From a Redneck with a Law Degree: Choosing the Right Attorney for Your Hunting-Related Case

If you are one of the unfortunate Pennsylvanians who is hurt, financially or physically, while hunting or injured by any outdoor-related gear or equipment every year, you will need an attorney to handle your case. Most injured sportsman just hire a random injury lawyer and do not think about is how important it is to have an attorney with deep knowledge of that specific type of hunting, the products involved, how they are used, and how they are supposed to work.

Personal injury and consumer protection attorneys are a dime a dozen. They are on billboards explaining they have the lowest rate, the biggest firm, experienced attorneys, and so on. Even if those claims are true, finding an attorney who is an experienced hunter who will completely understand the facts surrounding your injury is impossible. No amount of legal theory can make up for the lack of knowledge about the subject matter. The last thing you want is to hire a fancy bowtie big-city lawyer who has never been in the woods explaining to a rural jury that you got hurt one day out of “catching deer.”

INTRODUCTION

Allow me to introduce myself. I am Brian McLaughlin, a regular guy from rural Lawrence County, PA, who went and got a law degree. Before going to school, I was effectively born and trained from the crib to hunt. Here’s a fun video of three-year-old me shooting deer targets with a bow my dad made from string and PVC pipe:

https://www.youtube.com/watch?v=X445Xcezd1Q&ab_channel=BrianMclaughlin.

That bow still works just fine today. From hunting whitetails, turkeys, coyotes, small game, groundhogs, or anything and everything in season, I have done it all for decades, making me deadly in the woods and the courtroom regarding this subject.

I was first aware of the absence of lawyers like me when a family friend (let’s call him John for this article) got his thumb severed by a crossbow that had a defect. John complained that his lawyers weren’t taking the issue seriously and didn’t understand when a crossbow should and should not fire or anything about hunting. This was needlessly complicating a simple case, and he may have gotten far less money while having to wait much longer than if his lawyers had any experience in the woods.

TYPES OF LAW RELATED TO THE HUNTING INDUSTRY

I.              PRODUCTS LIABILITY

John’s case was with a weapon, which is what most people think of when they think of hunting accidents that don’t involve someone getting shot by another. Defects in bows are common. With compounds or crossbows, those cables and limbs are under intense pressure. When they snap, even if you are using them correctly, they can cause serious injuries.

As you can imagine, gun defects cause a lot of hunter injuries like this Savage Arms debacle a few years ago: https://www.sltrib.com/news/nation-world/2017/12/05/gun-makers-exploding-rifle-leaves-trail-of-injured-hunters/AP%202017/AP%202017/. Often companies know that their bows or guns are causing injury. Presumably, they are making too much money to care about us. Having a lawyer who understands you were using a weapon correctly and explaining why will be more valuable in litigation than you’d think.

Tree stands are a big one and can ruin a hunting career or end a life. Here’s just one example that resulted in the death of a husband and a massive verdict against the manufacturer: https://www.courier-journal.com/story/news/2017/08/11/jury-awards-18-5-million-hunter-who-sued-treestand-manufacturer-injuries/559015001/. With so many companies having their manufacturing done in China to reduce costs, it is likely these types of injuries will continue. I know this is hearsay, but a few months ago at deer camp, a family member told our hunting group about his buddy who bought three of one type of stand at bargain prices. He sets up two with no problem, but the third breaks the first time he puts weight on it. Thankfully, he was tethered to the tree when hanging stands and was okay. The manufacturing plant failed to notice only one side of the foot and seat platform had its welds!

The point is that manufacturing defects exist not just in guns, bows, or stands but probably in every type of product you use. Having an attorney who has used the same product(s) for decades will create a common understanding of the facts and almost no confusion when strategizing about how best to prosecute your case.

II.             HUNTING ACCIDENTS: TORTIOUS CONDUCT

Generally, when someone thinks of a hunting accident, their mind goes to someone getting shot. This is very rare, but when it happens, it may be even more important than with manufacturing defects for your lawyer to know not just how wild the first day of PA rifle season can be or how to conduct himself when turkey hunting so he doesn’t get shot (here’s a link to the article I wrote on that: https://www.theskeenfirm.com/blog/2024/5/6/5-turkey-hunting-safety-tips-for-your-2024-season-from-a-hunter-with-a-law-degree ) but also that your lawyer knows every rule in the yearly Hunter’s Digest and the statutory support for the digest found in Title 34. https://www.legis.state.pa.us/WU01/LI/LI/CT/HTM/34/34.HTM. Proving the guy who shot you was clearly in the wrong will be much easier to do when you effectively have an expert witness as a lawyer asking the questions.

