since the rest of your post is hopelessly mangled by a fundamental misunderstanding of what it means to be intimidated and a refusal to grapple with the temporal requirement of the statute you cite, I see little point in responding further, except on one issue.

You commented that a "reasonable lay reading" is a contradiction in terms. If lay readings are always unreasonable, that implies that laypeople (a set including me) are incapable of reasonable interpretation.

I actually said your post was an example of why the phrase was often a contradiction in terms, not that they were always unreasonable.