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Is there a Constitutional right of self-defense against attacking animals?

Is there a Constitutional right of self-defense against attacking animals?

An illustration of why “bad cases make for bad law.”

Eugene Volokh has an interesting post over at his Volokh Conspiracy blog about a Washington-state Court of Appeals decision finding that there exists a Constitutional right of self-defense against attacking animals.  That decision, State v. Hull (Wash. Ct. App. Dec. 18, 2014),  is embedded at the bottom of this post.

Professor Volokh’s post on the matter is, as usual, insightful and worth reading, although it delves into considerable legal minutiae (as it must, given that the decision it discusses is based upon that minutiae).

“Bad Cases Make for Bad Law”

All the legalese aside, the decision could well be an interesting read even to non-lawyers for reasons unmentioned by Professor Volokh, and that is because it illustrates the truth of the adage, “Bad cases make for bad law.”

It seems inarguable that a person would have the legal right to defend himself against an unprovoked attack, regardless of the form–human aggressor, attacking animal, rampaging zombie, whatever.

Yet at the trial the prosecution made precisely the argument that Washington state’s self-defense laws applied only to a human attacker, and not to an animal attacker, and that therefore the defendant’s request for a self-defense instruction should be denied.  Notably, this was an argument centered on what jury instructions were to be read, so it was made directly to the trial judge as a single individual, and not to the jury generally, so the prosecution needed to convince only one mind to agree.

The judge did, indeed, agree with the prosecution’s argument, and the jury instruction on self-defense was denied.  The jury went on to convict the defendant of a cruelty to animals charge.

If one reads the court decision, however, one finds a defendant that is so utterly incredible and unsympathetic that it seems impossible a jury would acquit him of the animal cruelty charge even if he’d been granted the self-defense instruction.

Facts of the Case

The defendant describes the facts as follows:  He was driving home from a concert with his 36-week-pregnant girlfriend when he had an urgent need to urinate.  He pulled over on the side of a residential neighborhood, stepped from his vehicle, and immediately upon unzipping was set upon by two dogs.  He drew his pistol and fired numerous rounds at the dogs, a couple even when the dogs were in clear flight.  (Eight pieces of 9mm brass would later be found–the Doberman, struck several times, would survive.) The defendant would later be contacted by police and provide a statement in which he said he and his girlfriend and been alone and that there were no other witnesses to the events.

The girlfriend, on the other hand, tells a far less sympathetic narrative.  She testified that they had left the concert because they were kicked out due to the defendant’s intoxication, and that they left alone and without anyone following them (a fact that will become relevant shortly).  She said that before the defendant stepped out of the vehicle they had observed a dog running about, and she had encouraged him to continue to drive to another location.  Instead, the defendant stopped, stepped out of the vehicle, and immediately began firing.  The girlfriend feared he had just shot the dog. When he got back in the vehicle he told her that he was “going to clean up the neighborhood that his son was going to be forced to grow up in,” in apparent reference to the baby his girlfriend would soon birth.

The girlfriend went on to testify that the defendant drove erratically the rest of the way to her home, almost having several accidents. Upon being dropped off at home she called 911, and reported his drunk driving, license plate number, and the possible shooting of the dog.  Police were dispatched to the defendant’s home, but he had not yet returned.  When the defendant learned he was being sought by the police he contacted them and arranged to come in and give a statement–that would be the statement in which he would say, among much else, that there had been no other witnesses.

Magically Appearing Friendly Witnesses

At trial, the defendant somehow managed to come up with two friends suddenly willing to testify in his favor regarding these events, despite the defendant’s earlier statements that there had been no other witnesses and his girlfriend’s consistent statement that they had left the concert alone.

Humorously, the appellate court refers to this testimony being provided”

“by two of his friends, who claimed to have been following his car that evening.” (emphases added)

One senses that the credibility of this “friends'” testimony may have been on par with the defendant’s own recounting of events.

Let’s Add Some Witness Tampering to This Hot Mess

There was also testimony that the defendant later contacted his girlfriend to communicate about her expected testimony at trial.  In describing this communication the Court of Appeals notes:

According to him, it was to tell her to tell the truth. According to her, it was to ask her to tell police that a dog attacked him. She told him she did not see him get attacked by any dog.

This communication would result in the defendant also being charged with witness tampering.

Might the Trial Judge Be a Dog-Owner?

Anyway, enough gritty detail here.  There is more, of course, in the decision embedded below.

In brief, it seems difficult to imagine a less sympathetic or credible defendant.  If the charges against the defendant are true, he was driving around drunk enough to barely escape crashing his car, and in that intoxicated state decided to fire eight or so rounds at a dog that had made no attack that was visible or audible to the girlfriend sitting just feet away.  Pretty heinous conduct, indeed.

