Wednesday, March 7, 2012

Two Recent Attacks: A Dog Is Muzzled in New York, A Boy Killed in South Carolina

About five million Americans are bitten by dogs ever year. The United States Postal Service, the American Veterinary Medical Association, and the American Academy of Pediatrics sponsor the National Dog Bite Prevention Week in May, and USPS reports that about 3,000 city and rural carriers are bitten by dogs every year. The USPS regularly posts tips about how to reduce dog bite risks.

A significant number of law enforcement officers are also bitten, as the first case below describes. The officer was trying to interview the neighbor of someone who had applied for a gun permit. Failure to train and control dogs is a major problem in our dog-tolerant society. The second case here is far more tragic and must speak for itself.

Thor Gets a Pen and a Muzzle for Attacking Policeman

In Town of Grand Island v. Long, 34 Misc.3d 1221, 2012 WL 384931 (City Court, City of Tonawanda, 2012), one sees a local judge dealing with a dog bite case in a sensible manner. The events took place in Grand Island, New York, but both judges of the Town of Grand Island Court recused themselves due to potential conflicts of interest caused by their prior representations of the defendant or his family. The case was moved a few miles to Tonawanda.

Sheriff Deputy Anthony Yavicoli was conducting a pistol permit investigation on Sunday, January 30, 2011. Thomas Long was one of the neighbors of the pistol permit applicant, and Yavicoli wanted to interview him. Yavicoli pulled into Long’s driveway, got out, and became aware of two dogs, a Labrador that shied away from him and a German shepherd that bit him on the left calf and shin and then both inner thighs. Attempting to get back in his car, he was bitten from behind. He returned to his station, then went to the hospital. The wounds are described by the trial judge:

“Upon examination of his wounds, Deputy Yavicoli discovered he was bleeding and that the bites had broken the skin in all three bite locations. Additionally, his uniform pants were ripped in all three bite locations. He then drove himself to Erie County Medical Center. At the emergency room, the staff cleaned and bandaged the wounds. He was also given an antibiotic, bandages, ibuprofen, and neosporin. After he was released, he returned to the sheriff substation. The deputy received no stitches or shots as a result of the bites. The testimony of the Deputy regarding these bites was supplemented by pictures of the bite marks on the day of the bite.”

Yavicoli took two days off, but the pain continued even after he returned to work. Although he had some scars, he was not seen again by a medical professional.

The trial court determined that the attack on Yavicoli was unjustified and unprovoked. Thor, the German shepherd, was determined to be a dangerous dog, which had caused physical injury. However, in order to consider euthanization, serious physical injury was required. Serious physical injury is defined by New York as “physical injury which creates a substantial risk of death, or which causes death or serious or protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.” (Agriculture & Markets Law § 108(29))

There were three other reports of dog bite incidents involving Thor.

The judge said he could not determine by clear and convincing evidence that the injuries sustained by Yavicoli involved serious or protracted disfigurement. The judge cited a prior case where a dog bite tore a hamstring, requiring antibiotics, ibuprofen, and physical therapy for six to eight weeks. This appeared to be more serious than Yavicoli’s injuries, but was not found to involve serious physical injury. (People v. Jornov, 65 A.D.3d 363, 881 N.Y.S.3d 776 (Ct. App. 2009).

The trial court, therefore, ordered the following:

1. Thor was to be neutered, if he was not neutered already.
2. A microchip was to be put in Thor, again if there wasn’t one in him already.
3. Thor was to be evaluated by “a certified animal behaviorist, a board certified veterinary behaviorist, or another recognized expert in the field and completion of training or other treatment as deemed appropriate by such expert. The owner of the dog is responsible for all costs associated with such evaluations and training ordered under this section. This evaluation and training shall be in addition to any other evaluations that Thor has already undergone….”
4. Thor was to be kept in a secure locked pen when he was outside on the Long premises. “The pen shall be designed and constructed to prevent the escape of the dog, to prevent unauthorized contact with the dog, and to protect the dog from the elements. The pen shall be constructed of cyclone fencing or substantially similar metal-based material, the sides of which are to be affixed to posts and to a concrete footing and/or a pad that the dog cannot push through, climb over or dig out under such pen, which is to be no less than 6 feet in height.”
5. When guests visited the Longs, Thor was to be secured in another room away from the guests or in his pen.
6. Thor was to be on a leash and “muzzled (in a manner that will prevent biting any person or animal, but that shall not injure the dog or interfere with its vision or respiration) and handled by someone over the age of 21 years at any time that he is on public premises….”
7. The Longs were to maintain a $100,000 liability insurance policy for personal injury or death resulting from an attack by Thor. The court required that proof be provided to it of compliance with this requirement.

Thomas Long was also fined $400. Lest it be thought that the neutering was unnecessary, one study found that sexually intact dogs were 2.6 times more likely to bite than neutered dogs.

The insurance coverage could be a problem, since presumably no umbrella policy covered Thor's biting habit. An insurer might be willing to cover, but would probably set a high premium and stipulate compliance with the court's order.

