Last night, I had the privilege of assisting a U.S. LawShield member who was confronted with an attacking pit bull. Unfortunately, no law in Florida allows a person to shoot an attacking dog in defense of human life or injury. The victim fired a single shot at the dog killing it, as it charged toward him, teeth exposed. We discussed his options. Afterwards, he decided to speak with the police about the incident. The police arrived and took a report. Afterwards, the officer wished him a good evening, and returned his firearm.
Although we have posted about this subject before, I thought it would be a good time to remind everyone what Florida law says about shooting an attacking animal.
There is no general statutory authorization to use deadly force in self-defense against an animal attack against a human. Floridians must instead rely on common law and the specific wording of the animal cruelty statute to defend against potential charges if a dog is attacking a human. People are forced to rely on the requirement in the animal cruelty statutes that a killing be “necessary” in order to defend against the charge of animal cruelty.
Can I legally shoot an attacking dog or other animal?
Self-defense & “necessary” killings
As discussed above, the animal cruelty statute specifically criminalizes the “unnecessary” killing of animals. The statute reads:
A person who unnecessarily overloads, overdrives, torments, deprives of necessary sustenance or shelter, or unnecessarily mutilates, or kills any animal, or cause the same to be done, or carries in or upon any vehicle, or otherwise, any animal in a cruel or inhumane manner, commits animal cruelty, a misdemeanor of the first degree…
Therefore, a person presumably does not violate Florida law if they shoot an attacking dog or other animal, either killing or wounding it our of necessity.
What is a “necessary” killing?
Unfortunately, no cases directly address or define what a “necessary” killing is. “Necessary” killing has only been addressed one time in a written opinion. In Wilkerson v. Florida, where, along with the definition of “animal,” the court concluded that the term “unnecessary” was not unconstitutionally vague.
So when is it necessary to shoot an attacking dog or other animal? Where does this leave us in defining necessary killing? Based on the case law, a necessary killing appears to be two-fold: 1) it must be necessary to protect against an imminent danger to a human being; 2) it causes no more pain or suffering than is absolutely necessary to accomplish that goal.
Bartlett v. Florida, 929 So. 2d 1125 (Fla. 4th Dist. 2006): Defendant shot and chased away an opossum from his garage. It appears that this on its own would not have garnered an animal cruelty charge. However, the Defendant pursued the animal away from his home, and riddled the creature’s body with BB pellets. The overkill seems to be what violated the statute, because it resulted in more pain and an “unnecessary” level of cruelty.
Furthermore, Florida Statute §828.24, requires that any killing of an animal be done in a “approved humane method,” where the animal is “rapidly and effectively rendered insensitive to pain,” and includes killing an animal with a firearm. Florida Statute §828.23(6)(a).
When is it Necessary to shoot an attacking dog or other animal?
To decide if it is “necessary” to shoot an attacking dog or other animal we look to the affirmative defense of “necessity.” Necessity is a defense to a crime, including animal cruelty, and other laws regulating firearm use. In order for a person to be found justified in using force or deadly force against an animal attack, he or she must meet the following requirements:
- The actor reasonably believed a danger or an emergency existed which was not intentionally caused by himself or herself;
- The danger or emergency threatened significant harm to himself, herself, or a third person;
- The threatened harm must have been real, imminent, and impending;
- The actor had no reasonable means to avoid the danger or emergency except by committing the crime;
- The crime charged must have been committed out of necessity to avoid the danger or emergency;
- The harm that the actor avoided must outweigh the harm caused by committing the crime.
Imminent and Impending
There are some important definitions in these six requirements. You must consider these in deciding if you will use force or deadly force in self-defense against an attacking animal. These definitions can be found in Florida Standard Jury Instruction 3.6(k). For Example, “imminent and impending” means that the danger or emergency is about to take place and cannot be avoided by using other means. A threat of future harm is not sufficient to prove the defense of “necessity.” If your neighbor tells you that he is going to release his dog on you tomorrow unless you mow your yard, you cannot shoot his dog in anticipation of an attack the next day.
Furthermore, a person cannot use the defense of necessity if he or she used force or deadly force against the animal, after the danger from the threatened harm had passed. In other words, a person who survives the animal attack cannot go seek revenge against the animal that attacked him or her.
Case by case analysis needed
Deciding whether it was necessary and your actions were reasonable will be on a case by case basis. If your actions were found not be necessary because you could have walked back inside your house you could face criminal charges and certainly civil law liability. Furthermore, if your actions were not reasonable because you could have used some other kind of force that was available to you to prevent the attack you may also find yourself facing criminal or civil liability.
A strong belief that gun owners should be armed and educated is at the center of everything we do. All gun owners should learn about their rights and responsibilities. We speak at seminars throughout the state of Florida. U.S. LawShield subsidizes the cost of these seminars so that you only pay $10.00 to attend. Come see us speak at Active Shooter and Gun Law Seminars. For a complete schedule visit www.gunlawseminar.com. Further, if you have any questions about Florida Gun Law, or any other firearm related questions, visit our website, search our knowledge base, or leave a question for us to answer.
The Firearm Firm is a statewide Second Amendment and Self-Defense law firm proudly serving the people of the State of Florida.
By David S. Katz