Criminal Animal Cruelty Charges Reinstated in Wisconsin Deer Massacre

Posted by Stephanie Ulmer, Guest Blogger on April 1, 2011

A Wisconsin court did not buy the recent argument of two brothers that the Wisconsin animal cruelty statute did not apply to their actions in killing several deer, no matter how cruel or senseless, because they were engaged in taking "wild animals." The Circuit Court for Waupaca County had originally dismissed the animal cruelty charges brought under Wis. Stat. § 951.02 (2007-08) against defendants, Rory and Robby Kuenzi. But the State appealed, and the Court of Appeals of Wisconsin in State v. Kuenzi, 2011 Wisc. App. LEXIS 150 (Wis. Ct. App. Feb. 24, 2011), reinstated the charges.

It was alleged that defendants were operating their snowmobiles on a trail in Waupaca County when they came across a large number of deer in a field. They charged the deer with their snowmobiles, ramming and running over at least five. At one point, one defendant rode on top of a downed deer and did a "burn out," causing the deer’s abdomen to rip open. Defendants also tied a strap around the neck of another downed live deer, dragged it to a tree, and secured it there. They apparently planned to retrieve that deer later, but never returned.

Defendants were criminally charged under the animal cruelty statute, Wis. Stat. § 951.02. Both men moved to dismiss the charges, and the circuit court granted the motions. Defendants’ primary argument was that the animal cruelty statute could not be applied to their actions because they were engaged in taking "wild animals," and the taking of non-captive wild animals was a hunting activity regulated by WIS. STAT. ch. 29. Defendants claimed that chapter 29, and only that chapter, regulated hunting and, therefore, they could take a wild animal by any means without fear of prosecution so long as their means were not specifically prohibited by chapter 29. The Court of Appeals disagreed and, accordingly, reversed and directed the circuit court to reinstate the charges.

The court found that § 951.02 prohibited "cruel" treatment of "any animal." The term "any animal" was broadly defined so that, on its face, the term encompassed the wild deer at issue in this case. Defendants did not argue that their alleged behavior was not "cruel" within the meaning of chapter 951. And, a prosecution under § 951.02 could not "controvert" laws regulating the taking of non-captive wild animals under chapter 29. With that overview in mind, the court addressed each defendant’s specific arguments.

Defendants argued that the term "animal" in § 951.02 should not be read as including non-captive wild animals, such as the deer in this case. They asserted that, except for the cruel mistreatment prohibition, all of the prohibitions in chapter 951, by their terms, did not apply to non-captive wild animals. They reasoned that, because the other prohibitions were directed at non-captive wild animals, it followed that the cruel mistreatment provision shared this limitation. The court disagreed, finding that the legislature defined "animal" in chapter 951–and, thus, in § 951.02–in a way that unambiguously included non-captive wild animals. The court ruled that the legislature had provided a clear definition that included all warm-blooded animals. Further, the limited reading advocated by defendants was inconsistent with the wording the legislature chose to use to avoid conflicts with chapter 29.

The court also held that the cruel mistreatment of wild animals had to be assessed based on the backdrop of common hunting practices and, in that context, the question was whether the alleged acts caused "unnecessary and excessive pain or suffering or unjustifiable injury or death." Wis. Stat. § 951.01(2). “Quite obviously, the normal course of hunting frequently involves the infliction of pain and suffering and, just as obviously, the infliction of such pain and suffering does not subject hunters to prosecution under the cruel mistreatment statute. What is absurd is [defendants’] assertion that it is the State’s view that ‘all hunting intentionally causes unnecessary pain or suffering or unjustifiable injury or death’ and, therefore, that all hunting violates the cruel mistreatment statute.” The court reasoned that because their premise was wrong, so too was defendants’ solution, namely, an interpretation of the "controverting" limitation in § 951.015(1) as forbidding application of the cruel mistreatment statute to any taking of a wild animal, no matter how cruel and senseless.

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