February 19, 2006 Sunday
HEADLINE: The Buck (Fever) Stops Here;
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When Vice President Cheney bagged a Republican donor during a quail hunt, he became the first U.S. vice president to shoot someone while in office since 1804 when Aaron Burr shot Alexander Hamilton. But from a legal point of view, the precedent that matters here may not be our third vice president, but rather a hapless Maine hunter named Donald Rogerson.
Whereas Burr pulled the trigger in a duel over honor and politics, Rogerson, like Cheney, shot someone while in search of game. Mistaking a 37-year-old housewife for a white-tailed deer, Rogerson shot and killed her. Locals insisted that the victim (who had recently moved from Iowa) was to blame because she was wearing white mittens during deer season. And a Bangor, Maine, jury cleared him of manslaughter.
No one in authority is talking about charging Cheney with a crime. But Cheney and Rogerson share the ignoble distinction of succumbing to what hunters (and lawyers) call “buck fever.” It is a phenomenon as old as hunting, defined by the Random House dictionary as the “nervous excitement of an inexperienced hunter upon the approach of game.” Yet experienced hunters have also been known to cut down neighbors they have mistaken for bucks, ducks and other quarry.
Buck fever is a recognized defense for negligent hunters, particularly youths. When a teenager shot a local businessman dressed in orange during deer season, he was excused from civil liability because of buck fever, despite the absence of any known species of orange-colored deer.
The law governing hunting accidents has long been controversial. This is the one area where citizens routinely shoot and kill other citizens without civil or criminal penalty — or even the loss of a hunting license. Indeed, most cases of accidental shootings are viewed as reasonable mistakes by hunters and often it is the victim who is blamed for failing to give a hunter a wide berth. Even in the few cases where criminal and civil charges are brought against hunters such as Cheney, they are often tried by a jury of their peers: jurors from communities where hunting and hunting accidents are a way of life.
That’s what saved Rogerson from prison. Karen Wood had only been out in her backyard for a minute, leaving her year-old twin girls in her house, when Rogerson shot her in the chest with a .30-06 rifle. Despite a 4X power scope and a distance of only 188 feet, Rogerson insisted that he mistook Wood for a deer he had seen — though a game warden found no tracks or other evidence.
Putting aside the question of how many biped deer Rogerson had previously encountered, the jury seemed to ignore the fact that Rogerson violated state law, which required him to identify a buck with antlers and to avoid shooting within 300 feet of a house. The case exemplifies the unique deference shown to hunters who maim or kill neighbors. When a hunter in Pennsylvania shot and killed a relative, he was cleared because the victim was making “animal-like movements.”
Hunting accidents stand in sharp contrast to other types of lethal negligence. In areas ranging from vehicular accidents to corporate misconduct, individuals routinely face criminal charges for reckless conduct. In hunting, however, gross negligence is often refashioned as mere “excitement.” Indeed, criminal charges can be downgraded when the killing was done in sport. In Illinois, a judge, while standing in front of his garage, was shot through the throat and shoulder and police treated the matter as “an attempted assassination.” A man finally came forward to admit that he shot the judge while firing at a hawk. His most serious charge? Shooting a bird of prey. He was put under supervision and given a $200 fine.
Hundreds of people are shot each year in “mistaken for game” cases. According to the International Hunting Education Association, in 2004, 41 people were killed and 250 wounded in hunting accidents in the United States. (Down from 91 people killed and 835 wounded in 2000). Unlike Harry Whittington, whom Cheney sprayed with as many as 200 shotgun pellets, the victims are often not even fellow hunters. Judy Moilanen was merely walking her dog in Ontonagon, Mich., when she was killed. Debra Kelly of Osseo, Wis., had her eye shot out by her 13-year-old nephew while she stood in front of her house.
Based on the public accounts of last weekend’s shooting, there’d be a good case to be made that Cheney was negligent. A person is negligent per se when he violates a statutory standard of care, such as the requirement to establish a clear line of fire and confirm a defined game. (This puts aside the fact that Cheney was hunting without a proper state stamp.)
Cheney’s is a classic case of buck fever. There was nothing particularly confusing or unexpected about an individual rejoining a hunting line, as Whittington reportedly did. Rather, it was likely the euphoria of seeking and shooting game that blinded Cheney to the fact that he was aiming at a 78-year-old attorney rather than a six-ounce bird. Medical studies show that hunters often experience a type of physiological frenzy in the presence of game — or its illusion. When shooting a deer, a male’s heart can reach 118 percent of the maximum heart rate. Given Cheney’s heart condition, hunting would seem a poor recreational choice for the vice president.
Cheney’s case reflects a troubling de facto immunity given to negligent hunters. Because of our tradition of hunting, we view people who make lethal use of a firearm as less culpable than those who make lethal use of objects like cars. Texas probably won’t require that Cheney take safety classes or suspend his license. The local county sheriff’s office has already declared the case closed. For his part, Cheney feels no compulsion to promise that the “buck (fever) stops here” and give up hunting.
At least Whittington knows who shot him. Frequently, the culprits in hunting manslaughter cases are never identified. With the expansion of suburbia, it is increasingly common for people to unwittingly enter a line of fire. In 1992, in Leeds, Ala., 22-month-old Ashley Ramage was shot and killed while simply riding between her parents in their truck.
Even in the Washington area, hunters are permitted to hunt game and fowl. Joan Manley, a federal lawyer, was shocked during a morning walk with her two golden retrievers around Jones Point in Alexandria. Alongside the heavily traveled path that runs next to the Potomac, two hunters sat with loaded shotguns in a boat resting on the shoreline; they were after ducks. Two Alexandria police officers confirmed that the men had a proper license and were expected to avoid joggers and bird watchers.
If they had failed, they could have expected no worse punishment than Cheney has received. As long as we continue to treat buck fever as a defense rather than an offense under civil and criminal laws, it’s best to leave the white mittens i