Attack By A Dangerous Dog and the Use of Deadly Force

59
318
Attack By A Dangerous Dog and the Use of Deadly Force
Attack By A Dangerous Dog and the Use of Deadly Force
Attack By A Dangerous Dog and the Use of Deadly Force
Attack By A Dangerous Dog and the Use of Deadly Force

So you are taking a casual walk by yourself near your home in your friendly neighborhood and suddenly an apparently vicious German Shephard dog leaves its fenced property and is aggressively running toward you growling and showing its teeth. The owner is not around and there are several kids playing nearby. You have your Florida Concealed Carry license and are carrying your trusty 9mm and have no other form of deadly or non-deadly force with you. You can’t avoid the dog and he is running very fast, so you cannot outrun or escape it. What do you do? Should you draw your handgun and use deadly force to shoot the dog? Is this dog really that dangerous and will he actually attack and bite/hurt you? Do you take that chance? Is this a dangerous dog breed? Does the self-defense law apply to dog attacks and will it protect you? Do you have to be bitten first before you respond with deadly force? What about possibly shooting the nearby kids or other innocents? Now remember you only have about 2-3 seconds to deal with this situation. What a predicament! This is not an unusual situation and you don’t have the time to rationally deal with it in the short amount of time when it is happening. Later, there will be the concentration on whether or not your life or serious bodily injury was immediately threatened by this dog, was this a “dangerous dog” by definition, what signs did you observe that led you to believe it was an aggressive, vicious dog that could kill or hurt you, what are the extent of your injuries, the dog owner’s liability, welfare of the kids, your medical bills, discharging a gun in city limits, was this animal cruelty, etc.?

Please know that I am reporting this information and my opinions about these topics strictly for educational purposes and for you to decide for yourself the involved issues and your responses. I am not trying to anger P.E.T.A., A.S.P.C.A., or the local Pit Bull Club. Just as personal opinions vary about dogs, the criminal laws and parts of some laws pertaining to dangerous dogs vary significantly from state to state and from jurisdiction to jurisdiction. Some states do not have specific statues that even address shooting attacking dogs. They GENERALLY provide that one can shoot a dangerous, vicious canine that is threatening injury to a farm animal, like a sheep or chicken, or livestock. In the state of Florida, for example, there is a Florida Statute 767.03 that offers only one “Good Defense for Killing A Dog.” It states “In any action for damages or of a criminal prosecution against any person for killing or injuring a dog, satisfactory proof that said dog had been or was killing any animal included in the definitions of “domestic animal” and “livestock” as provided by s.585.01 shall constitute a good defense to either of such actions.” Not very comprehensive.

Dog Attacks on People

But what about an attack on a human by a canine? Schwarz Kennels report that an increase in recent dog bites may be linked to a change in public attitude. They say studies show that 40% of dog owners are now more interested in obtaining a canine for protection than as a family companion. They say some even view the dog as a weapon, so they choose a large and muscular breed. In these cases, they say it is not uncommon for the animal to be tied to a post and kept isolated, un-socialized, and untrained. This can turn a dog into a mean, vicious, and uncontrollable animal.

From what I could research and understand, there is no law that protects a person who shoots a dangerous dog in self defense. There are no absolutes or universal truths when dealing with or defending against an attacking dog, a wild animal even though domesticated. I am thinking that there probably should be such specific laws. So one should know the applicable laws in their area (if there are any) and even anticipate some likely scenarios when confronted with dangerous dogs. As always, expect the unexpected and have a plan of action in place before the threat presents itself, if possible. However, it is not possible to plan ahead for all possible situations because they vary so much and different variables and considerations are involved. But, we should at least strive to do this as best we can for some general, common scenarios, like the one I mentioned above.

I discovered several cases where people have shot vicious dogs, but then were prosecuted criminally for crimes such as animal cruelty, discharge of a firearm within city limits, or negligent discharge of a firearm. When a dog bites a person, the person usually (not always) can recover full compensation from the dog owner’s homeowners insurance policy, the renter’s insurance policy, or from the dog owner, if no insurance.Of course, the legal liability varies by location because of statutes, ordinances (e.g. leash laws), court decisions, and circumstances.

