Sunday, March 16, 2008
BY LINDA STEIN
The defendant had a clear right to defend himself and
those close to him.
That is the argument a defense lawyer has made on behalf
of his client. But this is no ordinary appeal: The
defendant is Congo, a German shepherd ordered euthanized
after it bit a landscaper last year.
Municipal Court Judge Russell Annick ordered that the
dog should be put down after it -- and four others -- took
part in an at tack on Giovanni Rivera on June 5 at the
Princeton Township home of Guy and Elizabeth James.
But the ruling was stayed pending an appeal that may
result in a precedent-setting decision regard ing
provocation under New Jersey's dog laws.
In papers filed with Judge Mitchel Ostrer, lawyer Robert
Lytle, who represents the James family, argued that the
Legislature intended that dogs should not be put to death
"lightly" but rather, that the state has to prove its case
"by clear and convincing evidence."
Ostrer is set to hear arguments in the case on April
4.
"Animals, like human beings have a right to defend
themselves, their owners and their property," Lytle wrote.
In this case, Congo, who led the other dogs -- Lucia,
Shadow, Bear and Hunter -- in the attack, only bit Rivera
after he grabbed Elizabeth James and she screamed,
according to her testi mony. Rivera gave three different
versions of events, according to Princeton Animal Control
Officer Mark Johnson, the second and third times denying
that he touched her.
"These individuals inadvertently caused the dogs to
defend themselves, Mrs. James and their property," Lytle
argued. In addition, Lytle noted, another gardener was
hitting the 6-month-old pup pies with a rake, but that
worker was not harmed.
Lytle cited the testimony of a University of
Pennsylvania animal behavior expert, Ilana Reisner, who
testified for the James family, that the dogs' actions were
"undoubtedly provoked."
However, in her brief, Deputy First Assistant Prosecutor
Doris Galuchie argued that Congo's reaction was not what
would have been expected by a normal dog.
"While some reaction on the part of the dog would
reasonably be expected, the attack that oc curred far
outweighed Mr. Rivera's conduct. To determine that his
actions amounted to provocation ... would contravene the
express in tent of the Legislature to protect New Jersey's
citizens from the serious threat of attacks by dogs whose
owners cannot or will not properly train or control
them."
Galuchie said later, "There certainly was provocation.
The dog's reaction was certainly disproportionate." Rivera
was "absolutely mauled," she said.
"If a dog is going to react in that way, you have to
label him a 'vicious dog,'" Galuchie said. "We wouldn't
whimsically ask for a dog to be euthanized."
Both Galuchie and Lytle agree that there are no legal
precedents in this area, so Ostrer's opinion could guide
future cases.
"There is no case law in the state interpreting the
statute," Galuchie said. "We had to research it and
interpret it. You can't look at provocation alone. You have
to look at provocation in the light of the dog's behavior
in response to provocation. The response to the provocation
cannot be disproportionate. In this case it's grossly
disproportionate."
Rivera, who was hospitalized and underwent surgery, was
awarded $250,000 plus medical costs from the Jameses'
insurer.
A change in the statute that would prevent Congo's
demise, dubbed "Congo's Law," that was introduced by
Assemblyman Neil Cohen, D-Roselle, remains pending, his
spokeswoman said Friday.
Meanwhile, Congo is back home with the James family,
under court- ordered restrictions including that he wear a
muzzle when outside in their fenced yard.
After deciding that six dogs were two too many, the
family is seeking new homes for two of the younger dogs,
Guy James said Friday.
"We're just keeping our fingers crossed that everything
will work out on the 4th," James said.
