Arrests made in shark dragging case

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Replies

  • HooganHoogan Posts: 523 Officer
    So according to public record mr. (smirk on his face during mug shot) offender Heintz works for Heintz and Becker legal assistance. Very interesting... to say the least, and eager to find out the outcome of this case.
  • finbullyfinbully Posts: 467 Deckhand
    I hope Bubba wears them out!
  • SaltySardineSaltySardine Posts: 159 Deckhand
    ^ they will get out on bond - bubba aint going to be able to touch they unfortunately
  • SaltySardineSaltySardine Posts: 159 Deckhand
    They’re not guilty under the law if they knew of the dragging and even enjoyed watching it. They can only be guilty if they actually participated. Meaning they helped rig the shark up or helped drive the boat, or told someone else how to do the deed.

    See, juries convict people on emotion all the time. I have no doubt a jury could convict them based on being offended by one of the accused laughing at the shark, with no further evidence. But that would be wrong and would be overturned on appeal.

    At some point in the near future the court documents will become public record. Then it can be known exactly what the case consists of.


    Uhm...nah, you could still pin them.

    "You say they did not participate and were simply on the boat - did they not untie the docklines so the boat could go underway? Did they not assist the captain by pushing the boat off the dock? Did they not help the captain steer to the location of this incident while he was busy preparing the lines that would later be used to drag the shark behind the boat? Did they not, under the direction of the captain, grab the lines and tie the loops needed in order to tie the shark up to be dragged? - you see ladies and gentlemen of the Jury - these "ride along passengers" were every bit a part of this act as a get away driver in a robbery.

    well you could get the jury to sway your way at least. Create doubt or lack thereof. Make a monster out of someone who was just riding a long. Kid may not get convicted in the end, but drag the case out long enough, and his reputation is RUINED and therefore so is his future. Morally a terrible thing to do but there is more than one way to "beat" someone.
  • GarysmoGarysmo Ft. Pierce, FloridaPosts: 476 Deckhand
    Its too bad we can't just feed them to the sharks....maybe they would have more respect for them and everything else.
  • Florida BullfrogFlorida Bullfrog Posts: 1,653 Captain
    Uhm...nah, you could still pin them.

    "You say they did not participate and were simply on the boat - did they not untie the docklines so the boat could go underway? Did they not assist the captain by pushing the boat off the dock? Did they not help the captain steer to the location of this incident while he was busy preparing the lines that would later be used to drag the shark behind the boat? Did they not, under the direction of the captain, grab the lines and tie the loops needed in order to tie the shark up to be dragged? - you see ladies and gentlemen of the Jury - these "ride along passengers" were every bit a part of this act as a get away driver in a robbery.

    well you could get the jury to sway your way at least. Create doubt or lack thereof. Make a monster out of someone who was just riding a long. Kid may not get convicted in the end, but drag the case out long enough, and his reputation is RUINED and therefore so is his future. Morally a terrible thing to do but there is more than one way to "beat" someone.

    That kind of argument and conduct can get a prosecutor fired and publicly rempremanded by the State Bar. To the extent you're making a knowingly BS argument just for the purpose of making someone's life difficult, even though you know you can't convict on the law. You can't argue that a person should be guilty because they were involved with doing something on the boat hours before the crime happened. Not where there's no evidence the crime was planned until the point the shark was caught.

    Suppose this was a drug case and I ask to borrow your car. I don't tell you why and you don't suspect I have any illegal intent. If I borrow your car and go pick up a drug shipment with it and then get caught with drugs in your car, you can't be validly charged for helping me run the drugs, even if you approved of the notion of me running drugs after you found out about my arrest. For you to be validly charged, there has to be evidence you loaned me the car knowingly helping me in a plan to run drugs. It would be unfair to charge you for something you had no idea I was planning, even if the bad conduct is something you approve of generally.

    What you COULD argue is that at the point the shark has been caught, any help knowingly given at that point to make the dragging happen makes the person a participant. Helping tie the shark. Driving the boat while dragging. Telling someone else what to do as its happening. Any of that could make a person a principle to the animal cruelty. But just being there and laughing at it isn't enough.

    Unfortunately, it looks like the "laughing at it" is a big part of the case. Although its not all the case is based on I'm attaching the probable cause affidavit to the post.

    Here's the things to notice:

    1. There are 3 charges. Each boy has 2 felonies and 2 of the boys have 1 misdemeanor. The 2 felonies break down as one charge for shooting the shark with a firearm and one charge for dragging the shark. The misdemeanor is for spearing a different shark earlier that day.

