The Second Amendment protects the right to “keep and bear arms,” not a right to use them
FREDERICK, Maryland––Jonathan Hervet, 38, of Myersville, Maryland, told police on June 5, 2022, that he shot Vader, a pit bull mix he had never seen before, after Vader invaded his yard, where his wife was outside, menaced their chickens, and charged Hervet himself when Hervet fired a warning shot into the ground from his nine-millimeter Ruger handgun.
The bullet Hervet fired at Vader passed through a back leg just above the knee.
Promptly treated for the injury, Vader is expected to make a complete recovery, Frederick County Animal Control supervisor Sergeant Maggie Hill on June 24, 2022 told Frederick News Post reporter Clara Niel.
“Acting in the interest of his personal safety”
“Hervet was acting in the interest of his personal safety when he fired on Vader,” making his actions legally justified, Frederick County Animal Control officer Alex Burrell concluded two days earlier.
Burrell also concluded, however, that “there was no evidence that [Vader’s owner] Chloe Shiuk violated any animal control ordinances,” wrote Neil.
Hervet meanwhile “obtained a peace order against Shiuk, valid through December 17, 2022. He also pressed charges against her, alleging harassment,” Neil continued.
“Hervet alleged that Shiuk contacted him four times by phone and private message after the shooting,” Neil elaborated, “and he told her to stop calling him. Hervet wrote in the application that Shiuk also left two bad reviews online about the land clearing and excavating company he owns. A court hearing is scheduled for August 17, 2022.”
Second Amendment does not proclaim a right to self-defense
The incident, a commonplace dispute between chicken-keeping neighbors and a pit bull owner who underestimated the potential consequences of allowing her pit bull to run amok off her property, raised a bigger issue: to what extent, if any, does the Second Amendment to the United States Constitution defend a person’s right to shoot a menacing dog?
States the Second Amendment, in entirety, “A well-regulated Militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”
“Don’t fire until you see the whites of their eyes”
Adopted in 1791, before the use of firearms for any but military purposes became commonplace, the Second Amendment directly addressed neither sport hunting nor bearing arms in self-defense.
Firearms in those days were too heavy, too inaccurate, and too slowly reloaded to be of much use in either killing wildlife, fending off armed robbers, or repelling an attack by Native Americans.
Firearms were most effective when multiple guns could discharge volleys of shots in relays, with one row of soldiers shooting while another reloaded.
Even then, the rule of combat was “Don’t fire until you see the whites of their eyes!” to avoid wasting ammunition.
The militias who helped to fight the American Revolution, meanwhile, had long since been disbanded. The “well-regulated militias” mentioned in the Second Amendment existed almost exclusively in the slave-holding Southern states, where their chief duty was tracking, capturing, and killing runaway slaves. A secondary function was discouraging, by their mere existence, slave revolts.
Shooting dogs to this day has yet to come to the attention of the U.S. Supreme Court. But the Supreme Court since 1977 has repeatedly re-interpreted the Second Amendment to hugely expand the right of citizens to keep and bear arms, and even, on June 23, 2022, the right to carry concealed weapons.
Guns & dogs
The June 23, 2022 U.S. Supreme Court decision struck down a century-old New York state law requiring persons carrying concealed weapons to obtain a permit, issued only to those who could demonstrate and actual need to do so.
Thus there is little legal question that a private citizen, for instance Jonathan Hervet, may carry a firearm for defense of self, family, and property, including against dangerous dogs.
But whether and when a private citizen actually has the right to shoot a dog he or she deems dangerous is an entirely different matter.
Elephants & dogs
Only nine days before the June 23, 2022 Supreme Court ruling, New York Court of Appeals on June 14, 2022 affirmed that “elephants are intelligent beings deserving of proper care and compassion,” and “are not the equivalent of ‘things’ or ‘objects’” under existing law, because existing law recognizes elephants as an endangered species and provides some protection to all vertebrate animals against cruel or negligent treatment.
At the same time, though, the New York Court of Appeals also affirmed that elephants are property, who may not be removed from custody of a zoo by writ of habeas corpus.
The same legal logic, for the most part, applies to a dog.