Gunshots aren’t the only injuries you can get from someone else (“torts,” as we call it in law”) while hunting. Unbelievably brutal beatings rarely occur but are more common than someone getting shot. There are videos online showing guys purposely sinking other hunters’ duck boats on the mad dash to public spots at 3:30 am. People damage tree stands to prevent people from hunting, but that isn’t noticed until it’s too late. Vehicles and ATVs have caused a lot of hunting injuries, too. On purpose and through negligence. All these and endless more examples are torts that give you the right to pursue civil litigation.

III.          CONSUMER PROTECTION AND HUNTING PRODUCTS

            Consumer protection was one of the first types of law I ever had exposure to as a young law student. I clerked for a firm that sued, for example, car dealerships for selling garbage vehicles, not honoring warranties, etc., and trying to get away with it. It felt good to do right by the buyers and get them their money back, and sometimes even a little more if the seller was particularly horrible. The same stuff can happen with anything you buy for hunting. In this economy especially, if you buy a quad or side by side, an expensive gun or bow, or any other product that you spend your hard-earned money on, the sucker should work, or the company should make it right with OR WITHOUT a warranty. When this doesn’t happen, give me a buzz. You have rights under Pennsylvania’s Unfair Trade Practices and Consumer Protection Law (UTPCPL) that, with an experienced lawyer, can hold these second-rate sellers accountable. The UTPCPL allows, in the most egregious cases, three times the damages we can normally ask for as a punishment for screwing you over. You’ll have other claims too, but we can discuss that in a consultation.

IV.           TRESPASSING AND/OR PREMESIS LIABILITY

            Especially during turkey and rifle season in PA, there’s unfortunately tons of trespassing going on. Even without an injury taking place on a property due to trespassing, someone can get sued, or even arrested. To discuss the criminal side of trespassing, I wrote an article on Pennsylvania’s commonly misunderstood criminal trespass statute if you want to read it: https://www.theskeenfirm.com/blog/2024/3/18/understanding-pennsylvanias-criminal-trespass-law-a-comprehensive-overview-for-hunters-and-landowners.

            Something else landowners and hunters don’t often think about is premises liability where a landowner can get held responsible for injuries on a property. Depending on the situation and the condition of a property, even trespassers can successfully sue a landowner for money damages! I’m not saying it’s right, I am just saying what can happen.

            No matter if you have trespasser problems, if a person is hurt on your property, if you were hurt on someone’s property due to a dangerous condition, or if you were criminally charged with trespassing, you will need representation. An attorney who is familiar with the criminal trespass statute and/or premises liability defense is paramount.

V.             GAME VIOLATIONS

Even if you are trying to do everything right, you can still get dinged for a game violation which will result in fines, or even a loss of hunting privileges or jail time. I will admit, it happened to me once. I was never much of a waterfowl hunter, and in December 2017 I was at Pymatuning Reservoir with a buddy. No ducks were flying but there were hundreds or even thousands of mergansers flying. A group flew by, and we emptied our guns. Five fell. I rarely ever got anything while duck hunting, so I was ecstatic. We left, knowing the merganser limit per person was five, so we were five under. A game commission truck drove by while we were loading up and I waived to them thinking nothing of it. They turned around and checked us and said have a good day. Sweet. Then, the younger guy came back and said wait a minute, I think we have a violation here. Unbeknownst to me and my buddy, back then the limited for the hooded merganser was two per person. We were one over. Oops.

The officer said he needed to fine someone and that because we were so nice and it was a total accident, the fine would be the lowest possible and no license revocation would happen. I gladly said I would take the fine because it was my (public) hunting spot and I wanted to be nice to my friend. We didn’t even know whose pellet(s) killed the fifth bird. I got the fine in the mail and paid it. No problem.

Problem, actually. MONTHS later I receive a notice that my hunting privileges had been revoked for the next year. As I later found out in court, the officer lied to us, and right after telling us no revocation would occur if I pleaded guilty to the summary offense, he went right back to his cruiser and hit a button or whatever that revoked it if I pleaded guilty.