One wonders if the trial judge who agreed to deny the self-defense jury instruction in the context of animal attacks has his own beloved dogs at home?  But I speculate.

Enough for one post. I would direct you to the decision itself, below, as well as to Professor Volokh’s piece for those of you with a particular interest in the finer points of law:

–-Andrew, @LawSelfDefense

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Is there a Constitutional right of self-defense against attacking animals?

Yes. Period. With no demand that you retreat, even if trespassing on another’s property.

In the eyes of the law, a human life is always, ALWAYS more valuable than an animal, which is regarded solely as property.

An attacking animal, when attacking a person, regardless of why and regardless of whom, may be defended against with lethal force. Again, Period.

Now, depending on WHY the animal was attacking, the parties involved may have various civil remedies available to them: The attacked party, if they did nothing to provoke the animal may have battery remedies, while the animal-owning party, if the attacked party provoked the animal may have “conversion” remedies if the animal was injured or killed.

There is no remedy for “sentimental value” of the animal (at least not in Texas because it is inherently not objective).

Now, the above being said, you have to remember that Cattle Rustling is still a hanging offense in Texas, so certain property, while valued at a monetary compensation to the owner, will still get you executed for the crime of stealing it because ‘society’ says that the particular crime is particularly heinous due to the ECONOMIC damage incurred to society as a whole.

    Looks like they fixed the cattle rustling section of the Agriculture Code. Now there it’s only a 3rd degree felony punishable by 2 to 12 years imprisonment in the Texas Department of Criminal Justice.

    DaveGinOly in reply to Chuck Skinner. | December 30, 2014 at 11:43 pm

    So if you’re assaulting a dog’s owner, and the dog attacks you, you have a right to defend yourself against the dog? This sounds a lot like claiming you have a right to use lethal force on someone who pulls a gun on you, even if you started the altercation. And we know that’s not how it works. (The person you assaulted may not have a right to use lethal force in self-defense, but you most certainly do not have a right to use lethal force against him.) If you start something criminal – a robbery, an assault, a trespass, etc., you’re responsible for how it ends. A person who breaks the law is not called an “outlaw” for nothing. Such a person not only operates outside the law, he places himself (at times, and at least temporarily) outside the law that would otherwise protect him, and exposes himself to the dangers that attend to his criminal acts.

Pardon me, but I don’t see the “bad law” here. Based on the Volokh Conspiracy posting, it would at my IANAL level seem to be legitimate based on the Washington state Constitution.

Granted, the state will, if it so chooses, have to go through another trial for the animal cruelty charges, but that strikes me as pretty small price to pay for the state’s overreaching in this case and establishing that humans have the right to (a jury instruction of) self-defense against animals.

    Haha, the “bad law” was at the trial level, not in the appellate reversal. 🙂

    –Andrew, @LawSelfDefense

      I’m not sure if it would qualify as “bad law” or just a “bad decision” on the part of the individual trial Judge. Individual trial Judges make “bad decisions” all the time. 99%+ of the time it doesn’t affect anything or anybody except that individual defendant. Rarely it will affect future defendants in that individual Court on a basis of stare decisis IF AND ONLY IF that individual Judge is consistent AND the future Defendant’s attorney actually knows of the Judge’s prior decision.

      I’m not particularly fussed about the Washington Supreme Court forcing the State to go back and try this one again with a “Self-Defense” instruction on the Animal Cruelty charge. They’re telling the Trial Court “Hey, you got this one wrong, go fix it.”

      I don’t expect that it will change the outcome one bit.

      The analysis of credibility of the witnesses here by the Jury will be the key. While a Self-Defense instruction puts the onus on the State to disprove self-defense, I think that they will have done (and will do again) that with the Girlfriend’s testimony. For those who are not lawyers, proof is not mere numbers of ‘witnesses’ presented, it’s about who the Jury BELIEVES. It sounds like the Jury gave the Defendant and his two buddies exactly the level of belief that they deserved (which is none) given his statements to the police, the leaving the scene of the altercation and call-in by the girlfriend.

I don’t see this case as “bad law” as much as a “burden of proof” issue. At trial, the Court decided to allow the defendant to raise the “Necessity Defense” and to disallow the defendants “Self-defense” claim.

The difference in the two relates to the burden of proof. The “necessity” defense put the burden of proof on the defendant to prove that his actions were necessary to avoid a greater harm. In “self defense”, the burden of proof would be on the state, if the Court allowed it to be raised.

