Bark. Bite. Bang. Mad Dogs, Bad Dogs and Wild Animal Defense

» A RABID DOG APPEARS IN TO KILL A MOCKINGBIRD. The children know the dog and know the owner, but the dog no longer knows them. Atticus is summoned, not for his wisdom or legal expertise, but because he is a crack shot. The dog stands undecided if it will continue down the road or take a side street to threaten unknown persons. Atticus decides the matter with a single shot, returns the borrowed rifle and goes back to work.

The passage has conversations about whether it is the season for “mad dogs” and about the dog’s owner. Neither is to the point. A rabid dog had appeared and there was only one solution. In the aftermath, the dog and its owner were not mentioned again. Life went on.

In reality, life does not go on. Dog owners have hard feelings, are in denial and demand to know how rabies was diagnosed. Neighborhood disputes are sparked. Lawsuits are filed. Animal abuse charges are filed.

Rabies can be confused with other diseases. Some sources estimate that the disease can lie dormant in an infected animal for up to a year. A plaintiff could easily argue that a layperson made a snap diagnosis and was wrong. In order to prove rabies, doctors must have the animal’s entire brain. A shot to the body might save later litigation. Rabies can exist in any warm-blooded animal, including endangered species and pedigreed family pets.

 

Rabies can be confused with other diseases. Some sources estimate that the disease can lie dormant in an infected animal for up to a year.

 

Infected animals display unusual behavior ranging from the dramatic, such as bats flying in daytime, to the subtle, such as shy animals approaching humans. Restlessness and disorientation can been seen at a distance. In general, aggressiveness and irritability to sound and movement are common. Constant growling is an early warning. Uncoordinated movement is a result of the disease attacking the nervous system. The animal might exhibit extreme thirst or avoid water as a consequence of inability to swallow. The famous frothing at the mouth is only the last stage; animals can be vicious and dangerous long before. Infected animals might go through some or all of the symptoms. Rabid animals will not be deterred by shouts or gestures (which might only provoke them).

These symptoms might be the result of other problems. Some might be the result of feeding the animal beer, which some morons find amusing. Intoxication aggravates human aggression and can be worse in animals.

Feral dogs have proved more dangerous than domestic dogs. Wolf attacks are rare, but dogs have lost the wild animal’s fear of man. Feral dogs have been abandoned or escaped to the wild. They form packs and have done a great deal of damage to livestock. These dogs represent the worst elements of civilization and the wild in one package.

DOGS OF WAR

“Soldier, how do you fire your weapons with those mittens?”

“Sir, I’m a dog handler. My weapon weighs 90 pounds.”¹

Rabid or not, dogs have been used as weapons. Their territorial instincts make them natural guard animals. They have also been used in attacks. Benjamin Franklin advocated setting dogs on enemy soldiers. It is an excellent theory, though the Continental Army had all it could do to make human soldiers charge the British line. A dog, having no vested interest in the battle, might show better sense.² The noise of battle would affect the dog’s sensitive hearing. Noise and smells would make the dog’s attack unpredictable.

Dogs have been used to attack on a smaller scale. The Supreme Judicial Court of Massachusetts found that a German Shepherd was a weapon for the purpose of their armed robbery statute.³ The dog did not attack but responded to its master’s commands and was used for intimidation. Conversely, dogs have been used for defense. The pack and territorial instincts of dogs are often exploited by criminals to protect criminal operations, as a dog will accept the criminal as his pack. In general, bad owners make bad dogs. Researchers have found that owners of aggressive dogs had significantly more criminal convictions than owners of unaggressive dogs.⁴

In short, animals are self-propelled weapons; they have teeth, claws and physical force.

Dogs appear to have been used as weapons ever since they joined us around the campfire, perhaps 10,000 years ago. Barking is a form of communication and can be a warning or a welcome. Growling and snarling is another matter entirely. This is an indication of attack, and when joined by ears laid back, hackles raised, tail raised and a general tension in the animal, it is the dog equivalent of a cocked pistol.

Is a charging animal a threat? The NRA acronym for self-defense is JAM: Jeopardy, Ability and Means. Jeopardy is a threat, ability is being within range to carry out the threat and means refers to a weapon. Different instructors use different terms and definitions, but the concept is the same. A snarling animal is making a threat, for reasons that are sufficient to the animal but not subject to negotiation. The animal will almost always be in range, as nearly all animals can move faster than humans.⁵ Flight might also trigger the predatory impulse.⁶ In short, animals are self-propelled weapons; they have teeth, claws and physical force.

When a criminal sees a gun pointed at him, he will surrender or run in nearly every case. Animals do not share this cultural communication. Cesar Millan, the famous “Dog Whisperer,” advises looking like an Alpha Dog, a pack leader. This involves drawing oneself up and giving short, authoritative commands. He is a natural at this, and it seems that most people are not. Slow, sideways steps might take the person out of the dog’s territory. Anything that makes it unnecessary to pull the trigger makes that person’s life less complicated. When the answer to the JAM questions is, “Yes, yes and yes,” don’t forget to reload.

Animals can be killed in self-defense even if out of season or even if endangered. Such killings will otherwise be crimes.

Wild animals are governed by the same self-defense analysis. There might be legal complications. An American dentist killed the “wrong” lion in Zimbabwe and an international outcry led to him receiving credible death threats. It has since been discovered that the dentist had all the right permits and did nothing illegal. He might have been guided to the wrong lion. Several airlines responded by refusing to transport legal animal trophies.