The “court” I alluded to was an administrative hearing held in Harrisburg that I requested. Losing my hunting privileges for even the one year was the biggest deal to me because I live to hunt. I worked hard to gather my evidence. I asked the officer who fined me to bring the body camera footage of him saying my license wouldn’t be revoked if I pleaded guilty. He called me back ten minutes later to tell me “he lost the footage.” Right. Totally believable.

Anyway, from there I got people to write statements about my character and brought my dad and grandfather to the hearing. I wasn’t even in law school yet, but I pulled out ALL the stops to that hearing officer, man. I dropped the “I’m a Marine Corps veteran” line, gave him the character statements, everything I could think of. I was winging it. The good part came when I brought up the lost footage and the officer who “lost” it put his head down and wouldn’t look at me or the hearing officer. The hearing officer said he would give an opinion, but he had already decided I could hunt the next year.

If you’re still with me, I even though I won, if I had a lawyer back then, I never would have pleaded guilty to the fine and won in the MDJ court and never would have lost my license. If I had, a lawyer could have more adequately explained with case law and/or grilled the officer about spoliation of evidence and any constitutional violations that existed. I would have been much more prepared. So if you are facing even a small game violation, whether an accident or not, calling me is a good idea. I know how you feel.

[A note about this story. The PA Game Commission later REMOVED the hooded merganser subspecies stipulation. You can now shoot five per person. What I lost my license for in 2017 is now legal. Ain’t that some s***?]

CONCLUSION

            I’ve just covered five types of law that I, as an experienced hunter can help you with as an attorney. I’ve called my hunting legal practice “Everyday Hunting Advice” (“EHA”) because a lawyer doesn’t just sue people or defend suits, he is an advisor and your advocate. Someone to help you through the legal process when the most unfortunate events related to our way of life/hobby occurs.

If you’re dealing with any of the issues describe in this article, give The Skeen Firm a call and ask for Brian. I will be happy to help you.

Brian has been filming an editing his hunts since 2017 which you can watch here: https://www.youtube.com/@HeirstotheOutdoors.

*Disclaimer: this article is for informational purposes only. It is not providing legal advice. It does not create an attorney-client relationship.

Understanding Pennsylvania's Criminal Trespass Law: A Comprehensive Overview for Hunters and Landowners

If you will be hunting in Pennsylvania or if you own land in Pennsylvania, it is important to understand our state’s trespass law. For years, I have watched never-ending online squabbles over what the law is and isn’t. Some are experienced hunters and others are even law enforcement officers who make false claims about the law because “that’s how it’s always been done.”

Before going to law school, I hunted my whole life, deer, turkey, small game, etc., doing my best to avoid getting in trouble for a law I didn’t even know. “Can I get arrested for accidentally going on private property?” “If I find someone on my property that should not be there, what can I do?”

That’s why I found it necessary to write this article; to explain the PA trespass law so that all sportsmen and landowners understand the ground rules.

INTRODUCTION

If you buy and pay taxes on a solid piece of hunting land, you should be able to have it all to yourself? Right? Right. Pennsylvania's criminal trespass law Title 18 § 3503 et seq. plays a crucial role in protecting the rights of property owners. It defines the boundaries of acceptable behavior on private property and outlines the consequences for those who violate these boundaries.

WHAT IS CRIMINAL TRESPASS?

Generally, criminal trespass occurs when an individual enters or remains on another person's property without permission. That said, Pennsylvania law distinguishes between different degrees of criminal trespass based on the circumstances of the offense.

DEGREES OF CRIMINAL TRESPASS

For hunter knowledge purposes, we will not be addressing building trespasses, but merely a simple trespass, a defiant trespass, and an agricultural trespass[1] as set forth in the PA trespass law.

                                                                                                                                                        I.         Simple Trespasser

Let’s start with how PA defines a Simple Trespasser. To become a simple trespasser, you must, without “license[] or privilege to do so,”…“go onto a property with for the purpose of:

(i)    threatening or terrorizing the owner or occupant of the premises;

(ii)   starting or causing to be started any fire upon the premises;

(iii)  defacing or damaging the premises; or

(iv)  (unlawfully taking secondary metal from the premises.

