Lex Talionis and a dog named Blue

Prosecutors are not desensitized to the outrage felt by the community when a crime is committed against a defenseless animal. The laws protect this class of victims and the public expects that those who kill, torture or abuse these creatures will be severely punished. In legal history, the canine species is treated differently than other quadrupeds with gentler dispositions. Most law students remember from their tort class the common law axiom that “every dog gets a free bite.” While not entirely accurate, it reflects our understanding that even domestic animals, that are expected to be docile and defenseless, can be vicious and expose their owners to civil and even criminal liability.

Cases involving dogs occupy an inordinate amount of time for the police, prosecutors and courts. Relations between otherwise amiable neighbors quickly break down when a roaming dog tramples flower beds, bites their child, chases their cat, defecates, or incessantly barks at all hours of the day and night. While the owners of these animals may be sued civilly, or even prosecuted criminally, lex talionis, or the law of revenge, is not an uncommon response to this type of nuisance. To their surprise, the perpetrators of such vengeful acts quickly learn that the vigilante is labeled a criminal, not a victim.

One of the rudely awakened in such circumstances was a man by the name of Luis “Carl” Fiochhi. By all accounts, Mr. Fiocchi was a hard working, intelligent and otherwise law abiding man with a problem. He was loved by his wife, daughter, horse, cat, and the twelve silver laced wyandotte chickens that resided with him in the bucolic community of South Glastonbury, CT. It was not so much his problem as that of the chickens. They were being harassed and bothered by Blue, a four year old Brittany Spaniel owned by a neighbor, John Bunker. On several occasions prior to June 23, 1986, witnesses had seen Blue, untethered, engaging in mischievous behavior and maliciously attacking the Fiocchi capons. On the evening of June 23, Mr. Fiocchi, tired of the reign of terror endured by his fowl, ended this problem by shooting the hound three times in the head. While a godsend to the defenseless chickens, it created additional problems for Mr. Fiocchi as he was charged with cruelty to animals, criminal mischief in the third degree and unlawful discharge of a firearm.

Mr. Fiocchi’s problems were compounded by the fact that he was presented on these charges in G.A. 12 in Manchester, CT. At that time, the local prosecutor, Rosita “Bea” Creamer was running roughshod over defendants unfortunate enough to appear in that venue. Now retired, during her long career, she was well known as a tough, hard nosed, uncompromising, and aggressive prosecutor. The defense bar labeled her overzealous-an assessment shared, though not openly, by some colleagues on her side of the aisle. At one point, the Division of Criminal Justice, was obliged to send in reinforcements to deal with the backlog of cases that followed in her wake. The Fiocchi matter was one such case.

A client with principles and deep pockets is a rare and welcome find for a criminal defense lawyer. The beneficiary of this particular bonanza was A. Paul Spinella, a prominent lawyer and the author of the oft cited tome Connecticut Criminal Procedure. Before allowing the state to slap his client on the wrist, he required the taxpayers of Connecticut to pay dearly. Eight impartial citizens were impaneled and took several days from their schedules to patiently listen to the evidence and argue amongst themselves over the defendant’s guilt. Eventually, they convicted him of a single count of unlawful discharge of a firearm. Unhappy with the brief period of probation imposed by the court, he appealed and the taxpayers were again obliged to pay for the defense against his claims of trial error. Three appellate court justices, along with their research clerks, listened to the arguments of counsel and waded through the lengthy briefs before affirming the judgement. The case also required the attention of the Connecticut Supreme Court who reviewed, and denied, the petition of certiorari giving Mr. Fiocchi’s conviction the imprimatur of finality held sacrosanct by the law.

While it is not appropriate for a prosecutor to resolve cases solely on a cost/benefit analysis, it is a factor that cannot be ignored. Prosecutors cannot be expected to fold their tents every time they are confronted with an unyielding defendant that steadfastly maintains his innocence. On the other hand, they should be mindful of the fact that crimes do not occur in a vacuum and make an attempt to understand the motivations that precipitated the conduct. While not privy to any of the pre-trial wranglings, my belief was that the somewhat abrasive and uncompromising nature of both attorneys prevented any resolution of this matter short of trial. With 20/20 hindsight, one can only question whether the costs in terms of dollars and manpower did anything other than provide a measure of job security to those involved in the process.

Unbeknownst to the jury, the factual questions they were charged with resolving were of the type and magnitude of disputes common in a bygone era. Had the trial taken place in a more stately and antiquated courtroom such as New Haven, rather than the relatively modern facility in Manchester, a witness to the proceeding would feel as if he had returned to a time before cars, airplanes, telephones, computers and the other amenities that are now taken for granted-a time before CSI, DNA, and all the other acronyms that litter today’s legal landscape. The witnesses called by the state and defense were common country folk and their colorful testimony reflected the simple values of an earlier time. One witness, when asked of the dog’s reputation in the community responded that “he was a nuisance that had not become a menace yet.” Another, when asked how often she has witnessed the animal roaming stated that she was uncertain but explained that “it was frequent enough that I would say, oh, no, there is that spaniel again.” The jurors were also fortunate to witness two skilled advocates plying their trade in what was a hotly contested affair. Their ultimate decision-convicting the defendant of one charge and acquitting him on the other two-was a testament to the quality of representation provided by each attorney to their respective client.

