No, Indiana case has decided this matter to answer this question. Dixon & Moseley, P.C. attorneys frequently handle cases that have firearms dimensions, both at the trial court level and on appeal. A question that arises with some regularity in our practice and the news of the day is where a person used a firearm to defend himself from a vicious dog or animal attack.
In this case, if the person is charged with criminal recklessness in connection with the use of the firearm, can he or she assert the affirmative defense of self-defense? An affirmative defense makes lawful an act or omission that would otherwise be a crime. It seems logical self-defense would apply because it is used to prevent serious bodily injury or death to the person of a third party.
Nevertheless, the controlling statutory language appears to be indexed to reasonable defensive force, including deadly force, being applied against another “person.” Under the penal code, a “person” is defined as a human being (minor or adult), corporation, limited liability company, partnership, unincorporated association or governmental entity.
A person is not an “animal.” Thus, unless and until an Indiana appellate court interprets the statute otherwise, it is not an affirmative defense. However, there is a common law defense, despite the fact that all criminal acts must be defined in statute and do not lie in common law. This is the defense of necessity.
A defendant is entitled to have a jury instructed on any theory or defense which has foundation in evidence, despite the fact it is not an affirmative defense. This includes the defense of necessity. The common law defense of necessity is often referred to as the “choice of evils”, whereby a defendant was faced with a situation of picking the lesser of evils
In the case of use of deadly force to repeal a vicious animal attack, the lesser of evils is repelling the attack by discharging a firearm and shooting the animal or placing someone at risk for shooting in the face of a willful disregard of the danger in doing so, such as where there are homes or people nearby.
Because this defense is not an affirmative defense, the defendant must establish the following six (6) elements in his or her evidence:
- The act charged must have been done to prevent a significant evil.
- There must have been no adequate alternative to the commission of the act.
- The harm caused by the act must not be disproportionate to the harm avoided.
- The accused must entertain a good-faith basis that his or her act was necessary to avoid the greater harm.
- The belief must be objectively reasonable under all the circumstances.
- The accused must not have substantially contributed to the creation of the emergency.
The party who carries the burden of proof is significant. It is much harder to prevail on a general defense than an affirmative defense. Thus, any prudent firearms owner should be fully aware of the implications of use of deadly force against an animal.
The most powerful safety and security weapon is to avoid such risks. Dixon & Moseley, P.C. advocates hope this educational information may make you and your community safer. Our advocates practice throughout the State of Indiana. Be informed.