    2. Benac shot the first shark with a speargun. This is recorded. Wenzel can be seen holding the shark with a gaff. That would be an illegal method of take and thus that charge.

    3. Benac caught the second shark on hook and line a couple hours later. When its at the boat, Wenzel shoots it in the gills once with a .38 revolver, and attempts to shoot it 3 more times. It is unknown whether those three shots connected. They get the shark landed a few minutes later and tail roped. Easterling, the 4th guy who isn't charged, is holding the rope. The shark dragging incident begins at an unknown interval after that. Wenzel drove the boat. Benac and Heitz recorded the dragging.

    4. It is unknown whether the shark is alive during the dragging incident. 3 experts reviewed the video and couldn't not say with scientific certainty whether the shark was alive.

    5. After the incident and during the social media firestorm, Benac argues that they were trying to kill the shark by dragging it and that dragging is a normal way to kill sharks.

    6. The affidavit indicates that all of the boys in the boat had "failed to act" to stop the dragging under Florida Statute 828.12.

    So here's how that all breaks down:

    1. Benac illegally killed a shark with a speargun. Wenzel may have helped him to the extent he may have helped him land the shark. So Benac is definitely guilty of illegal take, and maybe Wenzel. Heitz has nothing to do with the illegal take as a matter of law. So leaving him off that charge was proper.

    2. Wenzel shot the shark in the gills with a .38. Is that a cruel way to kill a shark? I don't know, you shark fisherman tell me. Anyhow, obviously Wenzel did that. So if that's cruelty, then he's guilty. Are the other guys guilty when they didn't shoot the shark? Only for egging him on to shoot the shark, but that's a chicken crap way to charge someone. Really only Wenzel should be facing that charge.

    3. Looks like Benac, Wenzel, and Easterling had hands on actually dragging the shark, while Heintz just approved and filmed it.

    4. The "failure to act" allegation is garbage. Here's what that statute says: "A person who intentionally commits an act to any animal, or a person who owns or has the custody or control of any animal and fails to act, which results in the cruel death..."

    The purpose of that statute is to make pet owners care for their animals. People get prosecuted for "failure to act" for starving their dogs or depriving their horses of vet care. Its never been used to prosecute someone for failing to save a wild animal in distress. The argument this PC is making goes something like this, "even if so and so didn't actively participate in the dragging, he should still be guilty because he failed to stop the other guys." That's total BS and that's creating a legal precedent we don't want.

    So I think an animal cruelty case can be proven again Benac and Wenzel, and maybe Easterling who is the uncharged guy who's probably their star witnesses. IF, a big IF, the shark was alive during the dragging. You have to believe beyond all reasonable doubt the shark was alive during the dragging. If it wasn't, then by law and morality you must acquit the boys. So was the shark alive? Probably. But I can't say I'm convinced beyond all reasonable doubt. Heintz seems to be the least culpable on the face of the PC.

    I think the charge for the shooting is a bad precedent. You may not be aware, but Florida case law allows legitimate hunting activities to be charged as animal cruelty if the animal suffers. Even if the hunter is legal and had no intent to cause suffering. Felony animal cruelty does not require that you intend to cause suffering of the animal to be guilty of it. Here's the case that says that:

    https://www.leagle.com/decision/20062054929so2d112511147

    Meaning that if you bang stick a shark and you don't kill it immediately, you can be charged for cruelty whether you intended to make the shark suffer or not. I don't like that. You shouldn't either.
  • TarponatorTarponator Under a BridgePosts: 10,711 AG
    Bullfrog, In your opinion, can one be convicted of cruelty to a dead shark? Just wondering...Mike
  • SaltySardineSaltySardine Posts: 159 Deckhand
    Suppose this was a drug case and I ask to borrow your car. I don't tell you why and you don't suspect I have any illegal intent. If I borrow your car and go pick up a drug shipment with it and then get caught with drugs in your car, you can't be validly charged for helping me run the drugs, even if you approved of the notion of me running drugs after you found out about my arrest. For you to be validly charged, there has to be evidence you loaned me the car knowingly helping me in a plan to run drugs. It would be unfair to charge you for something you had no idea I was planning, even if the bad conduct is something you approve of generally.

