Defense attorney Michele Tjader says the state needs to show that Kurt Rausch intentionally killed two pet dogs while hunting.
Filing unprecedented charges in court can have its challenges.
In mid-April, Assistant District Attorney Paul Humphrey charged Kurt Rausch with two felony counts of mistreatment of animals for fatally shooting two pet dogs while coyote hunting on public land in Fitchburg. It is believed to be the first time in Wisconsin that a hunter has been criminally charged under this state statute. Rausch is also charged with a misdemeanor for the negligent mishandling of a firearm, a charge likely to stick.
But for the felony charges to prevail, the state needs to prove that Rausch killed the dogs on purpose, argued his attorney, Michele Tjader, at an April 27 preliminary hearing and in a written motion to dismiss the case.
The defendant has to have “intentionally treated the animal in a cruel manner,” Tjader wrote. That means, she added, that Rausch had to act “with the mental purpose to treat the animal in a cruel manner” or was aware that his conduct “was practically certain to cause that result.”
Rausch was hunting at night on Jan. 22 in Badfish Creek Wildlife Area, land managed by the Department of Natural Resources, when he used a calling device to attract coyotes and heard animals respond. Rausch told a sheriff’s deputy that he “saw the eyes of what he believed to be a coyote and a face and pointy ears and pulled the trigger. Rausch stated that he did not realize it was a domesticated dog that he had shot.” Rausch also shot a second dog that ran up to him moments later.
The dogs belonged to Deanna Clark, a veterinarian, who was walking with her four dogs, all of whom were wearing reflective vests. Clark also wore a powerful headlamp. One dog died at the scene and the other days later.
Tjader noted at her client’s preliminary hearing that Rausch had called 911 after the shootings and that he wrapped the surviving dog in his coat to carry it back to the parking lot.
For her client’s case to go to trial, Tjader told Judge Ellen Berz, “the government needs to show probable cause that Mr. Rausch acted intentionally.”
“I don’t think Mr. Rausch lined up Fido and said we’re going to kill a dog,” she added later. “I think that is what is necessary under the particular statute.”
But Humphrey countered that Rausch’s intent to kill coyotes transferred to the dogs when he shot them. He argued such intent transfers in cases involving humans — for example, when a person misses his target but shoots another individual in the process. But Humphrey could not cite any case law when intent transferred in cases involving animals.
Berz gave the prosecutor until May 23 to submit a brief arguing that the doctrine of transferred intent can be applied to non-humans. Tjader will then have until June 13 for her reply.
Berz also asked the parties to brief her on whether the transferred intent has to be criminal in nature.
Tjader argued forcefully that Rausch was not only hunting legally, but that his actions were constitutionally protected. She did allow that night hunting might have some safety drawbacks. “We can all question the wisdom of night hunting,” she said.
This case has drawn attention not only to the potential for deadly conflicts when public land is used for both recreational and hunting purposes, but to the lack of restrictions on coyote hunting and the ability to legally hunt some prey, including coyotes, at night.
Spokesman George Althoff says the DNR did not file charges against Rausch because the fatal shooting of Clark’s dogs “did not involve any DNR violations for which Mr. Rausch could be cited.”
Althoff, who recently left the DNR to return to the Department of Financial Institutions, says “the hunting of coyote is not regulated under Wisconsin statutes.” But it is covered under Wisconsin DNR administrative rules, including in section 10.06(8), which states, “There are no hunting hour restrictions for pursuing coyote, fox, raccoon and all wild animals for which no closed season is established....”
That hunting coyotes at night is legal has come as a surprise to some. But Todd Schaller, the chief warden in the DNR’s bureau of law enforcement, says documentation shows that it’s been legal to hunt for coyotes at night since the 1940s.
As for why some animals can be hunted at night and not others, such as deer, Schaller says that “the level at which a specific species is managed or regulated varies. Coyotes have a low level of regulation, and deer have a higher level of regulation.”
Schaller says hunter safety guidelines are not legally binding or enforced by the DNR. He does not have concerns about the safety of night hunting, but suggests that hunters scout the area before going out after dark.
But others are not convinced. A resolution introduced April 11 to the Wisconsin Conservation Congress, which advises the DNR on wildlife issues, asks the state to ban nighttime hunting of coyotes on public land designed for recreational multi-use.
The resolution, written by Melissa Smith, a Dane County delegate to the congress, notes that residents are encouraged to take their children and dogs to land set aside for recreation. “Wisconsin citizens...that love the Wisconsin outdoors have been endangered, and their dogs killed, by hunters that do not or are unable to identify their target in the dark.”
The resolution passed 203-76 in Dane County, but failed in Rock, Sheboygan and Clark counties, where it was also introduced.
Successful resolutions need to go through a committee process before making it onto a questionnaire for statewide input next spring, says Wisconsin Conservation Congress liaison Kari Lee-Zimmerman.
Deanna Clark, who wept quietly during much of Rausch’s preliminary hearing, says nothing that happens in the courtroom will bring back her dogs, who she considered family. But she hopes the case “will bring attention to the fact that it is no longer safe for us or our pets to be outside on the public land we all share.”