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Haggblom v. City of Dillingham
Provocation Considered in the Dangerous Dog Context

Concurring Opinion Highlights Provocation Issues

Haggblom v. City of Dillingham - Full Opinion

Haggblom's dog bit a co-worker when she tried to open a gate to her work area.  The dog was found to be vicious since it had bitten without provoaction and was to be euthanized under Dillingham's dangerous dog ordinance. Haggblom appealed, arguing the ordinance was vague, since there was no definition of provocation, and other procedural grounds.

The dog's classification was affirmed on appeal, because the facts were clear and there was not much to argue with respect to provocation and the bite itself. However, the concurring opinion does a wonderful job of discussing the problems with the ordinance, including the issue of provocation. 

Justice Eastaugh wrote a concurring opinion, "to call attention to the deficiencies in the ordinance, its administrative enforcement, and the superior court appeal." The ordinance fails to distinguish between vicious and non vicious animals. It treats a playful nip the same as a brutal dog mauling. There are no standards for making this distinction, and what type of dogs should be subject to the severe sanction of euthanasia. Likewise there is no standard for determining what constitutes provocation - a pat on the head or the pulling of a tail. No distinction is made whether a child or adult is a victim. Provocation when animals attack each other is also problematic.  Because the ordinance does not take into account the severity of the bite, there is no rational relationship between the act of biting and the penalty of euthanasia. Finally, without any standards, animal control officers exercise discretion as to whether they will require euthanasia or the dog may be banished from the city limits. None of the officers enforcing the ordinance have had specfic training in these areas. While the facts in Haggblow are clear, the judge made it clear that the ordinance has deficiencies that need to be addressed.

A well reasoned concurrence, which should be read by anyone interested in the issue of provocation.

Cause Of Death As A Defense

Obviously cause of death is an indespensible element of the government's burden of proof.  They must prove that the dog "killed" the domestic animal.  This is harder than it sounds.  A necropsy is a must for this type of proof.  In Ulu's case, the judge questioned whether the County had met this burden of proof.  There had been no necropsy, and no witness had actually seen the dog kill the cat. What if the cat had a heart attack and the dog picked him up afterwards?  The judge asked if there had been a necropsy proving cause of death, and the county admitted that one was not done. 

Cause of death was also an issue in the McBee case.  There, the question was whether the dogs had picked up an already dead cat, or had killed the cat. The issue turned on whether a witness had seen the cat move as if it had been alive while in the dog's mouth.  In my opinion, something impossible for a witness to really tell.  The Code Enforcement Board took the testimony of the witness that the cat had moved it's paw to find the McBee dogs dangerous.  This despite the fact that the witness had agreed that she had heard her cat cry out an hour earlier.

Finally, there is the case in Broward, where a dog allegedly killed a cat, and animal control, thinking the cat's neck was broken, euthanized it.  A necropsy showed no broken neck.  There is case law that says that in such a case, the cat cannot be guilty of "killing" under the dangerous dog ordinance.