Law Prof: Yes, You Can Spend Night in Bear Grotto and Not Break Any Laws

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By Joe Eskenazi in Crime, Law & Order

Tue., Nov. 3 2009 @ 11:30AM

More intimidating than trespassing laws, it would seem...

Bob Talbot was shocked when he read the news today, oh boy. About a lucky man who nearly made the grave -- by crawling into the Grizzly Bear Grotto at the San Francisco Zoo.

Yesterday, Judge Wallace Douglass ruled that Kenneth Herron's much-publicized foray into the bear enclosure did not constitute trespassing, as the 21-year-old homeless man "did not intend to make the bear enclosure his place of residency, nor did his actions convey any indication that he would." Like most folks, Talbot assumed that vaulting multiple fences and bridging wide moats to enter a zoo habitat would naturally be labeled as trespassing -- and, unlike most folks, Talbot is a legal expert and University of San Francisco law professor focusing on criminal law.

But when Talbot began perusing the legal statutes to determine what it takes to actually commit "criminal trespassing" he was amazed. He even phoned up USF's law librarians and asked them to double-check his work. They came up with the same finding Talbot did -- Judge Douglass was right.

"Holy mackerel," Talbot told SF Weekly. "You can go into a bear place, spend the night, and not violate any laws."

Kenneth Herron

While, in the popular mindset, trespassing is akin to "kids, stay off my lawn!" the definition of "criminal trespassing" is far stricter. As Herron's attorney, deputy public defender James Conger, convinced the judge, it requires not just wandering onto someone else's property but following that breach up with occupation. Talbot cited a 1967 case, People vs. Wilkinson, as establishing this precedent -- "It essentially says that the purpose of the statute is to prevent squatting, and applies to continuous possession and permanency."

It's hard to dismiss as irrelevant the district attorney's arguments that Herron hopped numerous fences and obstacles to enter the grotto -- and had he occupied the bear enclosure any longer, he'd have been bear droppings by now. That's undoubtedly true -- and Talbot notes there may well be relevant laws to prevent folks from entering bear enclosures. But not "criminal trespassing."

"The D.A. might have found something more specific, somewhere," said Talbot. "But the generalized feeling is this definitely violates some kind of trespass law. But then you look closely at the trespass law and it's defined by an occupancy requirement."

Herron now faces only the eclectic charge of "willfully disturbing a wild and dangerous animal -- to wit, bears" -- which Conger thinks he'll beat due to Herron's history of mental illness.

"You can always re-charge him with a different section" of trespassing law, noted Talbot. "But it doesn't seem like he did very much. If they want to send the message that it's not good to go into zoo enclosures they might look around for something else. But I can't think of anything like that."