Given that Thor had other incidents, the judge has to be regarded as more than fair to Thor. It is also apparent that the owners should check out local obedience classes.

A Tragedy in South Carolina

In South Carolina v. Collins, 2012 WL 469710 (Ct. App. 2012), a boy’s mother wondered where her son was when it was time for dinner. After looking at neighbors’ houses, she called the sheriff’s department. Officers found the boy’s body in the yard of Bentley Collins. As the boy’s mother testified, “he was torn to pieces. Pieces.”

Press reports have included the name of the victim and pictures of the victim and Collins, and other details of the case, but I will confine myself here to the legal perspective provided by the court.

Collins was convicted for involuntary manslaughter and three counts of owning a dangerous animal under the South Carolina Code. He was sentenced to five years in prison, followed by five years of probation. He appealed the conviction based on the admission of seven photos of the boy’s body that were taken by a forensic pathologist before he performed an autopsy, arguing unfair prejudice that substantially outweighed probative value. The court described the photos as follows:

“The seven photos admitted are graphic and shocking. They depict a ten-year-old boy's body on an autopsy table after being partially eaten by dogs. The photos are in color. One photo provides an encompassing view of what remains of the boy's upper body. Three close-up photos show the remains of his face. The exposed skull and jaw bone are plainly visible in these photos. Two of these close-ups also show the exposed arm, shoulder, and rib bones, where the flesh was eaten away from the middle of his chest, across his shoulder and down to his elbow, on both sides. One photo shows the left side of the boy's face from the back, again with the exposed jaw bone visible. The remaining two photos are of the body from the waist down, showing his blood-stained shorts and the bite marks on his legs. The pathologist described what the photos show, but seeing the photos draws an intense emotional response and a level of sympathy for the dead child that does not come from the testimony. It is difficult to look at each photo, and the combined effect of all seven is disturbing. The photos that show what remains of the child's face are chilling. The danger of unfair prejudice of the admitted photos is extreme.”

The prosecution’s theory at trial was that Collins “underfed the dogs, and because the dogs were hungry, they became aggressive and attacked the boy for food.” Officers who responded to the scene said they saw no visible food bowls for the dogs. A pathologist supported this argument, testifying:

“There were extensive traumatic injuries consisting of loss of skin and soft tissue in a tearing fashion about the face, the ears, the eyes, the neck, the chest. There was loss of skin and soft tissue with exposure of the bones of both shoulders. Essentially, the humeral bone in the upper arm, both right and left, was exposed from the shoulder to the elbow.”

The pathologist also stated that the ears and nose were completely eaten away. He court summarized additional testimony of the pathologist as follows:

“The State asked the pathologist what led him to conclude the ears and nose were ‘eaten away.’ He responded: ‘There was a virtual complete absence of the ear structures on the right side and just remnants, shredded remnants of skin and what were probably portions of the ear on the left. They were essentially gone.’ Finally, the pathologist said he normally does not take photos of an autopsy, but did so in this case because ‘[t]his autopsy showed tremendous traumatic injury to this young man. This degree of injury was [as] significant [a] traumatic injury as I've seen. I've never seen an attack by animals of this type....’ Thus, before the photos were admitted, the pathologist's testimony conclusively established that the dogs ate the boy.”

A dog behavior expert also testified that the dogs attacked the boy because they were hungry. The behaviorist testified:

“Based on—in ten years going back on reports that I've noted on dog bites and dog attacks and deaths caused by dogs this is the worst case I've ever seen. I worked for the sheriff's office for over a decade, and I have never seen something so gruesome.”

The court concluded that the testimony was enough, that the probative value of the photos was minimal and the danger of unfair prejudice high. The court concluded:

“These gruesome photos have an overwhelming capacity to lure the jury into declaring guilt on the emotional basis of sympathy for the boy and his mother and horror at the sight of the boy's body. This is the unfair prejudice that substantially outweighs the probative value of the photos. We recognize that the photos add a visual element not present in the testimony of the witnesses. However, this visual element does far more to create a danger of unfair prejudice than it does to add probative value.”

The appellate court reversed and remanded for a new trial.

Although the dogs might have been hungry in this case, a study of dog bite patterns in children concluded that dog attacks of children are usually motivated by aggression, not hunger. The researchers also found that attacks on children more often involve bites to the head and neck region than is the case with adults. Some severe cases resulted in decapitation.


As a dog owner, I believe that owning a dog involves responsibilities, serious responsibilities. Perhaps because they adapt to us so easily, we have a tendency to assume that aside from putting out food and allowing them to relieve themselves, we have no obligations to them. In a society where toys and gadgets increasingly require no assembly, come ready to go as soon as removed from the box, it seems to be a great shock to many people that dogs are independent thinking animals that need to be trained to be good citizens in our increasingly complex social environments. Training takes time. I believe that if you don’t have the time to give, don’t get a dog.

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