Copyright © 2003 Loyola University New Orleans School of Law Loyola Law Review; Mary Stanfield Bubbett
(Reprinted with permission)
"I loathe people who keep dogs. They are cowards who haven't got the guts to bite people themselves."
~August Strindberg (1849-1912), A Madman's Diary, 1895
John D. Owner has a problem. He spent the weekend hunting and has just returned to find that in his absence, his 125-pound rottweiler escaped from its chain in his backyard and severely mauled his neighbor's five-year-old daughter. Whether the child will live through the night is unclear. John D. Owner contacts his attorney, who asks him a series of questions about the dog. Owner reveals that the rottweiler was trained as a guard dog and that the dog had attempted to chase and bite young children and neighbors before this incident. John D. Owner admits that although an Animal Control officer had responded previously to calls from his neighbors about the rottweiler getting loose, he normally replaced the dog's broken chain with a similar one. Owner's attorney tells him he should expect to lose a civil suit because currently Louisiana law holds dog owners strictly liable for the damage caused by their animals. [FN1] However, he assures John D. Owner that, unlike California and other states, Louisiana has no precedent for a criminal conviction of the owner of an animal that mauls an innocent person. Owner hangs up the phone, sorry that his dog harmed the child, but relieved he will not face criminal prosecution. Two days later, John D. Owner answers a knock at his door. It is the local sheriff, who informs Owner that his neighbor's child has died and places him under arrest for negligent homicide. Owner is shocked. He calls his attorney, who promises they will fight the charges.
The above scenario is purely hypothetical; however, consider the following facts: a dog bites someone in the United States approximately every forty seconds, and about 800,000 of those victims need medical attention. [FN2] Of the 800,000, fifteen to twenty victims, most of them children, die each year from dog attacks. [FN3] During the summer of 2002, the trial of Robert Noel and Marjorie Knoller fascinated the country. They were both convicted of involuntary manslaughter in California after their dogs mauled and killed their neighbor. [FN4] In addition to her conviction for involuntary manslaughter, Ms. Knoller was convicted of second-degree murder. [FN5] During the trial, Americans were bombarded with statistics and polls regarding criminal penalties for the owners of killer dogs. Although this was arguably the first time the country as a whole considered a criminal penalty for the owner of an attack dog, the trend toward greater owner responsibility for the actions of their dogs has been developing in the United States for nearly 120 years. [FN6] The issue prompts a compelling question: Is it possible that Louisiana could begin to hold dog owners criminally liable if their dogs attack and seriously injure or kill innocent persons? [FN7]
In Louisiana, the answer to this question is crucial because residents of this state have not been immune from vicious dog attacks. Between April of 2000 and April of 2001, two New Orleans area residents, a two-year-old toddler [FN8] and a fifty-nine-year-old man, [FN9] were mauled and killed by dogs. In 1999, one boy was killed [FN10] and two others were severely injured by dog attacks. [FN11]
In the last twenty-five years, Louisiana law has moved down a path toward greater owner liability for the actions of dogs. [FN12] Beginning with the development of strict liability for dog owners, and continuing through the determination that a dog may be considered a deadly weapon, the Louisiana legal system has consistently exhibited a strong preference for holding a dog owner liable for the dog's actions. [FN13] The legal system is also beginning to realize the danger some dogs may present and the duty an owner of such an animal bears to secure his pet. [FN14] If a prosecutor pursues the right case, it is quite probable that under the existing statutes, specifically the crimes of negligent injuring or negligent homicide, he or she could obtain a conviction against the owner of a vicious dog. [FN15]
To fully explore this possibility, this comment first addresses the established trend in Louisiana of holding dog owners ever more accountable for the damage their dogs cause. [FN16] Second, this comment explores the emergence of criminal prosecution of dog owners around the country for their animal's actions and its impact on Louisiana jurisprudence. [FN17] Third, this comment explores the possibility that the prosecution of an owner of a vicious dog might result in a conviction for either negligent homicide or negligent injuring in Louisiana. [FN18] Finally, this comment proposes a legislative change that ensures those who own killer dogs and carelessly keep them will be punished. [FN19]
II. LOUISIANA HAS FAVORED INCREASING LIABILITY FOR OWNERS OF VICIOUS DOGS
Dog owners in Louisiana have consistently been held responsible for the actions of their dogs. [FN20] The history of owner liability for dog attacks in Louisiana has evolved from an allowance of "one bite" for dogs that previously displayed no vicious tendencies, to a more stringent strict liability standard that disregards the animal's temperament or the owner's knowledge of it. [FN21] Initially, Louisiana followed a "gentle animal allowance" standard, meaning that a dog owner would not be found negligent if he had no knowledge that his dog was "otherwise than gentle and kind" as long as the animal "ha[d] never given occasion to suspect that it would bite." [FN22] If the owner's actions in controlling his animal were reasonable under this standard, then the owner would not be held liable for the bite. [FN23] Under this standard it was clear that a dog owner must have knowledge of the animal's vicious temperament before he could be found civilly liable for negligence in not restraining his animal. [FN24] The key question under this analysis was whether the dog owner could have reasonably believed that his animal was "kindly and playfully disposed." [FN25] The burden was on the dog owner to prove that he did not know otherwise. [FN26] This standard became known as the "one bite rule." [FN27] This standard remained in effect in Louisiana until 1974.
In the 1974 case of Holland v. Buckley, [FN28] the idea of strict liability for the owner of a vicious dog emerged in Louisiana jurisprudence. [FN29] In Holland, the Louisiana Supreme Court disregarded nearly a century of jurisprudence that established the "one dog one bite" principle. [FN30] The court re-examined the language of article 2321, [FN31] and determined the statute plainly meant that a dog owner was liable for any harm the animal caused, regardless of the owner's knowledge of the animal's disposition or previous behavior. [FN32] In a single decision, without warning, the Louisiana Supreme Court's interpretation of Civil Code article 2321 that "[w]hen a domesticated animal harms another, the master of the animal is presumed to be at fault" changed the face of Louisiana dog bite law forever. [FN33]
The rationale behind the Holland court's decision was that the owner of an animal, who keeps the animal for his own pleasure, should bear the risk and burden if that animal attacks an innocent third party. [FN34] Claiming that the lack of knowledge standard originated in the common law and should not be supported in Louisiana's civil law jurisdiction, the court further denounced the idea that an animal owner should be relieved of liability due to lack of knowledge of that animal's temperament. [FN35] However, the court also noted that by 1974, twenty-seven other states had enacted strict liability laws for the owners of vicious dogs, [FN36] thereby indicating that although Louisiana may not be bound to follow a common law doctrine at all costs, the courts do have an eye on the practices of the other forty-nine states in this area of the law. [FN37]
The doctrine of strict liability for dog bites has remained firmly entrenched in Louisiana jurisprudence, even after the tort reform of 1996. [FN38] In 1996, the Louisiana legislature amended Article 2321 to relieve all animal owners of strict liability with one important exception: the owner of a dog remains strictly liable for any damage to persons or property caused by his animal. [FN39] In 2002, the Louisiana Second Circuit Court of Appeal confirmed the doctrine of strict liability for dog owners, holding that the rule of strict liability still applied and finding liable the owners of a pit bull that bit a neighbor, despite the revisions to the statute. [FN40] Thus, Louisiana has made it clear through a well-established line of cases that the courts of this state hold a dog owner liable to the fullest extent allowable by law.
