Dog Bite Law

Examples of criminal prosecutions

Listed by the name of the victim or the dog owner, here are some of the criminal prosecutions that followed dog maulings in the USA:

Sabine Davidson -- the first person convicted of second degree murder because of a dog attack

April 1997, Geary County, Kansas. Davidson owned three Rottweillers and trained them as protection dogs. However, she herself never was instructed as to how to train them properly. Two young brothers were waiting for their school bus, and the dogs got out of their yard, and went for the boys. They ran up a tree. When the dogs walked away, the younger brother climbed down and looked for the dogs. They found him and killed him.

In Kansas v. Sabine Davidson, Davidson became the first American ever found guilty of second degree murder because of a dog attack.

Cash Carson -- the boy who was killed while walking to his "fort"

April 29, 2000, Newberry Springs, California. A pet sitter / house sitter named James Chiavetta, 54, was so afraid of the pit bulls at the house that he would use a stick to push their food dish under the fence. On the fateful day that Cash Carson, 10, walked up the street to get to his "fort", Ciavetta decided to take a nap, leave the dogs out front, but not check to see whether the front gate was closed. It was not. The dogs chased Cash and his friend, and killed Cash.

Ciavetta was not convicted of second degree murder because three members of the jury felt that the charges were too harsh, in view of the fact that the dogs had never been trained, or known, to fight, attack or kill.

Dorothy Stewart -- the Census worker who was killed by 18 dogs in Indiana

June 10, 2000, Brown County, Indiana. Dorothy Stewart, a volunteer worker for the US Census, was attacked and killed by a pack of (more than 18) dogs while collecting census data in Indiana.  Her family filed a wrongful death suit and eventually settled with the defendants' insurance company for the limit of the policy.

Charges of criminal recklessness were filed against the dog owners, because as they had maintained the pack for over 10 years, and numerous other people had run-ins, albeit not fatal, with the dogs.  This was the only charge apparently available to the prosecutor due to a loophole in Indiana law. In that state, it is a felony if your dog leaves your property and attacks someone, but not a crime at all if the attack happens on your property.  An attempt to change the law last year failed; the bill was watered down -- first it would only protect government employees, then only between the hours of 8 and 5, and finally the house and senate couldn't reconcile their bills and the entire effort to change the law sputtered to a halt.

The prosecutor entered into a plea agreement (dropping drug charges) and the defendants pled guilty.  On July 6, 2001, they received the maximum sentence available under the agreement, which was 1.5 years in jail for the wife, and 3 years in jail for the husband. 

Rodney McAllister -- the boy who was eaten alive in St. Louis

March 6, 2001, St. Louis. Rodney McAllister was ten years old when a pack of dogs ate him alive in the park across the street from his home in St. Louis. "He was literally eaten by the dogs," Police Chief Ron Henderson said. "They fed off of him."

Rodney's mother was arrested on charges of child endangerment. She did not know where her son was until police talked to her after the body was found.

Kristin Jolley -- the baby killed by a starving dog

October 29, 2001, Lovell, Wyo. A starved and mistreated dog attacked and killed Kristin Jolley, a 1-year-old girl who wandered into the dog owners' yard. They subsequently were charged with felony involuntary manslaughter. 

Court documents allege that the dog's owners recklessly caused Kristin Jolley's death because they starved and mistreated the dog until it became "a vicious animal that attacked and killed an innocent child."

The dog's previous owner, Karen Hytrek, told authorities that when she gave Max to Anne Shine and Matthew Martinez the dog weighed about 110 pounds, "was good-natured, was never known to have bitten anyone and interacted well with children who attended school next to her home." 

Veterinarian Jane Undem, who examined the dog, said Max weighed about 65 pounds at the time of the attack. She said he was "ravenous" when he was brought to her clinic, devouring four cups of dry dog food and then trying to eat some cat food. The dog was killed so Undem could conduct a complete exam. 

The charge carries a maximum penalty of 20 years in prison and a $10,000 fine. 

Diane Whipple -- the lady killed in San Francisco  

See The Diane Whipple case. This killing resulted in the third murder conviction in United States history where a dog killed a person. It was the first time a California defendant was convicted of second degree murder for a dog attack. The conviction, however, will be appealed.

