POSTED: 1:30 a.m. HST, Oct 7, 2013
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, being pursued 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 case, from August 2012, 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 M. Phillips, a Los Angeles-based 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 in attitude 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 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 in which they are used. 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, in some cases, a dog.
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. In a bit of flair, the 100-pound dog - named Prince - was brought to court as evidence.
Twenty years later, in the case of another German shepherd used in a crime, a Bronx criminal court 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, however, find that the dog qualified as a dangerous instrument.
That was enough in 1992 for a New York appellate court to uphold a weapons possession conviction in Binghamton, N.Y., finding that a dog is an instrument and therefore a weapon. "Defendant caused the animal to growl and lunge at the officers while being restrained only by a leash, which defendant held and could release at any time," the court said.
Recent cases for criminal possession of a weapon are few and far between in New York City and have not always resulted in convictions, prosecutors said. "Having a CPW charge where the weapon is a dog is rare," said Sandy Silverstein, a spokesman for the Brooklyn district attorney's office. Asked about such charges in Manhattan, a spokeswoman for the district attorney declined to comment on "hypotheticals." A recent case in the Bronx was dismissed. (Last year, a Queens man was sentenced to 12 years for siccing his dog on an officer, but he was not charged with weapons possession.)
Two other such cases involving dogs as supposed weapons did not end with convictions on the weapons charges. One, from 2008, resulted in a plea to another charge, of reckless endangerment; the other, in 2012, was tossed out.
"We see this sort of charge involving a dog literally once in a blue moon," said Steven Banks, the head lawyer for the Legal Aid Society. "Unfortunately, we frequently see overcharging by the police, particularly when the charging seems related to conduct by the police themselves. The fact that the language of the statute is overbroad is almost a license for overcharging."
To the police, the charge is anything but excessive. "An attacking dog can be lethal," said John J. McCarthy, the New York Police Department's top spokesman. "An officer may discharge their firearm in order to protect themselves or another person."
The Brooklyn district attorney's office said the arrest of Austin came after he left the home with the two dogs and encountered the police. One of the officers told him to control his dogs, but instead, the authorities said, he ordered them to attack, making them the instrument of an attempted assault. Each officer fired two rounds.
A lawyer for Austin disputed that account, saying his client had been outside for a while before the plainclothes officers rushed up. "He was looking at his dog," said the lawyer, Rudyard F. Whyte. "The dog was there playing with a pair of pants, because he was just a puppy." He said both dogs were tethered when the officers arrived.
Neighbors in Bushwick said Austin and the dogs were a regular presence in the area. John Jones, 27, an engineer for Con Edison, said the dogs were not vicious.
Martin Vidal, 36, a printer, recalled hearing a commotion on the morning of the shooting and walking outside to see Austin on the ground and in pain. Since then, he has seen little of Austin.
"I always saw him walking his dogs," Vidal said. "Then I didn't see him no more."
The trial against Austin is proceeding, but Whyte has already filed a parallel suit against the department claiming damages for the gunshot wounds to Austin - and false arrest.