On July 21, 1999, Hagan killed an elk on his property. The next day he killed a deer. A game commissioner charged him with two criminal offenses, and a district justice found him guilty.
Hagan appealed to the trial court, where his attorney moved to have the charges dismissed, claiming Section 2307 was unconstitutional as applied and on its face.
Noting that no Pennsylvania appellate court has ever decided the issue, the court concluded it did not have to rule Section 2307 unconstitutional in order to dismiss the charges.
Instead, the court found that a “liberal reading” of the statute would protect the defendant’s right to protect his property.
Under the strict reading asserted by the commonwealth, Hagan could not lawfully kill the deer or elk if he did not make his livelihood from farming. The prosecution claimed the law was a valid exercise of the state’s police power.
In addition, the commonwealth said, Article 1, Section 27 of the state constitution, which gives the state the right to conserve natural resources, prevails over the individual’s right to defend property.
While the state has the sole right to regulate the hunting and killing of game and wildlife, Roof said that police power can’t violate a person’s constitutional rights.
The court said a liberal interpretation of the statute would be constitutional.
“To the extent that Section 2121 of the code is read to only allow a person cultivating his land for a livelihood to destroy game, as the commonwealth contends, we would have to conclude that application of Sections 2307(a) and 2121 of the code are unconstitutional,” Roof wrote.
But the court said it could save the statute from “constitutional infirmity” by interposing a defense of justification.
“We do not believe that it was the intention of our legislature when it limited the lawful killing of game or wildlife to persons cultivating their land as a primary means of gaining a livelihood to strip all other property owners of their inherent right to protect their property,” Roof wrote
Also, “such a construction appears to be in line with that advanced by the appellate courts of our sister states who have confronted similar issues,” the court said.
The court noted that a defendant charged with the offense of the unlawful killing of an animal – where the killing was done to protect the defendant’s property – has to show evidence of “reasonable necessity” or “justification.”
The court said that such a determination could be done on a case-by-case basis, declining to establish what factors would be necessary to establish “reasonable necessity” or “justification.”
Right to Preserve
The court also concluded that the liberal reading of the statute would not violate the state’s right to preserve game and wildlife under Article 1, Section 27 of the state constitution.
The court said that it found no conflict between an individual’s rights under Article 1, Section 1 and the powers of the commonwealth provided by Article 1, Section 27. Even if such a conflict does exist, the court said, a person’s rights would supersede the commonwealth’s rights.
