U.S. courts reshape dangerous dog law

From ANIMAL PEOPLE, July/August 2001:

SAN FRANCISCO–Legal experts and news media commented on how unusual the charges were back on March 27, 2001, when a San Francisco grand jury indicted lawyer Marjorie Knoller, 45, for alleged second-degree murder. The grand jury also indicted both Knoller and her husband and law partner Robert Noel, 56, for alleged involuntary manslaughter and failure to control an animal. Both Knoller and Noel have been jailed since leading police on a 200-mile car chase later on March 27, under suspicion of trying to escape the jurisdiction of the court.

Knoller and Noel were custodians of two Presa Canario dogs owned by prison lifers Dale Bretches, 44, and Paul Schneider, 38, whom police identify as reputed leaders of the white supremacist Aryan Nations gang. On January 26, the two dogs broke away from Knoller and
killed neighbor Diane Whipple, 33. The dogs had a history of attacking people and animals, witnesses testified, and one dog had allegedly injured Noel.

At the time, felony charges in dog mauling cases were still so rare that only one previous California manslaughter conviction was identified, and only a handful of other felony convictions nationwide. By the time Knoller and Noel go to trial, probably in late 2001 or early 2002, the legal landscape will be changed. Felony prosecutions and convictions in dog mauling cases have abruptly become common.

In two recent cases, the dogs were allegedly used as weapons:
* Jason Joe Swift, 27, of Stead, Nevada, is to be sentenced on August 16 after pleading guilty on July 17 to a felony charge of owning and keeping a vicious dog who caused substantial bodily harm to someone else. Swift allegedly set a pit bull on Juan Baca on December 19, 2000, after Baca accused Swift of stealing his stereo. Swift and Samantha Darcy then allegedly beat Baca. Darcy already drew 35 days in jail on two counts of misdemeanor battery.
* Debbie Gamiel, of New York City, pleaded guilty to assault on July 5 for allegedly setting three Belgian Malinois attack dogs on author Shawn Considine in 1998. Gamiel’s husband, Norman Schacter, is charged with conspiring to beat up Considine and plant illegal substances in his apartment.

Felony convictions

However, in other recent dog attack convictions, the crime was seen by the court as a preventable accident:
* Wayne T. Newton, 45, of Yellowwood State Forest, Arkansas, on July 6 drew three years in prison and his companion Joan Latvatis, 38, got 18 months in jail, for harboring a pack of 20 dogs, 10 of whom are believed to have killed U.S. Census Bureau worker Dorothy Stewart in June 2000. The dogs then partially consumed her body. Stewart, 71, was a longtime dog rescuer, whose knowledge of animal behavior was not enough to save her. Newton and Latvatis pleabargained convictions for criminal recklessness with a deadly weapon

* James Chiavetta, 54, of New-berry Springs, California, was found guilty of manslaughter on May 16 for leaving a Rottweiler unchained who killed Cash Carson, 10, in April 2000. First charged with murder, Chiavetta could get up to four years in prison. Sentencing has been repeatedly postponed.

* Benjamin Curtis Duke, 29, of Faulkner County, Arkansas, on April 25 drew three years in state prison and a fine of $10,000 for allowing four pit bulls to run at large, three of whom seriously injured Matt Schneider, 10, in June 2000. The charge was second-degree battery.

* Jared Pollock, 22, of Frankford, Pennsylvania, on April 9 drew 30 days under house arrest and two years on probation for allowing two pit bulls to maul Greg Fox, 12, in July 2000. Both dogs were shot by police. The charge was reckless endangerment, reduced from aggravated assault.

* Jerry “Buster” Allen McTaggert, 48, of Tunnel Hills, Georgia, on April 2 drew seven years on probation for reckless endangerment in allowing Dakota “Cody” Randolph, age 3, to wander into proximity to two Rottweilers who killed the boy while McTaggert was in bed with his mother, Serena McConley Randolph, the day after Christmas 1997. Ms. Randolph drew a probationary sentence earlier, but broke the probation and served the final two months in jail. An autopsy showed that her son, partially disemboweled, was still alive for two hours after the attack, but his cries were not heard.

