Jess W. Hoeme, and Carrie E. Parker, of Joseph, Hollander & Craft LLC, of Topeka, won in State v. Betts, No. 122,268 (Kan. App. June 18, 2021) affirming Judge O’Connor’s finding that Mr. Betts was entitled to self-defense immunity in a Sedgwick County reckless aggravated battery prosecution. The prosecution stemmed from events where Mr. Betts - then a Wichita Police Officer - fired two shots at a lunging dog after entering a home during an investigation. Mr. Betts’ shots missed the dog, but fragments from one of the bullets ricocheted and hit a young girl in the eyebrow and toe. The state charged Mr. Betts with reckless aggravated battery.
The district court granted Mr. Betts’ pre-trial motion for self-defense immunity, holding that he met the standard for both a subjective and objectively reasonable belief that use of deadly force was justified. In affirming, the COA noted that the material facts were not in dispute, and that the state had waived any argument that the lunging dog was not unlawful force for purposes of the self-defense statutes. Following the opinion in State v. Bowers, 239 Kan. 417, 425, 721 P.2d 268 (1986), and noting testimony that the Wichita Police Department policy authorized use of force against animals and “it was not uncommon for an officer to use their weapon against a dog”, the COA recognized that attacking dogs can qualify as deadly force supporting a subjective and objectively reasonable use of deadly force under the self-defense statutes. The COA further rejected the State’s arguments that self-defense was unavailable for reckless crimes, noting that reckless behavior requires a person unjustifiably disregarded a danger, and self-defense acts as a justification. The COA clarified that the self-defense immunity statute can apply “regardless of whether the State has charged conduct that is intentional, knowing, or reckless.”
Looking into the limited data on police / dog interactions, it appears that the encounters are significantly more deadly for the dog than the officers. While there are no official national statistics, the Department of Justice published a report estimating that 20 - 30 dogs are killed by police each day in the U.S., or between 7,300 – 10,950 a year. The National Law Enforcement Memorial Fund does not include dog attack as the cause of death for any officer between 2010 and 2020, and their database of narrative descriptions of on-duty deaths comes up with no results when searching for “dog” or “canine” [However, searching for “horse” found over 50 deaths related to horse accidents going back to the 1700’s]. Nationally, there was an average of 29.1 dog bite relateddeaths per year between 2000 and 2015. In comparison, bee stings caused anaverage of 62 deaths per year between 2000 and 2017.
[Update: The State filed a petition for review on July 15, 2021.]