Tuesday, May 1, 2018

When Can I Shoot My Neighbor’s Dog?

Overview

Occasionally, farmers and ranchers are required to defend their livestock from harm caused by trespassing dogs.  Many states have adopted statutes that permit dogs to be killed if they are caught in the act of harming domesticated animals. However, it is critical to follow the specifics of the applicable state statute allowing the killing of trespassing dogs.  Failure to do so can result in a criminal charge of cruelty to animals.

Today’s post examines the issue of killing trespassing dogs. 

Sample State Statutes

Here’s a sample of state “dog-kill” statutes: 

Illinois (Illinois Comp. Stat. Ann. Chapter 510, Section 5, Subsection 18):  “Any owner seeing his or her livestock, poultry, or equidae being injured, wounded, or killed by a dog, not accompanied by or not under the supervision of its owner, may kill such dog.”

Indiana (Indiana Code §15-20-2-2):  “A person who observes a dog in the act of killing or injuring livestock may kill the dog if the person has the consent of the person in possession of the real estate on which the dog is found.”

Iowa (Iowa Code §351.26-.28):  “It shall be lawful for any person, and the duty of all peace officers within their respective jurisdictions unless such jurisdiction shall have otherwise provided for the seizure and impoundment of dogs, to kill any dog for which a rabies vaccination tag is required, when the dog is not wearing a collar with rabies vaccination tag attached. It shall be lawful for any person to kill a dog, wearing a collar with a rabies vaccination tag attached, when the dog is caught in the act of chasing, maiming, or killing any domestic animal or fowl, or when such dog is attacking or attempting to bite a person.  The owner of a dog shall be liable to an injured party for all damages done by the dog, when the dog is caught in the action of worrying, maiming, or killing a domestic animal.”

Kansas (Kansas Stat. Ann. §47-646):  “It shall be lawful for any person at any time to kill any dog which may be found injuring or attempting to injure any livestock as defined in K.S.A. 47-1001, and amendments thereto.”  The term “livestock” is defined in K.S.A. §47-1001 as meaning and including, “cattle, bison, swine, sheep, goats, horses, mules, domesticated deer, camelids, domestic poultry, domestic waterfowl, all creatures of the ratite family that are not indigenous to this state, including, but not limited to, ostriches, emus and rheas, and any other animal as deemed necessary by the [animal health commissioner of the department of agriculture] established through rules and regulations.”

Nebraska (Neb. Rev. Stat. §54-604):  “Any person [,firm or corporation] shall have the right to kill any dog found [killing, wounding, injuring, worrying, or chasing any person or persons or any sheep or other domestic animals belonging to such person, firm, or corporation] doing any damage …to any sheep or domestic animal, or if he shall have just and reasonable ground to believe that such dog has been killing, wounding, chasing or worrying such sheep or animal; and no action shall be maintained for such killing.”

Observations

As can be noted from the above-cited state statutes, they all require certain conditions to be satisfied before a trespassing dog can be killed without legal ramifications.  Essentially, the statutes require that the dog be “caught in the act” of doing some specified act to covered livestock.  The statutory definitions of the acts described are important, as is the definition of the livestock that are covered.  That makes it critical to preserve evidence showing that the statutory requirements have been met.  For example, in Grabenstein v. Sunsted, 237 Mont. 254, 772 P.2d 865 (1989), a farmer shot a neighbor’s dog that had broken into the farmer’s chicken coop and had killed all but one of the chickens when the farmer found him in the pen trying to kill that chicken and shot him.  The Court held that the farmer had a common law right to kill the dog in such a situation and that the later enactment of the dog-kill statute had not removed that right.  It was of no importance that the dog was of much more value at the time it was shot than was the sole remaining chicken.

Failure to maintain strict compliance with a particular state’s dog-kill statute could result in the person killing the dog being convicted of cruelty to animals.  Indeed, the Oregon cruelty to animal statute has been upheld against a constitutional challenge that it was vague and overbroad.  State v. Thomas, 63 P.3d 1242 (Or. Ct. App. 2003).  The court held that the Tenth Amendment does not prohibit the authority of states to regulate the conduct of its citizens.  As a result, the statute under which the defendant was charged with first degree animal abuse for shooting neighbor’s dog was constitutional as not prohibited by Tenth Amendment.  Also, in State v. Walter, 266 Mont. 429, 880 P.2d 1346 (1994), the Montana Supreme Court held that the defendant was properly found guilty by the trial court of the misdemeanor of cruelty to animals.  The court determined that there was sufficient evidence that the defendant did not shoot the dog while it was in the act of doing any of the statutorily enumerated things that would give the defendant the right to shoot the dog.  Also, in Propes v. Griffith, 25 S.W.3d 544 (Mo. Ct. App. 2000) the court held the defendant liable for actual and punitive damages for killing dogs that the defendant claimed were harming his sheep.  The court determined there was insufficient evidence presented that the dogs were “killing, wounding or chasing” the sheep as required by state law.

Most dog-kill statutes are only designed to protect livestock-type animals.  For example, dogs are not “livestock” for purposes of the typical state statute.  See, e.g., People v. Bugaiski, 224 Mich. App. 241, 568 N.W.2d 391 (1997).  In addition, deer are usually not defined as “livestock.”  Thus, there is no statutory protection for shooting a dog while in the act of attacking deer.  See, e.g., Bueckner v. Hamel, 886 S.W.2d 368 (Tex. App. 1994).  Similarly, the usually is no statutory protection under a “dog-kill” statute for the killing a dog while in the act of attacking a household pet, such as a kitten.  See, e.g., McKinney v. Robbins, 319 Ark. 596, 892 S.W.2d 502 (1995).

Conclusion

Trespassing dogs can be a big problem for farmers and ranchers.  When they are shot in the act of damaging livestock as defined by the applicable state statute, they can be shot without repercussion.  However, of course, the dog owner will likely not be happy and neighborly relationships can be damaged.  As always, its good to have a conversation with neighbors about dogs and livestock so that potential problems can be minimized.  For many farmers and ranchers, the “shoot, shovel and shut-up” approach may seem like the best and most practical approach.  But, it can lead to problems – both interpersonal and legal.

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