Sentencing on misdemeanor charges linked to dog attacks is also getting tougher:

* Rogelio Velasquez, of Wasco, California, was sentenced on July 25 to serve a year in the Kern County jail for owning dogs trained to attack and cause injury. Velasquez is also to make restitution to Garrett Mozingo, 9, and Cody Roberts, 11, who suffered disabling injuries when Velasquez’ two pit bulls stormed into an elementary school playground.

* Heredia Lomas, 36, of San Dimas, California, on April 9 drew a month in jail and his wife Susan, 31, got three years on probation, for harboring a pit bull mix who attacked three people in a year. Heredia Lomas was also convicted of illegally removing the dog prematurely from quarantine at the Inland Valley Humane Society.

In felony cases still pending:

* Judith Galland, of Rochester, New York, was on March 7 hit with two counts of third-degree assault and one count of reckless endangerment for allowing her two pit bulls to bite a utility worker.

* Andre Huskey, 30, of Kansas City, Kansas, was on March 15 indicted for aggravated battery, after his two Akitas in November 2000 mauled 4-year-old Anthony England, as the Akitas ran at large for the second time in two days. Just a month earlier, Huskey was among several people who pulled a Rottweiler/German shepherd mix off of a severely injured 3-year-old–which the prosecution argues is evidence that he knew the risk of allowing his dogs to escape from his yard.
* Dean A. Fowler and Andrew Richard Owen, of Bozeman, Montana, were on March 16 charged with negligent endangerment and owning a vicious dog. In February, after Cade Lohss, age 3, fell on ice, two German shepherd/Lab mixes owned by Fowler and Owen allegedly tore the boy’s clothes off, tore his left ear off, tore away part of his scalp, and caused him to lose half the blood in his body. Emergency personnel were able to save his life.
* Chris Shearer, of Bell-ingham, Washington, was charged with reckless endangerment in July for letting his 16-month-old son Zachary wander unseen toward a newly acquired Rottweiler on June 18. The boy nearly lost a leg and at latest report remained hospitalized. “The dog was licking Zach. There was no reason for me to fear the dog was going to attack,” said Shearer, echoing the words of Robert Noel, who testified at a hearing on the fate of one of the Presa Canarios who attacked Diane Whipple that the dog was “a
sweetheart” who “might lick you to death.” Similar words have been uttered by almost everyone with quotes on record whose dog has killed or maimed someone.

Fed up

Across the U.S. and around the world, grand juries, prosecutors, and judges are serving notice that they are fed up with exponentially increasing dog attack deaths and maulings–and are especially fed up with excuses and accidents involving not just dogs of known risky disposition, but any dogs of high-risk breed type.
Contrary to stereotype, few of the dogs involved in the recent surge of deaths and maimings have been verifiably abused or trained to fight. The Rogelio Velasquez case was an exception, the Knoller and Noel case is allegedly another, and a third possible exception was a June 18 attack by three pit bulls on Shawn Jones, 10, of Richmond, California, as he rode a new bicycle he had just been given for getting good grades. Jones lost both ears and almost all the skin and muscles on both sides of his face. The dogs’ owners, Benjamin Moore, 27, and Jacinda Lynn Knight, 33, also of Richmond, were initially arrested on suspicion of keeping dogs that caused injury or mayhem. Moore was charged with two misdemanor counts of concealing evidence, for abandoning the dogs at large after the attack, and may face stronger charges, pending the outcome of an ongoing investigation.

Neglect is a common element in dog attacks, including prolonged chaining, non-neutering, and sometimes underfeeding and lack of socialization–but these were the all-too-common lot of millions of dogs long before the number of bites requiring hospital treatment rose anywhere near the present level. The Centers for Disease Control and Prevention estimate that U.S. hospitals new treat about 334,000 dog bites per year. Further, for every possibly neglected dog involved in an attack, there are others who were reportedly pampered pets.

The surge in killings and maimings by dogs has, however, coincided with the rising popularity of pit bull terriers, Rottweilers, and–to a lesser extent–wolf hybrids, Akitas, and exotic “fighting” breeds such as Presa Canarios, File Brasieros, and Japanese tosas.

