Want some terrible advice? Don’t break a car window to save a poor puppy about to overheat if you’re anywhere in the State of Georgia. Michael Hammons of Athens, Georgia, a desert storm veteran, is finding this out the hard way after breaking the window of a car he found with an overheating dog inside. According to several news reports, Hammons was walking through a parking lot when he noticed a Ford Mustang with a small Pomeranian mix inside. With no windows open and no air conditioning running, the dog was distressed and likely about to die according to a number of onlookers. After Hammons broke the window to rescue the dog he was charged with trespass per the dog owners demand!
So, morally and ethically, the advice NOT to break the window is terrible and one would have to be a real son of a bitch to not save this little dog. It seems as though Georgia would prefer to have a number of dead dogs and sons of bitches roaming around in order to prevent their version of trespassing from being committed. As attorneys we can’t uphold our oath to the bar and advise one to break the law at the same time. To do one excludes the other. In this situation, that’s tough to do. So what happens now and what would happen to someone in Florida if they did this?
First and foremost, I’m hard pressed to think of an incident in Florida where someone has left their hound in a hot car where they weren’t prosecuted for animal cruelty if the dog was in distress or died. In Florida, plain jane animal cruelty is a first degree misdemeanor punishable by up to 11 months, 29 days in jail and is proven if it can be shown that someone carried an animal in or upon a vehicle in a cruel or inhumane manner. In a Florida summer with the windows up and the dog left in a car the person is probably toast. Unless you get a jury of sons of bitches, once they hear those facts you’re out regardless of how good your criminal attorney is. So what if you break the window like Mr. Hammons? In my book you’re a hero. That said, theoretically you could be charged with trespass to a conveyance (a car is a conveyance) if they can show you willfully entered the conveyance belonging to another without their permission. There is a thought that criminal mischief could be charged if it can be shown that you damaged the personal property of another in a willful and malicious capacity.
So what if you get charged with a crime for trying to save the animal? To start, if one is charged, trespass is the more relevant charge as I’m doubtful the State could show malicious behavior for a criminal mischief charge to stick. It seems the legal justification and excuse would be that you’re trying to save the poor dog from the idiot that left it in the car!
What about the defense of necessity? In order to raise a necessity defense in Florida The defendant must have reasonably believed an emergency existed which was not intentionally caused by himself or herself, the emergency threatened significant harm to himself or herself or a third person, the threatened harm must have been real, imminent, and impending, the defendant had no reasonable means to avoid the emergency except by committing the crime charged (in this case likely the trespass), the crime charged must have been committed out of necessity to avoid the emergency, and lastly the harm that the defendant avoided must outweigh the harm caused by committing the crime charged.
So can you get a defense jury instruction for necessity if the emergency at issue threatened harm to an animal? According to the Court in Brooks v. State, 122 So.3d (Fla. 2d DCA 2013), the necessity jury instruction is for humans only. (You can wake up anytime now legislature). In Brooks, the court relied on prior case law that found that the term “others” did not extend to animals. “Others” was language in place of “a third person” from Reed v. State, 114 So.3d 969, 972 n. 5 (Fla. 5th DCA 2012). The Brooks court did acknowledge the plain language of the jury instruction and simply found that “a third person” did not include a threat of harm to an animal.
So what does one do in this situation? Legally, I can’t tell you to break the window. That said, you’re going to do what you’re going to do. In situations with the same facts as Mr. Hammons’, in Florida I doubt many cops would choose to arrest the rescuer. In the event that they did, even the most irrational and inequitable prosecutor would likely decline to move forward on a charge for this kind of deed. Ultimately, if the stars align and one is arrested and formal charges are brought, in spite of not being able to get a jury instruction on necessity, a good criminal defense lawyer will bootstrap in a necessity defense through witness testimony that most juries that I’ve seen would agree with. In my opinion, Mr. Hammons very likely won’t be formally charged. So while I can’t advise one to follow Mr. Hammons’ lead, I’m still glad he did it.
Jason Mayberry is a Federal and State criminal defense attorney in Tampa and the surrounding Tampa area. His dogs, Freight Train and Winston Churchill Mayberry, sit on the board of directors of the Mayberry Law Firm and endorse this blog. You can contact any of them at 813-444-7435 or at 727-771-3847. Consultations with Jason are free. The Train and Winston charge three Greenies per hour.