Another example of the Louisiana courts' readiness to reinterpret statutes in disregard of earlier decisions and hold dog owners more responsible for their animal's actions is State v. Michels, [FN41] in which the court held that a dog may in fact be a dangerous weapon. [FN42] Before Michels, only an inanimate object was considered a dangerous weapon in Louisiana. [FN43] This idea was based on dicta from a 1945 Louisiana Supreme Court decision stating that a dangerous weapon must be an "inanimate instrumentality." [FN44] However, despite over fifty years of precedent, the Louisiana Fifth Circuit, relying once again on the language of the statute rather than jurisprudence, readily determined that a dog may be a dangerous weapon. [FN45] Although the court did not refer to the Louisiana Supreme Court's language in State v. Calvin, the Michels case has not been overturned. [FN46]
III. DECISIONS OF LOUISIANA COURTS REFLECT DECISIONS OF OTHER JURISDICTIONS THAT HAVE CRIMINALLY PUNISHED OWNERS OF VICIOUS ANIMALS
Courts in the United States began recognizing criminal liability for the actions of an animal only within the last twenty-five to thirty years. [FN47] As a result, this area of the law is one in which many states have no previous jurisprudence and must rely heavily on the experiences of other states. [FN48] Louisiana is no exception. [FN49] Courts in Louisiana have used the same analysis that courts in other states have used in determining that a dog may be used as a dangerous weapon, and thereby aggravate an offense. [FN50] This is important because the determination that a dog may be a dangerous weapon has traditionally been intertwined with the finding of criminal liability on the part of the owner of a dog that attacks another person when its owner is not present. [FN51]
Two well-established lines of criminal liability have attached to the owners of dogs in American jurisprudence. Beginning in the mid to late 1970s, courts throughout the United States began finding those individuals who ordered a dog to attack another person guilty of a crime. [FN52] At the same time, defendants who used a dog during the commission of a crime were found guilty of a greater offense, due to the use of a dangerous weapon. [FN53] In one of the earliest cases of this type, Commonwealth v. Tarrant, [FN54] the Supreme Court of Massachusetts held that a German Shepherd was a dangerous weapon for the purposes of Massachusetts' armed robbery statute because it obeyed the owner's command to come to him during the robbery. [FN55] The court laid out the basic framework followed by other states, including Louisiana, in its determination that a dog may be a dangerous weapon. [FN56] The court stated that whether or not a dog should be considered a dangerous weapon depends not on the victim's subjective impression of the animal, but rather on the "instrumentality's potential for harm." [FN57] The state was not required to prove the dog was actually dangerous, but only whether the dog "reasonably appeared capable of inflicting bodily harm." [FN58] If so, the dog would have been considered a dangerous weapon. [FN59] This determination revolved around evidence based on size of the breed and the reputation of the breed as one known to have the "physical capability of inflicting harm." [FN60] The Tarrant case began a trend that has spread throughout the country. [FN61]
The emerging recognition in Louisiana that a dog may be a dangerous weapon is evident in two recent cases: State ex rel. L.D.L [FN62] and State v. Michels. [FN63] In L.D.L., the court ordered counsel to brief the issue of whether a pit bull could be considered a "dangerous weapon" when used by a juvenile to commit an aggravated battery during a robbery. [FN64] The court noted that the issue of whether a dog can be a dangerous weapon was a novel one in Louisiana, and one that should be addressed. [FN65] In a decision rendered just one year later, the Louisiana Fifth Circuit found that a dog should be considered a dangerous weapon under Louisiana law. [FN66]
In Michels, the defendant was convicted of aggravated oral sexual battery, which requires the use of a dangerous weapon. [FN67] The defendant's pit bull was determined to be the dangerous weapon. [FN68] The Louisiana Criminal Code defines a "dangerous weapon" as one that "includes any gas, liquid or other substance or instrumentality, which in the manner used, is calculated or likely to produce death or great bodily harm." [FN69] Based on the testimony by the victim and others concerning the appearance of the dog and its vicious behavior in the past, the jury determined that the dog could be considered a dangerous weapon under Louisiana law. [FN70] The appellate court reviewed the evidence and found that the jury could reasonably determine that the defendant's dog fit the definition of a dangerous weapon necessary for the conviction. [FN71]
An emerging trend in the field of owner liability for dog attacks is to hold the owner of the animal criminally liable for the attack, even if the owner was not present when the attack occurred. [FN72] Arkansas, Wisconsin, and California have all recently convicted owners of vicious dogs. [FN73] To date there are no cases in Louisiana concerning whether a dog owner might be held criminally liable if his dog were to attack. The area of law concerning criminal punishment of an animal owner for the actions of his animal is relatively new to Louisiana. [FN74] However, the state has been quick to emulate the decisions from other states in similar situations involving dog attacks and has indicated that it is more than willing to follow in the footsteps of other states when these decisions are compatible with the law in Louisiana. [FN75]
IV. THE OWNER OF A VICIOUS DOG WOULD LIKELY BE CONVICTED OF NEGLIGENT INJURING OR NEGLIGENT HOMICIDE
Louisiana criminal law could support the conviction of a dog owner if his dog attacked and severely injured or killed an innocent party. The question remaining is with what crime could the person be charged. Although the Louisiana judiciary might be willing to take principles of law from other states into account, ultimately the determination of with what offense a dog owner could be charged will depend on the language of Louisiana's criminal statutes.