Shawn Jones -- the boy who was left for dead after being mauled 

See The mauling of 10-year-old Shawn Jones. Shawn was mauled nearly to death by a drug dealer's three pit bulls in Richmond, California. The dealer left Shawn for dead, and hid his pit bulls at different places around the city. Because of loopholes in the California laws and the fact that the dealer will go to federal prison on charges related to cocaine sales, he will not be prosecuted for the attack on Shawn. The young victim will never recover from his injuries and always will be disabled.

Alicia Clark -- the 10-year-old killed by 6 Rottweilers at her friend's house

April 14, 2002, Elroy, Wisconsin. Melissa McCracken, an 11-year-old girl in Elroy, Wisconsin, watched her family's six Rottweilers attack and kill her best friend. "I ran to her and told her not to scream. I tried to get her outside," Melissa McCracken said of the victim,  Alicia Clark. "But they kept pulling her back in." The Rottweilers continued biting 10-year-old Alicia, tearing off her clothes and not stopping until the little girl lay lifeless on the kitchen floor of Melissa's home. The victim's mother and boyfriend face homicide and reckless endangerment charges.

Edward Leonard -- 14-year-old neighbor used a pit bull to assault him in Detroit

June 7, 2002, Detroit, Michigan. A 14-year-old boy used a pit bull to assault 9-year-old Edward Leonard in Detroit. The dog mauled him, inflicting lacerations that required 63 stitches, and breaking his left arm. The older boy's mother said that the pit bull was trained to attack people carrying bats, sticks and pipes. But that is not what happened, according to police reports, which quoted witnesses as saying that the 14-year-old opened the gate to his backyard and ordered the dog to "sic him!" Charges have been filed, specifically for assault with intent to inflict great bodily injury, and the prosecutors are deciding whether to proceed against the 14-year-old as a minor or as an adult.

Jennifer Brooke -- killed in her barn by roaming pit bulls

November 30, 2003, Elbert County, CO. A 40-year-old woman was killed by three roaming pit bulls in a barn near her rural home. An hour later, the same dogs attacked a neighbor who eluded them by jumping into the bed of a pickup truck. The second victim's son then opened fire on the dogs; soon, he was joined by sheriff's deputies, who had to shoot the dogs to stop them from their rampaging attacks. 

Follow-up story:

April 26, 2004, Elbert County, CO. Jacqueline McCuen and William Gladney, the owners of the dogs that killed Jennifer Brooke, have pled not guilty to the crimes of keeping a dangerous dog (a class 5 felony), and criminally negligent homicide (also a class 5 felony). There is evidence that one or more of the dogs previously bit a different person, and that the owner habitually permitted the dogs to roam at large despite knowing that they were dangerous to people.

Alice Broom - 81-year-old woman killed in her own yard

December 12, 2003, OCALA, Fla. Alice Broom, 81, was attacked by six dogs in her front yard and bled to death on the street. The dogs were described as mix-breed pit bulls. Robert Freeman, a 67-year-old retiree, has said he does not know how the dogs got out of his single-wide trailer. Neighbors had previously complained about being threatened by the dogs.

Follow-up story:

April 25, 2006, OCALA, Fla. The prosecution is trying to prove that a Marion County man's dogs were a vicious, roving pack before they fatally mauled an 81-year-old woman in 2003. In court Tuesday, prosecutors showed the dogs' long history of biting neighbors, while the defense tried to show that those other people bitten were actually on Freeman's property. This startling defense -- that dogs are legally justified in mauling people simply because the victims were on the dog owner's property even if not committing crimes -- is an example of the irresponsible attitude of many dog owners, an attitude that perpetuates the dog bite epidemic.

Dorothy Sullivan - 82-year-old woman killed in her yard by neighbor's three roaming pit bulls

March 8, 2005, Partlow, Va. Three roaming pit bulls belonging to Deanna Large killed 82-year-old Dorothy Sullivan on her front lawn, along with her own dog, a Shih Tzu.

