New Jersey Dog Attack Laws Questioned Following Congo The German Shepard’s Euthanization

As New Jersey attorneys who represent victims of dog bites and owners of dogs accused of biting, we feel it is incumbent upon us to comment on the case involving Congo, the Princeton Township German Shepherd that was recently euthanized by its owner and which garnered international attention last year when a Princeton Municipal Court judge ordered Congo to be euthanized, only to be reversed by a settlement with the local prosecutor after massive public outcry. At the outset, I want to emphasize that I am not directly involved in this case. I have not seen any documents or interviewed any witnesses, so my knowledge of the case is based entirely on facts and allegations reported by various news outlets.

Background:

This case involves a German Shepherd named Congo, who was the alpha male leader of a pack of several dogs owned by Princeton Township resident Guy James and his wife. Congo’s pack of three other German Shepherds included Congo’s mate and two offspring, each of which was euthanized this past week. Although I never personally observed the dogs’ behavior, the media coverage seems to indicate that Congo ran the house. That is, Congo appears to have assumed the Alpha Dog role for the human family, as well as his dog family at least in Congo’s mind. Anyone who is familiar with Cesar Millan’s show, the Dog Whisperer, knows that nothing good happens when a dog, especially a powerful working breed, assumes a dominant position over its owners.

In June 2007, a team of landscapers entered the James’ property, or rather, Congo’s property. While the details of what happened are in sharp dispute, we know that the dogs attacked the landscapers and caused serious bite injuries to one of them. According to the injured landscapers, the attack was unprovoked. According to the Jameses, however, the landscapers entered the property against the owner’s orders and actually pulled Mrs. James to the ground when the dogs approached, triggering the dogs’ defensive and protective instincts. In other words, the Jameses argued that the landscapers provoked Congo to attack, although inadvertently. This argument is very important from a litigation standpoint because New Jersey dog bite law expressly states that dogs cannot be deemed vicious or potentially dangerous if the attack at issue was provoked. Unfortunately, however, the law as currently written does not specifically define what ‘provoked’ means. In any event, it appears undisputed that Congo was the leader of the pack and led the dogs’ reaction to the landscapers – whether one wants to characterize that reaction as an ‘attack’ or ‘act of self-defense.’ After a hearing, a municipal court judge applied the law to the facts and determined that Congo was vicious. That finding, under existing New Jersey law, required Congo’s destruction.

Ultimately, through litigation and public support, the Jameses were able to convince the Mercer County prosecutor to determine that Congo was not vicious under the law. Instead, the dog was deemed potentially dangerous, which meant that the Jameses could keep the dog, so long as they adhered to a rigid plan designed to protect the public from Congo and his pack, such as erecting a fence that the dogs could not jump over or dig under, muzzling the dogs during walks, and similar precautions. Certainly, this was a victory for the Jameses, Congo’s pack, and supporters. The Jameses followed the plan and secured the dogs.

Last week, the case took a dramatic turn for the worse. Mrs. James’s mother, who is elderly, was visiting the James home and apparently opened the door leading to the dogs’ enclosure. According to the Jameses, the dogs became excited and greeted the elderly woman by jumping on her. They further alleged that the dogs did not bite her, but when Mrs. James intervened to help her mother, she knocked her mother over, causing significant injuries in addition to scratches and/or bites from the dogs. Mrs. Jamess mother and the Jameses denied that any dog bit her, claiming her injuries were inadvertently caused by Mrs. James and scratches from the dogs’ exuberance — not aggression and not biting. However, a responding Princeton police officer and the county animal control officer contended that photos of the woman, taken under court order, demonstrate that the woman was the victim of a dog bite attack.

The following day, Mr. James euthanized all four dogs. According to the Trenton Times, Mr. James said he did it because he felt it was the humane thing to do. As difficult as that decision must have been, he is probably right because animal control would have certainly removed the dogs from the house for months. And, it was highly unlikely that, at the end of the day, Congo and family would get another chance. Mr. James figured: Why make the dogs suffer over the final months of their lives? No matter where you come out on the fairness or unfairness of the case, Mr. James was clearly reasonable in his desire to prevent his dogs from suffering.