    What you COULD argue is that at the point the shark has been caught, any help knowingly given at that point to make the dragging happen makes the person a participant. Helping tie the shark. Driving the boat while dragging. Telling someone else what to do as its happening. Any of that could make a person a principle to the animal cruelty. But just being there and laughing at it isn't enough.


    precursor - I am not arguing with you haha. Devils advocate if you will.

    I never said it was moral or ethical, and you may have to go in front of the ethics committee yes - but notice how everything I mentioned was while/during the event. I never mentioned anything of him sitting and laughing, but rather in the act of helping. Some prior to the event and some after. Saying any of that is not unethical if it is true. I am not adding hearsay, speculation, or anything of the sort. Simply stating facts and swaying a jury's opinion based on emotion.

    In regards to your drug analogy - if the person agreed to let you use his car, then got in the car and rode along with you, and then you went and picked up a few kilo's of cocaine and got caught...that is an entirely different story. The kids didnt let him use the boat and NOT get on it. They were there. They probably helped (I don't know, I didn't study the video).

    haha you are the lawyer, I am a banker (I am taking the LSATs for fun though in Feb - cold practice score being 170). You know WAY more about this than I do. I just have two practicing attorney's in my family so I only know so much.
    but if I ever get in trouble, you will be getting a PM haha :USA


    but either way, what they did was wrong morally and people will remember that long after any legal action. Plus you have to live with yourself.
  • PROFINITYPROFINITY Posts: 190 Deckhand
    Play stupid games... Win stupid prizes.
  • Florida BullfrogFlorida Bullfrog Posts: 1,653 Captain
    Tarponator wrote: »
    Bullfrog, In your opinion, can one be convicted of cruelty to a dead shark? Just wondering...Mike

    No, I would say with certainty one cannot be guilty of animal cruelty to an animal that is already dead.

    Here's the statute:
    828.12
    "(2) A person who intentionally commits an act to any animal, or a person who owns or has the custody or control of any animal and fails to act, which results in the cruel death, or excessive or repeated infliction of unnecessary pain or suffering, or causes the same to be done, commits aggravated animal cruelty, a felony of the third degree, punishable as provided in s. 775.082 or by a fine of not more than $10,000, or both."

    The criminal act is the act that either results in cruel death or excessive or repeated infliction of unnecessary pain or suffering. If the shark was already dead before the act in question occurs, it would be impossible for the act in question to either cause death or pain/suffering. The animal has to be alive at the point of the act for the statute to be violated.

    That's why I think they charged two separate acts of animal cruelty. The first for shooting the shark, the second for dragging the shark. We all know that this case is about the dragging. But it cannot be said with certainty that the shark was alive when the dragging occurred. IF the shark was already dead when the dragging happened, then the boys can't be guilty of animal cruelty for dragging it. But if the shooting of the shark was also cruel, the shark was most certainly alive when the shooting happened. The charge for shooting is basically hedging the bet in case the jury gets hung up on the question of whether there's a reasonable doubt as to whether the shark was alive or not.

    As a purely legal question, it would be interesting to see what might happen on appeal if any of the boys are convicted for the dragging. Questions to be decided in trials fall into two categories; questions of law and questions of fact. The judge decides questions of law. Juries decide questions of fact. For example, whether a person can be theoretically guilty of animal cruelty for dragging a shark that's already dead is a question of law for the judge to decide. The judge will have to interpret the statute and case law to make that decision. So suppose the judge determines that the shark must in fact be alive as a matter of law for the perps to be guilty. Its now up to the jury to decide whether the shark really was alive or not based on the evidence they've been presented. That's generally how questions of law and fact work and how the roles of judge and jury interrelate.

    Where it would be interesting is that sometimes on appeal, appellate courts step in and decide that the evidence presented to a jury cannot theoretically rule out all reasonable doubts as to guilt, even though the jury apparently thought so and convicted the defendant. Let's say the jury in this case it told by the experts that it cannot be determined whether the shark was alive with scientific certainty, but its possible that he was alive due to movements that can be observed on the video. The jury then decides the shark was alive and the defendants are guilty of felony animal cruelty. Will an appellate court hold that inconclusive testimony from experts is enough to conclude the shark was alive? I don't know the answer to that and I could make reasonable arguments that cut both ways. I could say that the jury, as trier of fact, has the right to watch the videos and make common sense observations as to whether the shark seemed alive during the dragging. On the other, I could say that based on testimony of experts, its impossible to rule out that the shark's movements weren't involuntary, post-death reflexes, and if reflexes can't be ruled out on the evidence presented, a jury's finding of fact that the shark was alive for cruelty purposes is invalid and must be set aside by the appellate court.
  • Florida BullfrogFlorida Bullfrog Posts: 1,653 Captain
    Suppose this was a drug case and I ask to borrow your car. I don't tell you why and you don't suspect I have any illegal intent. If I borrow your car and go pick up a drug shipment with it and then get caught with drugs in your car, you can't be validly charged for helping me run the drugs, even if you approved of the notion of me running drugs after you found out about my arrest. For you to be validly charged, there has to be evidence you loaned me the car knowingly helping me in a plan to run drugs. It would be unfair to charge you for something you had no idea I was planning, even if the bad conduct is something you approve of generally.

