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August 31, 2004 > Bubba's Day in Court

Bubba's Day in Court

A Law of Unintended Consequences

As time neared 10:00 a.m. on Wednesday, August 18, 2004, two small groups stood in the Tri-City Animal Shelter parking lot, quietly talking and waiting for an administrative hearing to decide the fate of Bubba, an 8 year-old Dalmatian.

A family gathering on July 18, 2004, at Sherita and Stafford Muller's house turned into a nightmare when three young boys, Sherita Muller's son Jamaal, age 11; his cousin, Ronald, age 7 and Isaiah Bryon-Castro, age 8, who had been playing baseball all afternoon, ran to a gate with a neighboring yard to retrieve the ball. Isaiah suffered a severe facial injury when he and Bubba collided in the gateway.

Plastic surgery repaired the physical damage. A subsequent report by hospital personnel resulted in the seizure and impound of Bubba to assess his health and investigate the incident. The Mullers were informed that their dog, Bubba, had been classified as a "dangerous" dog and would be euthanized unless a request for a hearing was submitted within five days. Sherita and Stafford Muller filed the request and an administrative officer, appointed by the City of Fremont, was selected to consider the facts and hear arguments from the parties involved.

Jack Rogers, retired Fremont Director of Maintenance and Recreation Services, served as the administrative hearing officer and set the ground rules. Although some content of conversations between Isaiah's mother, Nicole and Sherita was in dispute, all appeared to agree that the injury to Isaiah was the result of an unfortunate set of circumstances resulting in a dog bite. There was no "mauling" or aggressive activity following the initial contact between boy and dog.

Barbara Dwyer, a Certified Counselor and Trainer, with a certificate in Dog Aggressions, who works with Dalmatian Rescue and had provided Bubba a foster home prior to being placed with the Mullers, spoke at the hearing. She stated that Dalmatians are not among high risk breeds but statistics gathered by the Centers for Disease Control and Prevention (CDC), show that of the 68 million dogs in the United States, about 14% will bite 2% of the population, 1 in every 50 people. Children, 10 and under are most likely to be bitten and the highest risk group are boys ages 5 - 9. The majority of attacks happen in the victim's home or the home of a friend or relative.

Ms. Dwyer spoke gently to Isaiah assuring him that no one was at fault, but the bite was the result of a natural reaction of a dog when threatened and seeking escape from a confined space. The gateway provided this circumstance and Isaiah, whose face was at approximately the same height as Bubba's was blocking an escape route. In a circumstance where biting occurs, she emphasized that a well socialized dog will control the bite, preventing fatal injuries and added that any dog, given the right provocation, can bite.

There is a difference of opinion about whether Bubba was actually struck by Isaiah, but Isaiah says he did wave his arm in Bubba's face and elicited a warning growl from Bubba. According to Ms. Dwyer, the act is a provocation, seen as threatening by a dog. In the "Incident Report" filed by Officer Duane Maxfield of the Fremont Police Department, one of the boys says, "Isaiah was waiving his hands at the dog to try and get the barking dog to back away ... [and] leaned forward toward the dog and accidentally hit his face against the dog's teeth." During a taped interview with Isaiah on August 3, 2004, he said he was exiting the gate with the other two boys when the dog got in his way. "He motioned for the dog to move and the dog growled at him. He tried to pet the dog and it bit him in the face." Officer Maxfield twice made appointments with Ms. Taylor and Isaiah for an interview and, in each instance, they did not show nor call to reschedule.

The "Incident Report" concludes with the comment: "Based on the fact that Sherita Muller's dog caused severe injury to Isaiah ..., when unprovoked with no known mitigating circumstances, I recommend that Sherita Muller's black and white Dalmatian mix "Bubba" be classified Dangerous pursuant to Fremont Municipal Code 3-51402 (b) (1)." This is an interesting conclusion since it appears that Maxfield's report lists several mitigating circumstances.

At the hearing, Isaiah's appearance showed little physical indication of his injuries. The hearing ended on a conciliatory note with each family voicing their sadness of the situation and expressing no bitterness towards one another. Mr. Rogers adjourned the session saying he would confer with animal control personnel and visit Bubba. A ruling would be issued within ten days.