The rise in severe dog attacks began in the mid-1980s. Bite records kept by Minneapolis, Allentown, and Miami show that for 15 years, 1977-1992, pit bulls delivered just 4% of the bites requiring hospital treatment, and Rottweilers only 1%. Chows were the most dangerous breed, at 10%. By 1996, both pit bulls and Rottweilers accounted for 9%. Chows were still at 10%. By 1999, pit bulls accounted for 21% and Rottweilers for 12%. Chows were at 11%.

The ANIMAL PEOPLE log of life-threatening and fatal dog attacks in the U.S. and Canada, kept since 1982, has always shown pit bulls accounting for about half of the total number of attacks and Rottweilers accounting for about 25%, with wolf hybirds at roughly 4% and chows, German shepherds, huskies, and Akitas all around 2%–but the attack volume has recently increased so rapidly that of 1,193 attacks qualifying for inclusion, 19% have occurred since October 2000, including 20% of the 559 life-threatening and fatal attacks by pit bulls and 18% of the 258 by Rottweilers.

Attacks by fighting dogs and guard dogs are excluded from the ANIMAL PEOPLE log–like the July 23 killing of intruder Alexandro Caballero Mendoza, 50, at the Paradise Distributing pottery storage yard in Phoenix. A multi-time convicted drug offender, Mendoza was reportedly torn apart by a pair of unlicensed pit bulls belonging to All Breed K-9 Security, which according to Maricopa County Animal Control Services spokesperson Julie Bank had no kennel permit.

Legislation

The first legal response to the rising numbers of attacks, beginning in the mid-1980s, was a global wave of attempted breed-specific legislation. Bans on pit bulls and other “fighting breeds” sharply lowered the incidence of fatal attacks and maimings in Britain and The Netherlands. France banned pit bulls and look alike breeds in 1999, strengthening the legislation earlier this year.

Two German states adopted similar legislation after two pit bulls rushed into a schoolyard on June 26, 2000, and killed Volkan Kaya, age 6. The dogs’ owner, Ibrahim Kulunc, 24, on January 16 was convicted of manslaughter and sentenced to 42 months in jail. His girlfriend, Silja Wilms, 19, drew one year on juvenile probation.

Thailand banned Rottweilers in December 2000, and charged Nakhon Maha-Ittidol, 41, with manslaughter, after his Rottweiler killed his niece, Ornjira Suksawat, age 3. Australia, Canada, the Czech Republic, Luxembourg, Slovakia, and Spain are also reportedly close to adopting bans of pit bulls and other dangerous dog breeds.

In the U.S., however, although communities in 36 states have passed breed-specific legislation at various times, most enforcement efforts have been defeated and much of the legislation has been undone by the combined clout of dog owners, the American Veterinary Medical Association, and animal advocacy groups led by the Humane Society of the U.S., whose policies admit no behavioral distinctions among breeds. Court cases against breed-specific ordinances have emphasized the difficulty of legally defining “pit bulls” and “wolf hybrids,” for which no formal breed standards exist.

The American Dog Owners Association is now suing Yonkers, New York, seeking to overturn an ordinance requiring pit bulls, Rottweilers, and Dobermans to be muzzled in public. The inclusion of Dobermans is a weak point in that ordinance, as despite a reputation for ferocity as Nazi prison camp guard dogs during World War II, Dobermans have never been prominent in U.S. breed-specific attack data.

Property insurers and landlords learned meanwhile that the surest way for them to exclude liability from reputedly dangerous breeds while avoiding discrimination lawsuits was to refuse to insure or rent to anyone with any kind of large dog.

Attempts to strengthen exclusions of reputed dangerous breeds continue, including in Portland, Maine, where the city housing authority on July 1 banned possession of pit bulls and Rottweilers after giving tenants 60 days to either get rid of pits and Rotts or move. The housing authority acted under pressure from an insurer after two pit bulls belonging to tenant Kun Vorn mauled another resident. Vorn was fined $500 for letting the dogs run at large. Whether the Portland housing authority will succeed in making a breed ban stick awaits an expected court challenge.