    What you COULD argue is that at the point the shark has been caught, any help knowingly given at that point to make the dragging happen makes the person a participant. Helping tie the shark. Driving the boat while dragging. Telling someone else what to do as its happening. Any of that could make a person a principle to the animal cruelty. But just being there and laughing at it isn't enough.


    precursor - I am not arguing with you haha. Devils advocate if you will.

    I never said it was moral or ethical, and you may have to go in front of the ethics committee yes - but notice how everything I mentioned was while/during the event. I never mentioned anything of him sitting and laughing, but rather in the act of helping. Some prior to the event and some after. Saying any of that is not unethical if it is true. I am not adding hearsay, speculation, or anything of the sort. Simply stating facts and swaying a jury's opinion based on emotion.

    In regards to your drug analogy - if the person agreed to let you use his car, then got in the car and rode along with you, and then you went and picked up a few kilo's of cocaine and got caught...that is an entirely different story. The kids didnt let him use the boat and NOT get on it. They were there. They probably helped (I don't know, I didn't study the video).

    haha you are the lawyer, I am a banker (I am taking the LSATs for fun though in Feb - cold practice score being 170). You know WAY more about this than I do. I just have two practicing attorney's in my family so I only know so much.
    but if I ever get in trouble, you will be getting a PM haha :USA


    but either way, what they did was wrong morally and people will remember that long after any legal action. Plus you have to live with yourself.

    I love a good devil's advocate argument. It makes both sides reconsider their positions from other angles.

    I get very worked up about prosecutorial ethics. Prosecutors are supposed to be the knights in shining armor that defend justice and the Constitution, both from dangerous criminals and from the lynch mob. I'm automatically skeptical of charging decisions on high-profile or emotional cases. The Zimmerman case was a complete travesty in my opinion and the State Attorney that brought it was rightly defeated at the polls when she went up for re-election. Sometimes justice means letting the guilty go free if the only way to convict them is thru dishonest means or weak cases. Juries can be easy to manipulate because they can be lead to convict thru emotion instead of a logical following of the facts. Now I most certainly use emotion as a weapon when I try a case. But I also have an ethical obligation to use it correctly. I have to be self-restraining in the exercise of my power. Not all prosecutors do that.

    I think the SA who has this case is a decent enough prosecutor in my limited interactions with him and his staff and I don't believe these boys are innocent angels who are being railroaded. I'm personally very offended by the long line of wildlife violations these boys have committed over a long period of time and documented on social media (BTW, those prior bad acts can't come into this trial under most circumstances). However, I do think that some of the precedents that might be set here can be bad for sportsmen IF the law is interpreted too broadly. This case very well could come to mean that all shark dragging is considered cruel, or all shooting or bang sticking that doesn't result in immediate death. That concerns me. Read that case I posted in the previous post. The appellate court recognized that the current felony animal cruelty statute could be used to prosecute legitimate hunters who accidentally make a bad shot. The court recommends the Legislature to change the statute so that a specific intent to be cruel is required to be guilty. But until the statute is changed, a legitimate hunter could become a felon for an accidental bad shot. Do not doubt me on this... there are some prosecutors out there that are PETA all the way and would be glad to use a statute like this to criminalize hunting. Only a jury would stop that from happening, and if you get a PETA jury, then the jury would function as a rubber step.

    I also note that the PC affidavit is not required to spell out all the evidence the State has. All its required to do is put enough in front of a judge to find PC that a crime occurred. PC is a low standard. The State may very well have more that didn't make it into the PC. I can't say.