A. Other Jurisdictions' Treatment of Criminal Liability for Dog Owners
Other states finding that the owner of a vicious dog may be held criminally responsible have established jurisprudence in three different directions. The first, established by the Arkansas Court of Appeals in Duke v. State, [FN76] determined that an offense committed by a dog that the owner knew was dangerous amounted to the criminal definition of "reckless," and thus fit the charge of second-degree battery. [FN77] In State v. Bodoh, [FN78] a Wisconsin court equated negligent care of a dangerous dog with the negligent handling of a dangerous weapon, thereby finding the dog owner guilty of what is essentially criminal negligence. [FN79] In a third method employed by the California legal system, the legislature created a statute that explicitly made it a felony if a mischievous animal attacked someone. [FN80] Understanding these approaches is important to understand how a Louisiana prosecutor might proceed in determining with what offense the owner of a deadly dog could be charged.
The determination that a dog may be a dangerous weapon was crucial to the evolution of criminal liability in both Wisconsin and Arkansas. [FN81] In both states, the courts took that determination and applied a criminal negligence or recklessness test to determine whether the dog's owner could be held criminally liable. [FN82] Should the issue arise in this state, a prosecutor could plausibly argue for the same result. On the other hand, the California legal system's approach was greatly different and, while noteworthy, it is not likely to be emulated by a prosecutor in Louisiana without significant legislative change. [FN83]
The Arkansas judicial system bridged the gap between finding that a dog was a deadly weapon and finding that improperly allowing a dog to roam free violated a state criminal statute. [FN84] In Arkansas, second-degree battery is defined as occurring when a person "recklessly causes serious physical injury to another person by means of a deadly weapon." [FN85] Although the crime of second-degree battery would not be a viable charge in Louisiana, [FN86] the determination that the careless enclosure of a dangerous dog would constitute the degree of recklessness necessary to convict the owner is analogous to a finding of criminal negligence in Louisiana. [FN87]
Like the court in Arkansas, the Wisconsin judiciary linked the determination that a dog could be a dangerous weapon with a finding that the owner's negligent handling of the weapon constituted a crime. In Arkansas, the charge was based on a violation of the second-degree battery statute. [FN88] In Wisconsin, the charge was based on a criminal negligence statute. [FN89] If this issue were to arise in Louisiana, it is likely that a prosecutor would argue the reasoning employed by the Wisconsin court. [FN90]
In Bodoh, the defendant was convicted of criminal negligence after the court found he carelessly kept dogs that were deemed dangerous weapons under Wisconsin law. [FN91] The particular Wisconsin statute involved provides: "Whoever causes bodily harm to another by the negligent operation or handling of a dangerous weapon, explosives or fire is guilty of a Class I felony." [FN92] Wisconsin defines the term "criminal negligence" as "ordinary negligence to a high degree, consisting of conduct which the actor should realize creates a substantial and unreasonable risk of death or great bodily harm to another." [FN93] This definition is very similar to Louisiana's definition of criminal negligence. [FN94]
B. Louisiana's Probable Treatment of Criminal Liability for Dog Owners
Although Louisiana does not have a statute expressly providing for the punishment of one who injures another through the negligent use of a dangerous weapon, Louisiana does have a statute delineating the punishment for negligent injuring and killing in general. [FN95] "Negligent injuring is the inflicting of any injury upon the person of another by criminal negligence." [FN96] A conviction carries a fine of up to $500 or imprisonment for not more than six months or both. [FN97] "Negligent homicide is the killing of a human being by criminal negligence," and a conviction carries a sentence of not more than five years or a fine of not more than $5,000 or both. [FN98] Criminal negligence is found to exist when, "although neither specific nor general criminal intent is present, there is such disregard of the interest of others that the offender's conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances." [FN99] In short, criminal negligence in the Louisiana Criminal Code corresponds almost perfectly to the concept of "gross negligence" in Louisiana tort law. [FN100] In Louisiana, "criminal liability is always predicated . . . upon that degree of negligence or carelessness which is denominated as 'gross' and which constitutes so great a departure from that of a reasonable man that a reasonable man would have realized the risk." [FN101] The concepts embodied in this language are the same ones at which the Wisconsin criminal negligence statute is aimed.
For a prosecutor to obtain the conviction of a dog owner for negligent injuring or negligent homicide under Louisiana law, the state would have to establish that the dog caused the death or injury and that the owner was criminally negligent in restraining the animal. [FN102] One convicted must act with "a reckless disregard for the safety of another," and a showing of ordinary negligence would be insufficient to meet this standard. [FN103] The Louisiana judicial system has applied this expansive definition of criminal negligence broadly, convicting persons of negligent homicide for actions such as criminal negligence in the care and treatment of a patient, [FN104] incidents of road rage, [FN105] and the unintentional fatal shooting of a roommate. [FN106] Just as the Louisiana judicial system has been willing to expand the definition of criminal negligence to fit a variety of situations, [FN107] under the right circumstances, Louisiana courts would likely be willing to hold the owner of a dog who attacked and severely injured or killed someone criminally liable, specifically, where the attacking dog's owner was aware that his dog had previously attacked people unprovoked and had been warned repeatedly to confine the animal and did not do so.