Follow-up story:

March 29, 2006, Partlow, Va. Deanna Large, whose pit bulls killed Dorothy Sullivan and had terrorized neighbors, was sentenced to three years in a Virginia prison and a fine of $500. She had been convicted of involuntary manslaughter, and two misdemeanor charges for allowing her dogs to run loose.

This case illustrates that dog owners need to understand not only their responsibilities but also their potential liability, criminally as well as civilly. If a dog owner cannot control, socialize, train and keep healthy his or her dog, there can be serious consequences, as there were here.

Death as first degree murder 

It is possible to murder a person with a dog, and for that murder to qualify as first degree murder.

In Cleveland, Ohio, Jeffrey David Mann was convicted of murder for setting a pit bull on the woman he lived with, a 28-year-old mother of two, who died as a result of the mauling in September 1992. (For more information, see the petition to oppose Mann's release on parole.

Interestingly, this pit bull was referred to as "otherwise friendly" -- as are virtually all of the pit bulls that have killed or seriously mauled human beings; see "Mack" on the website Index of Famous Dogs.)

Death as second degree murder

There has been only one successful second degree murder conviction involving a death caused by a dog. In Kansas v. Sabine Davidson, the defendant was found guilty of second degree murder because her Rottweiler dogs killed a young boy. There was evidence that the defendant trained the dogs to be aggressive. The killing took place in Geary County, Kansas, in April 1997. The story of this tragic case can be read on the website of Court TV.

A jury convicted another defendant of second degree murder, but the case has been on appeal and the appeals will most likely continue. In March 2001, second degree murder charges (as well as lesser charges) were brought against Marjorie Knoller. She and her husband Robert Noel were the owners of a Presa Canario dog that on January 26, 2001, killed Diane Whipple, a 33-year-old woman in San Francisco, California. The defendants also were charged with involuntary manslaughter and keeping a mischievous animal that caused death. A jury found the defendants to be guilty on all counts, but Knoller's second degree murder conviction led to a lengthy and complicated appeal. As of August 2008, Knoller's motion for a new trial was denied the second degree murder conviction was reinstated by the trial court. However, the See The Diane Whipple Case.

The Penal Code sections relating to second degree murder in California are similar in principle to other states, and therefore are reproduced here:

187.  (a) Murder is the unlawful killing of a human being, or a fetus, with malice aforethought. ...

188.  Such malice may be express or implied.  It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature.  It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart. ...

189.  All murder which is perpetrated ... by any other kind of willful, deliberate, and premeditated killing ... is murder of the first degree.  All other kinds of murders are of the second degree.
...
   To prove the killing was "deliberate and premeditated," it shall not be necessary to prove the defendant maturely and meaningfully reflected upon the gravity of his or her act.

• Unpremeditated murder with express malice. This might result from an intentional attack on the victim, using the dog as the instrument of the attack, but there has been no such case like that. 

• Second degree felony-murder. This would be a homicide that happens during the course of a felony that is inherently dangerous to human life, and not an integral part of the homicide itself. "Inherently dangerous" means that the felonious act presents a high probability that it will result in death. There are a few felonies that involve dogs, but there have been no prosecutions for second degree murder of this sort.

• Implied malice - murder. Malice is implied when either (a) no considerable provocation appears, or (b) circumstances indicate an "abandoned and malignant heart." The latter refers to doing an act with a (a) wanton disregard for human life, or an act involving a high degree of probability that death will result, or (b) conscious disregard for human life, i.e., doing something dangerous to human life, with actual knowledge of the danger and conscious disregard of the fact that the act endangers the life of someone.

An act of implied malice can include a failure to act, such as not feeding a baby until it starves to death. A person might be convicted of second degree murder on an implied malice theory if he or she knew that a front yard has pit bulls in it, that the pit bulls were trained to attack human beings or had a habit of attacking human beings, that the pit bulls were capable of killing human beings, that the front yard had a gate that would permit the pit bulls to escape the yard if the gate were left open, that the gate might be open, and that children might be walking past the open gate.

