What Does the Law Say?
By David S. Lewis
A dog shot dead early this year in Park County caused controversy that raged through April. In newspaper articles, on radio, in letters to the editor, and even on billboards positioned on Interstate 90 by the dog’s owners, people weighed in, often with heated emotion. In that a Bozeman Daily Chronicle article quoted Elizabeth Gee, the woman who shot the dog, as having said the dog came onto her property, would not leave, and was growling at her small children, public opinion came down mostly in her favor. Something of a Montana tradition, shooting dogs that harass livestock has been captured in the popular admonition if they roam, they may not come home.
The dog shooting came on the heels of a cat killing in Livingston last summer, a controversy that also raged for months, resulting in a conviction, and an emu killing more recently that did not, causing a new arrival in the area to wonder what’s up with Montana and all the pet killings.
But what does the law say about killing a pet that crosses property lines and any threat it may pose?
Two Montana criminal laws specific-ally apply to pet killings. One addresses cruelty to animals, the other pets harassing livestock (criminal mischief could also apply). And a new Park County ordinance, effective this month, deals with vicious dogs, but does not address killing dogs.
In that laws are meant to reflect justice and common sense, no law permits the wanton, unjustified killing of a dog simply because it crosses a property line. Montana’s cruelty to animals statute states, in fact, that “a person commits the offense of cruelty to animals if, without justification, the person knowingly or negligently subjects an animal to mistreatment or neglect by…killing the animal…”
“It would qualify as animal cruelty to simply shoot an animal that has crossed [a property line], Park County Attorney Brett Linneweber told the Pioneer.
The key word, Linneweber said, pertaining to pet killings in Montana, is justification. Having declined to prosecute the highly publicized case in which Gee shot Doug and Suzanne Saarel’s dog, which she said posed a threat to her children, Linneweber said he chose not to because there was justification for the shooting, in that “defending somebody is a legally justified defense.”
The practical reality prosecutors face, in bringing cases to trial, and the discretion available to them, also played a role in that decision. Given the fact that Elizabeth Gee, the woman who shot the dog, is the only person who knows for certain what took place (her young children are not legally competent witnesses), Linneweber admitted it would be hard to make a case he could prosecute and win, one which proved to a jury beyond a reasonable doubt that Gee lacked the justi-fication to shoot the Saarel’s dog.
It must be noted, though, that in a written statement made to Park County law enforcement, one that has yet to be made public, Gee said she first sent her children inside her house, then shot the dog from a distance of 25 yards. In an initial statement to a Park County Deputy, she said the dog had already begun to leave before she shot it, retreating 25 yards in the opposite direction. Her children watched through a window from inside her house, she indicated in her statement, as she shot the dog, facts which, had they been made public earlier, would have influenced the tone of the debate in local newspapers and perhaps led to the conclusion that Gee could have simply driven the dog off and warned her neighbor.
The Montana Supreme Court, the ultimate arbiter of state law, specifically cites imminent harm as being required for the justified killing of a dog in a related case (involving livestock, not people, although the court mentions human life in its decision). Trek V. Moos, 1946, states “…it is necessary to show that the danger from [a dog’s] attack was imminent at the time, and that the injury could not otherwise have been prevented.” The decision also states that, “unquestionably our laws afford to all the right to the employment of all reasonable means for the protection of their lives, homes, and properties. Such right, however, is not to be used as a pretext for the wanton destruction of trespassing animals, whose depredations might otherwise be reasonably prevented or discouraged.”
Linneweber told the Pioneer, though, that to legally shoot a dog, the law does not require that the threat be imminent. For that reason, and others, he declined to prosecute the Gee case and suggested that the Saarels could pursue civil action. Another section of Montana law addresses killing dogs that harass, destroy, or injure livestock. That section states that a dog which “harasses, kills, wounds, or injures livestock not belonging to the owner of the dog is considered a public nuisance and…may be killed immediately by the owner of the livestock or an agent or employee of the owner…”
This section of law defines livestock harassment as that which “worries, chases, or runs after livestock…in a manner that may lead to subsequent injury to the livestock.” Continuing, the law states that “the owner of the dog, when reasonably notified after due process, shall kill the dog within 24 hours of notification. If the owner fails to do so, an officer may be notified and shall kill the dog or cause the dog to be killed.” The law requires that “a dog may not be killed in a manner that will endanger a person.”
The new Park County Vicious Dog Ordinance defines a vicious dog as one that ‘bites or attempts to bite any human being without provocation or which harasses, chases, bites, or attempts to bite any animal,” but exempts police and shepherding dogs.
“No person,” the ordinance reads, “shall purposely, knowingly, or negligently own, keep, or harbor a vici-ous dog. An owner maybe be found guilty under this section when a human being is “lawfully on [the dog owner’s] premises by invitation, license, permission, right of way or easement, any other lawful reason or performing a duty imposed or service authorized under federal, state or other applicable law.”
A person convicted of harboring a vicious dog may be imprisoned in the county jail for a term not to exceed six months or fined an amount not to exceed $500, or both fined and imprisoned. The ordinance does not provide for an individual to kill a vicious dog. The case would instead, when reported, be investi-gated by the sheriff’s department.
“However,” Linneweber told the Pioneer, in regard to vicious dogs and situations that might arise, “people always have a right to defend themselves.”