August 17, 2004 > Is Bubba Dangerous?
Is Bubba Dangerous?
That is the question that will be decided at a hearing scheduled for 10 a.m., Wednesday, August 18 at the Tri-City Animal Shelter. The resolution of what appears to be an unfortunate set of circumstances is literally a life and death judgment for a family's loved companion.
Fremont residents Sherita and Stafford Muller, whose family has included "Bubba," for the past 7 years, says that the Dalmatian has been a loving companion to her 18 year-old and11 year-old sons currently living at home and visitors including sports league team parties and her 8 year-old nephew visiting from the East Coast who recently met Bubba for the first time. Ms. Muller says that Bubba has never demonstrated threatening or aggressive behavior while part of the Muller family.
According to Ms. Muller, a party on July 18, 2004 was a fun affair with adults and children in attendance. An 8 year-old guest was repeatedly asked to stop hitting and bothering Bubba. The dog remained calm. The children were playing baseball and occasionally the ball would be hit into a neighbor's yard and retrieved without problem by the kids and Bubba. The incident occurred when the ball was, again, hit into the neighbor's yard, Sherita's son opened the connecting gate to retrieve it and Bubba attempted to follow. The eight year-old blocked the entrance and struck Bubba. The boy moved towards the Bubba and, simultaneously, Bubba tried to get by the child. The resulting collision of boy and dog resulted in facial injuries including a torn lip. A trip to the hospital resulted in immediate treatment and plastic surgery.
Hospital personnel are required to report any case of serious dog bites to Animal Control and this was done. The following day, an officer showed up at the Muller residence and required the release of Bubba to his custody. The Muller's were told that a ten day quarantine period would ensue to determine if there was danger of rabies infection or unusual behavior. Offers to show vaccination records and contact Bubba's veterinarian were rejected. Requests by the Mullers to see a copy of the municipal code that covered this situation were unanswered until August 1st.
The quarantine period expired without incident and the Muller's asked that Bubba be returned to them. Their request was denied and, finally, in a letter dated, August 5, 2004, Sherita Muller was informed that Bubba was classified as a "dangerous dog." The classification was based on "facts that show your dog injured a child by biting the child in [the] face. The child's injuries were severe and required emergency medical treatment." There was no indication that the injuries may have been sustained as the result of a collision rather than an attack.
Sherita was given five days from the date of the notice to request a hearing or Bubba would "be destroyed" without further notice. In addition, "the owner and keeper of the dog will be jointly and severally liable for the costs of impoundment, euthanasia and disposal of the dog's remains." The request "must state in detail the factual basis to contest the classification and describe in detail any claimed affirmative defense under Fremont Municipal Code 3-51413 or mitigating circumstance under Fremont Municipal Code section 3-51418."
Seizure and impoundment is regulated by section 3-51416 of the Fremont Municipal Code. It states that,
"An Animal Services Officer may impound a dog classified as potentially dangerous when: 1) An Animal Services Officer has probable cause to believe the dog poses an immediate threat to public health or safety; or 2) The owner or keeper of a dog classified as potentially dangerous has received notice of classification and failed to timely comply with any of the requirements or violated any of the prohibitions under this Article for keeping a potentially dangerous dog."
It appears that the seizure of Bubba can only be justified under the "probable cause" clause since the designation as a "Dangerous Dog" was not indicated until 17 days later. The ordinance states that classification of a "Dangerous Dog" can be applied to "a dog that causes serous injury or death of any person." There is no dispute that the result of the incident was serious injury. However, under section 3-51418, "Mitigating Circumstances," it is stated,
"Before classifying a dog potentially dangerous or dangerous, the following mitigating circumstances, if shown to exist by a preponderance of the evidence, shall be considered. The existence of mitigating circumstances, however, shall not require an Animal Service Officer or the Superintendent to refrain from classifying a dog potentially dangerous or dangerous. This section does not require an Animal Services Officer or any other City employee to conduct an independent investigation of determining whether any mitigating circumstances exist." The first mitigating circumstance listed is "abusing the dog."
This is a confusing since theoretically, before a dog can be determined "Dangerous" or "Potentially Dangerous," mitigating circumstances should be taken into account. But there is no requirement to investigate such circumstances! To add to the contradictory ordinance, section 3-51403 states that the classification procedure states that when an Animal Services Officer believes a dog is potentially dangerous or dangerous,
"The Officer shall conduct an investigation to determine whether there is sufficient evidence to support classifying the dog potentially dangerous or dangerous. The evidence shall include observations and testimony by animal control officers or other witnesses who personally observed the animal's behavior. The evidence may include testimony about the dog's upbringing and the owner's or keeper's control of the dog."
Sherita asked the officer to speak with Bubba's veterinarian, friends and neighbors who had significant contact and history with Bubba. She says that in response, the officer said that further investigation would only include interviews with hospital personnel and the victim.
"If the Animal Services Officer determines sufficient evidence exists to classify a dog as potentially dangerous or dangerous, he or she must consider the existence of any mitigating circumstances described in Section 3-51418." But, the ordinance then goes on to say, "the existence of mitigating circumstances shall not require the officer to refrain from classifying a dog potentially dangerous or dangerous."
The existence of this ordinance is an important protection for citizens from dogs that are clearly dangerous - raised for fighting and aggressive behavior or of dangerous temperament. However, the ordinance appears to be confusing and, at times, contradictory especially when a family pet is at risk. TCV will attend the hearing of Bubba's fate and give a full accounting of the decision and reasons for it.