Indeed, that was the prosecution's theory in the Cash Carson prosecution. Prosecutors filed second degree murder charges against the caretaker of the two dogs that mauled 10-year-old Cah Carson to death in Newberry Springs, California, on April 29, 2000. The caretaker was Joseph Chiaveta, 54. The defendant also was charged with involuntary manslaughter. In that case, the jury found the defendant not guilty of second degree murder (but guilty of manslaughter) because there was no evidence that the dogs were known or trained to fight, attack or kill.

To read more about about second degree murder, see The Diane Whipple Case.

Felony conviction for mayhem where a injury is especially serious

If as a result of a dog attack, the victim is disabled, disfigured or loses part of his or her face or body, it is possible that a conviction of mayhem may follow if the person handling the dog intended that such injury would result.

For example, the California Penal Code states:

203.  Every person who unlawfully and maliciously deprives a human being of a member of his body, or disables, disfigures, or renders it useless, or cuts or disables the tongue, or puts out an eye, or slits the nose, ear, or lip, is guilty of mayhem.

204.  Mayhem is punishable by imprisonment in the state prison for two, four, or eight years.

Felony or misdemeanor for injury by dog trained to fight, attack or kill

A number of states make it a specific crime to possess a dog that is trained to fight, attack or kill. California Penal Code section 399.5 makes it a misdemeanor or felony (in the prosecutor's discretion) to merely own or have custody or control of such a dog, if four conditions are met: 

1. The dog was trained to fight, attack or kill.
2. The owner or keeper knew of the dangerous nature of the dog.
3. The dog bit one or more people on two separate occasions (causing any kind of injury), or on one occasion which caused substantial injuries.
4. The attack(s) resulted from the owner's or keeper's failure to exercise ordinary care.

Felony or misdemeanor for using dog as deadly weapon

A dog can be used as a deadly weapon, and such a use therefore can be prosecuted as assault with a deadly weapon.

For example, California courts have held that a dog can be a deadly weapon. In People v. Nealis (1991) 232 Cal.App.3d Supp. 1, the dog was commanded to attack. The court held that the dog was a deadly weapon. In People v. Henderson (1999) 76 Cal.App.4th 453, pit bulls were used to threaten police. The owner was charged with a violation of Penal Code section 417.8 (brandishing a deadly weapon). There was testimony from a dog expert that pit bulls as a breed are capable of inflicting great bodily injury. Under the circumstances of that case, the court held that the dogs were deadly weapons, not necessarily because of their breed, but because the defendant was using them as deadly weapons.

Where the dog is a pit bull or is proved to be vicioius, it is possible to be convicted of assult with a deadly weapon. A woman named Edlyn Joy Hauser, whose pit bull, Benjamin, attacked an animal control officer, was charged with three felony counts of assault with a deadly weapon and intentionally inflicting great bodily harm.

A dog attack can constitute malicious wounding, a felony in some states. See, i.e., Long v. Commonwealth, 379 S.E.2d 473, 8 Va. App. 194 (Va.App. 1989). In the Long case, it also was held that the prosecution is not required to prove that the dog was vicious or trained to attack if the defendant intended to command the dog to attack.

State v. Garnier, 171 Or.App. 564, 16 P.3d 1175 (Or.App. 2000) involved charges of causing physical injury to a certain person by means of a dog bite and creating a substantial risk of serious physical injury to a certain person by failing to control a dog.

The crime of assault generally consists of putting a person in fear of a battery (i.e., an unlawful touching). Therefore this crime can occur even without the dog biting a person. The necessary element is the action or threat that creates the fear.

Assault with a dealy weapon is serious crime. For example, California Penal Code section 245 provides that any person who commits an assault with a deadly weapon or instrument other than a firearm, or by means of force likely to produce great bodily injury, may be punished by imprisonment in state prison for two, three, or four years; or county jail not exceeding one year; or by a fine not exceeding $10,000; or by both the fine and imprisonment. 

Felony or misdemeanor for injury by dangerous dog

A person who knowingly keeps a dangerous dog may be prosecuted for a felony or misdemeanor if the dog seriously injures another person as a result of negligence or letting it run loose.

