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Originally published Sunday, October 6, 2013 at 6:42 PM

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In N.Y. possession case, the weapon was dogs

Courts around the country have long grappled with the question of canine weaponization. Judges have mostly arrived at the same conclusion: If you use Fido as a weapon, he becomes one.

The New York Times

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NEW YORK — James Austin stood in front of a two-story Brooklyn row house, watching his puppy, Dutchess, play with a pair of pants, while a few feet away, a friend’s dog, Stoney, was tethered to a fence. At that moment, they were companions — both to him and in the eyes of the law.

That would all change in a matter of seconds.

A drug suspect, chased by two plainclothes officers, ran into Austin’s building. The authorities said Austin commanded the dogs to attack the officers, who responded by opening fire, killing Dutchess and inadvertently shooting Austin in the leg.

Austin, 23, was arrested on charges of menacing, assault, attempted assault and criminal possession of a weapon. “Namely,” the indictment reads, “a pit bull dog.”

The 2012 case is a rare example of a New Yorker being arrested on a weapons- possession charge, a misdemeanor, for a dog.

Courts around the country have long grappled with the question of canine weaponization. Over the years, judges have mostly arrived at the same conclusion: If you use Fido as a weapon, he becomes one.

“In the past, one had to really strive hard to convict somebody of a felony when a dog was the instrument that caused the damage,” said Kenneth Phillips, a Los Angeles lawyer focused on canine law. “Now, prosecutors are using these laws that usually apply to guns and other weapons to enhance charges. That is going on all over the country right now. Far more than it was even two years ago.”

He traced recent changes back to the 2001 mauling death of a San Francisco woman, Diane Whipple, which received national attention and resulted in a murder conviction for the dog’s owner. Courts from Arkansas to Washington have come down against defendants.

In Washington, a state appeals court denied a claim by a Vancouver dog owner, Robbie Hoeldt, that his dog could not be considered a deadly weapon, even though it had attacked a police officer, Detective Bryan Acee. “If Hoeldt had used a gun instead of an attack dog,” the court wrote in 2007, “Detective Acee could have testified that Hoeldt pointed the gun at his chest.”

Criminal laws generally do not include dogs on the list of potentially deadly items whose possession is a crime. In New York, the penal code explicitly lists many items — cane sword, chuka stick, kung-fu star — as deadly weapons alongside a gun, a knife and “other dangerous instruments.”

Prosecutors have found that courts will allow broad latitude for classifying ordinary objects as dangerous instruments, depending on the context. Over the years in New York, that has included a belt, a wadded-up paper towel used as a gag, a baseball bat, a stickball bat and a spatula. And dogs.

While it is not uncommon now to see convictions in dog attacks for assault with a deadly weapon, the question of whether a person can also be charged with weapons possession in such instances has been more muddled.

In 1956, a Manhattan man was charged with weapons offenses under the Sullivan Law, one of the nation’s first gun-control laws, after his German shepherd jumped on a pair of police officers responding to a dispute. “This is an intelligent and well-trained animal that was ordered to attack the police by its master,” a prosecutor said at the time. The 100-pound dog was brought to court as evidence.

Twenty years later, in the case of another German shepherd used in a crime, a Bronx judge tossed out a weapons-possession charge against his owner, who was convicted of other charges. “It is impossible to sustain the argument that a German shepherd dog,” the court wrote, “is includable in the statutory definition of the term ‘deadly weapon.” It did find the dog qualified as a dangerous instrument.


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