Mr. Fiocchi may or may not be aware of the fact that his name, now emblazoned in the Connecticut Appellate Reports, has become part of the rich legal history surrounding the complicated relationship that has always existed between man and his four legged friends. His problem, and the solution he employed, were no different than the problems and solutions employed by many others throughout history. When viewed against the backdrop of this history, the published opinion is disappointing and provides little guidance to the practitioner. It has been cited as precedent only seven times since 1989 on issues having nothing to do with the summary execution of canines. Absent from the bland and sterile opinion are the eloquent and turgid prose of earlier decisions. In fact, the court barely addressed the defendant’s claim of justification and focused instead on the more mundane issues popular in criminal appeals of the eighties.

In addressing the justification claim, the appellate court, relying on Connecticut General Statutes, ยง 22-358(a), held that the killing was justified only if the dog was pursuing or worrying the Fiocchi poultry. Because the trial court had correctly instructed the jury on that defense, and because Blue-the protagonist of this story-had not been in the active pursuit of the fowl, the court found no error. In three sentences, the court dismissed the the defendant’s claim that there was a general non-codified justification defense and concluded that the only recognized defenses were those set out in the general statutes. The did not discuss the competing interests between pet owners and their neighbors that has existed for hundred, if not thousands of years.

From time immemorial, dogs have held their lives at the will of the legislature. As early as 1930 BC, the Mesopotamian Code of Eshnunna recognized the problems caused by these animals and imposed heavy fines on the owners of rabid dogs who bit another person. Under the common law, property in dogs was considered imperfect or qualified in nature. Because the property interest in a dog was considered to be of a base and inferior kind, he was entitled to less regard and protection than other domestic animals, By the mid eighteen hundreds, a number of states, including Connecticut, had enacted statutes allowing municipalities to regulate and tax dogs. In 1875, the legislature authorized both civil and criminal sanctions for the unlawful killing of a dog. In 1897, the United States Supreme Court held that the regulation of these animals was a proper exercise of the state’s police powers. Sentell v. New Orleans & Carrollton Railroad Co.

The Sentell case offers some interesting and prolix observations on the nature of dogs and their owners. At one point the court notes that “although dogs are ordinarily harmless, they preserve some of their hereditary wolfish instincts, which occasionally break forth in the destruction of sheep and other helpless animals. Others, too small to attack these animals, are simply vicious, noisy, and pestilent. As their depredations are often committed at night, it is usually impossible to identify the dog or to fix the liability upon the owner, who, moreover, is likely to be pecuniarily irresponsible.” Later, they state that dogs “are peculiar in the fact that they differ among themselves more widely than any other class of animals, and can hardly be said to have a characteristic common to the entire race. While the higher breeds rank among the noblest representatives of the animal kingdom, and are justly esteemed for their intelligence, sagacity, fidelity, watchfulness, affection, and, above all, for their natural companionship with man, others are afflicted with such serious infirmities of temper as to be little better than a public nuisance. All are more or less subject to attacks of hydrophobic madness.”

Recognition of the dual nature of these animals is replete, and equally prolix, in legal history. The statute relied on in the Fiocchi decision has its roots in colonial times. In 1765, the legislature first adopted “An act for preventing mischief by dogs” (ST. 1769, p.323) which allowed a person to kill “any dog found mad, or suspected to be mad; or otherwise shall be found doing mischief, or attempting to do the same, when alone, out of the possessions of his owner, and distant from the care and command of any person having the charge of such dog”. In our neighboring state, Massachusetts, a similar statute dates back to 1742. The term “mischief” was construed to mean worry, chase, frighten, or annoy either a person or animal thus legitimizing most canine killings including the rather innocuous behavior of sleeping on crops or flowers. Simmonds v. Holmes, 61 Conn.1 (1891). Ten years after the Simmonds case that changed with the Court’s decision in Ford v. Glennon, 74 Conn. 6 (1901).

The victim in Ford was a large, good natured, and jovial St. Barnard with a penchant for chasing cats. In charge of this massive beast, was a petite six year old girl who lost control of the animal when it gave chase to a neighbor’s cat. The cat ran up the stoop of the defendant’s house and sustained minor injuries during the chase. The dog’s attention was diverted by the screams of the defendant’s wife which allowing the cat to leap off the porch and find refuge in a nearby tree. Out of harms way, the cat looked down in fright at the huge animal standing with its forepaws on the tree. The defendant immediately shot and killed the dog rather than attempt to chase him off. The court acknowledged that the dog was clearly engaged in an act of “mischief” when shot. Nonetheless, it concluded that more reasonable and less drastic alternatives were available to the defendant. Several years later, the statute was amended to its present form-replacing the term “mischief” with the requirement that the dog may only be shot if it is pursuing or worrying domestic animals or poultry. The courts have interpreted this statute to prevent the killing of a dog for finished or anticipated misconduct.

There are several lessons to be learned from all this: 1. If you own a dog, do not let him roam or otherwise bother your neighbor. Sooner or later, your neighbor will either shoot you and/or the dog, report you to the police, or sue you. 2. If your neighbor owns a dog, don’t shoot it (or your neighbor) even if you feel justified in doing so. The police will ask a lot of questions. You should not answer as you will probably be arrested no matter what you tell them. 3. Finally, good fences make for good neighbors

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