Courts step in

Meanwhile, courts are rewriting the jurisprudence on dog attacks. Most notably, the North Carolina Court of Appeals ruled on June 5, 2001 that the common law tradition that dogs are allowed “one free bite” before being deemed dangerous should not apply to breeds and breed types with a “propensity” to do injury. The appellate court upheld an award of $250,000 to sheetrock installer Richard Ray Hill of Lincoln County, and $7,000 to his wife, for damages suffered after a Rottweiler belonging to Lake Norman residents Stephen T. and Patricia Williams tore off his ear in 1994 as he worked on their home.

“The case develops a negligence theory for owners of certain breeds of dogs,” explained attorney Fielding Clark, of Hickory, who represented Hill. “It’s crazy to give a dog owner one free mauling via his dog,” Clark continued, to Raleigh News & Observer staff writer DeMorris Lee.
“This is one of the more significant rulings in the realm of negligence law,” confirmed Mike Dayton of North Carolina Lawyers Weekly. “It’s a significant shift in the law. You can, through expert testimony, show that a breed is likely to bite. You don’t have to wait for it to bite the first time. Will it apply to pit bulls? Probably.”

The North Carolina verdict may offer an important precedent for the late Diane Whipple’s life-partner, Sharon Smith of San Francisco, in a wrongful death lawsuit against Knoller and Noel. California courts have previously not recognized same-sex partners as legitimate plaintiffs in wrongful death cases, bur Superior Court Judge A. James Robertson II on July 27 allowed the Smith suit to proceed.

Liability

The known upper-end liability verdict in a lawsuit resulting from a dog attack was until recently the $425,000 paid in 1991 by the Panhandle Humane Society of Fort Walton Beach, Florida, to the family of a four-year-old boy who was killed by a wolf hybrid in 1988, two hours after the shelter sent the dog to his fourth home in under four months. The attack and aftermath forced the humane society to close.

On April 27, 2001, however, a jury in Charleston County, South Carolina, awarded $335,000 in actual damages and $162,000 in punitive damages to Donald E. Webb, in a lawsuit against the Evanston Mobile Home Park for not enforcing a rule against dogs running free. Webb was severely mauled in March 1999 when he tried to tell a neighbor that her free-roaming Rottweiler was a potential menace. Webb also sued the neighbor, who settled out of court for an undisclosed sum.

About a month later a jury in Contra Costa County, California, awarded $400,000 to Adam Corona, age 6, who was mauled by a Belgian Malinois police dog in October 1997, after the dog escaped from an unlocked patrol car. The dog less seriously injured a three-year-old a year earlier. Bigger awards are believed to have been made in cases settled out of court.

A potential Canadian record-setter is anticipated in Park Head, Ontario, where on July 9 Tim Lizmore brought home a newly adopted Rottweiler named Cuno Von Brick-enstein and left him tied to a porch pillar in care of his daughter Chantelle Lizmore, who was visiting with an infant and her five-year-old daughter Haileigh. Hailegh gave Cuno treats until he nipped at her. Chantelle picked her up and then tried to pick up the infant, who was in a car seat,
out of reach of Cuno. Cuno tore Haileigh from Chantelle’s grasp, tearing open Haileigh’s face, crotch, buttocks, and back, and severing muscles, ligaments, and nerves in Chantelle’s left arm.

Born in Germany, Cuno was brought to Canada by one Todd Goodfellow. Goodfellow gave Cuno to Carol Glynn, then one of his employees, now working for the Grey-Bruce Humane Society. Glynn offered Cuno to Lorna Vanderploeg of the Keppel Creek Animal Shelter, who refused to accept him because she judged him unadoptable. Cuno was instead passed on to Philly Hennessey, owner of Philly’s K-9 Team Inc., who kept Cuno just two weeks before giving him to Tim Lizmore.

Wrote Jonathan Sher of the London Free Press, “Both Tim Lizmore and Vanderploeg said they were told that a previous owner had hoped to train Cuno for law enforcement, but had not because he was not aggressive enough.” “There’s nothing wrong with that dog. If it would save him, I’d take him into my own home,” Grey-Bruce Humane Society investigator Joan Thompson said.

Vanderploeg, who hadn’t wanted anything to do with Cuno, ended up having to hold him through a mandatory 10-day quarantine and then euthanize him.