IS THERE A RIGHT TO DEFEND ONE’S SELF OR ANOTHER AGAINST A DOG ATTACK?

Law of Nature – Natural Rights

“According to the philosophy of natural rights espoused by Locke and Montesquieu, every man has certain inalienable rights which are fundamental to his nature. One of the most important of these inchoate right is the right to defend one’s person and property.” Ron A. Bender, Right to Kill Wild Animals in Defense of Person or Property, 31 Mon Law Rev 1, Issue 2 Spring 1970. Author cites Blackstone, who stated: “Self-defense, therefore as it is justly called the primary law of nature, so it is not, neither cant it be in fact, taken away by the law of society.” 3 Blackstone, Commentaries 4.

In The Federalist Papers No. 43, James Madison wrote:

“The first question is answered at once by recurring to the absolute necessity of the case; to the great principle of self-preservation; to the transcendent law of nature and of nature’s God, which declares that the safety and happiness of society are the objects at which all political institutions aim, and to which all such institutions must be sacrificed.”

William Blackstone stated, “Self-defense . . . is justly called the primary law of nature.” William Blackstone, Blackstone’s Commentaries, ed. St. George Tucker, 5 vols. (Philadelphia: William Young Birch, and Abraham Small, 1803; reprint ed., South Hackensack, NJ: Augustus M. Kelley, 1969), 4:3.

Thomas M. Cooley, arguably the leading American constitutional law commentator of the latter part of 19th Century, wrote, “liberty” in the Due Process Clause protected “the right of self-defense against unlawful violence.” During his working life, Cooley served as dean of the University of Michigan Law School, Michigan Supreme Court Justice, and as a commissioner with the Interstate Commerce Commission.

The right to self-defense, or self-preservation, is not limited to only human aggressors. It applies to beasts too.

Constitutional Right of Self-Defense

The Second Amendment to the U.S. Constitution, which applies to the states through the 14th Amendment, and provides:

Amendment II

“A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”

United States Supreme Court proclaimed that the Second Amendment established an individual right for U.S. citizens to possess firearms. District of Columbia v Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637, 76 U.S.L.W. 4631 (2008).

Michigan Constitution of 1963, Article I, Section 6, declares, “Every person has a right to keep and bear arms for the defense of himself and the state.”

This right of defense is not limited to human aggressors, it includes animals too.

A person has a right to reasonable self-defense
when confronted by an aggressive dog

“[I]t appears that courts have uniformly recognized that a person has a right to use reasonable self-defense when confronted with an aggressive dog. The lack of precedent for the contrary ruling by the trial court here provides further support for the conclusion that it was erroneous.” People v Lee, 131 CalApp4th 1413, 1429, 32 CalRptr3d 745 (2005).

A person has right to reasonable self-defense when
an aggressive dog attacks his animal

People have a right to reasonable self-defense against an aggressive dog. “(See, e.g., People v. Lee (2005) 131 Cal.App.4th 1413, 1429 [32 Cal.Rptr.3d 745] [person has right to reasonable self-defense when confronted by an aggressive dog]; People v Wicker (N.Y.Just.Ct. 1974) 78 Misc.2d 811, 814 [357 N.Y.S.2d 597] defendant entitled to self-defense when he shot and killed a vicious dog that ran onto his property and attacked his dog].)” People v Flores, 216 CalApp4th 251, 261, 156 CalRptr3d 648 (2013).

It is lawful for a person to kill a dog in the act of attacking a human.

“[O]ne is ‘privileged to destroy an animal for the purpose of defending himself or third persons against harm threatened by the animal, (a) if its actions led him to know or reasonably believe that the animal would inflict such harm and (b) the destruction was reasonable in view of the gravity of the harm threatened and ©) the person reasonably believed the harm could be prevented only by immediate destruction of the animal.” (Devincenzi v. Faulkner (1959) 174 Cal.App.2d 250, 254-5.)