Importantly, the behavior of a dog owner who would be convicted of negligent homicide must rise to a level that would constitute criminal negligence. [FN108] Because gross negligence is the tort law equivalent of criminal negligence under Louisiana law, what has been considered to constitute "gross negligence" in Louisiana tort law in the area of dog bite law is significant. [FN109] nfortunately, due to Louisiana's history of the "one bite rule" [FN110] and the state legislature's subsequent adoption of strict liability [FN111] for the owners of dogs that bite, "gross negligence" is poorly defined in Louisiana jurisprudence. In 1883, a court held that chaining a dog, which was considered to be part of the ship's cargo and known to be vicious, where the plaintiff was assigned to sleep was not gross negligence. [FN112] However, in 1982, when a plaintiff alleged a defendant was grossly negligent in allowing his dog to escape from his car and bite her son, the defendant's liability was upheld, although this was based on a strict liability analysis. [FN113]
Because Louisiana does not have a clear definition of what constitutes gross negligence in a dog attack situation, an examination of the circumstances in which other states have held the owner of a dog criminally liable for his animal's actions paints the best picture of what behavior on the part of a dog owner would constitute criminal negligence. For example, in People v. Berry, [FN114] the defendant was convicted of involuntary manslaughter after his pit bull attacked and killed a small child. [FN115] In determining that the defendant had not used ordinary care in the upkeep of his pit bulls, the California court heard evidence that the defendant had told his neighbors, the victim's parents, that the offending dog was "vicious and dangerous" and could "do a job" on people, and that he had a wedge to pry open the dog's mouth, if necessary. [FN116] Further evidence indicating that the dog was chained in front of marijuana plants and may have been serving as a guard or watch dog, as well as evidence that the pit bull was not a house pet but trained as a fighting dog, also contributed to finding that the defendant was well aware of the vicious propensities of his dog. [FN117] Despite this knowledge, the defendant left the dog chained in the yard near his neighbor's property, where the child wandered by and was attacked and killed by the dog. [FN118]
In State v. Bodoh, [FN119] while the defendant was out of town, his dogs escaped from their pen and attacked a young boy. [FN120] The dogs were usually kept within a fence with electric wire around the base and restrained with choke collars that were sometimes attached to chains, although the measures taken to restrain the dogs at the time they escaped and attacked were unclear. [FN121] The prosecution established that the dogs had previously escaped by digging under the fence and attacked other dogs and children before this incident. [FN122] Although there was no evidence the dogs were trained to attack, and it was clear the defendant played no part in the attack, the court found that because the defendant kept the dogs as guard dogs, he therefore intended them to be dangerous weapons. [FN123] The defendant's failure to "handle the dogs so as not to create a substantial and unreasonable risk of death or great bodily harm to another" rendered him criminally negligent. [FN124]
The Arkansas Court of Appeals recently determined that a man whose pit bulls attacked a boy was guilty of second-degree battery. [FN125] The dogs attacked the victim when he walked along the road near the defendant's house. [FN126] The defendant admitted to owning ten bull dogs that he allowed to run loose on his property as guard dogs. [FN127] The defendant admitted to knowing that his dogs had often growled and snapped at people and admitted that he was aware they had pinned someone the day before the attack. [FN128] He also stated to an investigating detective that the dogs that attacked the child could not have been his because if they had been, the victim would not have lived. [FN129]
The level of disregard for the safety of others demonstrated by the defendants in the above instances is likely the same type of behavior it would take to convict the owner of a dog in Louisiana of negligent homicide or negligent injuring. [FN130] This type of behavior is beyond ordinary negligence and constitutes so great a departure from that of a reasonable man that these owners should have realized the risk. [FN131]
C. A Proposal for Louisiana
As previously noted, [FN132] the California legislature has passed a statute making the owner of a "mischievous animal" who is aware of its disposition and keeps it without due care guilty of a felony if that dog kills someone. [FN133] Although Louisiana has the existing criminal law structure to convict those who own vicious dogs, in keeping with the state's civil law tradition, the Louisiana legislature should consider passing a statute that specifically holds dog owners criminally liable if their dogs cause severe injury or death to innocent persons. Such a statute might include an addition to the existing definition of a dangerous weapon that indicates a dog may be considered a dangerous weapon in Louisiana, and that the owner of a vicious dog that, without provocation, attacks a person and severely injures or kills that person will be criminally liable for that animal's actions. For example:
Louisiana Revised Statutes section 14:2(3). A Dangerous Weapon includes any gas, liquid or other substance, animal or instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm.
Louisiana Revised Statues section 14:____. Criminal Responsibility for the Actions of an Animal
(A) When an animal, without provocation, attacks and kills a human being, the owner of that animal will be held criminally liable for that death when:
(1) The Owner has been warned previously that his animal, without provocation, has severely attacked or tried to attack a person, OR
(2) When that Owner has been warned previously by an Animal Control Officer that his animal needs to be confined in a more restrictive manner, AND
(3) The Owner has not taken reasonably appropriate care to confine his animal in light of the animal's size, breed, and abilities.
(B) When an animal, without provocation, attacks and severely injures a person, the owner of that animal will be held criminally liable for that injury when:
(1) The Owner has been warned previously that his animal, without provocation, has severely attacked or tried to attack a person, OR
(2) When that Owner has been warned previously by an Animal Control Officer that his animal needs to be confined in a more restrictive manner, AND
(3) The Owner has not taken reasonably appropriate care to confine his animal in light of the animal's size, breed, and abilities.
(C) The punishment for this crime shall be consistent with the punishment for negligent homicide OR negligent injuring, respectively.
Louisiana legal institutions have recently demonstrated their willingness to hold dog owners to a greater level of accountability for the actions of their dogs, and have also demonstrated their willingness to consider that dogs may be used in a criminal manner. [FN134] These are the two crucial steps that preceded the determination of criminal liability for dog owners in other jurisdictions. [FN135] Should the proper case arise, two factors make the Louisiana legal system an ideal one for a prosecutor to obtain a conviction on a charge of negligent homicide or negligent injuring. First, Louisiana courts' tendency to hold dog owners to the greatest liability allowed by law. Second, the courts' willingness to reinterpret an existing statute in order to reach this goal. Like the legal systems in Arkansas, Wisconsin, and California, the law in Louisiana has followed a pattern of greater dog owner liability, starting with strict liability in civil cases and continuing through the determination that a dog may be considered a dangerous weapon. [FN136] In light of these principles of Louisiana law, should the unfortunate situation ever arise in Louisiana where an innocent person is attacked and severely injured or killed by a dog, it is quite likely that a prosecutor would be able to win a conviction of a dog owner on a charge of negligent homicide or negligent injuring.
Of course, the proper circumstances are crucial for such a conviction. The legal system in Louisiana will not send the average dog owner to jail if his pet bites with no provocation. Those are the situations in which strict liability in civil cases should be applied. Criminal punishment should be reserved for the owners of dogs that are known to be dangerous or commonly regarded as such, dogs that could cause death or great bodily harm when owners do not competently act to protect the public from them, even though he is aware of the danger. If those dogs attack or kill an innocent person, then there is a real possibility that the owner will be found criminally responsible, most likely under a charge of negligent homicide or negligent injuring.
[FN1]. La. Civ. Code Ann. art. 2321 (West 2003).
[FN2]. American Veterinary Medical Association, AVMA, ASPS and CDC Provide Public Education for National Dog Bite Prevention Week, May 19-25, (May 17, 2002) [hereinafter AVMA, Dog Bite Prevention Week], at http:// avma.org/press/releases/020517--dog--bite.asp. Dogs bite more than 4.7 million people annually. Centers for Disease Control, Dog-Bite-Related Fatalities-- United States, 1995-1996, MMWR 46(21):463-466 (May 30, 1997), available at http://www.cdc.gov/mmwr/preview/mmwrhtml/00047723.htm. In the U.S. from 1979 to 1994, 279 people died from dog attacks. Id. Most of the victims were children. Id.
[FN3]. AVMA, Dog Bite Prevention Week, supra note 2.
[FN4]. Jaxon Van Derbeken, Unrepentant Knoller Gets Maximum Term; 4-Year Prison Term in S.F. Dog-Mauling Case, S. F. Chron., July 16, 2002, at A1.
