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Thread: use of force ??

  1. #1
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    ok ive been reading through the forum/case history links for the past for days and have a couple questions. ive been carrying for ~5 years now and have not even come close to even think about drawing thank god.

    however thinking back i can recall one incident in which i would have and would like to know whether it would have been justifiable. I was walking my golden retriever (8 years old and completely harmless) on public property in a leash law county. a black lab off leash without an owner in sight ran to us aggressively. my dog attempted to defend me placing himself between me and the lab who kept approaching. the Lab almost instantly got my older dog by the throat and would not let go; drawing blood. since i did not carry at the time i ended up severally spraining my wrist pounding on the dogs head (im ~200lbs but it had zero effect after 10+ strikes). so i resorted to kicking the dog in the ribs about a dozen times until he let go. my dogs neck was bleeding severally and my hand was hurt really bad. the other dog ended up with broken ribs/internal bleeding and was ultimately put down. the police rightfully did not charge me with anything and i am not sure what happened to the labs owner (it had rabies vac. was all i worried about).

    so long winded story over; if i had a handgun i would have used it. in virginia would this have been a legal use (jurisdiction had no firearm discharge policy)?

    second when the cases refer to "trespassing" most of the context is someone crossing/on a property. do the rules regarding use of force re trespassing also apply to home invaders? once someone enters your residence/buildings does the situation change? i would assume since they would be breaking/entering in addition to trespassing the resident would have more latitude in his options; correct?



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    in VA every dog has a one bite thing they can bite you and you cant do anything

    (from what I understand)

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    then why did i get away with (basically) kicking the dog to death? and it wasnt a bite it was mualing; he must have bite my dog about a dozen times trying to get deeper and deeper into his throat.

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    If my golden retriever and I were in your situation, I would shoot the dog. I couldn't just watch my best friend get mauled to death. I have no idea what the law says about that though.

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    hunter45 wrote:
    If my golden retriever and I were in your situation, I would shoot the dog. I couldn't just watch my best friend get mauled to death. I have no idea what the law says about that though.
    +1 " I was afraid he was going to come after me next your Honor. "



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    hunter45 wrote:
    If my golden retriever and I were in your situation, I would shoot the dog. I couldn't just watch my best friend get mauled to death. I have no idea what the law says about that though.
    ya when i was punching that lab i was so pissed. i was about 18 at the time and had the dog since i was 10! i am seriously a lover not a fighter; but the instant that dog latched on... it was on! didnt feel anything but once it was over my whole body was shaking from adrenalin/fear/excitement and my hand was a bloody/sore mess

    but to the question is that a cause to discharge a firearm? i know i saw something about dogs harassing livestock being reason to shoot one; but what if its a domesticate animal?

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    You can defend yourself or others against "serious bodily injury". I don't see why shooting the other dog would be illegal unless your dog is not considered a life. If it's seen as property I don't think you have a right to defend it... but I've heard that when police k-9s get killed they actually say officer down.


    I'd bet you could be sued civilly for the price / sentimental value of the other dog. Not saying they'd win... just saying.
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    well for what it's worth... You would only have had about-3 minutes to decide... and then you wouldhave beennext...!!!

    You can imagine the rest.....

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    In the City of Richmond, it is illegal to dischargae a firearm "unalwfully." Theoretically, self-defense is a "lawful" discharge. In this jurisdiction, probably up to the DA whether to prosecute. I would guess you would get charged.

    ETA: I would get charged. My old dog is 35lbs and 14 yrs old. I would defend her if I was in fear for her life.

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    Glocker9 wrote:
    in VA every dog has a one bite thing they can bite you and you cant do anything

    (from what I understand)
    ??? How do you determineif the dog has exceeded his one bite limit while he is tearing your esophagus out?

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    t33j wrote:
    I don't see why shooting the other dog would be illegal unless your dog is not considered a life. If it's seen as property I don't think you have a right to defend it...
    Double-standard. First the dog is a life, then it's not.

    Furthermore, I'd be worried that a dog that has just (or is about to) kill another animal or a person could be sick, rabid, or otherwise dangerous, and that it may go after either myself or a child somewhere if/when it is done attacking whatever it is currently after.
    Why open carry? Because 1911 > 911.

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    Forcing moral equivalency, man and beast, is incompetent. Try it at a slaughterhouse.

