A mother wrote to Mr. Phillips and asked whether she should "bring charges" because her son was disfigured by a dog that previously bit other kids in the same neighborhood. Certain aspects of that case did suggest that criminal consequences might be appropriate. However, Mr. Phillips recommended against proceeding criminally. Here is the actual text of his response to her:
When a person "brings charges," he or she actually is simply making a report to the police. The officers take the report. The report is assigned to a detective. The detective eventually goes to the local prosecutor's office and places his files in three piles: do nothing, file this case if you want, and definitely file this case. The prosecutors make read all three piles, or just two of them, or just one of them. The investigators at the prosecutors office may or may not do some investigation of their own. Eventually, the prosecutor commences criminal proceedings, or doesn't. The point of all this is that it is the prosecutor who brings the criminal charges, not the complaining person, and not even the police. Furthermore, it is the prosecutor who decides what those charges will be, not the complaining person, and not the police.Now, there are a variety of possible criminal charges. Some are brought under local city and county laws, and others are brought under state laws. The local laws are easy to find because they generally have the word "dog" or "animal" in them. [The discussion of local laws is omitted here.]
State laws are a different matter because they cover generic crimes like assault, battery, homicide, etc. A dog attack might be charged under various generic statutes, which is what is happening in San Francisco with regard to the Diane Whipple death case. However, the application of the generic criminal codes is complicated, as evidenced by the legal challenge to certain of the charges in that case.
Like I told you on the phone, a conviction of any violation of a law requiring intent would be a disaster for [name of boy omitted]. Such a conviction would negate the insurance coverage. This would mean that your son will have to endure (a) the risks, costs and time required for trial, (b) the bankruptcy of the dog owners, and fighting their bankruptcy discharge in the federal bankruptcy court, (c) locating and seizing the assets of the defendants that they fail to hide or mortgage (and hiding and mortgaging assets has become an entire specialty). Usually a defendant can, at the very least, cost you a great deal of money trying to execute a court judgment by seizing assets. Believe me, it might sound like the defendant will be punished, but the one who will suffer will be your son. Consequently, the emphasis is on the insurance, not driving the defendant into bankruptcy.
Any conviction of a crime involving intent will negate the insurance coverage, so I would have to caution you, when and if you make a report, that you should not imply that intent was a factor here. However, I also must caution you that the prosecutors are not under your or my control, they might charge an intent crime, the defendant might be found guilty of it, and then would ensue the consequences that I described above.
I have seen the photos of your son and my heart breaks for him. However, a criminal conviction will not benefit him one little bit. It might make you feel like "justice" has been done -- but justice will not be done if we cannot do anything to bring comfort and assistance to him when he needs it, and when he goes to college, and when he starts out in life. At that time, if all he has is the terrible effect of this wound, what good will it do him or you to remember that someone was fined, or went to jail?
Please understand that, since I represent dog bite victims, I am totally on the side of the victim, not the dog owner, and certainly not dog owners like these people. I want justice to be done. However, your son already has been punished, and I plan to make sure he gets something back. I don't know of any other kind of justice possible here, in that there can be no justice at all unless your son gets something back in exchange for what happened to him.
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