Court: If a guy looks like he’s hunting, he’s probably hunting

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).

  • Ryan Brown

    Wonder what the ruling would be for fishing. Saying you are fishing doesn’t necessairly mean I was successful in catching a fish. Could I say that I was fishing…not catching?

    • jon

      I can say that any time I go “fishing”

    • Nick K

      Probably the same. The law states: “Taking” means pursuing, shooting, killing, capturing, trapping, snaring, angling, spearing, or netting wild animals, or placing, setting, drawing, or using a net, trap, or other device to take wild animals. Taking includes attempting to take wild animals…”

    • Fishing is different than hunting since there are seasons that never close (i.e. panfish). So by the letter of the law, if you catch a fish out of season, you simply put it back immediately and are in compliance with the law. The general consensus with my fishing friends is that if you are consistently catching fish out of season you should move, or change presentations to make a best faith effort to avoid those species.

      With hunting If you are out in a legal hunting area, wearing the legally required apparel, with a firearm which is in a legal caliber to take a deer, with a license, I agree…you are hunting deer.

      • ThatOregonGuy

        There are animals that have year round seasons. Cougar, coyote, etc. The question is, do the same hunter orange and similar regulations apply for other animal hunting? If they do, then the state has no argument. If the regs only apply to deer, then yes, the state could make the argument. It’s often impossible to prove “intent”. That’s why Oregon has regs that you can’t hunt certain units during elk season without a valid elk tag. IE: if I don’t have a Cascade unit elk tag, I have to go deer hunt the coast range for the week of Cascade elk. Many of the regs DFW comes up with are extremely vague and often contradictive though. Maybe they need to clarify a bit.

        • Jim in RF

          Oh, there’s cougar hunts all right. Friday nights at Maynards.

          (too easy)

          • Jack

            that’s gross.

    • Chris

      I believe the fishing rule is if you have a pole or net in your hand you’re fishing.

  • KTN

    Seems right, especially when compared to Minnesota’s laws around driving while impaired. You can be sitting in your car, without having the keys in the ignition,and still be charged with DUI, (if your drunk that is). The fact you could be driving is enough, and in this case, the same logic applies, you go out looking like you’re hunting, with all the assembled gear, and you’re hunting.

  • BReynolds33

    OK, so… I hunt grouse during, and around, deer season. If I am legally licensed to hunt birds, but am in the woods, sitting on a log to take a break, wearing blaze orange to be seen and safe… do I now also need a deer license? The ruling didn’t clarify what type of gun is required to be considered “taking” a deer… and a shotgun is certainly capable of doing so. Does it then come down to ammo?

    • I would think that yes, it comes down to ammo. If you only have bird shot you are not legally allowed to take a deer. If you have one slug in your gun or pocket you would then need a deer license.

      The same thing comes into play with waterfowl hunting during grouse/pheasant season. You had better not have lead shot on you while hunting waterfowl or you can get a fine. It’s all in the hunting and trapping regs at the DNR website.

      • The much more entertaining decision from Judge Ross summed it up perfectly:

        “We hold that entering a deer-hunting area and sitting in a blind armed with a deerhunting weapon loaded with deer-hunting ammunition is “pursuing” deer within the meaning of section 97B.301. This is how Officer Thesing encountered Schmid. The only remaining element, intent, may be readily inferred from the circumstances. This is
        especially so here, given the credibility deficit that Schmid created by offering multiple conflicting explanations. The district court correctly applied the statute, and the evidence supports Schmid’s conviction of taking deer without a license. “

    • jon

      If I were to go hiking in the woods during deer season, I’d want to be wearing blaze orange… not because I’m hunting, but because I don’t want to be shot.
      Let’s say I’m also carrying a gun for personal protection…
      At that point am I hunting?

      I think it would be up to the discretion first to the game warden, and second to the judge that heard my case. I suspect the details of this particular case suggest that he was probably hunting, and might use one of his friends tags for any deer that he got… but I agree the broad statement in the article makes it seem like I could be fined for hunting with out a permit very easily.

      • I suggest reading the earlier piece and the case itself — links all provided above.

        What it comes down to is common sense.

        Let’s take fishing for an example. If you have a pole, and a line and lure, it’s probably not a good idea you’re trying to retrieve an errant golf shot.

        • jon

          I admit I didn’t go back and re-read all of the historical documentation on this particular case… and I probably won’t (though I enjoyed the quote from Judge Ross you shared above, recall reading it the first time around too…)

          But the beauty of our justice system is that it tries each case separately. Sure there is “case law” but in general we each get to be judged on the exact details of our situation and case law can be easily disputed by pointing out the differences in the case that is cited for precedent and the situation you are in.