In fact, under Michigan’s Dog Law of 1919, “[a]ny person including a law enforcement officer may kill any dog which he sees in the act of pursuing, worrying, or wounding any livestock or poultry or attacking persons, and there shall be no liability on such person in damages or otherwise, for such killing.” MCL 287.279 (emphasis added). The language of the Dog Law of 1919 does not limit its applicability only to civil matters. In People v Bugaiski, 224 Mich App 241, 568 NW2d 391 (1997), the Dog Law of 1919 was raised as a defense. If it is lawful to kill an attacking dog, it is arguably lawful to frighten away a dog caught in the act of attacking a person.

In conclusion, in Michigan there is a right to defend against a dog attack on a person, even to the point of destroying the animal. (This post is adapted from an appellate brief).

Hunting Season: Can the Michigan DNR Search my Property Without a Warrant?

Here in Michigan, the hunting season is upon us.  For many hunters, their season will include contact with a Michigan Department of Natural Resources conservation officer.  Any number of these contacts will be on private property.  Such a contact may bring to the mind of a hunter the question of whether the officer can search their property.  I have been asked several times over the years whether a conservation officer can search property without a warrant.  The answer is yes and no.  It depends upon the nature of the property subject to the officer’s search.

The 4th Amendment of the United States Constitution provides:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Through court decisions “secure in your home” extends to the “curtilage” of your home.  Curtilage is the area immediately surrounding a residence that “harbors the intimate activity associated with the sanctity of a man’s home and the privacies of life.”  United States v Dunn, 480 U.S. 294 (1987).  The Michigan Supreme Court in an opinion from 1851 put forth a definition of curtilage as follows:

“In its most comprehensive and proper legal signification it includes all that space of ground and buildings thereon, which is usually enclosed within the general fence, immediately surrounding a principal messuage, out-buildings and yard, closely adjoining to a dwelling-house, but it may be large enough for cattle to be levant and couchant therein.”  People v Taylor, 2 Mich 250, 252 (1851).

Probable cause to search is whether certain identifiable objects are probably to be found at the present time in a certain identifiable place.  Probable cause exists when a person of reasonable caution would be justified in concluding that evidence of criminal conduct is in the stated place to be searched.  People v Russo, 439 Mich 584, 605, 606-607 (1992).

No warrant is required to search your land lying outside of your home and its curtilage.  This is the Open Fields Doctrine.  The Open Fields Doctrine was first enunciated by the United States Supreme Court in the opinion Hester v United States, 265 U.S. 57 (1924) authored by Oliver Wendell Holmes, Jr.  He wrote in pertinent part:
“The officers had no warrant for search or arrest, and it is contended that this made their evidence inadmissible, it being assumed, on the strength of the pursuing officer’s saying that he supposed they were on Hester’s land, that such was the fact. It is obvious that even if there had been a trespass, the above testimony was not obtained by an illegal search or seizure. The defendant’s own acts, and those of his associates, disclosed the jug, the jar and the bottle — and there was no seizure in the sense of the law when the officers examined the contents of each after it had been abandoned. This evidence was not obtained by the entry into the house and it is immaterial to discuss that. The suggestion that the defendant was compelled to give evidence against himself does not require an answer. The only shadow of a ground for bringing up the case is drawn from the hypothesis that the examination of the vessels took place upon Hester’s father’s land. As to that, it is enough to say that, apart from the justification, the special protection accorded by the Fourth Amendment to the people in their “persons, houses, papers, and effects,” is not extended to the open fields. The distinction between the latter and the house is as old as the common law.”

Michigan Conservation Officers are “authorized” under a Michigan statute (MCL 324.1602) to search various modes of transportation, places and items of personal property and to seize various items.
“Whenever an officer appointed by the department has probable cause to believe that any of the statutes or laws mentioned in section 1601 [enforce fish and game laws and other statutes of Michigan] have been or are being violated by any particular person, the officer has the power to search, without warrant, any boat, conveyance, vehicle, automobile, fish box, fish basket, game bag, game coat, or any other receptacle or place, except dwellings or dwelling houses, or within the curtilage of any dwelling house, in which nets, hunting or fishing apparatuses or appliances, wild birds, wild animals, or fish may be possessed, kept, or carried by the person, and an officer appointed by the department may enter into or upon any private or public property for that purpose or for the purpose of patrolling, investigating, or examining when he or she has probable cause for believing that any of the statutes or laws described in section 1601 have been or are being violated on that property. The term “private property” as used in this part does not include dwellings or dwelling houses or that which is within the curtilage of any dwelling house. An officer appointed by the department shall at any and all times seize and take possession of any and all nets, hunting or fishing apparatuses or appliances, or other property, wild birds, wild animals, or fish, or any part or parts thereof, which have been caught, taken, killed, shipped, or had in possession or under control, at a time, in a manner, or for a purpose, contrary to any of the statutes or laws described in section 1601, and the seizure may be made without a warrant.” (Emphasis added).
Despite the verbiage of the statute, it is subject to the 4th Amendment of the United States Constitution and cannot override your Constitutional rights.  However, if due consent is given to search no warrant is required.  What should you do if consent is requested?