For example, California Penal Code section 399 (as amended in 2001) states:

399.  (a) If any person owning or having custody or control of a mischievous animal, knowing its propensities, willfully suffers it to go at large, or keeps it without ordinary care, and the animal, while so at large, or while not kept with ordinary care, kills any human being who has taken all the precautions that the circumstances permitted, or which a reasonable person would ordinarily take in the same situation, is guilty of a felony.

   (b) If any person owning or having custody or control of a mischievous animal, knowing its propensities, willfully suffers it to go at large, or keeps it without ordinary care, and the animal, while so at large, or while not kept with ordinary care, causes serious bodily injury to any human being who has taken all the precautions that the circumstances permitted, or which a reasonable person would ordinarily take in the same situation, is guilty of a misdemeanor or a felony.

Willy was bred for gameness and wind and had a hard bite. Defendant specially trained Willy on a treadmill to condition him. Defendant told Richard Soto, Arthur Soto's brother, he would not fight Willy for under $500. He also warned him that Willy was "vicious and dangerous" and if he got loose he could "do a job" on certain people. He said he had a wedge to pry Willy's mouth open if he needed to. 1 Cal.App.4th at p. 781.

[W]e hold that 'mischievous propensities' as used in the statute means those propensities that may naturally pose a risk of harm or injury to others. (1 Cal.App.4th at p. 786.)

Willy [the pit bull] was not a regular house pet. Rather, the jury found that defendant trained Willy and kept him as a fighting dog and that it was reasonably foreseeable that he might kill the victim. There also was evidence of Willy's fighting ability and defendant's warnings to others that Willy was dangerous to humans. (1 Cal.App.4th at p. 786.)

The defendant raised Civil Code section 3342 (the dog bite statute) as a defense, saying that, because a trespasser cannot sue for monetary damages under 3342, the defendant had no duty to protect a trespassing child, and therefore the defendant could not be convicted under section 399. The Court disagreed, saying, "nothing in this civil statute suggests that it creates a defense in a criminal action based on the victim's status as a trespasser." (1 Cal.App.4th at p. 788.)

The defendant was found guilty of involuntary manslaughter, keeping a mischievous animal, keeping a fighting dog, and cultivating marijuana.

In the Diane Whipple case, both of the defendants are charged with the prior version of Penal Code section 399, among other things. (See The Diane Whipple Case on this web site, www.dogbitelaw.com.)

Manslaughter resulting from death during commission of misdemeanor per misdemeanor - manslaughter rule

A person who violates a law can be convicted of manslaughter if, in the course of that violation, another person dies. This is called the misdemeanor-manslaughter rule. It is codified in many states. For example, California Penal Code section 192 states:

192.  Manslaughter is the unlawful killing of a human being without malice.  It is of three kinds:
   ...
   (b) Involuntary--in the commission of an unlawful act, not amounting to felony....

9.04.060. Public protection from dogs.

   (a) Every owner or possessor of a dog shall at all times prevent such dog from biting or physically harassing any person engaged in a lawful act or interfering with the lawful use of public or private property.

A violation of section 9.04.060 occurs whenever a dog owner or keeper in South San Francisco somehow fails to prevent a bite from happening. In other cities, such as the City of San Francisco itself, it is only an infraction (a public offense less than a misdemeanor) for a dog to bite a person or animal, and in still others, there is no criminal law against it at all.

Section 53.34 of the Los Angeles Municipal Code is similar but the violation covers both animals and people, and is based not only on the fact of a bite but also the act of allowing or causing the attacking dog to be at large or trespassing:

A person who owns or is in charge of or controls or who possesses a dog or other animal who permits, allows or causes the dog or other animal to run, stray, be uncontrolled or in any manner be in, upon, or at large upon a public street, sidewalk, park or other public property or in or upon the premises or private property of another person is guilty of a misdemeanor if said dog or other animal bites, attacks or causes injury to any human being or other animal.

The municipal code where the dog lives may make it a crime to allow the dog to endanger a person coming onto private property, if the owner or keeper knows that the dog is dangerous or vicious. For example, Section 53.33(a) of the Los Angeles Municipal Code states: 

No person, owning or having custody or control of any dog, other than a sentry dog, or any other animal known by such person to be vicious or dangerous, shall permit it to run at large, or permit it to run loose on or within the premises of such person in such a manner as to endanger the life or limb of any person lawfully entering such premises. For the purposes of this section "sentry dog" shall mean a dog trained to work without supervision in a fenced facility to deter or to detain persons found within the facility.

