The Animals Aren’t the Only Thing to Fear, Know the Law to Survive an Animal Attack – Florida

by sseverino April 16, 2018

In our last newsletter, we shared three real-life stories of people fighting off a wild bear attack. These scenarios beg the question: How can a person legally defend themselves against an attacking animal?

We asked your Independent Program Attorney to answer this question for you, so you will know what to do if you are attacked by an animal.

These sort of vicious animal attacks happen in Florida also, so what can you do to stop them? The answer, from a legal perspective, is more complicated than you would think. If you look through the Florida statutes, there is no one place to find a comprehensive man vs. animal answer. Animals, both domestic and wild, are discussed in various places in Florida Statutes and administrative code. It would be nice if the legislature had written one clear and comprehensive statute addressing the issue of use of force against animals, but as it now stands we must look to various laws, some not directly related to animals for guidance.

Before beginning a discussion of when deadly force may be used against animals, it is important to understand what constitutes an “animal” under Florida law. The Florida law prohibiting cruelty to animals provides a general definition to this term in section 828.02 of the Florida Statutes, specifying that “every dumb living creature” is an animal. Under the black letter of the law, virtually all living creatures still fall under the statutory definition.

Florida gives no general statutory authorization to use deadly force in self-defense against an animal that is attacking 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. Now that we have presented the basic issues in answering the question we will delve deeper into the animal cruelty requirement that the killing of an animal be “necessary,” and discuss the laws that exist relating to the use of deadly force against an animal assailant.

Florida’s 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…

Florida Statute §828.12 (emphasis added).

Therefore, a person presumably does not violate Florida law if the killing or wounding of an animal was “necessary.” Unfortunately, there is not yet any case law that directly addresses or defines what is a “necessary” killing. The only time it has been addressed in a written opinion is within Wilkerson v. Florida, where, along with the definition of “animal,” the court concluded that the term “unnecessary” was not unconstitutionally vague. Though not well-fleshed out by 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.

Example:

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 an “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).

To decide if the killing was “necessary” we look to the affirmative defense of “necessity.” Necessity is a defense to a crime, including animal cruelty. For a person to be found justified in using force or deadly force against an animal attacking, 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.

There are some important definitions in these six requirements that one must be aware of in deciding if he or she should 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). “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 if you don’t 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. In order to use deadly force against an animal attacking a human, it must be “necessary.”

What about when dogs attack a person’s livestock or domestic animals (pets)? According to Florida Statute §767.03, in a criminal prosecution or action for damages, a person has a defense if “satisfactory proof” is put forward that the dog had been or was killing any domestic animal or livestock. What is “satisfactory proof?” “Satisfactory proof” is not defined in Florida Statutes or by case law. Ultimately, it is up to the trier of fact (the jury) to determine what this means and decide whether you have met this common-sense burden of proof. Section 585.01 of the Florida Statutes, defines “domestic animal” as any equine or bovine animal, goat, sheep, swine, domestic cat, dog, poultry, ostrich, emu, rhea, or other domesticated beast or bird. The same statute defines “livestock” as grazing animals, such as cattle, horses, sheep, swine, goats, other hoofed animals, ostriches, emus, and rheas which are raised for private use or commercial purposes. It is important to note that the statutory allowance is for dogs only and does not appear to apply to other wild animals that are killing or attacking livestock or domestic animals.

Unlike Florida law, Federal law, in a comprehensive fashion, has actually had the foresight to specifically provide that a person may kill in self-defense an animal protected by federal law, such as the regulations concerning the Mexican gray wolf in 50 CFR §17.84(k)(3)(xii), or the grizzly bear in 50 CFR §17.40(b)(1)(i)(B). Therefore, if you are carrying a firearm in a National Park and you find yourself face to face with a grizzly bear, you will have a legal defense for protecting yourself. If you have any questions, my partner James Phillips and I (David Katz) are happy to speak with you. Call the U.S. Law Shield member benefit number on your membership card and they will connect you with us.

To View the law for defense against animals in other states click on the state names below:

Select U.S. States and Federal Law

The post The Animals Aren’t the Only Thing to Fear, Know the Law to Survive an Animal Attack – Florida appeared first on U.S. & Texas LawShield.