If you do not wish a search, don’t consent.  Insist on your rights.  If you don’t have anything to hide there may be no harm in consenting to a search unless contraband or some other illegal circumstance is found.  In any case, be polite and certainly don’t get physical with the officer since it won’t likely end well for you if you do.
[Note: motor vehicle searches are not covered in this short article]

Lady Bird Deed: A Life Estate Deed on Steroids

Although the Lady Bird Deed has been around for years, only in the past few years has it become part of the parlance of those seeking estate planning in Michigan.

What is a Lady Bird Deed?  It is a deed in which the grantor(s) conveys real property to one or more people while keeping a life estate and a number of powers.

A life estate is an estate that exists during the life of the owner, or of another person, which terminates upon the death of the chosen person.  So, generally, the person holding the life estate has the exclusive right of use and occupancy of the specified real property during his or her lifetime.

The powers typically reserved include:

1.    The right to convey the property to anyone and keep the proceeds of sale;
2.    The right to keep royalties from minerals, natural gas, and oil produced from the property; and
3.    The right to lease the property and keep any proceeds therefrom.

The use of a Lady Bird Deed may avoid probate of the specified real property.

Lady Birds are commonly used to transfer homes and cottages to children and grandchildren without probate.

A properly drafted Lady Bird Deed is not a present gift for Federal Gift Tax purposes.  In many cases, a Lady Bird Deed is not a transfer which would uncap Michigan property taxes on residential real property.

Is a Lady Bird Deed right for you?  To find out, make an appointment to discuss your particular situation and needs.

A SLICE OF MICHIGAN KNIFE LAW

Michigan law governing knives evolved over time.  It primarily consists of statutes and appellate judicial decisions.  A number of Michigan municipalities have enacted ordinances covering knives.  These ordinances are not addressed in this article.

In 1952, Act 233 was enacted, codified as MCL 750.226a.  It bans the sale and possession of any  knife, having the appearance of a pocket knife, which may be opened by a mechanical device.  The statute is the so called “switchblade” ban.  The statute reads:

“Any person who shall sell or offer to sell, or any person who shall have in his possession    any knife having the appearance of a pocket knife, the blade or blades of which can be opened by the flick of a button, pressure on a handle or other mechanical contrivance shall be guilty of a misdemeanor, punishable by imprisonment in the county jail for not to exceed 1 year or by a fine of not to exceed $300.00, or both.

The provisions of this section shall not apply to any one-armed person carrying a knife on his person in connection with his living requirements.”

Since sales are banned, how may a one-armed person legally acquire such a knife?

In 1931, Act 328 was enacted, codified as MCL 750.226, which prohibits any person from carrying a firearm or knife over 3 inches in length if the carrier has unlawful intent.  The Act states:
“Any person who, with intent to use the same unlawfully against the person of another, goes armed with a pistol or other firearm or dagger, dirk, razor, stiletto, or knife having a blade over 3 inches in length, or any other dangerous or deadly weapon or instrument, shall be guilty of a felony, punishable by imprisonment in the state prison for not more than 5 years or by a fine of not more than 2,500 dollars.”

Things have been somewhat straightforward to this point.  Now it becomes a bit more complicated.

Public Act 328 of 1931, codified as MCL 750.227, as amended, provides:

“(1) A person shall not carry a dagger, dirk, stiletto, a double-edged nonfolding stabbing instrument of any length, or any other dangerous weapon, except a hunting knife adapted and carried as such, concealed on or about his or her person, or whether concealed or otherwise in any vehicle operated or occupied by the person, except in his or her dwelling house, place of business or on other land possessed by the person.