[FN5]. Id. On appeal, the court reversed her murder conviction for lack of evidence. Id.
[FN6]. See Montgomery v. Koester, 35 La. Ann. 1091 (La. 1883) (holding that an owner is liable for the damage caused by his animal if he knows the nature of the animal); Holland v. Buckley, 305 So. 2d 113 (La. 1974) (applying strict liability for damage caused by animals); State ex rel. L.D.L., 97-1634 (La. App. 3 Cir. 4/29/98), 714 So. 2d 780 (addressing for the first time in Louisiana whether a dog may be a dangerous weapon); State v. Michels, 98-608 (La. App. 5 Cir. 1/13/99), 726 So. 2d 449 (holding that a dog may be considered a dangerous weapon).
[FN7]. For clarity's sake, dogs who attack and seriously injure or kill innocent persons are hereinafter referred to as "vicious."
This comment addresses only those dog attacks in which the dogs were unprovoked and does not address the issue of whether the owners of dogs that attack intruders should be held criminally responsible.
[FN8]. See Tara Young, Dog That Killed Boy is Put to Death, Times-Picayune (New Orleans), Apr. 18, 2000, at B1 (describing the death of two-year-old Armini Virgil after she was bitten seventeen times by a pit bull).
[FN9]. Rob Nelson, Westwego Man Dies From His Dog's Bite; He Bleeds to Death After Chow Rips Artery, Times-Picayune (New Orleans), Apr. 17, 2001, at B.01.
[FN10]. See Editorial, When Dogs Turn Deadly, Times-Picayune (New Orleans), Apr. 18, 2000, at B6 (describing the death of ten-year-old Michael Lewis after being bitten by his family's two rottweilers).
[FN11]. See id. (noting that two children were injured by pit bulls in the Slidell area). In American jurisprudence, the breeds most frequently deemed "commonly regarded as dangerous" are German Shepherds, see for example Commonwealth v. Tarrant, 326 N.E.2d 710, 715 (Mass. 1975); People v. Kay, 328 N.W.2d 424, 425 (Mich. Ct. App. 1982); In re J.R., 398 A.2d 150, 152 (N.J. Super. Ct. App. Div. 1979); People v. Torrez, 382 N.Y.S.2d 233, 234 (N.Y. Sup. Ct. 1976); Doberman Pinschers, see for example People v. Nealis, 283 Cal. Rptr. 2d 376 (Cal. Ct. App. 1991); Michael v. State, 286 S.E.2d 314 (Ga. Ct. App. 1981); State v. Sinks, 483 N.W.2d 286 (Wis. Ct. App. 1992); Rottweilers, see for example State v. Bodoh, 582 N.W.2d 440 (Wis. Ct. App. 1998), aff'd, 595 N.W.2d 330 (Wis. 1999); and Pit Bulls, see for example Duke v. State, 72 S.W.3d 907 (Ark. Ct. App. 2002).
[FN12]. See Holland v. Buckley, 305 So. 2d 113 (La. 1974) (applying strict liability for dog bites); Martinez v. Bernhard, 30 So. 901 (La. 1901) (espousing the one bite rule).
[FN13]. Holland, 305 So. 2d at 120; State v. Michels, 98-608, p. 7 (La. App. 5 Cir. 1/13/99), 726 So. 2d 449, 453.
[FN14]. See Holland, 305 So. 2d at 113 (holding that an owner is strictly liable for actions of his animal); Michels, 726 So. 2d at 449 (holding that a dog may be treated as a dangerous weapon).
[FN15]. Louisiana Revised Statutes section 14:32 provides in part: "Negligent homicide is the killing of a human being by negligence." La. Rev. Stat. Ann. § 14:32 (West 1997). Louisiana Revised Statutes section 14:39 provides in part: "Negligent injuring is the inflicting of any injury upon the person of another by criminal negligence." La. Rev. Stat. Ann. §14:39 (West 1997). Criminal negligence is deemed to exist when "although neither specific nor general criminal intent is present, there is such disregard for the interest of others that the offender's conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances." La. Rev. Stat. Ann. § 14:12 (West 1997).
[FN16]. See infra Part II.
[FN17]. See infra Part III.
[FN18]. See infra Part IV.
[FN19]. See infra Part IV(C).
[FN20]. Holland, 305 So. 2d at 120; Martinez v. Bernard, 30 So. 901, 901 (La. 1901); Michels, 726 So. 2d at 453.
[FN21]. Holland, 305 So. 2d at 120; Martinez, 30 So. at 901.
[FN22]. Bentz v. Page, 39 So. 599, 601 (La. 1905). See also Arnold v. Paulsen, 52 So. 2d 605, 606 (La. Ct. App. 1951) (holding a dog owner liable where she ordered the dog to attack the victim); Woulfe v. D'Antoni, 158 So. 394, 398 (La. App. 1935) (including the element of scienter in analyzing owner liability); Manual v. Young, 119 So. 555, 556 (La. App. 1 Cir. 1929) (noting that the owner had no knowledge that the dog was disposed to bite); Martinez, 30 So. at 901 (requiring knowledge of the dog's vicious tendencies); McGuire v. Ringrose, 6 So. 895 (La. 1889) (discussing the requirement that the animal's owner have knowledge of its bad temperament).
[FN23]. Martinez, 30 So. at 901; Manual, 119 So. at 556.
[FN24]. Manual, 119 So. at 555.
[FN25]. Id. at 556.
[FN27]. Mercadel v. Phoenix of Hartford Ins. Co., 144 So. 2d 670, 674 (La. App. 4 Cir. 1962).
[FN28]. Holland v. Buckley, 305 So. 2d 113 (La. 1974).
[FN29]. Id. at 120.
[FN31]. The text of Louisiana Civil Code article 2321 in 1974 provided in part: "The owner of an animal is answerable for the damage he has caused." La. Civ. Code Ann. art. 2321 (West 1974).
[FN32]. Holland, 305 So. 2d at 120. As Chief Justice Sanders noted in his dissent, this pronouncement indicates that the owner of an animal may be held liable for any action by his animal that causes damage. Id. at 122 (Sanders, C.J., dissenting). Justice Sanders was concerned that the court's holding would create a multitude of litigation concerning cat scratches and the damage done to a car when a driver swerves to avoid a dog. Id. He felt that if this revision were to take place, it should be done in the legislature. Id.
[FN33]. Holland, 305 So. 2d at 119.
[FN34]. Id. at 120.
