Roger Schmid hadn’t actually shot a deer when he was cited in November 2011 for not having the proper license to take another deer after he’d shot one the night before.
He told the DNR he was nature watching, coyote hunting, sitting near some friends who were hunting, and waiting for his wife to get home from church so they could lift the deer he’d earlier killed — all excuses he gave at various times.
But he was sitting in a field with a gun, on an ATV, wearing blaze orange and that meets the state’s law because it constitutes “pursuing” and “taking” a deer. Schmid said he couldn’t be charged because he was doing no such thing.
If you’re a long-time NewsCut reader, you may remember this case from the Minnesota Court of Appeals when Judge Kevin Ross cited the Declaration of Independence, the dictionary, the Bible, Outdoor Life, and Field and Stream magazines on the question of what constitutes pursuing.
Alas, there was no such flourish from Supreme Court Justice David Lillehaug, who also turned aside Schmid’s appeal. This time, Lillehaug dissected the meaning of “take” (.pdf) in Minnesota hunting laws, in a way only an English teacher would enjoy.
When “taking” is used as a verb it has the same underlying definition as the root verb “take.” This is not to say that the two words are identical. Indeed, different tenses of words in a statute can lead to different meanings; a legislature’s “use of a verb tense is significant in construing statutes.” However, different tenses exist to express differences in the time or duration of an action, not to express different underlying definitions.
The American Heritage Dictionary 1408 (5th ed. 2011) (defining the progressive verb form that ends in “ing” as a form “that expresses an action or condition in progress”). Thus, the only definitional difference between the root “take” and the progressive form “taking” is the timing of the action.
Further, when “taking” is used as a gerund or adjective, the difference is not definitional, but syntactical. Cambridge Grammar of the English Language 81 (2002) (“A gerund is traditionally understood as a word derived from a verb base which functions as or like a noun . . . .The primary difference between a gerund and a participle, therefore, is that while a participle is functionally comparable to an adjective, a gerund is functionally comparable to a noun.” (emphasis added)). The verb form is an action performed by a subject, modifiable by adverbs, while the noun form identifies the action as the object of a verb, modifiable by adjectives. See The American Heritage Dictionary 738 (5th ed. 2011) (defining a gerund as a “verbal noun”); id. at 1923 (defining a verbal noun as a “noun that is derived from a verb and usually preserves the verb’s syntactic features, such as transitivity or the capability of taking nominal or verbal compliments” (emphasis added)).
Thus, when “take” and “taking” are used in the same context, they have the same basic definition. See id. at 1775 (defining “taking” as “[t]he act of one that takes”). They are merely different syntactical forms of the same word.
Let me boil that down for you: You don’t actually have to be taking a deer to take a deer under Minnesota’s hunting laws.
Lillehaug said by sitting on an ATV, wearing blaze orange and carrying a gun, Schmid was attempting to take a deer.
Related: Minnesota Supreme case holds oral arguments in hunting case during visit to Worthington (Daily Globe).