Similarly, it is a violation of the Los Angeles Municipal Code for a person to "permit" a leashed or unleashed dog to not only assault, but also to threaten or menace any person or animal anywhere except the owner's property. Section 53.34.1 provides:

No person, owning or having custody or control of any dog, whether or not restrained by a substantial chain or leash, shall permit the dog to unlawfully assault, threaten or menace any human being or other animal upon any public street, sidewalk, park or other public property, or in or upon the premises or private property of another. 

Sec. 5-2.201. Vicious dogs.

It shall be unlawful for any person to keep within the City a vicious dog. Proof that a dog has bitten a person shall be deemed to be prima facie evidence that the dog is vicious; provided further, a dog may be shown to be vicious even though it is not proven to have bitten any person.

Mere ownership of a dangerous dog can be a crime in itself. The Beverly Hills Municipal Code makes it a crime to keep within the city any dog that has bitten someone or otherwise has demonstrated viciousness. See also Dangerous Dogs for the similar state law. 

However, not every misdemeanor or infraction requiring general criminal intent can serve as a basis for involuntary manslaughter. "{W]here involuntary manslaughter is predicated on an unlawful act constituting a misdemeanor, it must still be shown that such misdemeanor was dangerous to human life or safety under the circumstances of its commission."  (People v. Cox (2000) 23 Cal.4th 665, 675) The Court stated that in California there is no "misdemeanor-manslaughter rule that automatically establishes the offense of involuntary manslaughter whenever a killing results from the commission of any misdemeanor." (Ibid.) It was held that the underlying unlawful act must be dangerous to human life or safety under the circumstances of its commission. (Cox, 23 Cal.4th at p. 676.)

In order for a municipal code section requiring that a dog be kept on a leash, therefore, or that the owner or keeper prevent bites from occurring, be the basis for involuntary manslaughter, the circumstances must have created a danger to human life or safety. Although no cases have specifically addressed dog bites and municipal code sections making them illegal, it appears clear that the prosecution would need to prove that defendant had knowledge of some dangerous propensity of the dog. (See the discussion of People v. Berry, in Death caused by mischievous animal, above.)

Manslaughter resulting from death caused by negligence

Any person (the dog owner or someone who controls, harbors or keeps the dog) may be guilty of involuntary manslaughter for a death caused by negligence.

Take, for example, section 192 of the California Penal Code:

192.  Manslaughter is the unlawful killing of a human being without malice.  It is of three kinds:
   ...
   (b) Involuntary ... in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection....

193.  ... 
   (b) Involuntary manslaughter is punishable by imprisonment in the state prison for two, three, or four years.

The laws of other states are similar. In November 1986, three dogs jumped through a broken window and killed a young boy in Decatur, Georgia. The owner of the dogs, Hayward Turnipseed, was found guilty of involuntary manslaughter.

In the Diane Whipple case, both of the defendants are charged with involuntary manslaughter, among other things. (See The Diane Whipple Case on this web site, www.dogbitelaw.com.)

Misdemeanor based upon degree of injury caused by attacking dog

A dog owner can be convicted of a high level misdemeanor in states that base conviction upon the degree of injury inflicted upon the victim of an unjustified dog attack. For example, Pennsylvania's Dog Law provides that even merely negligence conduct on the part of a dog owner can result in a first degree misdemeanor conviction if the consequence was severe injury or death of a person. (See Pennsylvania.) The penalty for such a crime can be a prison sentence of up to five years. (Pennsylvania Crimes Code, section 106 (Classes of Offenses).

Misdemeanor for destruction of attacking dog needed as evidence

A dog owner who destroys his own dog can be found guilty of destruction of evidence. For example, section 135 of the California Penal Code states:

135.  Every person who, knowing that any book, paper, record, instrument in writing, or other matter or thing, is about to be produced in evidence upon any trial, inquiry, or investigation whatever, authorized by law, willfully destroys or conceals the same, with intent thereby to prevent it from being produced, is guilty of a misdemeanor.

