Jun
05

Harambe and the Law

What should the law require in the wake of the shooting of Harambe, the 17-year-old gorilla shot to death by zoo officials last weekend at the Cincinnati Zoo?

Some basic facts don’t seem to be in dispute.

On Saturday, a 3-year-old boy on a visit to the zoo with his mother managed to get over a fence and into a moat where Harambe, a 450-pound silverback gorilla, was kept. Harambe took an interest in the boy, and, in videos suddenly gone viral, is seen to be engaged with the boy in a way that is intermittently endearing and alarming.

Zookeepers, concerned to prevent harm to the boy, shot and killed the gorilla.

Mom reports that her son is fine. He’s been checked on by his family physician. That’s small comfort to supporters of Harambe’s. Some 100,000 have signed a petition called “Justice for Harambe,” and want charges lodged against the mother.

Like most states, Ohio does have a law criminalizing child endangerment. A parent, or any adult, for that matter, can be charged with a violation of this law if a child is placed in serious risk of death or physical injury as a result of the adult’s conduct.

Judged by this standard, it appears that the boy’s mother could face prosecution. There are hundreds of thousands of children who visit the Cincinnati Zoo each year. In no other case did a child manage to climb into a pen with a gorilla. At the very least, serious questions arise about what, if anything, this mother was thinking about.

Ohio’s child endangerment statute can be charged as a felony or as a misdemeanor. (A felony is a crime carrying a potential penalty of one year or more. A misdemeanor is also a crime, but it carries a term of imprisonment of up to one year. There is a third class of offenses, which aren’t regarded as crimes at all, but are called infractions; you can’t be imprisoned for these, only assessed a fine.)

To commit felony endangerment a person must be proven to have intended the conduct putting the child at risk. There’s no evidence in the Harambe case to suggest that the mother wanted to see her kid play with the gorilla. I suspect that no prosecutor, even the orneriest cur ever to step into a courtroom, would charge a felony.

What of misdemeanor endangerment? That requires proof of mere negligence — a state of culpable carelessness beyond what ordinary folks can tolerate — or recklessness, ignoring a substantial risk. My hunch is the mother can be charged.

One witness reportedly overheard the child commenting about wanting to go into the water in the gorilla’s holding area. (The comment was said as a “joke,” one witness reports. Another claims the boy told his mother he was going in for a swim, or words to that effect.) Mom had to notice that the child had mischief on his mind. Don’t we expect parents to pay a little more attention when their children demonstrate a mind to act up?

Even without notice of the child’s interest in getting up close and personal with Harambe, the mother looks culpable. It apparently took some effort on the boy’s behalf to scale the fence. Where was mom during this time?

By every indication, the zoo’s holding area passed both state and federal inspection standards, so blaming the zoo for what amounts to a defective fence or holding pen is not going to gain much traction in a prosecutor’s mind.

Just because the prosecution can bring charges against mom doesn’t mean it should do so — although the distinction between the ability to do so and the wisdom of doing so is lost on far too many law enforcement officials.

The best argument for bringing charges is to get answers about just what is going on with mom. Was this an isolated incident, an accident that occurred under the watch of an otherwise good and conscientious woman? Or was it a warning sign about a woman incapable of meeting the demands of parenthood?

Forgive me for wondering, but when a child tumbles into a gorilla pit, the questions are obvious.

What of the zoo’s liability?

There is none under criminal law, and anyone suggesting otherwise lives in a parallel universe. Harambe’s killing was a judgment call zookeepers had a right to make. Harambe’s intentions weren’t clear. A video of the incident shows the primate dragging the child through standing water, the boy’s head intermittently submerged. The shot to kill was regrettable, but understandable.

Any prosecutor even considering bringing criminal charges for the shooting of Harambe needs his or her head examined. 

Can mom sue the zoo for the emotional travail she and her son endured? This being the United States, she can try. But I suspect that the suit would quickly be dismissed. The zoo appears not to have violated the standard of care in housing the animal or creating a barrier between the gorilla and observing public. This is a one-off case — there’s never been anything like it at this zoo.

What about the doctrine of attractive nuisance? Did the zoo create something so enticing that it was foreseeable a child would be drawn into harm’s way?

The argument has superficial appeal. Of course, the pit was attractive to viewers — that’s why people come to zoos, to see the animals. But unless the security separating audience from animal was defective, this claim, too, will go nowhere.

Reasoning of this sort has no effect, of course, on animal rights activists outraged by Harambe’s death. There are calls for strict liability offenses requiring money damages to be assessed against a person somehow standing in causal relation to the death of an animal.

Causation is one of the law’s slipperiest concepts. In hindsight, we can often reconstruct what led to a bad outcome. The harder question is whether an event will foreseeably cause harm. In rare events, we just don’t have enough data to make meaningful generalizations. This is such a case.

We ought, in this instance, to avoid making rash conclusions about the need for new laws. That’s the best way to honor Harambe.

Related topics: Journal Register Columns
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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis

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Nothing in this blog should be considered legal advice about your case. You need a lawyer who understands the context of your life and situation. What are offered here are merely suggested lines of inquiry you may explore with your lawyer.

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