Judge Calls Ban on 'Attracting' Deer Called 'Hopelessly Vague'

, New York Law Journal

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Frank Labuda

A state law barring the "feeding" or "attracting" of white-tailed deer has been shot down as unconstitutional by a judge who said the statute is "hopelessly vague" as well as violative of the First Amendment.

Acting Supreme Court Justice Frank LaBuda in Sullivan County (See Profile) overturned the conviction of Robert Gabriel for feeding deer. Gabriel admitted tossing apples and pears into his backyard in Barryville that attract wildlife, including deer.

LaBuda said the statute, 6 NYCRR §189.3, does not define the offense of "feeding" white-tailed deer "with sufficient clarity so a person of ordinary intelligence would understand" what exactly is prohibited. He said the law is so vague and broad that it would seemingly prohibit planting a fruit tree on private property if fallen fruit is raked up, tossed in a bin and ultimately attracts white-tailed deer.

"Query: Can a tree that is not forbidden bear forbidden fruit? According to the regulation, yes! If the fruit from the tree is gathered and placed in another location in the same yard, it becomes forbidden," LaBuda wrote.

People v. Gabriel, 2012, NY Slip Op, 22243, was an appeal of a conviction before Highland Town Justice Kathryn Sweeney under the state Environmental Conservation Law.

Records show that an environmental officer received an anonymous call that someone had left a barrel of bait in the woods and erected two tree stands. The officer investigated and found a drum of apples and pears and tree stands behind a home owned by Gabriel's girlfriend.

Gabriel denied any knowledge of the barrel or the tree stands, but admitted he uses fruit to attract deer to the backyard where they can be observed by his children.

Sweeney rejected Gabriel's argument that it was legal to throw apples into his own backyard, and suggested that a bird feeder that happened to attract deer would also be illegal under the statute. She found Gabriel guilty and fined him $150. Gabriel appealed.

LaBuda noted that 6 NYCRR §189 bars "the act of using, placing, giving, exposing, depositing, distributing or scattering any material" that attracts white-tailed deer, but permits the feeding of deer through deer food crops and agricultural planting.

The judge said Gabriel's admission that he placed food in the backyard that attracts deer establishes a violation of the statute. But he said the statute is constitutionally infirm and contrary to the due process clause of the Fourteenth Amendment as well as the First Amendment.

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