Misdemeanor to fail to quarantine or produce animal, or give information about animal

The California Health and Safety Code makes it a misdemeanor, with a significant fine, to fail to quarantine or produce an animal that might have rabies, or has bitten, or to fail to give information about such an animal:

121705.  Any person who willfully conceals information about the location or ownership of an animal subject to rabies, that has bitten or otherwise exposed a person to rabies, with the intent to prevent the quarantine or isolation of that animal by the local health officer is guilty of a misdemeanor.

   Any person who violates this section is guilty of a misdemeanor.

121710.  Any person who, after notice, violates any order of a local health officer concerning the isolation or quarantine of an animal of a species subject to rabies, that has bitten or otherwise exposed a person to rabies or who, after that order, fails to produce the animal upon demand of the local health officer, is guilty of a misdemeanor, punishable by imprisonment in the county jail for a period not to exceed one year, or by fine of not less than one hundred dollars ($100), nor more than one thousand dollars ($1,000) per day of violation, or by both fine and imprisonment.

Defending against criminal charges: case study of People v. Maureen Faibish

On June 3, 2005, Maureen Faibish's son Nicholas Faibish was brutally killed by one of the family pit bulls. Mrs. Faibish had left him alone in the basement for hours, with a shovel to barricade himself against her raging pit bull, which had bitten the boy that same day. When she left the house, it was not to borrow some rice from the neighbor across the street, but to attend a carnival for a few hours with her daughter.

The San Francisco District Attorney's Office filed felony child endangerment charges against Maureen Faibish. The trial took place in 2006. Every day in court, Mrs. Faibish cried. She could not look at the photos. Proceedings were halted repeatedly when she had to be let outside for air. When it came time for the jury to make a decision, only two voted guilty. The judge declared a mistrial, and Mrs. Faibish moved to another state.

The San Francisco District Attorney's Office had the right to try Mrs. Faibish again, on the same charges. However, it dropped the case. The prosecuting attorney told the trial judge that there was nothing new to present in a second trial, and suggested "a possibility, perhaps even a likelihood" that a new jury would also deadlock.

This is the same district attorney's office that obtained the second degree murder conviction of Marjorie Knoller in the Diane Whipple case. Why did they drop the Faibish prosecution?

A close look at a number of canine-inflicted homicides suggests that it is practically unheard-of for parents or grandparents to be convicted of crimes when their children or grandkids are mauled to death by the family dog. In this context, the Faibish prosecution was hardly a half-hearted gesture, but a rare attempt to bring the real guilty party to justice. As they say, punish the deed, not the breed.

A comparison of two Bay Area killings sharply illustrates the deferential treatment that prosecutors give to parents and grandparents. Within a few weeks of Diane Whipple's death, a 6-year-old girl was killed by dogs in the San Francisco Bay area. The circumstances of these maulings were very similar. Both victims were killed by two dogs that worked together. The breeds were known to be dangerous: Presa Canarios in the Whipple case, Rottweilers in the case of the little girl. In both cases the dog owners were just a couple of feet away, but somehow did not prevent the maulings. And the dog owners in both cases had exceptional knowledge about the dangerous propensities of the breed of dog that did the killing.

There also were significant differences between the two attacks. Whipple was a grown woman; the other victim was a child. The dog owners in Whipple's case were neighbors; in the child's case, it was her grandmother. The Whipple defendants went on the offensive, making accusations against the deceased victim, while the grandmother was grief-stricken.

Prosecutors treated these two cases as different as night and day. Both of the Presa owners were charged with serious felonies, and both were convicted; one owner was convicted even though he was not present when Whipple died, and the other was convicted of murder (the case is being appealed). But no charges of any kind were filed against the owner of the dogs that killed the little girl.

Why not? What was at the heart of the decision to file murder charges in connection with Whipple's death, and totally drop the ball in the other case?