    I'll be continuing to watch this one unfold.
  • saltyseniorsaltysenior Posts: 783 Officer
    how bout the folks who cut up a fish to get their 15 cent hook out,,,or the hundredths who each day slam the sea robins on the side of the head boats up north.....or the catfish dying on the piers and bridges . why aren't they charged ???
  • Westwall01Westwall01 Posts: 4,938 Captain
    You can be charged for cutting up a fish that is undersized/oversized/out-of-season to get a 15 cent hook..failure to release
  • MathGeekMathGeek Posts: 345 Deckhand
    "A person who intentionally commits an act to any animal, or a person who owns or has the custody or control of any animal and fails to act, which results in the cruel death..."

    There are some dangerous possibilities here applying this law in cases of otherwise legal hunting and fishing:

    Shall hunters be charged if the death of their game is deemed cruel: duck still alive when dog gets to it? Archery killed deer that runs 200 yards? Raccoon in the background that gets hit by a bullet after passing through a deer?

    Shall fishermen be charged for the death of animals in the ordinary course of fishing? A released fish dies? Fish die in the ice chest after legal harvest? Bait fish die on the hook? Shrimp die on the hook? Earthworms die on the hook?

    This case is really setting dangerous precedents for PETA for judicial activism against hunting and fishing.

    Is there a way to punish these guys without the dangerous precedents?
    “Which of you, if your son asks for bread, will give him a stone? Or if he asks for a fish, will give him a snake? If you, then, though you are evil, know how to give good gifts to your children, how much more will your Father in heaven give good gifts to those who ask him!" - The Messiah
    [SIGPIC][/SIGPIC]
  • kellerclkellercl Posts: 2,016 Captain
    It amazes me that folks are still completely refusing to understand "intent."
  • pottydocpottydoc Posts: 2,336 Captain
    People understand intent fine. They also have very valid concerns that PETA and other organizations lokevhem could try and use cases like this to further their agenda. While unlikely, all they would have to do would be get a case in front of the right judge. They already have a "fish feel pain" campaign going on. I think the a holes that towed the shark will walk on that charge. Hopefully the case on some of the others is much stronger.
  • kellerclkellercl Posts: 2,016 Captain
    pottydoc wrote: »
    People understand intent fine. They also have very valid concerns that PETA and other organizations lokevhem could try and use cases like this to further their agenda. While unlikely, all they would have to do would be get a case in front of the right judge. They already have a "fish feel pain" campaign going on. I think the a holes that towed the shark will walk on that charge. Hopefully the case on some of the others is much stronger.

    If they understand intent then I'm confused by the comparison to releasing a fish, that by accident, doesn't make it. Shark dragging, like they did, wasn't an accident.
    It was blatantly intentional. The comparison, frankly, is stupid.

    Edit
    As for PETA, who cares? They don't have the power to do crap. They are not going to get fishing banned. Despite PETA's views, animal testing is alive and well, not too mention my local grocery is stocked with various meat. The idea that if those morons get convicted PETA has some sort of leveraged power.... nah.
  • SaltySardineSaltySardine Posts: 159 Deckhand
    I love a good devil's advocate argument. It makes both sides reconsider their positions from other angles.

    I get very worked up about prosecutorial ethics. Prosecutors are supposed to be the knights in shining armor that defend justice and the Constitution, both from dangerous criminals and from the lynch mob. I'm automatically skeptical of charging decisions on high-profile or emotional cases. The Zimmerman case was a complete travesty in my opinion and the State Attorney that brought it was rightly defeated at the polls when she went up for re-election. Sometimes justice means letting the guilty go free if the only way to convict them is thru dishonest means or weak cases. Juries can be easy to manipulate because they can be lead to convict thru emotion instead of a logical following of the facts. Now I most certainly use emotion as a weapon when I try a case. But I also have an ethical obligation to use it correctly. I have to be self-restraining in the exercise of my power. Not all prosecutors do that.

    I think the SA who has this case is a decent enough prosecutor in my limited interactions with him and his staff and I don't believe these boys are innocent angels who are being railroaded. I'm personally very offended by the long line of wildlife violations these boys have committed over a long period of time and documented on social media (BTW, those prior bad acts can't come into this trial under most circumstances). However, I do think that some of the precedents that might be set here can be bad for sportsmen IF the law is interpreted too broadly. This case very well could come to mean that all shark dragging is considered cruel, or all shooting or bang sticking that doesn't result in immediate death. That concerns me. Read that case I posted in the previous post. The appellate court recognized that the current felony animal cruelty statute could be used to prosecute legitimate hunters who accidentally make a bad shot. The court recommends the Legislature to change the statute so that a specific intent to be cruel is required to be guilty. But until the statute is changed, a legitimate hunter could become a felon for an accidental bad shot. Do not doubt me on this... there are some prosecutors out there that are PETA all the way and would be glad to use a statute like this to criminalize hunting. Only a jury would stop that from happening, and if you get a PETA jury, then the jury would function as a rubber step.

