Ninth Circuit NonTax Case on Good Faith Defense and Objective Reasonableness (11/6/17)

Federal tax crimes usually require that the defendant have acted willfully, with intent to violate a known legal duty.  Cheek v. United States, 498 U.S. 192 (1991).  A good faith subjective belief that there is no legal duty is a defense, because, by definition, such a belief, if found to exist, means the Government has not establish that the defendant intended to violate a known legal duty.  The good faith belief need not be objectively reasonable, but the objective reasonableness of the belief can be considered by the factfinder in determining whether the defendant had the subjective belief.  This is all well-known law in the tax context.

I recently read United States v. Wallen, 2017 U.S. App. LEXIS 21173 (9th Cir. 2017), here, an appeal from a conviction for "killing three grizzly bears in violation of the Endangered Species Act."  The elements of the crime, as recounted by the Court, are:

(1) the defendant knowingly killed a bear; (2) the bear was a grizzly; (3) the defendant did not have permission to kill the bear; and (4) the defendant did not act in self-defense or in the defense of others.

With respect to the fourth element, the statute, 16 U.S.C. § 1540(b)(3), says:

Notwithstanding any other provision of this chapter, it shall be a defense to prosecution under this subsection if the defendant committed the offense based on a good faith belief that he was acting to protect himself or herself, a member of his or her family, or any other individual, from bodily harm from any endangered or threatened species.

On appeal, as in Cheek, the parties "dispute whether the 'good faith belief' standard requires an objectively reasonable belief, as the government argues, or requires only a subjective belief in the need to protect oneself or others, as Wallen maintains."  The Court further explains:

Congress added the good faith belief defense in 1978, after an elderly couple was prosecuted for killing a grizzly bear that had threatened them. See 124 Cong. Rec. 21,584 (1978). But neither the statute nor the regulations say whether the requisite "good faith belief" must be objectively reasonable, see 16 U.S.C. § 1540(b)(3); 50 C.F.R. § 17.40(b)(1)(i)(B), and we are unaware of any binding case law addressing that question. We now hold that a subjective good faith belief suffices to establish self-defense under this statute.

In explaining its conclusion, the Court of course relied upon the text of the statute and cited prominently to Cheek and to Cheek's holding that, although objective reasonableness will not preclude a good faith belief, objective reasonableness or unreasonableness of the belief can be considered in determining whether the defendant in fact had a subjective good faith belief.  I  found the following a pretty good discussion of the concept:

We emphasize that, although the ultimate question is whether a defendant held a subjective good faith belief, the objective reasonableness (or unreasonableness) of a claimed belief bears directly on whether that belief was held in good faith. We and the Supreme Court have already said as much. In Cheek, 498 U.S. at 203-04, when assessing the petitioner's claimed belief that he was in compliance with the tax code, the Supreme Court explained that "the more unreasonable the asserted beliefs or misunderstandings are, the more likely the jury will consider them to be nothing more than simple disagreement with known legal duties imposed by the tax laws." Similarly, in Powell, 955 F.2d at 1212, we held the jury was "not precluded from considering the reasonableness of the interpretation of the law in weighing the credibility of the claim that the [defendants] subjectively believed that the law did not require that they file income tax returns." We have also recognized this principle in maritime cases that turn on "whether the seaman[] in good faith believed himself fit for duty when he signed aboard for duty." Burkert v. Weyerhaeuser S.S. Co., 350 F.2d 826, 831 (9th Cir. 1965). In Burkert, the "crucial fact issue before the court was whether or not there existed reasonable grounds to support [a seaman's] belief that he was fit for duty. The absence of such reasonable grounds would support a finding that [he] did not believe, in good faith, that he was fit for duty." Id. 

Under the Endangered Species Act, the reasonableness of a belief that an endangered animal posed a threat is likewise strong evidence of whether the defendant actually held that belief in good faith. Consider the example of a person who goes to the zoo, shoots all the endangered animals and then claims he believed the animals otherwise would have escaped and attacked him. The unreasonableness of the asserted belief should matter in a subsequent prosecution under the Endangered Species Act, as that unreasonableness casts significant doubt on the sincerity of the claimed belief. 

In sum, we hold the "good faith belief" defense under § 1540(b)(3) is available to defendants who, in good faith, subjectively believe they or others are in danger. A factfinder "is not precluded from considering the reasonableness" of this belief "in weighing the credibility of the claim," but that factfinder "may not substitute its own determination of objective reasonableness . . . [for] what the defendant subjectively believed." Powell, 955 F.2d at 1212. This means that traditional aspects of a self-defense claim — such as the immediacy of the threat, whether the defendant provoked the conflict or the amount of force used, see LaFave, supra, § 10:4(b), (d), (e) — may be considered for the purpose of determining whether a claimed belief was held in good faith. The standard is subjective, but the objective reasonableness of the defendant's claimed belief is relevant to the factfinder's assessment of the sincerity of that claim.