No “right” to shoot even an elephant running amok
An elephant running loose may not be lured home with peanuts and kept as a pet; neither may a person adopt a stray dog without making a reasonably diligent effort to find the dog’s owner.
Shooting an elephant running amok might be legal if the elephant presents an actual, demonstrable threat to human life, but not if the only risk is to inanimate property, as at least one court held in response to damage claims filed after an elephant named Tusko on May 17, 1922 bolted from the A.G. Barnes circus in Sedro-Wooley, Washington, wrecking cars and buildings on a 30-mile rampage through the Skagit River valley.
Shooting a dog running astray, contrary to common belief, is not among the rights of property owners in most U.S. states, even if the dog might potentially present a threat to livestock or, for that matter, to humans.
Moreover, shooting a dog even in direct self-defense may be a criminal action, especially if a hastily fired shot hits someone else or hits a house.
22% of civilian-shooting-dog cases bring criminal charges
Reviewing 114 instances of civilians shooting dogs since 2019, exclusive of law enforcement officers acting in the performance of their duties, ANIMALS 24-7 found that 22% resulted in criminal charges of some sort being brought against the shooter.
This included 12 of the 71 cases in which the shooter shot a pit bull (17%), ten of the 27 cases in which the shooter shot a dog of unspecified breed (37%), and three of the 16 cases (19%) in which the shooter shot a dog of any other breed.
If the ratio of pit bulls among the dogs of unspecified breed was the same as among the cases in which dog breeds were identified, pit bulls were shot in 93% of the cases, with prosecutions resulting in 22% of those cases.
Self-defense, protection of others, & protection of other animals
Overall, shooters claimed self-defense as their cause for shooting a dog in 24% of the cases; claimed defense of another human in 37%; and claimed defense of other animals in 30%.
No motive involving direct defense of humans or other animals was claimed in 9% of the dog shootings.
Shooters claimed self-defense in 27% of the pit bull shootings, claimed defense of another human in 38%, and claimed defense of another animal in 37%.
There were no pit bull shootings in which the shooter did not claim to be defending self, other humans, or other animals.
“When it’s legal to kill a dog”
Nolo Legal Encyclopedia legal editor E.A. Gjelton offers perhaps the most comprehensive easily accessible resumé of “When It’s Legal to Kill a Dog” at https://www.nolo.com/legal-encyclopedia/free-books/dog-book/chapter9-2.html
Observes Gjelten, “Most animal cruelty laws make it a crime to kill or injure animals ‘unnecessarily’ or “without justification.” The most obvious justification is self-defense or defending another person from harm. That doesn’t necessarily mean, however, that you can shoot a dog just because it’s growling or barking at you or it has bitten someone in the past.
“The general rule most courts follow: You must believe it’s necessary to kill or injure the animal in order to prevent an immediate threat of serious injury—and that belief must be reasonable. Some states, like Georgia, have explicitly included this rule in their laws.
“Many states also have laws that make it legal for farmers or others to kill dogs who are chasing, harassing, or injuring their livestock or domestic animals,” Gjelten writes, “which may or may not include pets.
“People generally are not allowed to kill someone else’s dog in retaliation for past attacks,” Gielten warns, “unless there is an exception in the law. For instance, a California statute says that people have the right to kill any animals “known as dangerous to life, limb, or property.”
The California law notwithstanding, Californians who shoot dogs can expect to be obliged to prove in court that those dogs were “known as dangerous to life, limb, or property,” based on verifiable past behavior.
“Courts have generally found that landowners don’t have the right to kill dogs just because they’re trespassing,” Gjelton advises. “Here again, there may be exceptions. For example, an Ohio statute says that it’s not illegal for landowners to kill or injure animals while trying to keep them from trespassing or while driving them away from the property.
“However, the landowners must pay compensation to the animals’ owners, minus the amount of any damage that the trespassing dogs caused.”
The bottom line, for Gjelten, is that “If you’ve killed or injured someone else’s dog—or another person has hurt your pet—you might want to consult with a lawyer.
“An attorney specialized in animal law or personal injury law should be able to explain how local law and recent court decisions apply to your situation, as well as your legal options. And if you’re facing criminal charges for killing a dog,” Gjelten recommends, “you’d be wise to contact a criminal defense attorney as soon as possible, in order to protect your rights.”