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

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

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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Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition,” available at the Law of Self Defense blog (autographed copies available) and Amazon.com (paperback and Kindle). He also holds Law of Self Defense Seminars around the country, and provides free online self-defense law video lectures at the Law of Self Defense Institute and podcasts through iTunes, Stitcher, and elsewhere.
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