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It’s illegal to hunt bears in Connecticut, but you can shoot one if it “pursues or worries” your chickens.
The law was written in a day when agriculture prevailed, but it would be legal justification for the off-duty police sergeant who killed a bear with his Colt AR-15 semi-automatic rifle in Newtown in May.
That’s how David Applegate, the state’s attorney for the Judicial District of Danbury, explained the law Friday to legislators, citizens and animal advocates who want him to re-open the case against Lawrence Clarke.
Clarke, a Ridgefield Police Department employee, was not charged in the shooting of the mother bear that, according to a police incident report, took about three of the 14 chickens in his coop.
The shooting, which drew wide media attention, orphaned the bear’s tiny twin cubs, who scrambled up an 80-foot tree after the shooting. The brothers were rescued and transported to the Kilham Bear Center in New Hampshire.
The group that invited Applegate to Friday’s virtual discussion wanted him to explain why Clarke has not been charged, since it’s illegal to kill a bear in Connecticut.
It’s because state statute 22-358 says property owners may destroy an animal that poses a threat to people or attacks livestock, and they cannot be held criminally or civilly liable for doing so, Applegate said.
“If the bear was pursuing the chickens, he had the right to kill the bear, according to the statute. That’s the law I am bound by,” Applegate said. “I’m not telling you that I like it or that it’s fair. I’m telling you what the defense would be if I made an arrest.”
When a bear is killed, Environmental Conservation Police, nicknamed EnCon – the enforcement arm of the Department of Energy and Environmental Protection – investigate.
The state’s attorney then decides whether there is enough evidence to charge someone with a criminal offense.
In Clarke’s case, EnCon officers determined that the killing was justified. DEEP officials in July released a statement saying Clarke “had numerous encounters with the same bear over multiple days that caused him to fear for the safety of his family, for himself, and for his livestock.”
But Applegate, a former senior state prosecutor in Bridgeport who became Danbury’s chief law enforcement officer in July, said he’s not OK with what happened on May 12 in Newtown.
“I’m not crazy about the fact that [EnCon] put their legal conclusion in their report and then asked us to make a decision,” Applegate said. “If you are going to call on me to see if a shooting was justified, don’t put on paper that you think it was justified.”
EnCon is a small unit of 35 law enforcement officers who enforce fish and game laws, boating safety laws, and manage state parks, forests and wildlife.
“They don’t investigate crime scenes in the way other agencies do. We don’t work with them a lot,” said Applegate, who has been a prosecutor for 17 years, including a stint in the Stamford district. “This year has been tragic for drownings in Candlewood Lake, and they are spread pretty thin.”
All the more reason to question the handling of the bear shooting, animal advocates said.
Annie Hornish, Connecticut state director of the Humane Society of the United States, questioned Clarke’s motivation for collecting six of the seven shell casings near the body of the bear, known to Newtown residents as Bobbi, before EnCon officers arrived. Hornish asked whether it could be considered evidence tampering.
“It bothers me,” Applegate responded. “My concern is that there is a level of speculation. I don’t know how it would come across to a jury or a judge, because I don’t actually know why he picked up the shell casings.”
Regina Milano, a licensed wildlife rehabilitator and member of the Connecticut Wildlife Rehabilitators Association, questioned why EnCon officers got rid of the bear’s body before examining the stomach contents to determine whether she had eaten the chickens, given that Clarke told investigators he’d also been chasing foxes away from the chicken coop.
“With the lack of certainty about the credibility of the officer who did the shooting, and some acknowledgement that the case was not handled the way it might have been, isn’t there reason to reinvestigate?” Milano asked.
DEEP had photographic evidence that chickens had been killed, which justifies the shooting under the law, Applegate said.
“It comes down to whether the bear was pursuing or worrying the chickens, and there is a lot of evidence that she was,” he said.
Another licensed wildlife rehabilitator, Deborah Galle, asked about Clarke’s responsibility to protect his chickens, which he said were sometimes allowed to range freely.
“It would be responsible to do that; it would create a safer environment for his family and his neighbors,” Applegate said. “But the statute puts no burden on him to protect his chickens.”
Katherine Throckmorton, an attorney who supports the Connecticut Coalition to Protect Bears, said she thinks the statute applies only to attacks by dogs and other domestic animals, not wildlife, and the prohibition against killing bears stands.
Dave Ackert, a Newtown resident and founder of Newtown Action Alliance, is concerned that Clarke used an AR-15 to fire off rounds in a residential neighborhood.
“The way the law has been applied in this case, can we expect that members of the public now will be quick to pull out a gun when they see a bear?” Ackert asked. “People now have access to a closet full of weapons, and gun enthusiasts are different from farmers.”
The statute reflects days long gone, Applegate said.
“Our laws go back to a time when we responded to bears differently from the way we respond today. Back then farmers had a bigger voice, maybe the only voice,” Applegate said. “There are shortcomings in the law. The Legislature should address it. This will happen a lot more as the population of bears continues to move into Fairfield and New Haven counties. We may need local ordinances as to how chickens are maintained, to help people live peacefully among bears.”
DEEP spokesman Will Healey said Friday the department stands by its investigation, conducted with the Newtown Police Department and the Danbury state’s attorney who preceded Applegate.
EnCon officers “are highly trained, have extensive experience in handling many types of wildlife investigations, and have handled many similar cases,” Healey said. “Staffing was not an issue in the investigation of this incident.”
The department believes Clarke’s actions “were reasonable and explained in the investigation,” Healey said, and the state’s attorney’s office “did not find anything … that would result in filing of charges.”
Because of the increase in conflicts between humans and bears, “further legislative clarity is needed,” he said.
State Rep. David Michel of Stamford, co-chair of the Legislature’s Animal Advocacy Caucus, said it’s time to improve the statute.
“I don’t think it’s good for this case to set a precedent,” Michel said.