District of Columbia Court of Appeals Upholds "Pit Bull Act" (2005)

McNeely vs. United States
Washington D.C. - In 1996, for 90 days, the District of Columbia's Dangerous Dog Ordinance was temporarily amended by The Pit Bull and Rottweiler Dangerous Dog Designation Emergency Amendment Act. During this time, two pit bulls owned by Robert McNeely brutally attacked 36-old Helen Avery as she carried a bag of spoiled food to the trash can behind her home. The attack finally ended when Avery’s son, Jerrel Bryant, and two other men chased the dogs off by beating them with an ax and baseball bat.

Sadly, the temporary emergency act was not re-enacted.

McNeely was convicted in a jury trial in the Superior Court of violating the Act. On appeal, the Court of Appeals, affirmed the lower court's ruling. The Court of Appeals held that the Act did not deprive the defendant of fair warning of the prohibited conduct, as the defendant was required to know that he owned pit bulls in order to be convicted under the Act; and the prosecutor's improper comment was rendered harmless by the trial court's jury instructions.

We write about the McNeely case now for two reasons. The first is that the District of Columbia Court of Appeals upheld the validity of the Act (The Act banned pit bulls that had not been licensed under the Act and substantially increased the penalty imposed upon owners after an attack: a fine of up to $20,000 and 2 years of imprisonment.). The second is the alarming number of pit bull attacks suffered by citizens while undergoing the basic task of "taking out the trash."

In December of 2008, Catherine Barber of the District, was violently attacked by two pit bulls while taking out the trash.

The Attack of Helen Avery:

"At approximately 1:00 a.m. on May 13, 1996, Helen Avery carried a bag of spoiled food to the trashcan behind her home. As she replaced the can’s lid, Avery saw two dogs appear from under the steps of her back porch. The dogs charged towards her, forcing Avery to seek an escape by scaling a fence to her neighbor’s yard. Unfortunately, she did not evade the dogs quickly enough: one of then seized Avery by the back of her leg and pulled her off the fence, while the other dog jumped on top of her as she fell backwards. During the ensuing attack, skin, muscle, and nerve tissues were bitten off from various parts of her body, including her leg and both arms; one of her toes was nearly bitten off; and she lost a large amount of blood. The attack finally ended when Avery’s son, Jerrel Bryant, and two other men successfully chased the dogs off by beating them with an ax and baseball bat.

Officer Patrick Keller of the Metropolitan Police Department responded to an emergency phone call placed by Carey Smith, one of Avery’s neighbors who had witnessed the attack. The dogs had since departed from the scene, but Officer Keller was able to follow a trail of blood he found in the alley which led several hundred feet to a badly wounded dog collapsed in the backyard of McNeely’s home at 79 Q Street, S.W. Another dog was also present. Having recently returned home from a wedding earlier that day, McNeely spoke with Officer Keller and admitted that he owned both dogs. Officer Keller inspected McNeely’s dog kennel and backyard, noting that, while the kennel was closed, secured, and had no openings in it from which the dogs could escape, the backyard fence was dilapidated and had been dug out in various places."

Penalty and Prior Offenses:
McNeely was sentenced to: (1) 8-24 months concurrent terms of imprisonment, with execution of the sentence suspended; (2) 3 years of supervised probation; (3) 150 hours of community service; and (4) a fine of $5,000 payable in monthly installments of $100. The Prosecution had urged a "lengthily probation" period, in part, because of unrelated prior attacks involving McNeely's dogs -- incidences excluded from the trial. The prosecutor stated that:

"were the prior attacks that this defendant owned dogs that was [sic], that did attack other people and in fact, one of the dogs involved in this case, the one that was hatched [sic], Bruno, had just about three months prior to had attacked somebody and Animal Control had to respond. The defendant owns another dog that was attacked a person [sic] and when a police officer went out to investigate the dog attacked the officer and the officer shot and killed that dog. And that was approximately, I think that was four or five months to [sic] this incident. In addition to that there were a couple of other attacks, Your Honor, and they were dogs that belonged to the defendant."

When all was said and done, the "multi-offending" defendant still only received a suspended prison sentence and a $5,000 fine. This was his penalty when sentenced under the Pit Bull and Rottweiler Dangerous Dog Designation Emergency Amendment Act. It leaves one to wonder what his sentence would have been had the attack not fallen under the Act. It's unclear if McNeely was also ordered to pay restitution or if Helen Avery ever filed a civil claim against him.

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