An Interview with Attorneys Mike and Alex Ooley
Interview by Gila Hayes
When armed citizens strive to understand circumstances under which use of deadly force against another human is appropriate, a frequent question is whether you can use your gun to defend a beloved dog, cat, or horse. Advising that “defense of life,” means defense of human life is not always welcome, but it is how our criminal justice system works.
As a topic that arises frequently, we explored the bigger question of animals and use of deadly force from several angles with Network affiliated attorneys Mike and Alex Ooley, a father-and-son team of attorneys from southern Indiana. They also teach firearms and use of force law classes at the O2 Gun Group, regularly exposing them to use of force questions. Let’s switch to interview format to preserve the tone of an interesting conversation we enjoyed last spring while visiting Indianapolis for the NRA Annual Meeting.
eJournal: Thank you for stopping by, Alex and Mike. Today, I’d like to learn about the law’s view of defending domestic animals and on the other side of the coin, defending against animals. As I was writing out my questions, I laughed when I realized that we could have the world’s shortest interview if I asked, “Is it okay to use deadly force to defend your domestic pets?” and you would say...
Alex Ooley: “No.”
Mike Ooley: Generally, no. There might be a small exception in the state of Texas from what I understand, but I’m not a Texas attorney, so you’re on your own there, but generally the answer is “No” with respect to deadly force to defend a pet. I will tell you that topic is one on which we encounter the greatest resistance in terms of self-defense notions because pets are part of most people’s families.
Alex Ooley: Especially when we’re talking about dogs. Sometimes I think people like their dogs better than their spouse or significant other.
eJournal: In my experience, horse fanciers are also quick to ask about defending their animals.
Mike Ooley: I don’t recall horse owners being as devoted as people are to their dogs.
Alex Ooley: ...unless it is show horses.
eJournal: Let’s move on to how the law views harming an animal. I’ve often heard animal-lovers assert that animal abuse is a felony, and then make the leap of logic that they can use deadly force against someone committing a felony in their presence. Where does that idea fail?
Mike Ooley: It is important to understand that our benchmark, our standard with respect to the use of deadly force is whether we’re facing imminent threat of death or great bodily harm to us or another innocent person. We have to understand that a pet is never going to be a person; under the law, a pet is never going to be valued above a person. Now, with respect to your question about preventing a forcible felony. In Indiana, where we are right now, you can use deadly force to stop a forcible felony. A forcible felony is a felony that involves the threat of force or the use of force in the commission of a felony AGAINST ANOTHER PERSON. That’s the key.
eJournal: Too often a layperson reads black-letter law and thinks they have found a loophole, usually by failing to consider the entire situation. In this example, I failed to acknowledge the modifier “forcible.”
Alex Ooley: The commission of just a simple felony in Indiana and, I think, in most states, is distinguished from the forcible felony that Mike was talking about. As he said, a forcible felony has as an element, the risk of serious bodily injury to another person, not just some theft or some offense against property.
eJournal: While researching our topic, I was amazed by a 50-page treatise in The George Washington Law Review about defense of pets. The writers made a concerted effort to change the word “pet” into “companion animal.” I suspect they’d like to categorize all pets as essential service animals. After all, who is going to speak out against extra consideration given a dog that makes life better for disabled veterans or for someone who suffers from seizures, for example? Does the law allow use of force to defend service animals beyond what’s allowed for pets?
Mike Ooley: Here’s the bottom line, currently and for a long time to come: the law is never going to value a pet or even a service animal over a human being no matter how despicable the human being may be.
Alex Ooley: Killing a police dog in the commission of a criminal act may elevate the status of the crime, so there are some things that elevate the status of the animal but never to the level of a human.
Mike Ooley: In my estimation, the law is no different objectively whether a pet or a service animal, but I suspect there is a lot more prosecutorial discretion whether a police officer would be charged for defending their police-trained K9.
Alex Ooley: We were talking about situations where it’s clearly defense of the animal itself, but there may be circumstances where the person is attacking your animals but also presents a threat to you. If you can articulate that not only was the person a threat to your animal but also a threat to you, then deadly force might be justified.
eJournal: Suppose you saw somebody getting ready to gut your dog with a knife or do some great harm to your dog and it is clear the person is going to act. If you went out to prevent that, as most of us would do, saying perhaps, “Hey, buddy! What are you doing? That’s my dog, let me get ahold of him.” I’m uneasy approaching an unknown person who’s armed. I need to determine if the threat has shifted from my dog to me.
Alex Ooley: You might be looking for a verbal threat, but it could be overt acts, too. It may be the person stepping towards you, brandishing a knife, or pulling out a gun. There are lots of acts that could present a threat and objectively create a necessity for deadly force. It may be verbal; it may be other acts.
eJournal: Of course, we want to do all we can to stop the escalation before it goes that far. If you see your dog being injured, what would you do?
