Felony or Misdemeanor for Using Dog As Deadly Weapon

A dog can be used to inflict bodily injuries on a person, and therefore the use of a dog in that manner can be charged as a crime or an enhancement to a criminal charge. As was stated by one court, “[i]t is well established that an innocuous instrument can become a dangerous instrument when under the circumstances in which it is threatened to be used, it is readily capable of causing death or other serious physical injury.” (People v Garraway (1992) 187 A.D.2d 761, 589 N.Y.S.2d 942.) Under the Model Penal Code, “deadly weapon” is defined to include both inanimate and animate instruments which, in the manner used, are capable of producing death or serious bodily injury. (Model Pen. Code, § 210.0(4).)

Accordingly, since the 1950’s, the use of a dog as a weapon has prompted prosecutors to charge defendants with crimes usually associated with guns and knives.

A video by WCSH-TV tells dramatically about the use of a pit bull to commit robbery and assault, and explains why prosecutors believe that vicious dogs are deadly weapons under the law. The New York Times interviewed Attorney Kenneth M. Phillips for the article, Instruments of Danger in Weapons Case Were Dogs, Authorities Say. Video of Phillips talking about using dogs as weapons is included at the bottom of this page.

In 2016, there was a dramatic surge in crimes committed using pit bulls as an offensive weapon. (See Merritt Clifton, Pit Bull Crime Doubled in 2016.)

Here are 3 cases in which deadly weapon charges were filed against dog owners:

  • A 45-year-old man was charged with violation of the New York gun control law (the Sullivan Act) because of his possession of a huge German shepherd dog that allegedly attacked three patrolmen. (Read the abstract of this 1956 incident from the New York Times.)
  • A youth was charged with child molestation with a deadly weapon, in addition to other felony charges of criminal confinement and intimidation, after using his pit bull to assault a 9-year-old girl in Lake County, Illinois, in 2003. (Read the article in the Chicago Tribune.)
  • A man in Worcester County, Massachusetts, was charged with assault and battery with a dangerous weapon after he unleashed his pit bull to enable it to bite another man, who indeed was bitten on the stomach. (Read the article about this 2012 assault in the Sentinel & Enterprise.)

The California case of People v. Nealis (1991) 232 Cal.App.3d Supp. 1 surveyed the law throughout the USA and concluded “a dog trained to attack humans on command, or one without training that follows such a command, and which is of sufficient size and strength relative to its victim to inflict death or great bodily injury, may be considered a ‘deadly weapon or instrument’.” In Nealis, the defendant commanded her Doberman to attack two victims, and the dog responded by doing so and inflicting significant injuries.

Prosecutors have charged defendants with other, related crimes because of the use of a dog. For example, in People v. Henderson (1999) 76 Cal.App.4th 453, pit bulls were used to threaten police, and the dog owner was charged with a violation of Penal Code section 417.8 (brandishing a deadly weapon). There was testimony from a dog expert that pit bulls as a breed are capable of inflicting great bodily injury. Under the circumstances of that case, the court held that the dogs were deadly weapons, not necessarily because of their breed, but because the defendant was using them as deadly weapons.

Similarly, a dog attack can constitute malicious wounding, which is a felony in some states. See, i.e., Long v. Commonwealth, 379 S.E.2d 473, 8 Va. App. 194 (Va.App. 1989). In the Long case, it also was held that the prosecution is not required to prove that the dog was vicious or trained to attack if the defendant intended to command the dog to attack.

A pit bull owner in California was convicted of a felony and given probation and fines after his dog repeatedly bit and terrorized neighbors. The case of People v. Flores was a prosecution for keeping a “mischievous animal.” California Penal Code section 399 establishes that if a person knows his animal is “mischievous” and fails to exercise ordinary care, and as a result a human being suffers serious bodily injury or death, that person may be convicted of a misdemeanor or felony (up to 4 years in prison). The defendant’s pit bull in the Flores case, named “Blue,” had never bitten anyone or broken free of its confinement; however, the court stated “[t]here was overwhelming evidence that Blue’s aggressiveness, combined with his massive strength and power, made him uncontrollable and a danger to the public.”

The crime of assault generally consists of putting a person in fear of a battery (i.e., an unlawful touching). Therefore this crime can occur even without the dog biting a person. The necessary element is the action or threat that creates the fear. Assault with a deadly weapon is serious crime. For example, California Penal Code section 245 provides that any person who commits an assault with a deadly weapon or instrument other than a firearm, or by means of force likely to produce great bodily injury, may be punished by imprisonment in state prison for two, three, or four years; or county jail not exceeding one year; or by a fine not exceeding $10,000; or by both the fine and imprisonment.

For more: Pit Bull Owner Charged With Assault with a Deadly Weapon