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    As usual, reference to the law gives way to speculation.

    Look here: Code of Virginia:
    § 3.2-6585. Dogs and cats deemed personal property; rights relating thereto.

    All dogs and cats shall be deemed personal property and may be the subject of larceny and malicious or unlawful trespass. Owners, as defined in § 3.2-6500, may maintain any action for the killing of any such animals, or injury thereto [emphasis added], or unlawful detention or use thereof as in the case of other personal property. The owner of any dog or cat that is injured or killed contrary to the provisions of this chapter by any person shall be entitled to recover the value thereof or the damage done thereto in an appropriate action at law from such person [emphasis added].

    An animal control officer or other officer finding a stolen dog or cat, or a dog or cat held or detained contrary to law, shall have authority to seize and hold such animal pending action before a general district court or other court. If no such action is instituted within seven days, the animal control officer or other officer shall deliver the dog or cat to its owner.

    The presence of a dog or cat on the premises of a person other than its legal owner shall raise no presumption of theft against the owner, and the animal control officer may take such animal and notify its legal owner. The legal owner of the animal shall pay a reasonable charge as the local governing body by ordinance shall establish for the keep of such animal while in the possession of the animal control officer.

    (1984, c. 492, § 29-213.95; 1987, c. 488, § 3.1-796.127; 1988, c. 537; 1998, c. 817; 2008, c. 860.)
    If I can find this stuff just about anybody else ought to be able to. Took me less time to find the citation than it did to read the OP's post.

    stay safe.

    skidmark

    Edited to add PS - In case anybody does not understand "All dogs and cats shall be deemed personal property" -- that means that here in Virginia you may not use deadly force against someone/something that is in the process of stealing, injuring, or otherwise damaging said personal property. As a matter of fact, using force against the attacking dog may open up the OP for a cause of action (law suit) by the owner. Yeah - stupid move if he does sue, but the chances of winning are there. Go look at the rule of competing damages.
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    My thoughts?

    Deadly force is defined as the amount of force that is likely to cause either serious bodily injury or death to another person.

    So when you shoot the the dog (property by definition) that is attacking your dog (property by definition), you aren't using deadly force since the dog is not a person it is property.

    You can use that "dog is property" definition BOTH ways!

    The "one bite" rule really applies to negligence of the owner. If the dog has no violent propensities and has never bitten anyone you are likely to be found not liable in civil court.

    Had your dog bitten prior or shown vicious propensities you (well your insurance company) is going to pay up.

    Not a lawyer YMMV, but handled a few dog bite claims in my days as a claim rep.

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    [I see Ric in Richmond and I were writing at the same time, so I've said the same thing he did, but did so with a lot more words. Since I am a lawyer, and get paid by the word...]

    1. The dog question's gotten most of the interest, here, but I'm going to answer the second question first, the one having to do with "home invasions" as trespassory acts.

    I maintain that the "castle doctrine" is good law in Virginia, and that permits one to defend his home against any and all invaders at any time. But the last cases on that point are over a hundred years old, and the Va. Sup. Ct. has recently issued an opinion observing that there is no statute in Virginia implementing the common law "castle doctrine". Which is true, but it's also a big, "so what?", in my opinion. I'd use it as a defense at trial if I had a client with an appropriate case, but I don't advise people to shoot trespassers.

    So what's a "trespasser" and what's that got to do with "home invasion"? This phrase, "home invasion" is a recent coinage in the popular media, based on press release statements by law enforcement agencies. It is not "legalese", and there is no legal definition for the phrase. I think they coined it in order to make a distinction between the seriousness of a "home invasion" and an ordinary trespass, so as to politically justify a stronger response by LEO's, a better chance at conviction, and harsher sentences. That doesn't mean they'll treat you any better if you shoot someone who's broken into your house in the daytime without having made any threats against a person.

    There are quite a few judicial opinions (including Va. and U.S. Sup. Ct. opinions) that say that defense of "mere" property does not excuse the use of deadly force. Note that, as a technical point, I'm using the word, "excuse" rather than "justify": justifiable homicide is when the state or someone acting for the state kills another person lawfully. When a citizen kills another citizen in a situation which wouldbe unlawfulexcept that a legal defense applies, that's "excusable" homicide.I would point out that "stopping a serious felony" is one such defense. The "serious felonies" are well defined: rape, robbery, murder, arson, and burglary. Note that last item, burglary. The common law definition of burglary is "the breaking and entering of the dwelling place of another in the night-time with the intention to commit a felony." There are a number of forms of statutory burglary that apply that definition to other places, but the day-time/night-time distinction is still important.