****

(3) A person who violates this section is guilty of a felony, punishable by imprisonment for not more than 5 years, or by a fine of not more than $2,500.00.”

This statute, on its face, appears to prohibit the carrying of any knife except a hunting knife adapted and carried for that purpose.  However, this is not the end of the story.

An ordinary jackknife is not a dangerous weapon per se.  It may be considered a dangerous weapon under MCL 750.227 statute only where it is used or carried for the purpose as a weapon.  People v Vaines, 310 Mich 500, 506 (1945).

In People v Brown, 406 Mich 215, 222-223 (1979), the Michigan Supreme Court stated:

“Accordingly, we today reaffirm the principles set forth in People v. Vaines and hold that where a defendant is charged with carrying a “dangerous weapon” contrary to M.C.L. § 750.227; M.S.A. § 28.424, the burden is on the prosecution to prove that the instrument carried by the defendant is a dangerous weapon per se or that the instrument was used, or intended for use, as a weapon for bodily assault or defense. The fact that a pointed instrument, such as a machete, has great potential as a dangerous weapon does not render it a dangerous weapon Per se. Thus, in the instant case, mere proof that defendant knew that a machete could be used as a dangerous weapon does not support a conviction under M.C.L. § 750.227; M.S.A. § 28.424.”

Under MCL 750.222a, a “double-edged, nonfolding stabbing instrument” does not include “include a knife, tool, implement, arrowhead, or artifact manufactured from stone by means of conchoidal fracturing.”  The conchoidal exception only applies in a vehicle if the knife is in a container and inaccessible to the driver.  See MCL 750.222a(2).

Under MCL 259.80f, the possession, carrying, or attempt to possess a knife of any length is banned in the sterile area of a commercial airport.

A machete is not an “other dangerous weapon” just because defendant knew it could be used as a dangerous weapon.  People v Brown, 406 Mich 215, 223 (1979).

Michigan law governing knives is complicated, some would say, convoluted.  Questions concerning the legality of any particular knife should be addressed to a Michigan attorney well versed in the area.

ESTATE PLANNING

What is an estate plan?  An estate plan generally consist of documents which direct to whom your worldly property will go upon death and who your agents will be to take care of your financial and health matters when you are no longer able to do so.  The documents may include a will, trust, beneficiary designations, powers of attorney, deeds, bills of sale, etc.

You may have asked yourself, “why do I need an estate plan?”  Well, the old adage, often attributed to Winston Churchill, is “ Those who fail to plan, plan to fail.”  Or, equally well said by an American, “By failing to prepare, you are preparing to fail.”  Benjamin Franklin.

If you die without a will, intestacy laws determine to whom your personal and real property will go to if these assets aren’t disposed of by some other means.  In Michigan, if you don’t have an estate plan, Michigan Compiled Laws 700.2102 and 700.2103, determine who will receive your personal and real property when you die.  Section 2102 states:

(1) The intestate share of a decedent’s surviving spouse is 1 of the following:
(a) The entire intestate estate if no descendant or parent of the decedent survives the decedent.
(b) The first $150,000.00, plus ½ of any balance of the intestate estate, if all of the decedent’s surviving descendants are also descendants of the surviving spouse and there is no other descendant of the surviving spouse who survives the decedent.
(c) The first $150,000.00, plus 3/4 of any balance of the intestate estate, if no
descendant of the decedent survives the decedent, but a parent of the decedent survives the decedent.
(d) The first $150,000.00, plus ½ of any balance of the intestate estate, if all of the decedent’s surviving descendants are also descendants of the surviving spouse and the surviving spouse has 1 or more surviving descendants who are not descendants of the decedent.
(e) The first $150,000.00, plus ½ of any balance of the intestate estate, if 1 or more, but not all, of the decedent’s surviving descendants are not descendants of the surviving spouse.
(f) The first $100,000.00, plus 1/2 of any balance of the intestate estate, if none of the decedent’s surviving descendants are descendants of the surviving spouse.