Mike Ooley: Personally, I wouldn’t stand by and let that happen. We have pets. This is one reason I’m a real advocate for intermediate force like pepper spray. We gun folks sometimes overlook avoidance, awareness and all these intermediate steps. We overlook the potential of less lethal force like pepper spray in an instance like that.
Keep in mind, although we’ve been saying, “You can’t do this; you can’t do that!” throughout this interview, you CAN still use reasonable force to protect property. A pet is property. We can’t use deadly force to protect property, but we can use reasonable force.
eJournal: We need a range of force options. You don’t go out to confront someone with your gun in your hand. You go out ready to intervene verbally or deter with an appropriate level of force if the desired response is not forthcoming.
Mike Ooley: Here’s another reason I am an advocate for pepper spray. I think folks with pets need to have a plan about what they’re going to do if somebody else’s pet attacks their dog.
eJournal: That’s a much more common way our pets get injured or killed.
Mike Ooley: Oh, yes, I think that’s a lot more common. If you’re walking your dog, make sure you have a plan as to what to do if another dog comes up and attacks your dog. I’m an advocate for pepper spray. It is effective against dogs, so that’s my number one suggestion. If you have a walking stick, you might use that since obviously you don’t want to put your hands and arms down in the middle of a dog fight.
You need to have a plan for your particular situation. I don’t mean to sound like I’m not an advocate for firearms, but using a firearm to shoot a dog is incredibly difficult to do when that dog is moving around under foot. It raises a lot of safety concerns. You may shoot yourself, somebody else or your own dog. Have a plan to use reasonable force. If that’s pepper spray, carry it where it where you can get it and practice with it. You can get inert cans or be very careful in practice.
Alex Ooley: Get the right type of pepper spray. While pepper gel might be effective against a person, it would be very difficult to use effectively against an animal that’s moving erratically. A spray or a stream would be better for an animal.
eJournal: For that situation, I think a fogger unit would be a beautiful thing, and by the way, beyond just having it in hand and not at the bottom of your bag or pack, be prepared for the possibility of cross-contamination.
Mike Ooley: I would say it is very likely you are going to get at least some cross-contamination.
eJournal: Do you teach pepper spray classes in which students can experience pepper spray exposure in a controlled environment?
Mike Ooley: Believe it or not, people don’t seem to take an interest in training with pepper spray. They think they can buy it and they’re good to go. I’ve been exposed to CS in the military and that is certainly an eye-opener. Actually, I should say it is an eye-closer.
Alex Ooley: I would encourage practice on a paper plate that’s attached to a tree or something because people don’t think about wind or distance, and they overestimate how simple it is to use. It’s a lot like the fire extinguisher: you hope you never need it, but it’s good to have and you should know how to use it. There are all sorts of things that can go bad. If you have carried a can for a while you may want to replace it and relegate the old one to the practice pile. Practice even just getting it out of your pocket. A lot of people don’t realize how difficult in a life and death situation or even just in a stressful situation how difficult it would be to get the pepper spray out of a pocket or purse or where they keep it.
eJournal: That is a good point, and I’d add that some cans have tiny lockout tabs that are hard to disengage as I once found to my chagrin during in-service training. If your pepper spray can has a lock, you need to habituate using that safety.
You mentioned using a walking stick on a dog fighting with your dog or we might be fortunate to have a clear shot on the dog that attacked. I wonder about the ramifications of harming someone else’s property – in this example, their expensive purebred dog – to avoid death or injury to one’s own dog, which is also property.
Alex Ooley: To be clear, we are not talking about self defense, but if we use any degree of force against someone else’s dog and harm that animal, we have to articulate why the degree of force used was reasonable and that it was also necessary.
Mike Ooley: It’s really not self-defense. It’s a justification under the law and it’s a matter of choosing the lesser of two harms. We either had to kill the dog that was the aggressor, or our dog was going to be killed. That was the choice we had.
Alex Ooley: Remember, too, when talking about defense of property, whether you’re using reasonable force or deadly force, part of that analysis is whether it’s proportional. You have to be able to articulate why your actions were reasonable and part of that articulation is proportionality. Think about the concept of an eye for an eye. You can never take the life of a human for a dog’s life. They’re never, ever on the same plane so it’s not proportional, but if you’re protecting your animal from another animal that’s a different analysis. It is a different context.
The context matters. If you use deadly force in public, that’s different than if it’s in my front yard out in the middle of nowhere. In public, you could also be potentially liable for something like criminal recklessness or reckless endangerment of other human lives.
eJournal: I’d like to move away from domesticated animals. Have you had cases or followed cases where the defensive force was used against a wild animal?
Alex Ooley: I have had some animal cruelty cases, but luckily in Southern Indiana we don’t have many wild animals that would present a threat, unlike out west where you may have mountain lions or bears.
