Law Review: When dogs attack, does the self-defense argument work?
Jim PorterLaw ReviewPamela Lee is a retired deputy sheriff. She was walking along a well populated street in West Covina with her lumbering and lethargic 100-pound rottweiler on a leash.Two, 25- to 50-pound mixed-breed dogs came toward her. She kept yelling profanities, and finally pulled her hand gun, waiving in the direction of the dogs. As if they would understand. Feeling threatened, she fired the black semi-automatic in the direction of the dogs. She must have been a bad shot. The bullet entered the hood of a parked car. She took off down the sidewalk with her rottweiler and the two stray dogs ran away. About a dozen witnesses watched the entire incident.Criminal charges
Pamela was charged with a half dozen felonies, including gross negligence in the discharge of a firearm, carrying a concealed weapon, carrying a loaded weapon and attempted cruelty to an animal.The witnesses testified that the dogs seemed more “curious” then “aggressive.” She was found guilty and sentenced to three years of formal probation and 180 days of community service.AppealPamela appealed because she was not entitled to argue “self-defense” during her trial, so that became the issue: Does the defense of “self-defense” apply when a dog is attacking, and should she have been able to tell the jury she was acting in self-defense?I chose to profile this case because we should all know how much force we can use to defend our property and our person.Self-defense
Cutting to the chase, you can use deadly force to protect yourself from imminent personal danger, but generally not for the defense of your property. I.e., don’t shoot the burglar in the yard, and if you do, drag him inside the house. And don’t shoot him in the back. Now that wasn’t very nice was it?Here is a summary of self-defense law. A person who is being attacked may defend herself if she has reasonable grounds for believing that bodily injury is about to be inflicted, and that person may use all force reasonably necessary under the circumstances to prevent injury which appears to be imminent. That includes deadly force.A person threatened with an attack need not retreat. She may stand her ground and defend herself, and may even pursue the assailant until she has secured herself from danger if it appears necessary to do so, even if the assailed person might more easily have gained safety withdrawing from the scene. Actual danger is not necessary to justify self-defense; one only needs the appearance of danger and actual, reasonable belief you are in danger. When the danger ceases to appear, the right to use force and self-defense ends.When defending property, a person may use force reasonably necessary to prevent imminent injury to the property, but any force beyond that limit is unjustified and anyone using excessive force (e.g. deadly force) is legally responsible for the consequences.Dog cases
The court in Pamela’s case concluded that self-defense laws apply when the threat is an animal – like a dog.The court also mentioned Penal Code section 597 which “penalizes every person who maliciously and intentionally maims, mutilates, tortures, or wounds a living animal, or maliciously and intentionally kills an animal …”In one case, a man was entitled to defend his son by shooting and killing a dog that was biting him. In another, a man could not be convicted of cruelty to animals when he shot and killed a vicious dog which ran onto his property and attacked his dog in the presence of small children.RetrialIn the end, the court of appeal overturned Pamela’s conviction, concluding that she believed that the two stray dogs were angry and aggressive and crouching as if they were about to attack. She might have been acting in self-defense. On retrial if she is found to have been acting in self-defense, she will probably defeat the criminal charges. Either way she’ll be paying for the shot-up car hood. Jim Porter is an attorney with Porter • Simon, with offices in Truckee, South Lake Tahoe and Reno. He is a mediator and was the governor’s appointee to the Bipartisan McPherson Commission and the California Fair Political Practices Commission. He may be reached at email@example.com or at the firm’s Web site, http://www.portersimon.com.
Support Local Journalism
Support Local Journalism
Your donation will help us continue to cover COVID-19 and our other vital local news.
If you don't follow the rules, your comment may be deleted.
User Legend: Moderator Trusted User