When a dog seriously injures someone, the conventional wisdom has always been to have it put down. No matter the circumstances, a potentially vicious dog presents its owners with enormous liability. Should the dog attack again, what could possibly be said in its defense? This is precisely the conventional wisdom that is being challenged in Princeton, NJ this year with the trial and appeals of Congo the German shepherd. His case has the potential not only to set a new precedent in New Jersey dog law, but also to usher in a new era in animal rights. At issue are the burden of proof and the definition of provocation.

On June 5th of last year, Honduran landscaper Giovanni Rivera, 42, was mauled by Congo, a 2 1/2-year-old 85-pound German shepherd. It is not the simple summary, though, but the details of the case which are in dispute. According to Congo’s owners, Guy and Elizabeth James, a group of yard workers arrived at their Princeton Township estate earlier than expected and failed to heed the James’ request that they wait in the car while the dogs were secured. In the minutes of commotion that ensued after exiting the vehicle, Mr. Rivera became alarmed and grabbed Mrs. James to shield himself from Congo and may or may not have pulled her to the ground before Congo lunged at him. Congo proceeded to maul Mr. Rivera for three minutes, while another yard worker defended himself with a rake from the attack of four other German shepherds. Hospital photos show Mr. Rivera’s abdomen, legs, and left ear seriously bloodied. The New York Times reports that Mr. Rivera spent five days in the hospital where he received 65 rabies shots (apparently the dogs were not up-to-date with their treatment) and underwent a three-hour operation. In an agreement with the James’ homeowners insurance company, Mr. Rivera received $250,000 plus medical expenses.

The Jameses cited Mr. Rivera’s conduct as provocation and resisted early suggestions that Congo be put down. The five dogs involved in the attack were taken from the property the next day by Animal Control, and Congo remained in a shelter throughout the summer. On October 30th, the Princeton Township Municipal Court declared Congo vicious and ordered him to be put down. The other dogs were to be labeled as potentially dangerous, a designation that carries a heavy annual licensing fee among other restrictions and regulations.

In the thirteen days between the ruling and the formal recording of the sentence, all hell broke loose in the blogosphere and in the local press (although curiously The Daily Princeton, our paper of record, chose not to cover the controversy). The popular line of reasoning seems to have been that Mr. Rivera, as an illegal immigrant, was not entitled to his settlement, and in fact deserved much worse than he received on the morning of June 5th. While it must be said that many of Congo’s supporters harbor no resentment towards Mr. Rivera personally (Congo has been something of a cause célèbre for loyal pet owners), the same could hardly be said for all of them. A post dated November 10th on the pro-Israel blog Smooth Stone reads in part:

“Giovanni Rivera should be deported; he is an illegal alien who broke the law to get into this country. [Bolding from original text] He has no right to earn a living here, he has no rights to medical benefits, certainly no right to use our legal system to his advantage. The fact that he employs other illegal aliens makes him a trafficker, which is also a crime which should should [sic] compound his illegal status. He probably undercuts all of his competition, and therefore, is taking bread out of the mouths of legitimate American citizens.”

Though the Jameses have consistently rejected the suggestion that their case has a place in the immigration debate, many in the community have echoed the sentiment of one internet commenter who anonymously labeled the victim as “illegal scum.” Needless to say, the hostile tone of the discourse raises the inevitable question: what would the situation look like were the victim not a 42-year-old Honduran, but instead an 8-year-old white girl? One is rather forcefully reminded of the lyrics from Paul Simon’s “Adios Hermanos”:

A Spanish boy could be killed every night of the week

But just let some white boy die

And the world goes crazy for blood-Latin blood.

I don’t lie when I speak.

One also has a hard time imagining what the Jameses would say were such a girl Congo’s next victim.

The Jameses decided to appeal the verdict of the local court and received a stay of execution along with permission to take Congo home. Briefs filed by Robert Lytle, the James’ attorney, tell the story of erratic yard workers wielding rakes against brave German shepherds whose only crime was defending their pack. Court papers also highlight the changes Mr. Rivera made to his initial testimony. Deputy First Assistant Prosecutor Doris Galuchie and the State of New Jersey contend that the original ruling was consistent with state statute and that Princeton Township successfully demonstrated that the attack was disproportionate to the alleged provocation.

A legislative effort on the part of Assemblymen Neil Cohen and Patrick Diegnan Jr. to save the German shepherd remains pending. The bill entitled “Congo’s Law” (A4597) was introduced in Trenton last December to retroactively encumber the state with a greater burden of proof and to provide an alternative to euthanasia for dogs deemed vicious. Section 2 of the standing 1989 dog law would be amended to incorporate a definition of provocation that explicitly includes, “(1) entering property without the presence, permission, or direction of the owner… or (2) gesticulating at, striking, grabbing, poking, prodding, or otherwise threatening the dog, its offspring, its owner, or a family member of its owner.” Furthermore, the operative verb requiring dogs that have attacked humans to be impounded is changed from “shall” to “may.” Most crucially, dogs that are deemed vicious “beyond a reasonable doubt” may be euthanized OR kept by the owner under similar conditions to those required for dogs labeled potentially dangerous.

It is unlikely that this bill will pass in time to save Congo. His only hope now is to win his appeal in front of Superior Court Judge Mitchel Ostrer on Friday, April 5th. According to the prosecutor, Mr. Lytle must demonstrate that Congo was not only provoked, but also that his response was proportional to the provocation. Until Friday, the plea deal offered by the Township, which would require Congo to be labeled potentially dangerous, but allow him to remain alive, remains valid. So far the Jameses have rejected the offer.

At stake in this case is nothing less than the way we perceive the legal rights of animals. Is the judge to understand provocative actions through the eyes of the dog or through those of the victim? What sort of right to life does a dog have when it has demonstrated a willingness to attack? How does one address an appeal based on principles of equity, fairness, and good intentions gone awry when the defendant, Congo, has no notion of any of these?

New Jersey has had weird dog cases before, including that of an Akita, who bit a 10-year-old girl in the face on Christmas Day in 1990, removing a sizable chunk of her lip in the process. In that case, “Taro” was pardoned by then-Governor Whitman, but with the proviso that the dog leave New Jersey and never return. In this area of jurispudence, where dogs become illegals, and illegals receive epithets instead of get-well cards, it is hard to draw clear lines between innocence, guilt, and injury. Yet somewhere in this mesh of the tragic and the bizarre stand the relevant and pressing issues which face law experts and legislators today. The question is whether we let these sleeping issues lie–whether we are well prepared to handle the results of our own provocations.

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