[FN38]. See, e.g., Allen v. State Farm Fire & Cas. Co., 36,377 (La. App. 2 Cir. 9/18/02), 828 So. 2d 190. In Allen, the plaintiff was bitten on the hand by the defendant's pit bull dog while he was repairing the fence between two houses. Id. at 192. The defendant claimed that the plaintiff had not met his burden of proof that the dog presented an "unreasonable risk of harm." Id. The court rejected this argument, holding that under Louisiana's strict liability standard, if the defendant's dog caused harm to the plaintiff without provocation, the defendant was liable to the plaintiff, regardless of whether the plaintiff established the animal was unreasonably dangerous. Id. at 195.
[FN39]. Currently, Louisiana Civil Code article 2321 states, in part:
The owner of an animal is answerable for all of the damage caused by the animal. However, he is answerable for the damage only upon a showing that he knew, or in the exercise of reasonable care, should have known that his animal's behavior would cause damage, that the damage could have been prevented by reasonable care, and that he failed to exercise such reasonable care. Nonetheless, the owner of a dog is strictly liable for injuries to persons or property caused by the dog and which the owner could have prevented and which did not result from the injured person's provocation of the dog.
La. Civ. Code Ann. art. 2321 (West 2003).
[FN40]. Allen, 828 So. 2d at 193.
[FN41]. State v. Michels, 98-608 (La. App. 5 Cir. 1/13/99), 726 So. 2d 449.
[FN42]. Id. at 453.
[FN43]. See Joseph K. Scott, The Jaws That Bite, the Claws That Scratch, 62 La. L. Rev. 303 (2001) (noting that no decision prior to Allen found an animal to be a dangerous weapon).
[FN44]. State v. Calvin, 24 So. 2d 467, 469 (La. 1945). Despite the Michels decision, commentators have argued that under Louisiana law, only inanimate objects may be considered dangerous weapons. Scott, supra note 43, at 303. However, the actual substance of the Calvin opinion refers to the fact that a person's teeth may not be considered to be a dangerous weapon. Calvin, 24 So. 2d at 467. In Calvin, the defendant hit and bit the victim. Id. At trial the jury was instructed that "a person's teeth could be classed as a dangerous weapon," which was the basis of the appeal. Id. at 469. The court stated that something separate and apart from a part of the body must be used during the commission of a crime in order to constitute a dangerous weapon. Id. Otherwise every offense would be committed with a dangerous weapon. Id.
Cases citing this language in Calvin have concerned similar issues involving whether parts of the human body may be dangerous weapons. See State v. Taylor, 485 So. 2d 117, 118 (La. App. 2 Cir. 1986) (stating that although a foot may not be considered a dangerous weapon because it is part of the body, a shoe worn on that foot may be a dangerous weapon); James v. Louisiana Laborers Health & Welfare Fund, 1993 WL 205095, *4 (E.D. La. 1993) (holding that "[b]are feet are not dangerous weapons in Louisiana jurisprudence."). Other states, when encountering this exact problem, have stated that "[w]here the relevant statute defining dangerous or offensive weapon broadly includes any instrumentality so constructed or used as to be likely to produce death or serious bodily harm, courts have extended the characterization offensive or dangerous weapon to include dogs used to attack or intimidate the victim." People v. Kay, 121 Mich. App. 440, 442 (Mich. App. 1982) (emphasis in original) (quoting Vitauts M. Gulbis, Dogs as a Deadly Weapon for Purposes of Statutes Aggravating Offenses Such as Assault and Robbery, 7 A.L.R.4th 307, 309 (1981)). In Louisiana, the courts have been willing to consider that an animal could be a dangerous weapon for aggravated offenses. Michels, 726 So. 2d at 453.
[FN45]. Michels, 726 So. 2d at 453.
[FN46]. Id. at 452-53.
[FN47]. See Commonwealth v. Tarrant, 326 N.E.2d 710 (Mass. 1975) (stating that the manner in which the dog was used made it a dangerous weapon); People v. Torrez, 382 N.Y.S.2d 233 (N.Y. Sup. Ct. 1976) (holding that a dog could be a dangerous weapon for purposes of a robbery statute); Michael v. State, 286 S.E.2d 314 (Ga. Ct. App. 1981) (allowing a dog to be considered a dangerous weapon); State v. Bodoh, 582 N.W.2d 440 (Wis. Ct. App. 1998), aff'd, 595 N.W.2d 330 (Wis. 1999) (upholding conviction of owner for independent actions of dog); Duke v. State, 72 S.W.3d 907 (Ark. Ct. App. 2002) (convicting owner for pit bull attack).
[FN48]. State v. Sinks, 483 N.W.2d 286, 289-90 (Wis. Ct. App. 2002); Kay, 328 N.W.2d at 425; People v. Nealis, 283 Cal. Rptr. 376, 378 (Cal. Ct. App. 1991); State ex rel. J.R., 398 A.2d 150, 151 (N.J. Super. Ct. App. Div. 1979).
[FN49]. See Michels, 726 So. 2d at 449 (holding that a dog may be a dangerous weapon in Louisiana); State ex rel. L.D.L., 97-1634, p. 3 (La. App. 3 Cir. 4/29/98), 714 So. 2d 780, 782 (noting that Louisiana had not previously considered whether a dog may be a dangerous weapon).
[FN50]. See Michels, 726 So. 2d at 449 (holding that due to the manner in which it was used, the defendant's dog fit the definition of a dangerous weapon under Louisiana law).
[FN51]. See Bodoh, 582 N.W.2d at 444 (affirming a defendant's conviction for criminal negligence due to his pet rottweiler's attack on a small boy); Duke, 72 S.W.3d at 913 (affirming a defendant's conviction for second-degree battery for his pit bulls' attack on his neighbor).
[FN52]. Michael, 286 S.E.2d at 314.
[FN53]. See, e.g., Commonwealth v. Tarrant, 326 N.E.2d 710, 715 (Mass. 1975); People v. Torrez, 382 N.Y.S.2d 233, 235 (N.Y. Sup. Ct. 1976); Michael, 286 S.E.2d at 314; Sinks, 483 N.W.2d at 290.
[FN54]. Commonwealth v. Tarrant, 326 N.E.2d 710 (Mass. 1975).
[FN55]. Id. at 715.
[FN56]. People v. Nealis, 283 Cal. Rptr. 376, 379 (Cal. Ct. App. 1991); Sinks, 483 N.W.2d at 289; State v. Michels, 98-608 (La. App. 5 Cir. 1/13/99), 726 So. 2d 449, 452.