The answer to this question probably lies in a nasty cultural bias. There is an almost universal belief that parents are entitled to wide latitude in raising their children. Recall that, in a not so long ago time, children and wives actually were the property of a man, and he could do with them just about whatever he wanted. In the law, this became the doctrine of parental immunity, which stated that a child had no recourse against his parents for any act or inaction which resulted in the young one's injury or damage. One court stated:

It would impose a fetter on parental judgment and discretion [to allow a child to have recourse against his parents]....Some parents might choose to be highly protective, others might accept that their children will get hurt, or hurt themselves, as a necessary part of the child's development. (Holodook v Spencer 36 NY 2d 35, 329 (1974).)

The doctrine of parental immunity has been abandoned or at least modified in many American states. Children can now make claims against parents under a range of circumstances. Exposing a child to a strong and obvious danger can result in civil liability. Gibson v. Gibson (1971) 3 Cal. 3d 914, 921. The proper test of a parent's conduct is what an ordinarily reasonable and prudent parent whould have done in similar circumstances. Gibson, ibid. The usual rules of negligence are modified when the issue is the parent's liability to his child for injury to that child.

Nevertheless, in the absence of something obviously harmful, the courts and our culture take a very hands-off attitude when it comes to the treatment of children by their parents. "Supervision is uniquely a matter for the exercise of judgement. For this reason parents have always had the right to determine how much independence, supervision and control a child should have...." Holodook v Spencer 36 NY 2d 35, 346 (1974). "The parent is clearly in the best position to know the limitation and capabilities of his or her own children. These intangibles cannot be adequately conveyed within the formal atmosphere of a courtroom. Nor do we believe that a court or a jury can evaluate these highly subjective factors..." Foldi v Jeffries 93 N.J. 533, 461 A.2d 1145 (1983).

Accordingly, when a parent or grandparent appears to be genuinely sorry for the death of a child under their care, people give them every benefit of the doubt. Misdeeds and negligence which would be intolerable from a neighbor are judged in the softest and most gentle light when parents engage in them. Bluntly, parents and grandparents appear to be able to get away with murder, if only it looks like they were trying their best, and they show an appropriate amount of grief.

The Faibish prosecution bowed to those deep-seated beliefs that excuse the crime of a parent against a child, as long as the act is loosely within the wide, wide scope of parental discretion, and the parent shows grief. The tears of Maureen Faibish won the day -- over the blood of her son and, some would say, over common sense.

Defending against criminal charges: double jeopardy

After a dog attack, animal control often gives the dog owner a citation for violating an animal control law. If the dog owner is convicted, does the conviction bar a subsequent prosecution for a more serious crime, under the doctrine of double jeopardy?

State v. Garnier, 171 Or.App. 564, 16 P.3d 1175 (Or.App. 2000) involved charges of causing physical injury to a certain person by means of a dog bite and creating a substantial risk of serious physical injury to a certain person by failing to control a dog. In Garnier, Defendant moved to dismiss the indictment, arguing that he previously had been prosecuted for the violation of maintaining a dog as a nuisance based on the same criminal episode, and that further prosecution was barred by ORS 131.515, the state's prohibition against double jeopardy. The state acknowledged that the citation for the violation and the indictment for the crimes arose from the same events. The state relied, however, on ORS 153.810(1) (1997) which provided: "Notwithstanding ORS 131.505 to 131.535, if a person is charged with both a crime and a violation as part of the same criminal episode, the prosecution for one offense does not bar the subsequent prosecution for the other. However, evidence of the first conviction is not admissible in any subsequent prosecution for the other offense." Based on this statute, the court held that there was no prohibition against the criminal charges, and remanded the case for trial.

www.dogbitelaw.com and each of its sections and products, including Dog Bite Law, The Dog Bite Law Adviser, Dog Bite Litigation Forms, What To Do If Your Dog Is Injured Or Killed, Avoiding Liability When You Train, Shelter or Adopt-Out, Anatomy of a Dog Bite Case, and the foregoing text, are (c) 1999-2008 Kenneth M. Phillips. All rights reserved. Reproduction in whole or part prohibited except where advance permission is granted in writing. Please read the disclaimer and our rules for linking and quoting. Reporters seeking interviews are welcome to click here.