    So a "home invasion" at night is presumptively a serious felony, so you can use deadly force to stop a person who's broken in at night; but the "home invasion" that happens to take place while there's still daylight is merely a trespass, and you can't use deadly force to protect "mere" property, whether real or personal.

    Another side note: the notion of "one's home" for castle doctrine purposes, as well as the definition of "dwelling place" for burglary purposes have traditionally included "the curtilage thereof". The curtilage is the area normally used by people, and the concept comes from the time when one might have a fenced-in farm yard, outbuildings, etc.; beyond the "curtilage", are fields and wood-lots and such, where one would normally not expect to find a defenseless human. That legal concept was designed to protect someone trudging to the outhouse at 2:00 a.m., as well as someone sleeping in his bed.

    2. As to the dog. A couple of the points I've already made apply, most importantly, that you cannot use deadly force to protect "mere" property. And a dog is an article of personal property, not a "person". Which means you cannot shoot the owner of the dog because his dog is attacking you or your dog, but you can sure as hell shoot the other dog. That's not "deadly force", because that other dog is not a person.

    Glocker9's commentabout the rule, "ever dog is entitled to one bite" makes sense, but only in the civil context. You can't sue someone and recover punitive damages on account of he let his dog bite you, unless you can show that he had reason to know the dog was vicious. And if the dog's bitten someone before, then he had reason to know, and his act in letting the dog bite you washis own malicious act. You can get compensatory damages for the bite, regardless, but this only has to do with the question of punitives. It has absolutely nothing to do with defending against a dog attack.

    As to the issue of discharging weapons within the city, or some other minor criminal offense arising out of the shooting of an attacking dog. The relevant defense there is called the "sudden emergency doctrine." That's the same rule that allows cops to violate speed limits and run red lights when chasing down a speeding vehicle. It's basically a way of avoiding the "intent" element of a criminal offense - If you acted under compulsion, due to a sudden and immediate threat to life, limb, or property, then you did not have the criminal intent required to be found guilty of a crime.

    Legally, the dog is not your friend. IT is an article of personal property; and your sentimental attachment to that property is just as worthless in the eyes of the law as how you feel about great-grandmother's teacup. ("If the law believes that, then the law is an ass." Well, yes.)

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    By the way, nothing I say on this website as "user" should be taken as either advertising for attorney services or legal advice, merely personal opinion. Everyone having a question regarding the application of law to the facts of their situation should seek the advice of an attorney competent in the subject matter of the issues presented and licensed to practice in the relevant state.

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    user wrote:
    [I see Ric in Richmond and I were writing at the same time, so I've said the same thing he did, but did so with a lot more words. Since I am a lawyer, and get paid by the word...]

    1. The dog question's gotten most of the interest, here, but I'm going to answer the second question first, the one having to do with "home invasions" as trespassory acts.

    I maintain that the "castle doctrine" is good law in Virginia, and that permits one to defend his home against any and all invaders at any time. But the last cases on that point are over a hundred years old, and the Va. Sup. Ct. has recently issued an opinion observing that there is no statute in Virginia implementing the common law "castle doctrine". Which is true, but it's also a big, "so what?", in my opinion. I'd use it as a defense at trial if I had a client with an appropriate case, but I don't advise people to shoot trespassers.

    So what's a "trespasser" and what's that got to do with "home invasion"? This phrase, "home invasion" is a recent coinage in the popular media, based on press release statements by law enforcement agencies. It is not "legalese", and there is no legal definition for the phrase. I think they coined it in order to make a distinction between the seriousness of a "home invasion" and an ordinary trespass, so as to politically justify a stronger response by LEO's, a better chance at conviction, and harsher sentences. That doesn't mean they'll treat you any better if you shoot someone who's broken into your house in the daytime without having made any threats against a person.