[FN57]. Tarrant, 326 N.E.2d at 713.
[FN61]. See, e.g., People v. Torrez, 382 N.Y.S.2d 233, 235 (N.Y. Sup. Ct. 1976); Nealis, 283 Cal. Rptr. at 378; Sinks, 483 N.W.2d at 290; People v. Kay, 328 N.W.2d 424, 425 (Mich. Ct. App. 1982); State ex rel. J.R., 398 A.2d 150, 151 (N.J. Super. Ct. App. Div. 1979).
[FN62]. State ex rel. L.D.L., 97-1634, p. 2-3 (La. App. 3 Cir. 4/29/98), 714 So. 2d 780, 782.
[FN63]. State v. Michels, 98-608, p. 7 (La. App. 5 Cir. 1/13/99), 726 So. 2d 449, 453.
[FN64]. L.D.L., 714 So. 2d at 782.
[FN66]. Michels, 726 So. 2d at 453.
[FN67]. Id. at 451; La. Rev. Stat. Ann. § 14:43.3 (West 1997 & Supp. 2003).
[FN68]. Michels, 726 So. 2d at 453. The dog bared its teeth and growled, and the victim stated she was afraid it would attack her if she continued to struggle with defendant. Id. She was also afraid the defendant would order the dog to attack her. Id. The jury was also able to view the dog and take into account its size and breed in its determination. Id.
[FN69]. Id. at 453 (quoting La. Rev. Stat. Ann. § 14:2(3)(West 1997)).
[FN71]. Id. (quoting La. Rev. Stat. Ann. § 14:43.4(3)).
[FN72]. See State v. Bodoh, 582 N.W.2d 440 (Wis. Ct. App. 1998), aff'd, 595 N.W.2d 330 (Wis. 1999) (affirming dog owner's conviction of criminal negligence); People v. Berry, 2 Cal. Rptr. 2d 416 (Cal. Dist. Ct. App. 1991) (holding owner guilty of involuntary manslaughter); Duke v. State, 72 S.W.3d 907 (Ark. Ct. App. 2002) (upholding conviction of second-degree battery).
[FN73]. Duke, 72 S.W.3d at 913; Bodoh, 582 N.W.2d at 446; Berry, 2 Cal. Rptr. 2d at 421.
[FN74]. State ex rel. v. L.D.L., 97-1634, p. 3 (La. App. 3 Cir. 4/29/98), 714 So. 2d 780, 782; Michels, 726 So. 2d at 453.
[FN75]. Holland v. Buckley, 305 So. 2d 113, 120 (La. 1974); Michels, 726 So. 2d at 453.
[FN76]. Duke v. State, 72 S.W.3d 907 (Ark. Ct. App. 2002).
[FN77]. Id. at 912-13.
[FN78]. State v. Bodoh, 582 N.W.2d 440 (Wis. Ct. App. 1998), aff'd, 595 N.W.2d 330 (Wis. 1999).
[FN79]. Id. at 444. In Bodoh, the defendant was convicted of negligently handling a dangerous weapon. Id.
[FN80]. Cal. Penal Code § 399 (West 2002). The prosecutors in California applied this statute, along with other sections of the California Penal Code, to extrapolate the idea that owning a dog that killed a person could fall under the definition of certain offenses, such as manslaughter.
[FN81]. Bodoh, 582 N.W.2d at 442; Duke, 72 S.W.3d at 913.
[FN82]. Bodoh, 582 N.W.2d at 446; Duke, 72 S.W.3d at 912-13.
[FN83]. California's approach was much different and more legislatively driven than that of any other state. California has developed a "mischievous animal" law which provides:
If any person owning or having custody or control of a mischievous animal, knowing its propensities... keeps it without ordinary care, and the animal... while not kept with ordinary care, kills any human being who has taken all of the precautions that the circumstances permitted, or which a reasonable person would ordinarily take in the same situation, is guilty of a felony.
Cal. Penal Code § 399(a) (West 1999 & Supp. 2004). This is the law that California primarily relies on to convict dog owners. People v. Berry, 2 Cal. Rptr. 2d 416, 419 (Cal. Dist. Ct. App. 1991). Louisiana has no such law, although this state does prohibit the ownership of dangerous or vicious dogs. La. Rev. Stat. Ann. §§ 14:102.14-102.15 (West Supp. 2003). These laws, however, do not provide for jail time if the dog attacks and seriously injures or kills a person. Id.Additionally, California has convicted dog owners of involuntary manslaughter, and, in the case of Marjorie Knoller, second-degree murder (although this conviction was overturned by the trial judge). CBS News, Man Gets Maximum in Dog Attack, June 17, 2002, at http:// www.cbsnews.com/stories/2002/07/15/national/main515166.shtml. California's involuntary manslaughter statute provides:
Manslaughter is the unlawful killing of a human being without malice... and involuntary manslaughter is a killing that occurs during commission of an unlawful act, not amounting to a felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.
Cal. Penal Code § 192(b) (West 1999).
In contrast, Louisiana has defined manslaughter as (1) a homicide which would be murder or second degree murder but was committed in the heat of passion or (2) a homicide committed without any intent to cause death or great bodily harm during the commission of a felony not listed under murder or second degree murder or during resisting arrest and circumstances are such that would not be murder or second degree murder. La. Rev. Stat. Ann. § 14:31 (West 1997). Because Louisiana's manslaughter statute requires either the intent to kill or a killing during the commission of a crime, a Louisiana court would not be able to draw on the California experience and convict a dog owner of manslaughter if his dog attacks someone.
[FN84]. Duke, 72 S.W.3d at 912-13.
[FN85]. Ark. Code Ann. § 5-13-202(a)(3) (Michie 1997 & Supp. 2003).
[FN86]. All forms of battery in Louisiana require an intentional act. "Second degree battery is a battery committed without the consent of the victim when the offender intentionally inflicts serious bodily injury." La. Rev. Stat. Ann. § 14:34.1 (West 1997). "Aggravated second degree battery is a battery committed with a dangerous weapon when the offender intentionally inflicts serious bodily injury." La. Rev. Stat. Ann. § 14:34.7 (West Supp. 2004). "Battery is the intentional use of force or violence upon the person of another; or the intentional administration of poison or other noxious liquid or substance to another." La. Rev. Stat. Ann. § 14:33 (West 1997).
[FN87]. In Arkansas, "recklessly" is defined as occurring when a person "consciously disregards a substantial and unjustifiable risk that the circumstances exist or the results will occur. The risk must be of a nature and degree that disregard thereof constitutes a gross deviation from the standard of care that a reasonable person would observe in the actor's situation." Ark. Code Ann. §5-2-202(3) (Michie 2003).