(2) Each dollar amount listed in subsection (1) shall be adjusted as provided in section 1210 [adjusted for inflation under MCL 700.1210].

MCL 700.2103 provides that, “[a]ny part of the intestate estate that does not pass to the decedent’s surviving spouse under section 2102, or the entire intestate estate if there is no surviving spouse, passes in the following order to the following individuals who survive the decedent:

(a) The decedent’s descendants by representation.
(b) If there is no surviving descendant, the decedent’s parents equally if both survive or to the surviving parent.
(c) If there is no surviving descendant or parent, the descendants of the decedent’s parents or of either of them by representation.
(d) If there is no surviving descendant, parent, or descendant of a parent, but the decedent is survived by 1 or more grandparents or descendants of grandparents, ½ of the estate passes to the decedent’s paternal grandparents equally if both survive, or to the surviving paternal grandparent, or to the descendants of the decedent’s paternal grandparents or either of them if both are deceased, the descendants taking by representation; and the other ½ passes to the decedent’s maternal relatives in the same manner. If there is no surviving grandparent or descendant of a grandparent on either the paternal or the maternal side, the entire estate passes to the decedent’s relatives on the other side in the same manner as the ½.

A convenient chart is found at:  http://www.wcpc.us/services/intestsucc.htm

CRIMINAL CHARGES INVOVLING WEAPONS

When you face a criminal charge involving a weapon, especially a firearm, you need an attorney who is experienced in both criminal law and firearms.

As a former prosecutor and defense attorney, John Daugherty has over 23 years of experience in criminal law.

Mr. Daugherty first became involved with firearms through the NRA when he was around 9 years of age. He has taught Michigan’s concealed pistol law to hundreds of students over the past 12 years.

Michigan and federal law are complicated, and far too often contradictory, regarding weapons. Did you know that it is illegal to have a pocket knife that is 2.5″ or more in length in a post office?

Under Michigan law, concealed pistol license holders may not enter the following premises, among others, with a concealed pistol:

1. Schools or school property but may carry while in a vehicle on school property while dropping off or picking up if a parent or legal guardian.
2. Public or private day care center, public or private child caring agency, or public or private child placing agency.
3. Sports arena or stadium.
4. A bar or tavern where the primary source of income is the sale of alcoholic liquor by the glass to be consumed on the premises.
5. Any property or facility owned or operated by a church, synagogue, mosque, temple, or other place of worship, unless the presiding official or officials allow concealed weapons.
6. An entertainment facility that the individual knows or should know has a seating capacity of 2,500 or more.
7. A hospital.
8. A dormitory or classroom of a community college, college, or university.
9. A casino.

By statute, “premises” does not include the parking areas of the places listed above. However, there may be other laws, rules and regulations governing these so called “pistol free zones” and their parking areas.

When charged with a weapon related offense, experience matters. Call 1.231.882.4404.

 

 

 

DBA, CORPORATION OR LIMITED LIABILITY COMPANY?

As a business owner I know how hard it is to create and run a successful business. As a lawyer I  know how personal assets, like your home and investments, can be lost due to unforeseen liability from injuries to customers or damage to property. A “dba”does not provide liability protection for your hard earned assets.

There are techniques to help protect your hard earned assets. Insurance can be helpful. However, forming a corporation or a limited liability company can, in many circumstances, afford liability protection for your personal assets. Liability is limited because a corporation or a limited liability company is a legal entity that is separate from its owners. As a separate legal entity, the corporation or limited liability company can have a perpetual life. In addition, as a separate legal entity, the corporation or limited liability company is liable for its own debts and can only be held liable to the extent of the assets that are part of the corporation or limited liability company unless agreed otherwise.

The personal assets of a corporate shareholder, and members of a limited liability company, are assets that cannot be reached by creditors of the corporation or limited liability company, unless the “veil” of limited liability is “pierced” or you personally guarantee a loan. The veil may be pierced when the required formalities, such as having annual directors’ and shareholders’ meetings, failing to act as a corporation or limited liability company when conducting business, etc., are not followed in an appropriate manner.

In many instances, significant tax savings may be realized using a corporation or limited liability company.

If you wish to discuss the benefits of forming a corporation or limited liability company, please give me a call.