The One-Bite Rule, Negligence, and Statutory Liability

Although I am not an attorney, I found in all the states I researched that a dog owner will be held liable if he knew before the biting incident that his dog had the tendency to bite people without justification. It is called the “One-Bite Rule.”  It provides GENERALLY that the dog owner is protected from liability as to the first injury caused by the dog, unless liability can be based upon other grounds. Fifteen states (the “one-bite rule” states) do not have dog bite statutes. The 15 “One-Bite Rule” States are: AK, AR, ID, KS, MS, NV, NM, NC, ND, OR, SD, TX, VT, VA, WY. Some court decisions have said the “One-Bite Rule” name is a misnomer and that the rule applies to any injury, whether or not it was caused by a bite, and that proof of the dangerous propensity of the animal does not require the existence of a prior bite even in a biting case. Confusing, subjective, and open to interpretation!

But, in almost every state, I found a dog owner will be held liable to some extent if his negligence causes a biting incident. I understand that general negligence is the doing of an act without due care, or failing to do something that due care requires. In cases where the dog owner knew that his dog was dangerous or vicious, he faces the very real possibility of having to pay punitive damages, in addition to compensatory damages. Because the purpose is to punish the wrongdoer, the dog owner himself, and not his insurance company, must pay the punitive damages. However, some states have not enacted dog-bite statutory liability. If the victim was trespassing or provoking the dog that bit him, he can’t use the “statutory action,” but can still use the One-Bite Rule. In these states, usually it is the victim who must prove that the dog previously bit a person or acted like it wanted to bite a person, and that the owner knew or should have known of the dog’s propensity to bite. So a “bite” is not necessarily required. It could be a knock down, a trip, or physical contact. The states having a dog-bite statute are referred to as “statutory strict-liability states.” There are 35 of these statutory liability states and their laws vary CONSIDERABLY. Some of these states are: AL, AZ, CA, CO, CN, FL, IL, KY, LA, MD, MA, MI, NJ, NY, OH, SC, TN, etc. In these states, the usual prerequisites for compensation are that the victim was bitten, and the defendant owned the dog. The victim does not have to prove that the dog previously bit anyone or acted like it wanted to bite anyone. So read and understand your applicable statutes closely because some have limits, different definitions, or additional requirements. I found that they vary like night and day. A few states, like HI, GA, NY, and TN, have statutes that combine principles of negligence and the One-Bite Rule, but primarily rely upon the One-Bite Rule. They are called “Mixed Dog-Bite” statute states and are confusing to me. They have statutes that combine strict liability with elements of the One-Bite Rule, leaning toward the One Bite.

Signs of Dog Aggression and Dangerous Dogs
Signs of Dog Aggression and Dangerous Dogs

Signs of Dog Aggression and Dangerous Dogs

Let’s look at some of the recognized GENERAL Signs of Aggression in Dogs that help justify your use of deadly force in self defense against attacking dogs:

  1. Growling, snarling, and baring teeth;
  2. Showing the whites of the eyes by an angry dog;
  3. Pulled back ears (not floppy or elevated) laying flat against the head;
  4. Straight, tense, and stiff body of the dog;
  5. Even, steady run rather than a loping gate.

What are some dogs classified by various organizations as being “Dangerous” and vicious dogs? Recognize that I am a dog lover and I offer these only as an overall indicator. All dogs can be abused and trained to be vicious. This article is not an indictment of any particular breed. However, keep in mind that criminals are always looking for the edge in furthering their illegal activities and some breeds more than others give them that edge. Of course, even within one particular breed, there are exceptions to the classification, so accept these (not in any priority order) as just GENERAL Dangerous Dog Classifications:

  1. Pit Bulls;
  2. Rottweilers;
  3. German Shepherds;
  4. Bullmastiffs;
  5. Doberman Pinschers;
  6. Akitas;
  7. Siberian Huskies;
  8. Presa Canarios

A Dog as Personal Property

According to most laws and court rulings, companion animals (e.g. dogs and cats) are considered to be merely personal property or chattel. In the Bennett v. Bennett case in 1995, a Florida Appeals court overturned a Circuit Court decision that awarded visitation rights for the couple’s dog, based on a judgment that the pet was personal property and so not subject to award of custody or visitation. This was a precedent for other opinions and cases. In Florida, dogs are personal property. While you may or may not agree with this, in most jurisdictions this classification has limited the damages that pet owners can recover when their animals are injured or killed as a result of intentional or negligent conduct.

