December 2012 - Pg 7
AFFILIATED ATTORNEY QUESTION OF THE MONTH
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 the shooter may face animal cruelty charges or additional violations piled on by a prosecutor. We asked our Affiliated Attorneys how these matters stand in their state.
Joshua S. Reed
Law Office of Joshua S. Reed
5915 Casey Dr., Knoxville, TN 37909
In Tennessee the law would allow someone to shoot an attacking dog if they are acting “under a reasonable belief that the animal was creating an imminent danger of death or serious bodily injury to that person or another or an imminent danger of death to an animal owned by that person.”
In a case of self defense for the shooting, the same factors would provide a defense to any unlawful discharge issues as well. If the attacking dog is someone’s pet, and the pet owner pushes the issue, it is fairly likely that the D.A. would press charges. I have represented someone who shot and killed a neighbor’s pet and I believe he likely would not have been charged if the owner of the pet had not “pushed” for it with the local police department.
Lance W. Tyler
Tyler Law Firm, LLC
1325 Satellite Blvd. NW, Ste. 1501, Suwanee, GA 30024
Georgia’s self-defense statute (O.C.G.A. 16-3-21) allows the use of force, including deadly force against another person, in defense of yourself or others who are in imminent jeopardy of serious bodily injury or death and provides that any rule, regulation or policy of any agency of the state or any ordinance, resolution, rule, regulation, or policy of any county, municipality or other political subdivision which is in conflict with the self-defense statute shall be null, void, and of no force and effect. Where you would be authorized to shoot a person, you would be authorized to shoot an animal.
O.C.G.A. 16-3-23 allows the use of force in defense of a habitation and the use of deadly force against another person, not a member of the family or household and who unlawfully and forcibly enters or the entry is made or attempted to commit a felony and the force is necessary to prevent the commission of the felony. “Habitation” includes motor vehicles.
O.C.G.A. 16-3-24.2 provides a person who uses force in self defense immunity from prosecution unless the carrying or possession of the weapon was illegal (e.g. a convicted felon could be prosecuted because it is a felony for him/her to possess a firearm at all). If the State were to accuse a crime, a person who used force in self defense may file a plea at bar and a hearing will be provided to determine whether the act was self defense. If it is determined the actions constituted self defense, prosecution for any charges, including local ordinances, cruelty to animals, etc., would be barred. I have used self defense to bar the administrative discipline of an officer who violated department policy and shot a dog on duty. The self-defense statute trumps departmental use of force policy.
O.C.G.A. 16-3-24 allows the use of force (other than deadly force) in defense of property other than a habitation. O.C.G.A. 16-3-23.1 establishes no duty to retreat. The combination of these laws would allow a person to defend his property and not retreat. Shooting a dog is not prohibited and is allowed where it would be necessary to defend property other than a habitation; deadly force against a person is not authorized in defense of property other than a habitation.
Georgia’s self-defense statutes do have some exceptions. You can not provoke the attack, be the aggressor or be attempting to commit, committing, or fleeing after the commission of a felony when the force is used. In Georgia, criminals do not have the right to self defense when committing a felony.
In short, Georgia’s self-defense laws would allow the shooting of a dog in lawful defense of a person or property where the force was necessary and provide immunity from prosecution.