After the Congo story became headline news last year, Assemblyman Neil Cohen introduced legislation, entitled ‘Congo’s Law,’ that would clarify and modify New Jersey law with respect to dogs accused of being vicious or potentially dangerous. These proposed modifications provide a convenient way to explain the current law and to opine on certain aspects of the law that should be revised.

Provoked vs. Unprovoked
One of the most important provisions in New Jersey’s dangerous dog laws is the dog-owner’s defense of the ‘provoked attack’. That is, if a dog is provoked into an attack that causes serious bodily injury, animal control is not permitted to remove the dog, and the courts do not have the authority to order the dog to be euthanized. However, as Mr. Cohen’s proposed modifications indicate, the law as currently written does not define what ‘provoked’ and ‘unprovoked’ mean. Therefore, those definitions are left to the eye of the beholder, which means that the law may be applied differently from municipality to municipality. Such legal uncertainty is unacceptable when the outcome could mean the end of a dog’s life. While I do not agree with some of the specific language that Mr. Cohen proposes, I think that the definition of ‘provoked attack’ , virtually the only defense a dog-owner has, should be clarified in the statute and not left to the various municipalities to develop through largely unpublished case law.

The next most relevant amendment proposed by Mr. Cohen is to permit owners to retain custody of their dogs while a case is pending in the courts, so long as the owners employ the same strict precautions that are required of dogs deemed to be potentially dangerous. I agree with this proposed provision. Indeed, Mr. James euthanized his dogs before they had their day in court because of the trauma and stress they would have undoubtedly endured while being confined to a solitary, unfamiliar kennel for several months without their human family. My sympathy here lies with dogs that are innocent of allegations of dangerousness. Just as it is patently unfair to deny bond to all people accused of crimes, dogs and their owners should not be punished by incarceration unless and until the government has proved the dogs to be dangerous or vicious under the law. Mr. Cohen also proposes to allow owners to visit their dogs if they are confined to a kennel. This is a provision which I view as simple common sense.

If the purpose of the statute is to protect the public from dangerous dogs and not to punish the dog in advance of a court’s determination of dangerousness, I see no point in removing a dog and confining it to a frightening and lonely place without permitting the owners even to visit.

Perhaps the most important proposal in the proposed Congo’s Law is the provision giving judges an alternative to euthanasia when a dog is deemed vicious. That alternative would permit a court to institute the precautions required when a dog is deemed potentially dangerous. I am always in favor of allowing judges to judge and not tying their hands with predetermined, rigid remedies. Accordingly, I agree with this provision as well.

Where Mr. Cohen’s proposed legislation goes astray is with respect to the provisions that would change the government’s burden of proof from clear and convincing evidence to proof beyond a reasonable doubt, which is the standard of proof in criminal cases and the highest burden of proof under our system of laws. While the concept of burdens of proof is too technical to explain here, the clear and convincing standard is the highest burden of proof in civil cases and, I believe, is sufficiently high to protect pet owners and their pets. Importing the criminal standard of proof to this arena is simply unsupportable under the law and superfluous with respect to fairly protecting both animal and owner. The reason our society requires such a high burden of proof in criminal cases is that people have rights guaranteed under the Constitution. By contrast, animals and pets have no rights under the law. They are considered the property of its owner. Thus, it would be unprecedented for a state to create a law that essentially equates the restriction of an animal’s freedom with the freedom enjoyed by a human being. Accordingly, I believe Mr. Cohen went too far in proposing to establish a criminal burden of proof in such quintessentially civil matters.

In sum, the Congo case illustrates the serious, highly emotional nature of dog bite cases. However, it is not a case in which the system failed. The system worked as it should, and the municipal prosecutor, the animal control officer, and the judge appear to have performed their functions to the best of their abilities and within the confines of the law. Unfortunately, the Jameses were unable to control Congo and, by extension, Congo’s pack, and that lack of control led to the dogs premature and unnecessary demise.

However, from a legal standpoint, the law should more clearly put dog owners on notice as to their defenses, dogs should not be punished until dangerousness has been proven, and judges should be permitted to tailor remedies and punishments to fit the circumstances of each unique case.

The Congo case also illustrates that dog owners and non-dog owners alike need to know their rights, responsibilities, and remedies when dogs cause injuries, both accidentally and purposely.