A letter was issued on August 24, 2004 ruling that Bubba would be classified as a "potentially dangerous dog." The "Findings" were that while Bubba meets the definition of Dangerous Dog since he caused serious injury, a preponderance of evidence presented, mitigated that classification to Potentially Dangerous. He cited the fact that:
1) "Bubba" is an 8 year old animal without a history of aggressive behavior
2) That there may have been mitigating circumstances which caused "Bubba" to feel threatened
3) That the bite did not constitute a prolonged attack
4) "Bubba" is reported to have behaved in a calm non-aggressive manner while under the control of Fremont Animal Shelter personnel

Until all requirements are met for the release of a dog with this classification, "Bubba" remains in the Tri-City Animal Shelter with minimal social contact. Substantial charges for his care since incarceration on July 19th (over 40 days and counting) will be borne by the Muller family.

The implications of this ruling, while not a summary condemnation of Bubba, are severe. Before any visitation with or release of Bubba, the Mullers are required to register Bubba annually with the City of Fremont as a "Potentially Dangerous Dog." Additional requirements include posting signs of a dangerous dog on property, proper fencing, sterilization, identification tattoo and imbedding of a microchip. They must also buy a $250,000 liability insurance policy for Bubba within 30 days. Animal control officers are given the right to enter and inspect the premises where the dog is kept "at any reasonable time and in a reasonable manner to verify compliance with the requirements imposed under this Article." This is the equivalent to a lifetime on probation.

The only recourse to the ruling is an appeal to Superior Court within five days of the hearing letter. At this time, Sherita and Stafford Muller have submitted an appeal request and await a court date.

The reason for an appeal is a "preponderance of evidence" of mitigating factors that could be considered for a ruling releasing Bubba from the potentially dangerous category.

Following the hearing, written correspondence from Sergeant Allen Holm of the Animal Services Department, Fremont Police Department stated that:

The allegations made in earlier press reports that the bite victim was provoking or teasing the dog were not shown to be based in fact at the dog hearing. No evidence, including the testimony presented at the hearing showed any such provocation. There was nothing that the child did that deserved the severe bite he received from the dog.

And:

The dog owners engaged an animal behaviorist to testify and present her opinion as to the cause of the bite. She stated she was sure the child did nothing to deserve the attack, but that the dog was acting out as a result of feeling threatened in some manner."

When shown Sgt. Holm's letter, Barbara Dwyer (the "animal behaviorist cited) sent the following reply (edited):

I believe that Sergeant Holm was not listening closely if he believes that the intent of my testimony is what he quoted, "(that she) was sure the child did nothing to deserve the attack, but that the dog was acting out as a result of feeling threatened in some manner." I did make an assumption, as I stated at the outset, that he was knowledgeable about dog behavior. Possibly this was incorrect, and therefore he arrived at an erroneous interpretation of my testimony. In addition, he is incorrect in his statement that I was hired by the Mullers. I volunteered to testify.

As you know, I did not wish to place blame on an 8 year-old for this accident, although I do believe his actions directly contributed to the bite.

If I had been permitted to testify without consideration of the victim's feelings, I would have continued to say that, I believe the victim's recounting was likely clouded by the trauma of the incident .... It makes no sense that the boy would attempt to pet a growling dog. A normal person recoils from a growl or the rattle of a snake. It is certainly reasonable to believe that the more likely explanation of the event is that Bubba was trapped in the gateway with no ready means of escape; the boy waved his arms and yelled, that Bubba growled and that the child subsequently struck the dog at least once. Certainly the Muller's testimony showed that the boy had struck the dog several times.

Regardless, even in the most damning take on this incident, Bubba was provoked and there were the mitigating circumstances of feeling trapped; an 8 year history of no aggressive behavior as attested to in the many letters submitted to Sergeant Holm by the Mullers.

I was shocked to hear that Animal Control Officer Maxfield, quoted in the hearing by the victim's mother, had told her that, "he didn't care if the boy had hit him with a 10' pole, the dog should not have bitten." A quote later repeated by the mother to Sherita Muller, as her own statement.

Bubba's case will continue in Superior Court to seek a ruling removing the "potentially dangerous dog" classification. The implications of the "dangerous dog ordinance" are huge since all those living with animal companions face the same potential difficulties. While the intent of these laws is clearly to protect the public from animals that pose a threat, the net cast is so wide and unforgiving that it can snare unintended victims.

TCV will continue to follow this case and relate the final outcome. At this time, Bubba remains at the Tri-City Animal Shelter while the Muller family attempts to comply with the regulations for housing a "potentially dangerous dog."

To help defray expenses, a "Save Bubba" account has been created by the Muller family. The Mullers have pledged that any excess funds will be forwarded to a humane society for assistance with others facing the same problem. Checks should be made payable to:

SAVE BUBBA
c/o Sherita and Stafford Muller

Mail to:

Tri-City Voice Newspaper
39120 Argonaut Way, #335
Fremont, CA 94538

 
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