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Constitutional Law

Finding ‘Forbidden Fruit Issue’ Is ‘Hopelessly Vague,’ Judge Nixes Man’s Deer-Feeding Conviction

Posted Nov 13, 2012 12:20 PM CDT
By Martha Neil

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A New York judge has sparked controversy by reversing a Sullivan County man's municipal court conviction for feeding deer on his property on constitutional grounds.

Represented by a lawyer for the first time as he appealed his conviction under a state law apparently intended to prevent hunters from baiting white-tailed deer, Robert Gabriel argued that the New York statute posed due process and free speech issues under the U.S. Constitution, and Acting Supreme Court Justice Frank J. LaBuda Jr. agreed.

Justia provides a copy of the Sept. 5 opinion, in which the judge says that "the forbidden fruit issue for this regulation is hopelessly vague," explaining that what constitutes prohibited "feeding" arguably could include planting fruit trees and failing to clean up windfalls rather than simply leaving out apples and pears on the ground, as Gabriel admittedly did. He said this was not for hunting purposes, however, and there was no evidence to the contrary, the judge noted.

The judge also said that the law raised free-speech issues: "While the statute as applied in this case does validly prohibit conduct not protected under the First Amendment, this Court finds it reaches substantially further beyond that justified by the governmental interest, as it is not disputed that feeding other animals that inhabit the woods, fields and backyards is legal and not prohibited," wrote LaBuda. The rule against feeding the deer is intended to prevent health issues created by putting them in closer proximity to each other than would occur in a natural setting.

Gabriel, represented on appeal by attorney Cynthia Dolan, had been fined $225 for the violation, which he was allowed to pay in $10 installments, prior to LaBuda's reversal of his conviction.

Now others in the community are arguing about the wisdom of the appellate decision.

President Jack Danchak of the Sullivan County Federation of Sportsmen's Clubs says in a column in the Shawangunk Journal that his organization supported Gabriel in the case. He urges others in the area not to hesitate to feed deer—once hunting season is over, so there can be no question that the animals aren't being baited—and, if they do so, to feed deer throughout the winter to help them survive.

However, outdoors columnist David Dirks writes in the Times Herald-Record that the law against feeding deer was clear and appropriate and wonders what other standing hunting-related regulations will next be challenged on constitutional grounds. "I hope the state decides to appeal LaBuda's decision," he says.

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