18 Pa.C.S. § 3503(b.1). (Emphasis Added.).

Note the “for the purpose of” language and let’s do an exercise to better understand the statute. You go onto another person’s property that it is not posted. Does this mean you are a simple trespasser? Under the statute, probably not. Unless you came there to damage the property, set it on fire, or harass the owner, you are not committing any crime.

Where I think people get confused is that you are still trespassing, just not in the criminal sense. You may still be sued for civil trespass which just requires, regardless of intent, that one is on a property they do not own. Awards for civil trespass (if no property damage) can be as low as is $1.00 for “nominal damages” and, depending on the jury and state, punitive damages may or may not be awarded. [2]

It is hard to be a simple trespasser if you are simply trying to hunt because you have to know that you are not supposed to be on the property and you have to go onto someone else’s property with the intent to harass the owner or damage property. I have never seen anyone do that in my two decades of hunting experience. But, if you are somehow facing simple trespasser charges, you probably have more serious charges to deal with.

                                                                                                                                                   II.         Defiant Trespasser

Now for example, if the landowner sees you on the property (even if you are not a simple trespasser) and tells you to leave, you must leave or else you will be committing a criminal trespass, a defiant trespass, which has much more serious criminal ramifications.

The current defiant trespass statute reads:

Criminal Trespass - Defiant Trespasser (Title 18 § 3503(b)): A person commits an offense if, knowing that he is not licensed or privileged to do so, he enters or remains in any place as to which notice against trespass is given by:

(i) actual communication to the actor;

(ii) posting in a manner prescribed by law or reasonably likely to come to the attention of intruders;

(iii) fencing or other enclosure manifestly designed to exclude intruders. (Emphasis Added).

The defiant trespass language includes a “notice” requirement that, on top of someone telling one person to leave a property, notice can also be a properly posted property and certain fences. Properly posting the property can now be done via PA’s Purple Paint Law that merely requires markings of purple paint, at least 3 feet from the ground and 8x1” in size be no more than 100 feet apart. See, 18 Pa.C.S. § 3503(b)(vi). You can still use “POSTED” signs to accomplish the same. Then, any person on a property will be properly noticed under the law, and if they are on a property without permission, they are a defiant trespasser.[3]

If there is still any confusion as to a general rule for either simple or defiant trespass, the Supreme Court of Pennsylvania ruled in Commonwealth v. Carter that PA’s criminal statute has a scienter requirement that requires knowledge of wrongdoing for the criminal trespass statute to apply. 482 Pa. 274, 277 (Pa. 1978) (Emphasis Added). As we have discussed, per the PA law, “knowledge” is the intent to cause harm as in simple trespasser, or “notice” (posting property or a demand to leave) as to a defiant trespasser.

Criminal Penalties

Okay, so now we have a decent grasp on what criminal trespass is, what are the punishments for each degree of trespass? Generally, they may include fines, probation, community service, or imprisonment. The severity of the punishment is often determined by factors such as prior criminal history and the presence of aggravating circumstances. Even still, per the black letter law:

·      Defiant Trespasser (Title 18 § 3503(b)): This is a misdemeanor of the third degree, punishable by up to one year in prison and a fine of up to $2,500.

·      Simple Trespasser (Title 18 § 3503(b.1)): This offense is categorized as a summary offense, resulting in fines and potential imprisonment for up to 90 days.

·      Agricultural Trespasser (Title 18 § 3503(b.2)): Agricultural trespass is a summary offense, with penalties similar to those for simple trespassing.

CONCLUSION

Understanding Pennsylvania's criminal trespass law is essential for landowners to enforce their property rights and for hunters to avoid unintentional violations and legal consequences. By respecting the rights of property owners and adhering to the boundaries set by the law, hunters can contribute to a safer and more enjoyable hunting season without having to worry about being dragged into court. If unsure about the legality of entering a property, seeking permission from the owner or responsible party is always the best plan.

If you still have questions about the law or are facing a criminal or civil trespass issue, contact an attorney at The Skeen Firm.

[1] An Agricultural Trespasser pertains specifically to entering agricultural or other lands used for crop or livestock and has substantially similar requirements as a defiant trespasser. See, Title 18 § 3503(b.2) Therefore, agricultural trespass will not be discussed at length.

[2] A good read on civil trespass damages was penned by the Wisconsin Supreme Court in Jacque v. Steenberg Homes, Inc., 209 Wis. 2d 605, 609 (Wis. 1997). (Not binding law in PA).