So what if someone shoots your dog, which is your property that you own? Are you justified in using deadly force to protect your property? GENERALLY speaking as a non-attorney layman, it is my understanding as the owner of property you may not use deadly force to defend your property.The life and health of humans are considered more valuable than your stereo or computer, for example. However,I also understand as a non-attorney that a property owner is not prohibited from using self-help methods in defending property and may use “reasonable” force to prevent someone, or something, from entering his property or removimg or destroying his property. But, the use of deadly force calculated to do great bodily harm or cause death is usually not permitted to defend PROPERTY. Recognize that where an intruder threatens personal safety, as well as a threat to property, or where an intruder is committing a “forcible felony,” deadly force MAY be appropriate. Of course, it is situational dependent and best to consult an attorney in your area to get a legal opinion and advice.

Use of Deadly Force Against a Dangerous Dog

So what if you shoot a dog attacking you? Will you be punished by the courts for shooting a dog which is considered to be personal property? Be aware that some courts have allowed the recovery of punitive damages in cases where the person causing harm to the companion animal engaged in conduct that was malicious, willful or in reckless disregard of the rights of the animal and the pet owner. See Levine v. Knowles, 197 So. 2d 329, 332 (Fla. Dist. Ct. App. 1967) and Wilson v. City of Eagan, 297 N.W.2d 146, 151 (Minn. 1980.)

Remembering that a dog is usually considered personal property (recall it varies by jurisdiction), can you justifiably use deadly force when a dangerous dog is attacking you? It would seem to this non-legal layman that if you shoot a dog it’s not considered illegal use of “deadly force,” since you’re shooting at a piece of property. CAUTION! The facts of each situation and existing laws will be very instrumental. It would seem the factors for justification of using deadly force against a bad guy would be the same factors to consider for using deadly force against a dangerous dog. Were you in immediate danger and was your life threatened, imminent death or great bodily harm? Did you try to avoid the trouble and did you exercise other appropriate options? What about the use of non-deadly force like OC pepper spray? What would a reasonable person do in the particular scenario?  Recognize that you might be in violation of “discharging a firearm within city limits” or “negligent discharge of a firearm” depending on the circumstances and jurisdiction. Again, best to consult an attorney in your local area because of the vast differences among states and jurisdictions. What a challenge! I wonder if anyone can quickly determine if their life is in imminent jeopardy or if they will suffer great bodily injury, when a big muscular dangerous dog with fangs showing is aggressively running at them? What are your thoughts and how would you respond?

Conclusions

In closing, I know that I will assume all unknown dogs are threats until proven otherwise. In general, the best practice when it comes to dog attacks is to do everything you can to avoid them in the first place. If you see a dog that may be dangerous, stay away. Also, report any dangerous-looking dogs or possible strays in your neighborhood to animal control officers or appropriate authorities. Teach your children to never approach an unknown dog or animal and stay away from them until they are sure they are safe. If you have been attacked or witnessed an attack by a dog or are concerned about a dog’s aggressive behavior (even if they have not attacked or threatened to attack), PLEASE give the police or animal control authorities a call. It may save you or someone else from a terrifying, painful or even deadly experience.

Continued success!

This personal opinion article is meant for general information & educational purposes only and the author strongly recommends that you seek counsel from an attorney in your state or jurisdiction for legal advice and your own personal certified weapons trainer for proper guidance about shooting & using YOUR firearms, self-defense, stand your ground law, and concealed carry. This is not legal advice and not legal opinions. It should not be relied upon as accurate for all shooters & the author assumes no responsibility for anyone’s use of the information and shall not be liable for any improper or incorrect use of the information or any damages or injuries incurred whatsoever. 

© 2014 Col Benjamin Findley. All Rights Reserved. This article may not be reprinted or reproduced in whole or in part by mechanical means, photocopying, electronic reproduction, scanning, or any other means without prior written permission. For copyright information, contact Col Ben Findley at [email protected].