[FN88]. Duke, 72 S.W.3d at 913.
[FN89]. State v. Bodoh, 582 N.W.2d 440, 446 (Wis. Ct. App. 1998), aff'd, 595 N.W.2d 330 (Wis. 1999).
[FN90]. Id. at 440 (finding defendant guilty of criminal negligence for his dog's attack).
[FN91]. This determination was made in light of the fact that the rottweilers were kept as watchdogs and known to be vicious. Id. at 446. Evidence that the dogs were confined by an insufficient chain and fence and that the dogs had escaped before, when combined with evidence of the vicious temperament of the dogs, enabled the court to uphold the jury's determination that the defendant was negligent in keeping his dogs, and did not use the level of care a reasonable man in his position would have known to use with the dogs. Id.
[FN92]. Wis. Stat. Ann. § 940.24(1) (West 1996 & Supp. 2004).
[FN93]. Bodoh, 582 N.W.2d at 446 (citing Wis. Stat. Ann. § 939.25(1) (West 1996 & Supp. 2004)).
[FN94]. La. Rev. Stat. Ann. § 14:12 (West 1997). "Criminal negligence exists when, although neither specific nor general criminal intent is present, there is such disregard of the interest of others that the offender's conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances." Id.
[FN95]. La. Rev. Stat. Ann. § 14:39 (West 1997); La. Rev. Stat. Ann. § 14:32(A) (West 1997).
[FN96]. La. Rev. Stat. Ann. § 14:39.
[FN98]. La. Rev. Stat. Ann. § 14:32(A). To convict a person of negligent homicide in Louisiana, the state must prove the person was criminally negligent and that the death resulted from the negligent misconduct. State v. Fenner, 94-1498, p. 3 (La. App. 4 Cir. 11/16/95), 664 So. 2d 1315, 1318. "Negligent homicide is a lesser grade of the offense of manslaughter, even though it is not legislatively responsive." Id. at 1319. See also Ambrose v. New Orleans Police Dep't Ambulance Serv., 93-3099, p. 13 (La. 7/5/94), 639 So. 2d 216, 223 (defining gross negligence as "willful, wanton, or reckless conduct amounting to 'complete neglect of the rights of others"' or an "'extreme departure from ordinary care"').
[FN99]. La. Rev. Stat. Ann. § 14:12 (West 1997).
[FN100]. The comments to the statute indicate that criminal negligence corresponds to "gross negligence" in tort law. La. Rev. Stat. Ann. § 14:12 cmt. This has been borne out in jurisprudence as well, where the Louisiana First Circuit Court of Appeal stated clearly that "[c]riminal negligence ... corresponds to the concept of 'gross negligence' in tort law." State ex rel. S.T., 95-2187, p. 5 (La. App. 1 Cir. 6/28/96), 677 So. 2d 1071, 1073. The court defined negligence as "a combination of action or non action plus a certain state of mind... that consists in a disregard of the consequences." Id.
[FN101]. S.T., 677 So. 2d at 1073.
[FN102]. S.T., 677 So. 2d at 1073.
[FN104]. See State v. Heiman, 79 So. 2d 78, 81 (La. 1955) (affirming a physician's negligent homicide conviction after a patient died from severe trauma to the uterus and blood loss after child birth).
[FN105]. See State v. Beason, 26,725, p. 21 (La. App. 2 Cir. 4/7/95), 653 So. 2d 1274, 1288 (affirming a defendant's conviction of negligent homicide after threateningly chasing another driver off of the road at speeds of 65 mph).
[FN106]. See State v. Brown, 93-2305, p. 2 (La. App. 4 Cir. 11/17/94), 645 So. 2d 1282, 1283 (affirming attorney's conviction of criminal negligence after picking up a gun and accidentally firing it, killing her roommate).
[FN107]. Indeed, members of the Louisiana Supreme Court have characterized the definition of criminal negligence as it relates to negligent homicide as "standardless." State v. Luizza, 457 So. 2d 664, 666 (La. 1984).
[FN108]. S.T., 677 So. 2d at 1073.
[FN110]. Martinez v. Bernard, 30 So. 901, 901 (La. 1901).
[FN111]. Holland v. Buckley, 305 So. 2d 113, 120 (La. 1974).
[FN112]. The Lord Derby, 17 F. 265, 266 (E.D. La. 1883).
[FN113]. Castille v. Melancon, 410 So. 2d 1224, 1225 (La. App. 3 Cir. 1982).
[FN114]. People v. Berry, 2 Cal. Rptr. 2d 416 (Cal. Dist. Ct. App. 1991).
[FN115]. Id. at 421.
[FN116]. Id. at 418.
[FN118]. Id. at 418, 421.
[FN119]. State v. Bodoh, 582 N.W.2d 440 (Wis. Ct. App. 1998), aff'd, 595 N.W.2d 330 (Wis. 1999).
[FN120]. Id. at 442.
[FN121]. Id. at 441-42.
[FN122]. Id. at 446.
[FN123]. Id. at 442.
[FN125]. Duke v. State, 72 S.W.3d 907, 912-13 (Ark. Ct. App. 2002).
[FN126]. Id. at 908.
[FN127]. Id. at 911.
[FN128]. Id. at 912-13.
[FN129]. Id. at 909 n.1 ("If they were my dogs, the boy would be dead, he would have never gotten away.").
[FN130]. State ex rel. S.T., 95-2187, p. 3 (La. App. 1 Cir. 6/28/96), 677 So. 2d 1071, 1073.
[FN132]. See supra notes 80, 83 and accompanying text.
[FN133]. Cal. Penal Code § 399 (West 1999 & Supp. 2004).
[FN134]. See, e.g., Holland v. Buckley, 305 So. 2d 113, 120 (La. 1974); State v. Michels, 98-608, p. 7 (La. App. 3 Cir. 1/13/99), 726 So. 2d 449, 453.
[FN135]. Duke v. State, 72 S.W.3d 907, 912-13 (Ark. Ct. App. 2002); State v. Bodoh, 582 N.W.2d 440, 442, 446 (Wis. Ct. App. 1998), aff'd, 595 N.W.2d 330 (Wis. 1999); State v. Sinks, 483 N.W.2d 286, 289 (Wis. Ct. App. 1992). See supra notes 21-22, 30-37 and accompanying text.
[FN136]. Holland, 305 So. 2d at 120; Michels, 726 So. 2d at 453. See supra notes 12-15 and accompanying text.