    I also note that the PC affidavit is not required to spell out all the evidence the State has. All its required to do is put enough in front of a judge to find PC that a crime occurred. PC is a low standard. The State may very well have more that didn't make it into the PC. I can't say.

    I'll be continuing to watch this one unfold.


    haha good, some people get testy on these forums so thought I would leave a disclaimer just in case. I would agree - if you cannot prove something beyond a reasonable doubt then a not guilty verdict is the proper course of action. It keeps our justice system a justice system and not a "punish because I think" system. That being said, if you know someone is guilty but just can't quite prove it, its hard to NOT railroad them with a an emotional based defense depending on who is in the Jury.

    Why wouldn't the prior recorded events of these kids be able to be used in trial. Statue of limitations doesn't apply (not that they are being charged for that. It seems that would be very admissible in relation to the prosecutor proving a point.

    "Intent to be cruel" - that would be so hard to prove and would almost open Pandora's box in a way. Intent is a fickle term. That should be interesting to see how that all plays out.
  • SaltySardineSaltySardine Posts: 159 Deckhand
    pottydoc wrote: »
    People understand intent fine. They also have very valid concerns that PETA and other organizations lokevhem could try and use cases like this to further their agenda. While unlikely, all they would have to do would be get a case in front of the right judge. They already have a "fish feel pain" campaign going on. I think the a holes that towed the shark will walk on that charge. Hopefully the case on some of the others is much stronger.

    Give them time. Wasn't Al Capone charged with Tax Evasion and sentenced to 11 years? 11 years for Tax crimes...come on now.
    Time is no one friends, especially if you have pissed off all the right people
  • kellerclkellercl Posts: 2,016 Captain
    They should absolutely be innocent until proven guilty. When it comes to proving intent, there was a fourth guy on the boat who apparently is testifying against the three. I'm curious to see what he provides. I am also curious if law officers were able to acquire anything from text messages or social media that could be used against them. Time will tell. I am simply not ready to say law officers are acting wrongly on this one, and it feels like others are taking that stance.
  • MathGeekMathGeek Posts: 345 Deckhand
    kellercl wrote: »
    It amazes me that folks are still completely refusing to understand "intent."

    "A person who intentionally commits an act to any animal, or a person who owns or has the custody or control of any animal and fails to act, which results in the cruel death..."

    The intent to be cruel is not a required element under the law.

    Only the act itself needs to be intentional.

    An intentional act + the result of a cruel death (even if the cruel part was unintentional) fulfill all the required elements of the law as it is written.

    So, an angler need not have any intent for a cruel death when he hooks a baitfish up or puts a live harvested fish in his ice chest. But since the act is intentional, this case sets a precedent for charging him under this law if the subsequent death can be portrayed as cruel.
    “Which of you, if your son asks for bread, will give him a stone? Or if he asks for a fish, will give him a snake? If you, then, though you are evil, know how to give good gifts to your children, how much more will your Father in heaven give good gifts to those who ask him!" - The Messiah
    [SIGPIC][/SIGPIC]
  • kellerclkellercl Posts: 2,016 Captain
    MathGeek wrote: »
    "A person who intentionally commits an act to any animal, or a person who owns or has the custody or control of any animal and fails to act, which results in the cruel death..."

    The intent to be cruel is not a required element under the law.

    Only the act itself needs to be intentional.

    An intentional act + the result of a cruel death (even if the cruel part was unintentional) fulfill all the required elements of the law as it is written.

    So, an angler need not have any intent for a cruel death when he hooks a baitfish up or puts a live harvested fish in his ice chest. But since the act is intentional, this case sets a precedent for charging him under this law if the subsequent death can be portrayed as cruel.

    I'm just not that paranoid. Fishing with the intent to catch dinner isn't going to be viewed as equivalent to dragging a shark at 30 knots for no apparent reason. Harvesting meat in this country is legal, and there is absolutely zero indication that will change anytime soon. Too many of you are jumping to unsubstantiated extremes.