Mike Ooley: My wife Doris and I were talking about this when we were in Florida recently with respect to alligators and Millie, our German Shepherd. You have to understand that in some parts of the country, wild animals – particularly the ones that are a threat to human beings – are protected by federal laws. A lot of time, there may be no eyewitness testimony because this may be out in the wilderness, so avoid it if you can and be very careful about using deadly force against wild animals, particularly those that are protected by federal wildlife laws.
Alex Ooley: This is another example where intermediate degrees of force can be useful. I love to hike with my dog. If I’m out West where I may be in danger of wild animals, I typically carry bear spray. It is very effective against bears but also other wild animals, like mountain lions. It might be more effective than a firearm because a handgun is not particularly effective against a large animal. If you can utilize bear spray against wild animals, that would be a good intermediate option to have.
Mike Ooley: If faced with it, it may be a necessity that you have to potentially kill the animal. If you have to, you have to! People in parts of the country where that’s more likely than it is here in Southern Indiana need to think about that.
eJournal: If bear spray motivates an animal to go in the other direction, that’s a win with the bonus that you don’t have to explain to Fish & Game why you injured or killed the State’s black bear or wildcat and being told you will never get a hunting license again.
Several years ago, I saw a cougar walk past my office window at sunrise. It was so unusual that for an instant, my brain wouldn’t accept what my eyes saw. I had a shotgun, but fortunately neither dog nor people were outside. Had circumstances been different, I might have needed to explain decisions made in mere seconds. I am aware of at least one trial at which an expert witness provided gunshot wound analysis when the State tried to punish a man who shot a charging cougar.
Mike Ooley: If there was ever a topic on which jury nullification might raise its head, it would be in respect to defense of a pet. A little while before this interview, Alex did a podcast about jury nullification at https://podcasters.spotify.com/pod/show/forgeoffreedom/episodes/Episode-10--The-Forge-of-Freedom--What-is-Jury-Nullification-e209itd . It is a very interesting concept.
Alex Ooley: If you used unlawful force against an animal, there could be enough jurors in the jury pool that are sympathetic to animals that might acquit you because they sympathize with you defending your own pet.
eJournal: That topic is a huge hot potato...
Mike Ooley: ...and we are going off topic.
eJournal: Gentlemen, in these interviews, I always wonder if I asked the right questions. What do you wish I had asked that I didn’t even consider?
Alex Ooley: What if someone came towards you and they had a large, aggressive dog on a leash? What if that leashed dog was aggressive towards you or towards your pet?
Mike Ooley: That’s a good question. We talked about it in advance, and we didn’t come to a resolution.
Alex Ooley: It’s difficult because it’s going to depend on the context. If that dog is on a leash and the owner is instructing the dog to be aggressive towards you, I think you may have justification to use deadly force against the owner not just the dog.
eJournal: Is the dog the weapon at that point?
Mike Ooley: The dog is the tool, yes, but you are starting down a very slippery slope, so this is more of an academic discussion. I think there are circumstances where you would be justified in using deadly force because of the tool is being used against you by a human perpetrator.
Alex Ooley: If you can articulate that the animal presented a threat of death or grave bodily harm towards you, and that person controlled or was directing that animal, I think you have justification to use force in that situation.
Mike Ooley: At the same time, I think it’s possible, depending on circumstances, that you could go to prison for the rest of your life for shooting the person that controlled the dog.
Alex Ooley: It depends on the situation. Was it avoidable? Did you have an obligation to avoid it? There are lots of circumstances.
eJournal: Here’s a circumstance that comes up a lot – were there previous disputes or threats between the people involved?
Alex Ooley: Were you innocent, or did you instigate the confrontation, then the person retaliated against you? Those things change the dynamics significantly.
eJournal: We’ve had member-involved cases that started over dogs pooping on neighbors’ lawns, and that was a factor in the aggressor’s supposed reasons for persecuting the shooter in a non-member trial we analyzed in the first three months of 2019’s journals. If I could say one thing to dog owners, I’d say don’t let your pets run free and poop on the neighbor’s lawn.
There just are not any easy, one-size-fits-all answers. Alex, Mike, I appreciate the way both of you offered answers that dog-lovers do not always want to hear, and how you went far beyond simple “Don’t do it” responses, but with the sensitivity of pet owners and outdoors enthusiasts. You shared a lot of “we’re right there with you,” be that Alex’s love of hiking with his dog or Mike explanation about figuring out what would be the right thing to do if an alligator went after the family German Shepherd during their visit to Florida. Thank you for sharing those real-life concerns and how you’ve prepared to face situations that might arise when you’re out with our dogs.
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Get to know Alex and Mike Ooley along with Doris and Ryan Ooley and learn about their classes at https://forgeoffreedom.com/the-forge-of-freedom-instructors/ . Details about the Ooley Law Firm are found at https://ooleylaw.com/about/ . Our interviewees are pictured above [L-R] Alex and Mike Ooley flanked by their co instructors at O2 Gun Group, Ryan and Doris Ooley with the canine family members.