          Not to say the entire justice system is beautiful… it’s sometimes and ugly beast…. but in this particular area, it works.

        • Jay Sieling

          Common sense and enforcement discretion. Can’t help but thing of this:
          A husband and wife go on a fishing trip. The husband typically gets up
          very early in the morning to go fishing while his wife sleeps in.
          After getting back from an early morning of fishing the husband goes up
          to the cabin and starts to take a nap.

          While he’s napping the wife decides to take the boat out and do some
          reading on the lake. So she takes the boat out, wanders into a
          restricted fishing area, drops anchor, and starts reading a book.

          Pretty soon the game warden comes up to her, sees all the fishing gear
          in the boat, and says “Ma’am, you are in a restricted fishing area so
          I’m going to have to write you a ticket.”

          “But I’m not fishing, I’m reading” says the wife.

          The game warden says, “But you have all the right equipment, for all I know you could start at any moment.”

          “If you write me ticket I’ll have no choice but to charge you with sexual assualt,” says the wife.

          “But I haven’t even touched you!” exclaims the game warden.

          Then the wife says “But you have all the right equipment, for all I know you could start at any moment.”

          “Have a nice day ma’am” says the game warden as he motors away.

          • Her “out” here is that she actually had a book and was reading. Also she didn’t have a line in the water.

      • Keli Hendricks

        If you are in an area where there are deer and you are dressed like a hunter and carrying a weapon loaded with deer ammo, you should assume that PEOPLE WILL THINK YOU ARE HUNTING DEER.

        • jon

          So dressed like a deer hunter is wearing blaze orange?

          And “deer ammo” can really be anything… You can kill a deer with a .22LR easily enough… Probably not considered best practice, and many folks would call it unethical because of the amount of suffering it causes the animal.

          And “area where there are deer” is pretty much the entire state, from the north woods to my backyard to the corn feed deer in the fields in the south.

          So, with your CAPS shouting at me, I can assume that wearing blaze orange, carrying any kind of fire arm, anywhere in the state means I’m hunting. Heck other than the blaze orange most police officers are out hunting deer when we are paying them to keep our communities safe! Lazy bums.

          It’s a fine line, and one the courts will have to decide on a case by case basis… assuming that just because some one has a gun they are a hunter is like assuming that just because you have a car you are planning to commit vehicular manslaughter (and if you weren’t planning on hitting anything why would you wear a seat belt!)

          • This case wasn’t about assuming a guy was hunting just because he had a gun. Or even was just wearing blaze orange.

          • Keli Hendricks

            It’s called using common sense. If you have been drinking and are behind the wheel of a parked car, the law considers you to have been driving while druck. You might not have been driving, or even intending to drive, but a person with no intent to drive would never be in that situation so we use common sense to guide our laws. Nobody should be less tolerant of poachers than hunters. But the fact that hunters continue to support laws that help protect poachers and unethical hunting practices, it hurts the entire sport and makes you all look like selfish babies.

  • Justine Parenteau Wettschreck

    This was an interesting case, and the Supreme Court’s oral arguments were done in front of a gymnasium full of high school kids down in southwest Minnesota. I think they were expecting more hunting talk than semantics, but if listening to their chatter afterward was any indication, it sure sparked a lot of fun discussions.

  • Kassie

    I really hate poachers. These are people who really love hunting/fishing/trapping and do it so much or in such a way that it reduces the ability of other people, now and in the future, to also do it. People commit crimes for a lot of reasons, but this one is pure selfishness. I’m glad he got busted.

    • Jack

      Crimes committed are for personal agenda. -typ.

  • Jeff

    Sitting in the Mall of America in my blaze orange with my rifle would not be considered poaching unless I got my bag limit of terrorists? Just need to be clear about that.

  • Dean Walker

    Some people put more effort into trying to get out of trouble, than just doing the right thing in the first place!

  • Yeah, I teach grammar….

    Actually, the summary here of the judge’s ruling got it wrong, missing the whole point of the grammar lesson. Instead of saying, “You don’t actually have to take a deer to take a deer under Minnesota’s hunting laws,” the judge said, in effect, “You don’t actually have to take a deer to **be taking** a deer under Minnesota law.”
    “Fishing” is a good verbal parallel, as is “drinking”–when someone is “drinking with friends,” they do not actually swallow a beverage during every single moment that they’re “drinking” with the friends (though the friends might be…).
    But Collins’ quote of Judge Ross (responding to Matt and BReynolds33) really does get across the point very well.