    Edit
    Also PETA is a tiny organization with no real power. They have 6.5 million members worldwide... the U.S. population alone is 300+ million. The idea that PETA is going to shut down the multi billion dollar fishing industry because of a single video.... yeah, I can't even find the words to explain how absurd that is.
  • Westwall01Westwall01 Posts: 4,938 Captain
    MathGeek wrote: »
    "A person who intentionally commits an act to any animal, or a person who owns or has the custody or control of any animal and fails to act, which results in the cruel death..."

    There are some dangerous possibilities here applying this law in cases of otherwise legal hunting and fishing:

    Shall hunters be charged if the death of their game is deemed cruel: duck still alive when dog gets to it? Archery killed deer that runs 200 yards? Raccoon in the background that gets hit by a bullet after passing through a deer?

    Shall fishermen be charged for the death of animals in the ordinary course of fishing? A released fish dies? Fish die in the ice chest after legal harvest? Bait fish die on the hook? Shrimp die on the hook? Earthworms die on the hook?

    This case is really setting dangerous precedents for PETA for judicial activism against hunting and fishing.

    Is there a way to punish these guys without the dangerous precedents?

    There is no dangerous precedent involving PETA here. Their intent was to harm or molest not to legally harvest. Long history of it.
  • TarponatorTarponator Under a BridgePosts: 10,711 AG
    No, I would say with certainty one cannot be guilty of animal cruelty to an animal that is already dead.

    Here's the statute:
    828.12
    "(2) A person who intentionally commits an act to any animal, or a person who owns or has the custody or control of any animal and fails to act, which results in the cruel death, or excessive or repeated infliction of unnecessary pain or suffering, or causes the same to be done, commits aggravated animal cruelty, a felony of the third degree, punishable as provided in s. 775.082 or by a fine of not more than $10,000, or both."

    The criminal act is the act that either results in cruel death or excessive or repeated infliction of unnecessary pain or suffering. If the shark was already dead before the act in question occurs, it would be impossible for the act in question to either cause death or pain/suffering. The animal has to be alive at the point of the act for the statute to be violated.

    That's why I think they charged two separate acts of animal cruelty. The first for shooting the shark, the second for dragging the shark. We all know that this case is about the dragging. But it cannot be said with certainty that the shark was alive when the dragging occurred. IF the shark was already dead when the dragging happened, then the boys can't be guilty of animal cruelty for dragging it. But if the shooting of the shark was also cruel, the shark was most certainly alive when the shooting happened. The charge for shooting is basically hedging the bet in case the jury gets hung up on the question of whether there's a reasonable doubt as to whether the shark was alive or not.

    As a purely legal question, it would be interesting to see what might happen on appeal if any of the boys are convicted for the dragging. Questions to be decided in trials fall into two categories; questions of law and questions of fact. The judge decides questions of law. Juries decide questions of fact. For example, whether a person can be theoretically guilty of animal cruelty for dragging a shark that's already dead is a question of law for the judge to decide. The judge will have to interpret the statute and case law to make that decision. So suppose the judge determines that the shark must in fact be alive as a matter of law for the perps to be guilty. Its now up to the jury to decide whether the shark really was alive or not based on the evidence they've been presented. That's generally how questions of law and fact work and how the roles of judge and jury interrelate.

    Where it would be interesting is that sometimes on appeal, appellate courts step in and decide that the evidence presented to a jury cannot theoretically rule out all reasonable doubts as to guilt, even though the jury apparently thought so and convicted the defendant. Let's say the jury in this case it told by the experts that it cannot be determined whether the shark was alive with scientific certainty, but its possible that he was alive due to movements that can be observed on the video. The jury then decides the shark was alive and the defendants are guilty of felony animal cruelty. Will an appellate court hold that inconclusive testimony from experts is enough to conclude the shark was alive? I don't know the answer to that and I could make reasonable arguments that cut both ways. I could say that the jury, as trier of fact, has the right to watch the videos and make common sense observations as to whether the shark seemed alive during the dragging. On the other, I could say that based on testimony of experts, its impossible to rule out that the shark's movements weren't involuntary, post-death reflexes, and if reflexes can't be ruled out on the evidence presented, a jury's finding of fact that the shark was alive for cruelty purposes is invalid and must be set aside by the appellate court.

    Bullfrog,

    Thank you for the thoughtful response. Upon reading the statute and your argument, I tend to agree -- it would be tough to convict on clause (2) if there is a reasonable argument the shark was already dead.