So, it’s not that the defendant was not given some sort of defense at trial for his actions. He was given a defense of “Necessity” which placed the burden of proof on him, and the jury didn’t buy it.

I believe the correct wording of the adage is “Hard cases make bad law.”
So when you have hard or difficult facts (like here), they lead a court to make bad law to justify its decision.

In this case, the judge should have allowed the self-defense argument, but then point out the obvious – the facts have to show it was truly self-defense.

With the human self-defense cases, you have to prove it was self-defense; same thing here.

So this court’s decision is so bad that it reminds us of another legal adage: “The law is an ass.”

In WA state, it is perfectly legal to shoot/kill any wildlife that is destructive of property regardless of any ‘season’ or other restriction. Of course, such protective shooting cannot be done recklessly but animals are viewed by state law to be varmints when they destroy property.

Of course we also have our lunatic left initiatives banning cruel traps for gophers (no leg traps). That gopher control companies are a booming industry around here should come as no surprise.

    Bullshit. Do it w/out permits from the game department and you’re going to court. I know two people fighting this now. Even then, those bastards try to force you to not protect your land and then low ball you for the price of your crops.

Man this sounds like the plot to a bad legal drama, lol.

JackRussellTerrierist | December 29, 2014 at 1:08 am

I despise drunk drivers and I love love love dogs, but I have to say I feel for this guy a little bit. WHAT IS UP WITH THIS CHICK? She narced him off to the cops, testified against him, etc.. And she’s going to fight him over custody and support for the kid for the next 18 years? She wanted to go there?

I don’t want to get too much into the soap opera weeds here, but coming soon to a trailer park near you: She, nine months preggers, got in a car with her drunk driver baby daddy after attending a concert with him. He, drunken oaf, shoots a dog when he stops to pee on the street. She rats him out, then testifies against him, and now she’ll want support from him for the kid, while he blows his paycheck at the local watering hole cursing her name in a drunken stupor right before he racks up another DUI or kills someone. She’ll waste money on lawyers and court resources fighting him for support and against visitation and custody, this, that and the other thing, for eighteen years.

This could be a funny story if we weren’t talking about drunk driving, unborn children, and man’s best friend. These two are both dumber than wood, with the trial judge not far ahead.

May the poor dog RIP, rotten eggs to the owners for letting it run loose and, your honor, get a grip.

Jesus, I pray, please come back soon.


Better to be judged by twelve than eaten by one.

Interesting. Keep going into the area of pets attacking people as these are good reading.

I’m a Malinois owner; ie police dog, the breed is like a German Shepherd, but on crack (all the time). This dog is intimidating even to friends and will make strangers piss their pants.

I have a very poor fence in front of my place that will be hard to get right, but I’m working on it and will eventually have it dog proof. I’m totally paranoid about it going into the street and we never have this dog out unattended. When it is out, it is on an e-collar where I can drop it like a sack of flour if it makes a run at passing walkers. (he just wants to play, but you don’t know that when he’s coming at you at 30 MPH). However if it did and this happened, I’d be owing the guy more ammo for his inconvenience. When your dog goes into the street out of control, you are a bad pet owner. I don’t care what kind of scum bag drops it.

Now where this gets interesting is when you are a good pet owner and have a good fence, good gate and said scum bag comes on your property w/out invite. I’m ok with my dog eating said scum bag for lunch. However it gets dicey there. I might be making a homeowners claim for their injuries. Despite hopping my fence and peering into windows in full on robbery prep (or actually breaking into the house).

Where’s the protection for the homeowner in this scenario?

Good point – why were the dogs unleashed?

Personally, this is not self-defense. Dogs are simply property (*) and if a piece of property is going to damage you, then you have the right to destroy it if necessary. To bring in animal cruelty is insane, which is why I expect legislatures and judges to do so.

(*) As opposed to slaves who (at one time) were property without ceasing to be fully human, or at least should have been treated as such under the law.

A very good example of “hard cases make bad law” was the snail darter(*) case, in which a project was stopped ostensibly because of a tiny endangered species, but actually because to keep some small property owners from having their assets forfeited. We are suffering with this precedent to this day.

Does the Common Law allow for special rulings not intended to set precedents?

(*) Or a similar one; my information is not first-hand.

Self-defense law defines the permissible killing of a human. A dog is property, therefor self-defense law doesn’t pertain to the case. The man did destroy another’s property. Was it wantonly destroyed or was its destruction justified? How about invoking the doctrine of competing harms? Should a person have to allow himself to be mauled/seriously injured in order to avoid destroying the property of another, or should that person be excused because the destruction of property prevented a more serious breach of the law?