It may not provide much comfort to those who fear lawsuits from bullet-riddled trespassers, but a new Virginia Court of Appeals decision affirms the availability of a self-defense claim in the shooting of a threatening dog.
The outcome is reversal of a felony criminal conviction for a Chesterfield County man who shot and killed a dog that he alleged was threatening him and his family in February 2011.
Mondrell Smith was alarmed that morning to hear his wife scream and a dog growl. He grabbed a shotgun with birdshot and rushed to his deck to find his wife and two-year-old son being menaced by a 60-pound chocolate lab, according to Smith’s trial evidence.
As his wife and son scurried to safety indoors, Smith fired one shot that hit the dog in the head and chest, injuries that proved fatal. Smith was charged with felony cruelty to an animal resulting in death.
After hearing evidence, Chesterfield Circuit Judge Frederick G. Rockwell III refused to instruct the jury on the defense of self-defense. He reasoned Smith could have retreated to the house with his family without shooting the dog.
The jury convicted Smith and recommended a $1,000 fine. “They had to convict him based on the instructions they had,” said Smith’s attorney, Richmond’s Brent A. Jackson.
A three-judge Court of Appeals panel reversed in an unpublished opinion Tuesday, saying the jury should have been allowed to consider the law of self-defense and Smith’s story about the incident. Self-defense applies for threatening dogs as well as threatening people, wrote Judge Robert J. Humphreys for the panel, citing a 1943 Virginia Supreme Court opinion.
Rockwell made factual findings that should have been weighed by the jury, the appeals court said. A jury could have concluded Smith “reasonably feared that the vicious sixty-pound dog who was growling and baring his teeth in close proximity to Smith was about to do serious bodily harm to him and/or his wife and small child,” Humphreys wrote.
The dog may be dead, but the Virginia law of self-defense appears to be alive and well, at least in the criminal context.