Animals can be killed in self-defense even if out of season or even if endangered. Such killings will otherwise be crimes. Federal regulations graciously allow persons to act in self-defense when attacked by grizzly bears or the Mexican gray wolf, both endangered species. If a grizzly is killed, the killing must be reported to the U.S. Fish and Wildlife Service within five days. The specific office is detailed in the regulation, and kills in different parts of the country must be reported to different offices.⁷

If a Mexican gray wolf is killed, it must be reported within 24 hours to the U.S. Fish and Wildlife Service’s “Mexican Wolf Recovery Coordinator.” The regulation does not provide an address for this unique bureaucrat.⁸ Both regulations assume that the person will recognize the species killed. In some places, it might take five days to hike to an area with phone service, much less a copy of the Code of Federal Regulations.

The safe course of action is to notify the U.S. Fish and Wildlife Service when any animal is killed, as this might be important for game management. If you find yourself under such an unfortunate circumstance, document the report and record the identity of the person to whom you give the report. This prevents “misunderstandings” later. The legal maxim is that if it is not in writing, it did not happen. Feel free to report the shooting to state and federal officers. This will cover any unknown regulations and the government loves redundancy.

States will typically provide statutory authority for killing animals (including dogs) in defense of self or livestock. Texas allows killing an animal while or “after” that animal kills livestock or damages crops.⁹ Report any animal killed to the state Conservation Department. Document the report. Never assume that a dead animal in a remote area will never be discovered or traced to the shooter. Conservation agents have a limited number of people in their jurisdictions and are willing to use DNA and ballistics to link a dead animal to the shooter.

The legal aftermath of killing a dog can be as complicated as killing a person. The penalty is less, but the emotional response is worse. The shooter might exhibit post-traumatic stress disorder. The dog owner will insist that his pet was as gentle as a spring breeze, despite a documented history of violence. Responding police, prosecutors, judges and neighbors might be reminded of their own favorite dogs and animal cruelty charges are common.

THE CUJO-LASSIE PARADOX

Some people are terrified of dogs. Stephen King has employed them in some of the most terrifying scenes of his novels, but, in general, they are revered. A Missouri appellate court spent an entire page of a six-page opinion extolling the virtues and history of dogs.¹⁰ The case involved an issue of civil procedure in a case involving a dog bite. An 1870 Missouri case involved a farmer who killed “Old Drum,” a neighbor’s dog. The neighbor sued for $50. His lawyer made a famous speech celebrating the loyalty of dogs, a speech that reduced the jury to tears. The plaintiff won his $50.¹¹ To this day, a statue of Old Drum stands outside the Johnson County Missouri Courthouse, but there are none for the lawyer who gave the speech.¹²

Animal abuse charges cannot be regarded casually. Some are felonies and even a misdemeanor involving a gun can affect a license to carry concealed weapons. In the aftermath of the self-defense shooting of a dog, the behavior of the dog immediately before the attack must be meticulously explained to the judge or jury. It might be necessary to hire an expert witness to explain the meaning of the animal’s behavior. Some defendants do not express themselves well and require expert elaboration. Some experts are geniuses in their field but do not express themselves well. This is why lawyers have jobs.

It is astonishing how often self-defense is resisted in cases where the dog was clearly aggressive. A retired deputy sheriff fired warning shots at two aggressive stray dogs.¹³ She was charged with discharging a firearm with gross negligence, and the judge refused to allow a self-defense instruction to the jury. The Court of Appeals found this to be a reversible error.¹⁴ Harold Fish was hiking in the Arizona mountains when he was charged by two dogs. He fired warning shots and was promptly charged by a man with the dogs. He killed the man in self-defense. He was vilified by local dog lovers more for the warning shots at the dogs than the fatal shot at the man.

Dogs have lived with us for thousands of years, yet we still do not understand each other’s communication. Dogs often turn on us; dog bites are far more common than wild animal bites, although this might be a function of dogs living among us. A veteran of the Rhodesian War recounts patrolling an area that had been depopulated, leaving behind the dogs. The dogs formed feral packs. One night, his patrol found itself surrounded by a pack of 60 dogs. The dogs maneuvered on the patrol with enviable tactical skill. Rifle fire and a rocket launcher did not discourage the attack. The dogs were only driven off when incendiaries were employed.

The incident demonstrates that dogs have lived among humans for millenia and some of them don’t like us very much.

ENDNOTES

(1) Author’s experience.
(2) I cannot help saying they would have no dog in the fight.
(3) Commonwealth v Tarrant, 326 N.E.2d 710 (Mass. 1975).
(4) “Vicious Dogs, Vicious Owners?” MSNBC.com, Nov. 16, 2006.
(5) There was a guy who chased his girlfriend with a snapping turtle. Why he thought that would work out well is beyond me.
(6) Seen in humans as well as other animals.
(7) 50 CFR section 17.40(b)(i)(B).
(8) 50 CFR section 17.84(k)(3)(xii).
(9) Tex Penal Code section 42.092€(1).
(10) State of Missouri ex rel. the Kroger Company v Craig, 329 S.W.2d 804 (Mo. App Springfield Dist 1959) at 808.
(11) Journal of the Missouri Bar May-June 2009, at 138, et seq.
(12) George Graham Vest. People like dogs more than lawyers. I’ve gotten used to it.
(13) Dogs appear to be more likely to attack when in groups or when other dogs are present.
(14) People v Lee, 131 Cal App 4th 1413 and 32 Cal Rptr3d 745 (Cal App. 2005).