November 2012 - Pg 8–Attorney Question of Month
AFFILIATED ATTORNEY QUESTION OF THE MONTH
With the generous help of our Network Affiliated Attorneys, this column helps our members understand the world our affiliated attorneys work in and demystifies various aspects of the legal system for our readers. We’re embarking on a new and important topic this month, with questions that brought in so many great responses that we’ll run the second half of the answers in the December edition of the journal. Here is what we asked our Affiliated Attorneys--
Network members frequently ask where they stand legally if they shoot an attacking dog. Most cities have ordinances prohibiting the discharge of a firearm, and in other cases we've seen the shooter facing animal cruelty charges or additional violations piled on by a prosecutor. We have several concerns on this topic--
- Does the law in your area allow shooting an attacking dog?
- How does the law balance the necessity of stopping a dog attack against ordinances prohibiting shooting in a restricted area?
- In your area, is it likely that shooting an attacking dog would result in charges? Have you defended clients after this kind of incident? What issues were raised?
- How do these considerations change if the shooter defends their pet or livestock, instead of human life, against the attacking dog?
Steven M. Harris
Attorney at Law
P O Box 330849, Miami, FL 33233
It is a sad fact that police officers in many jurisdictions almost routinely shoot non-stray dogs, in some instances with suppressed weapons, in order to perfect entry onto property when chasing a subject or fugitive, or to effect a search, arrest, or rescue.
Despite the lack of legal repercussions to LEOs in almost all of those incidents, the legal issues engendered by this month’s Network attorney questions are subject to wide-ranging debate.
My take on an able-bodied adult’s shooting an attacking dog in an urban setting (other than a fighting breed, one trained to attack, or the leader of a threatening pack), who has not yet bitten a person or another dog is quite simple: Whether you go armed or not, carry OC spray and a collapsible baton to use on domesticated animals as first and last resort, if at all possible. I, and others I know, have used those less lethal solutions successfully.
I advise that because a dog bite is not generally thought to constitute deadly force, and even though the law allows one to shoot a man in some circumstances, the law almost never expressly authorizes the shooting of “man’s best friend.” (It is actually rare for a single household dog to kill or permanently maim or disfigure an able-bodied adult). The public outrage is almost always horribly negative to the shooter, and such shootings are not usually covered by any homeowner’s insurance policy or clearly immunized under a self defense or justified use of force statute. It should go without saying that one should never, ever pursue a fleeing dog to shoot it or shoot a dog when the dog is on the dog owner’s property and you are present without permission.
The statutes of my state demonstrate the lack of complete clarity as there really is no direct authority sanctioning the shooting of a dog in self defense or defense of others or one’s own dog. In Florida, a pet dog is considered property. The use of deadly force solely to protect property is not allowed generally. However, shooting of a dog in Florida is not per se considered the use of deadly force since a dog is not a person. Thus, the statutes to be analyzed are those on improper display or discharge of a firearm, animal cruelty, and crimes involving harm or destruction to the property of another.
Shooting an attacking dog (who is biting or has bitten) is justified and would not be animal cruelty in Florida because that crime is defined as the “neglect, torture, or torment” causing “unjustifiable pain or suffering” to an animal. It does not constitute a property crime (“criminal mischief” in Florida, akin to vandalism) unless malice is proved. It may, however, be prosecutable under one or more firearm statutes.