    There are quite a few judicial opinions (including Va. and U.S. Sup. Ct. opinions) that say that defense of "mere" property does not excuse the use of deadly force. Note that, as a technical point, I'm using the word, "excuse" rather than "justify": justifiable homicide is when the state or someone acting for the state kills another person lawfully. When a citizen kills another citizen in a situation which wouldbe unlawfulexcept that a legal defense applies, that's "excusable" homicide.I would point out that "stopping a serious felony" is one such defense. The "serious felonies" are well defined: rape, robbery, murder, arson, and burglary. Note that last item, burglary. The common law definition of burglary is "the breaking and entering of the dwelling place of another in the night-time with the intention to commit a felony." There are a number of forms of statutory burglary that apply that definition to other places, but the day-time/night-time distinction is still important.

    So a "home invasion" at night is presumptively a serious felony, so you can use deadly force to stop a person who's broken in at night; but the "home invasion" that happens to take place while there's still daylight is merely a trespass, and you can't use deadly force to protect "mere" property, whether real or personal.

    Another side note: the notion of "one's home" for castle doctrine purposes, as well as the definition of "dwelling place" for burglary purposes have traditionally included "the curtilage thereof". The curtilage is the area normally used by people, and the concept comes from the time when one might have a fenced-in farm yard, outbuildings, etc.; beyond the "curtilage", are fields and wood-lots and such, where one would normally not expect to find a defenseless human. That legal concept was designed to protect someone trudging to the outhouse at 2:00 a.m., as well as someone sleeping in his bed.

    2. As to the dog. A couple of the points I've already made apply, most importantly, that you cannot use deadly force to protect "mere" property. And a dog is an article of personal property, not a "person". Which means you cannot shoot the owner of the dog because his dog is attacking you or your dog, but you can sure as hell shoot the other dog. That's not "deadly force", because that other dog is not a person.

    Glocker9's commentabout the rule, "ever dog is entitled to one bite" makes sense, but only in the civil context. You can't sue someone and recover punitive damages on account of he let his dog bite you, unless you can show that he had reason to know the dog was vicious. And if the dog's bitten someone before, then he had reason to know, and his act in letting the dog bite you washis own malicious act. You can get compensatory damages for the bite, regardless, but this only has to do with the question of punitives. It has absolutely nothing to do with defending against a dog attack.

    As to the issue of discharging weapons within the city, or some other minor criminal offense arising out of the shooting of an attacking dog. The relevant defense there is called the "sudden emergency doctrine." That's the same rule that allows cops to violate speed limits and run red lights when chasing down a speeding vehicle. It's basically a way of avoiding the "intent" element of a criminal offense - If you acted under compulsion, due to a sudden and immediate threat to life, limb, or property, then you did not have the criminal intent required to be found guilty of a crime.

    Legally, the dog is not your friend. IT is an article of personal property; and your sentimental attachment to that property is just as worthless in the eyes of the law as how you feel about great-grandmother's teacup. ("If the law believes that, then the law is an ass." Well, yes.)
    As always, great information User. Skidmark and I and everyone else have been over the dog issue before and I can't see a lot of use doing it again

    Except, there is some case law on Dog attacks that I haven't found yet...this is from memory so no penalty flags please.

    There was a bill introduced this year that I don't have at hand. I deleted my politics page yesterday and have to sort a couple thousand bills to find it.

    The "Purpose: was to add restrictions on using any means possible to prevent an attack on a companion animal, by another animal. The patron said in Va. the owner could use any means possible to stop the attack and there should be limitations.

    It died an early death so I didn't follow it and I suffer from CRS.

    Since there is no statute that seems to say that, I've made the dangerous move of assuming...it's case law.



  17. #17
    Regular Member SouthernBoy's Avatar
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    Glocker9 wrote:
    in VA every dog has a one bite thing they can bite you and you cant do anything

    (from what I understand)
    I have to say I have no idea where you heard that nonsense. If a dog attacks you illegally, kill it.

    In the final seconds of your life, just before your killer is about to dispatch you to that great eternal darkness, what would you rather have in your hand? A cell phone or a gun?

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  18. #18
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    Ric in Richmond wrote:
    So when you shoot the the dog (property by definition) that is attacking your dog (property by definition), you aren't using deadly force since the dog is not a person it is property.
    I'll go with that.
    Why open carry? Because 1911 > 911.

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    Regular Member ChinChin's Avatar
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    OK, let me throw a money-wrench into everybody's posts.

