by Marty Hayes, J.D.
I got a call the other day that I thought would make good subject matter for my President’s Message. The caller, a Network member for several years, related a story to me. It seems that a good friend of his is an avid bicycle rider. He was riding along one day and was chased by a dog. In response to the dog chasing him, he drew his pistol and fired close to the dog, with the hope of scaring the dog away. Our member related that he tried to explain to his friend how this might not be the best course of action to take. His friend was having nothing to do with the member’s argument and so the member called me to discuss it.
We had a nice discussion covering several factors. First, any discussion of use of force must take into account your local laws, including a search for appellate court cases addressing the issues in the incident. I recently came across a great legal research tool, available free of charge and without commercial advertisement. That tool is called Google Scholar and it is awesome. I have been using it to research case law regarding the Network’s fight with the WA Office of Insurance Commissioner and in doing so, cross checked what I found against some other case law search engines. I found it to be accurate.
Google Scholar’s use is pretty easy: you click the button for Case Law Search at https://scholar.google.com and select the state you wish to search. Then, when you get to the search function, type in the specific statute number if you have one, or a relative term like “shooting dog in self defense” and you should find cases which address your question. You might have to try various different search terms to get to all the cases.
If you find a case or cases relevant to your topic, the decision will likely reference a previous case (indicated by a blue underlined link). You can click on the link and browse directly to that case for further study. Keep reading the various decisions, until you have decisions addressing your area of concern. When I find a case I want to save, I copy the whole case and paste it into a Word document for future reference. My hard drive is full of these types of files on a variety of legal subjects.
Once you know what the courts have decided about this particular subject, you are in a better position to understand whether or not shooting at a dog chasing you as you ride a bicycle would be considered a reasonable act. If you did not find any cases directly applicable to your area of concern, your particular issue might currently have no case law, meaning that no appellate court in your jurisdiction has ruled on that particular issue yet.
If you go on to commit an act (like shooting to scare away a dog) that gets you arrested, prosecuted and convicted, YOU get to be the test case, which means you are the appellant in the court of appeals decisions. Of course, that process would take many months, if not years to wrap up, not to mention the money you spend. If you are a member of the Network, we would likely assist in a case like this, but we would need to look at the specifics before believing that firing the gun was reasonably necessary.
In a perfect world, you take no shots at or towards the dog, but instead, use a fogger can of pepper spray discharged into the path of the pursuing dog, and at the same time yell a loud NO. Domestic dogs may be conditioned to react to the NO command, and accompanied by the pain of pepper spray exposure, are likely to break off their pursuit. That’s much better than shooting at or near the dog.
Whenever a person discharges a firearm in public, that act will be scrutinized and a decision whether to prosecute will hinge on a couple of factors. First, was the person in fear of death or grave bodily injury at the moment the trigger was pulled? If the person was in reasonable fear of death or grave bodily injury, the question becomes, was the force used no more than what was reasonable under the circumstances. If the answer to both these questions is yes, there is a good likelihood that you would not be arrested or prosecuted. But if the answer is NO, or even “Don’t Know” then the police may just decide to err on the side of caution, make the arrest, and let the prosecutor make the final decision to prosecute or not.
Now, getting back to our dog issue. If a dog is chasing me, the first thing I want to do is eliminate the dog’s instinctive predator/prey response. I would stop at a safe location, face the dog with my can of pepper spray in hand, and yell a firm NO. The mere act of squaring off to the dog, taking an aggressive posture and giving a forceful command will stop most dogs in their tracks. They are, after all, masters at reading body language and making predator/prey decisions. All of a sudden you turned in to a large and aggressive predator and that should stop the dog.
What if it doesn’t? If the dog attacks, then you are much better off defending yourself from a standing platform, as opposed to a rolling one. When do you shoot? That will be up to you and entails concerns specific to the situation. For me, I will likely wait until the dog has ahold of my pants, then shoot down into the back, aiming to hit the spine. I don’t want to shoot at an angle, as a bullet has a good chance of ricocheting off the hard pavement or gravel and going who-knows-where. As in the original question about shooting to scare a dog, that would very likely get you charged with some type of gun crime–perhaps at the low end of the spectrum violating a local no shooting ordinance, or at the upper end, felony reckless endangerment.
Shooting at dogs is a tricky business. I would do just about anything to avoid it and consider it necessary only after concrete evidence I was being attacked (like bite marks on my calf or torn trouser legs). I would welcome reader input on this issue, either regarding the legalities or the tactics. What worked for you, under what circumstances?
Update on Insurance Commissioner
The old saying “No news is good news” applies. We haven’t heard a thing from the Washington Office of Insurance Commissioner, but through our freedom of information/public records requests, I have learned a lot about what the OIC seems to be looking for. As I’ve mentioned in past columns, they have or are also investigating NRA and their insurance underwriter Illinois Union Insurance Company, the USCCA, Texas/US Law Shield, CCW Safe, and since my last column, I’ve learned that they investigated the Fraternal Order of Police’s Legal Defense Plan.
Apparently, the FOP investigation is complete and the OIC has not taken any formal action against them. Network membership benefits very closely parallel the FOP’s Legal Defense Plan, and both programs were created for the same reasons. When the FOP started their Legal Defense Plan, it was in response to allegations of misconduct against officers and individual officers being targeted unjustly by their agencies. Consequently, they offer three types of plans: A) Administrative Actions, B) Civil and C) Criminal. They describe their plan as follows: “A self-funded ERISA plan that is available to eligible FOP groups and individual members. The Plan provides coverage for administrative proceedings, including those arising off-duty and outside the scope of employment, civil lawsuits, and criminal investigations, prosecutions, and grand jury proceedings that arise in the scope of your law enforcement employments.”
If you’re interested in greater detail, click http://www.foplegal.com/, and spend a little time on the Fraternal Order of Police website. You will find that what they do and offer is very closely aligned with what the Network does. I should have more information for my next column.
Chat with Me at Gunsite Alumni Shoot
For our members who are going to the Gunsite Alumni Shoot October 5th this year, please look me up. I will be the big blond guy shooting a 1911 and wearing a navy Network ballcap. I would love to shoot with some of our members.
To read more of this month's journal, please click here.