Eugene Volokh: Self-Defense (against animals) is a constitutional right

So holds State v. Hull (Wash. Ct. App. Dec. 17, 2014) (nonprecedential), in an interesting and pretty detailed opinion.

Generally speaking, courts rarely have to decide whether there is a constitutional right to self-defense, since all states generally recognize a statutory or common-law right to use force against another person in self-defense. And while there are constraints on this right — e.g., you can’t use deadly force against a relatively minor attack, some states bar deadly force when there is a completely safe avenue of retreat available, and so on — a constitutional right to self-defense is unlikely to be absolute. Traditionally accepted limitations on self-defense are likely to be seen as limiting any such constitutional right as well.

But sometimes self-defense law contains substantial gaps (perhaps unintended by the legislature). One such gap is that many state penal codes — including, apparently, in Washington — expressly provide for self-defense only against people and not against animals. And in State v. Hull, the prosecution actually argued that “Self-defense is a defense to the use of force against a person, not an animal,” so Hull “was not entitled to a self-defense instruction.” “The language of the Washington Pattern Instruction 17.02,” the prosecution argued, “is … clearly limited to lawful ‘force upon or toward the person of another.’ Simply put, a dog is not a ‘person’ as contemplated by either the statute or the pattern instruction,” so when someone is tried for injuring a dog, the jury isn’t supposed to consider whether he acted in self-defense.

That can’t be right, and the Washington Court of Appeals said it wasn’t right. Indeed, the court said, there is a constitutional right to self-defense, for three related reasons (reason 1 got the votes of all three judges, and reason 3 and possibly reason 2 got only two votes):

1. There is a long line of state court authority recognizing a right to self-defense — and a right to defend property — under state constitutions. Twenty-one state constitutions expressly secure such rights, often using language such as this:

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