    § 18.2-280. Willfully discharging firearms in public places.
    A. If any person willfully discharges or causes to be discharged any firearm in any street in a city or town, or in any place of public business or place of public gathering, and such conduct results in bodily injury to another person, he shall be guilty of a Class 6 felony. If such conduct does not result in bodily injury to another person, he shall be guilty of a Class 1 misdemeanor.
    B. If any person willfully discharges or causes to be discharged any firearm upon the buildings and grounds of any public, private or religious elementary, middle or high school, he shall be guilty of a Class 4 felony, unless he is engaged in a program or curriculum sponsored by or conducted with permission of a public, private or religious school.
    C. If any person willfully discharges or causes to be discharged any firearm upon any public property within 1,000 feet of the property line of any public, private or religious elementary, middle or high school property he shall be guilty of a Class 4 felony, unless he is engaged in lawful hunting.
    D. This section shall not apply to any law-enforcement officer in the performance of his official duties nor to any other person whose said willful act is otherwise justifiable or excusable at law in the protection of his life or property, or is otherwise specifically authorized by law.

    So it would appear that the Commonwealth does allow one to discharge their firearm to protect their property (dog, cat, car, grandmother's teacup.)

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    To bad it's not as far as it is in Texas.
    Why open carry? Because 1911 > 911.

  21. #21
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    Some news clips from shooting dogs.

    http://hamptonroads.com/2010/02/dog-...borhood?page=1

    By Cindy Clayton
    The Virginian-Pilot
    © February 16, 2010


    NORFOLK

    A pit bullwas shot and killed by an off-dutypolice officer in the 4600 block of McNutt Courtthis morning, said Karen Parker-Chesson, police spokeswoman.

    Other police officers were called on reports of shots fired at 12:24 a.m., Parker-Chesson said. When the officers arrived, they found the dog; it was removed by Animal Control officers.

    The dog apparently charged at the off-duty officer, Parker-Chesson said. The officer was not hurt.

    The incident is under investigation.

    Follow up story: http://hamptonroads.com/2010/02/slain-pit-bull-vick-remembered-candlelight-vigil

    Too long to paste and lots of comments!



    http://hamptonroads.com/2008/05/newp...ghbors-attacks

    By Patrick Wilson
    The Virginian-Pilot
    © May 10, 2008

    NEWPORT NEWS

    A Newport News police officer shot and killed a pit bull that was chasing people early Saturday morning, police said.

    The officer shot at the dog, a male, several times after the dog attacked him, police said in a statement.

    Police were called at 3:30 a.m. to the 400 block of Eureka Loop for a report of a pit bull chasing people.

    The dog was supposedly in a fenced-in yard, but got loose, police said.

    Witnesses told the officer that the dog was behind some townhouses. When the officer went to look, the dog attacked, police said.

    The officer was not hurt. Animal control authorities took possession of the dead dog.

    Patrick Wilson, (757) 446-2957, patrick.wilson@pilotonline.com

  22. #22
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    My uncle shot and killed two pit bulls that ran after him while he was in his yard in Centreville a few years ago.

  23. #23
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    AbNo wrote:
    Ric in Richmond wrote:
    So when you shoot the the dog (property by definition) that is attacking your dog (property by definition), you aren't using deadly force since the dog is not a person it is property.
    I'll go with that.
    Me too. There's an additional factor that I haven't seen addressed.

    If one's dog is attacked, and especially if you keep that dog as a measure of personal protection, doesn't that attack extend to one on one's own person, even if no physical injury has yet to occur?

    If a dog attacks my dog, it seems logical to believe that I am also in danger. Why should I wait until a measure of my protection is gone before defending myself?

    If a human attacks my dog, obviously the equation changes significantly, but in a way, it is not unlike an attempt to disarm me. Their action has demonstrated some intention to do me harm. I do not claim an immediate deadly force response is the only rational one, but, seriously, what kind of person does that? If someone attacks my dog in my presence while I am OC, he is not only a sociopath, but stupid as well. Protection from stupid sociopaths seems to be a pretty good reason to carry.

    I love dogs. They are by nature more noble than those owners who neglect their socialization to the point that they would attack another dog or human without provocation. I do not buy the statement that "there are no bad dogs," but those that have not been trained to be that way by an irresponsible human are exceedingly rare.

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    thanks yall; seems like pretty solid answers.

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