    However, it seems to me that the "cruelty" seen in the video (and let's presume for a moment the shark was already dead) could be still be subject to misdemeanor charges as per clause (1) of 828.12:

    "(1) A person who unnecessarily overloads, overdrives, torments, deprives of necessary sustenance or shelter, or unnecessarily mutilates, or kills any animal, or causes the same to be done, or carries in or upon any vehicle, or otherwise, any animal in a cruel or inhumane manner, commits animal cruelty, a misdemeanor of the first degree, punishable as provided in s. 775.082 or by a fine of not more than $5,000, or both."

    Reading that statute and reviewing what we know (while admitting our knowledge of the facts of this case is hardly complete), this seems to be to be a rather clear cut violation of this clause that would allow for an arguably postmortem mutilation to be punishable under the misdemeanor animal cruelty statute, yet presumably no charges were filed under it.

    To me, this seems like an easy conviction on the misdemeanor, yet they went for the felony -- and I wonder what evidence the public is not privy to that supports this position....or is it a case of prosecutorial overreach as has been suggested.

    Time will tell, but in the meantime, your thoughts on this would be appreciated.

    Thanks again...Mike
  • PP1PP1 Posts: 332 Deckhand
    kellercl wrote: »
    .....
    Edit
    As for PETA, who cares? They don't have the power to do crap. They are not going to get fishing banned. Despite PETA's views, animal testing is alive and well, not too mention my local grocery is stocked with various meat. The idea that if those morons get convicted PETA has some sort of leveraged power.... nah.

    According to the Hunters Safety course that I sat through with my kids approximately 10% of the population are hunters and 10% of the population are anti-hunting. That leaves 80% of the population that really doesn't care either way. Sportsmen should behave and self police ourselves in ways that makes the 80% not be influenced by the 10% PETA types.

    As "they don't have the power to do crap".....want to go hunt some bear in Florida? Well you can't because that part of the population used their influence to shut it down. From a wildlife management perspective it was a valid hunt, but PETA lovers didn't want it to happen. I don't hunt so it doesn't impact me, but I do not like the precedence.


    Edit:
    Maybe the bear hunt would've helped this guy?
    http://forums.floridasportsman.com/showthread.php?253598-Bear-Attack-Naples
    "If the women don't find you handsome, they should at least find you handy." - Red Green
  • kellerclkellercl Posts: 2,016 Captain
    PP1 wrote: »
    According to the Hunters Safety course that I sat through with my kids approximately 10% of the population are hunters and 10% of the population are anti-hunting. That leaves 80% of the population that really doesn't care either way. Sportsmen should behave and self police ourselves in ways that makes the 80% not be influenced by the 10% PETA types.

    As "they don't have the power to do crap".....want to go hunt some bear in Florida? Well you can't because that part of the population used their influence to shut it down. From a wildlife management perspective it was a valid hunt, but PETA lovers didn't want it to happen. I don't hunt so it doesn't impact me, but I do not like the precedence.


    Edit:
    Maybe the bear hunt would've helped this guy?
    http://forums.floridasportsman.com/showthread.php?253598-Bear-Attack-Naples

    I do not, nor have I ever, hunted. So I cannot begin to address bear hunting in Florida. I suspect it had more to do with biologist/population then just PETA saying "no." But I'll concede, I don't really know the details, however I find your summary/view suspect at best.

    But more to my original point. PETA makes up less than 2% of the population... consider the combined lobby power of Diawa, Shimano, Penn, Fin Nor, St Croix, Crowder, Falcon, Hewes, Hells Bay, Carolina Skiff, Egret, Mako, Dead or Alive, Mirrolure, Suffix, Jerry Brown, Cabela's, Bass Pro, Academy Sports, local tackle shops, marinas... Columbia fishing clothes, Huk... Hobie, Feel Free, Yamaha, Mecury, Honda, Charter Guides, Head Boats.... the list goes on and on... Eagle Claw, Mustad, Owner.... you believe that combined influence is going to lose against PETA because of a single shark video? All those companies will no longer have a US market because PETA is going to ban fishing? Really? Uh huh.
  • PP1PP1 Posts: 332 Deckhand
    kellercl wrote: »
    ...... you believe that combined influence is going to lose against PETA because of a single shark video?


    Not at all, just don't discount or minimize the potential influence from those nitwits.
    "If the women don't find you handsome, they should at least find you handy." - Red Green
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