Dog Bite | Animal Behavior Expert Witness For Attorneys

Richard H. Polsky, Ph.D. CDBC
Los Angeles, California

“Bringing the science of animal behavior to attorneys”

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Rottweiler aggression & Stand Your Ground in Montana

stand your ground Rottweiler attack
If a Rottweiler threatens a person, then that person may have a legal right to kill the dog, according to the Stand Your Ground defense.

Below, I report a case in which the controversial Stand-Your-Ground defense was used in the defense of 80-year-old Loyal Babb. Babb intentionally shot and killed his neighbor’s 10-year-old male, neutered Rottweiler, Bo, allegedly in self-defense.

The Incident happened in Lincoln, Montana in October 2016. Lincoln is a small, rural unincorporated town in western Montana, with a population of about 1000. [1]Unabomber, Theodore Kaczynski, was arrested in 1996, 5 miles south of Lincoln in a remote cabin in the woods.

The owner of the Rottweiler, Kevin Grantier sued Babb for negligent infliction of emotional distress (Montana First Judicial District Court, Lewis and Clark County, Case No. DDV-17-575). The case proceeded to trial in Helena in November 2020. I am familiar with the case because the defense retained my services as an animal behavior expert.

I found this case particularly interesting because it did not fit the typical dog bite case I am often called upon to opine about as an expert witness. Often, dog bite litigation cases involve issues about provocation and negligence, and often the breeds involved are pit bulls type dogs

In the current instance, the breed involved was a Rottweiler. Rottweilers have a reputation for being territorial. Hence, given the territorial tendencies of some (but not all) Rottweiler- type dogs, a Stand-Your-Ground defense becomes more plausible, at least from an animal behavior perspective. [2]Nonetheless, the Court prohibited evidence and testimony at trial about the breed characteristics of Rottweilers due to its potentially prejudicial nature. However, other aspects of this particular … Continue reading

Legal perspective on Stand Your Ground defense

The fatal shooting of unarmed Trayvon Martin by George Zimmerman in Stanford Florida in 2012 raise national outcry about the controversial law known as “Stand Your Ground”. In this incident, Zimmerman, a white man and a neighborhood watch captain, shot and killed 17-year-old Martin, a black man. Zimmerman observed Martin walking alone in the neighborhood while he was patrolling the neighborhood in a gated community in Stanford, Florida. Zimmerman and Martin scuffled and in the scuffle Zimmerman fired a single shot which killed Martin. Subsequently, at trial Zimmerman was acquitted of murdering Martin based on the stand your ground defense.

The Stand Your Ground Defense is valid law in 35 states, including Montana. Essentially a law states that a person is legally allowed to use lethal force if they believe such force is necessary to defend themselves against the threat of serious bodily harm or death. However, it is unusual for this defense to be used in the defense a person accused of killing a dog.

Background to the killing of the Rottweiler

Prior to Babb’s killing of Bo there were least three occasions in which Bo had threatened Babb, his wife, and others in Babb’s and Grantier’s idyllic, rural neighborhood. And in one instance Babb alleges that one of Grantier’s Rottweilers bit him on the hand.  Moreover,  Bo had allegedly left the property of Grantier on some occasions and came onto the property of Babb. There was no fencing around the Grantier’s three acre lot. Grantier had no legal obligation to contain Bo and his other female Rottweiler, Catcus, on his property, however. Lincoln has no leash laws

Babb had complained to Grantier his Rottweilers. He feared these dogs might attack him or his wife.  Accordingly, Babb filed complaints with the Sheriff. The Sheriff’s office visit to the home of Grantier on several occasions.  But, according to Grantier, the sheriff told him that he was not doing anything wrong by allowing his Rottweilers to roam the neighborhood given that there were no leash laws in Lincoln.  Nonetheless, the sheriff advise Grantier  to keep his dogs on his property.

On the morning of October 20, 2016, Babb and his wife were eating breakfast.  They noticed that Grantier’s two Rottweilers were loose in the neighborhood, and were threatening a neighbor. Babb’s wife called the Sheriff’s office. Shortly thereafter,  one of the Rottweilers, Bo, came onto the front yard of Babb’s property. The sheriff’s office told Babb’s wife to tell her husband to stay inside. Nonetheless, Babb felt that he did not want to be a prisoner in his own home, and went outside and confronted the Rottweiler. Babb’s wife then handed him his shotgun. He fired at Bo who was about 40 feet away.  Babb was about 10 feet from his porch when he fired the shot. [3]Hence, it’s conceivable that Babb had sufficient time to retreat to the safety of his home, rather than shooting the dog. Bo was struck by the shotgun pellets, and he courageously returned to the property of Grantier but died shortly thereafter.

Babb testified that Bo was standing still not advancing when he fired the shot. Nonetheless, it appeared to Babb that Bo had a “readiness to attack”. According to Babb and his wife, Bo was barking, snarling, bouncing up and down and staring at Babb. Babb testified that he felt that he could have been “chewed up”.

Animal behavior expert opinion: Was it reasonable for Babb to fear the Rottweiler?

Based on the totality of the evidence, more likely than not Babb had good reason to fear for his safety. Babb had concerns about this particular Rottweiler, he knew about the reputation of Rottweilers and he also knew that some Rottweiler attacks can cause serious bodily injury. Nonetheless, my opinion is based heavily on the credibility of what Babb allegedly observed about the Bo’s behavior immediately before he fired the shot.

I did not testify at trial, however. Prior to my taking the stand, the defense felt they presented a sufficiently strong case to the jury about Babb’s state of fear. Hence, my testimony was not needed to buttress the argument that it was reasonable to believe that Babb feared for his safety.

Moreover, animal behavior testimony was not needed to support the defense argument of the reasonableness of Babb’s actions – that is, whether his action of shooting Bo was reasonable, as opposed to Babb acting otherwise, such as using bear spray or going back inside his house and waiting for the sheriff to arrive.

Plaintiff argued that shooting Bo was unjustified, and that the loss of Bo understandably caused significant emotional hardship to his family. The plaintiff’s position was that Babb should have returned to the safety of his house. Babb in fact acknowledged remorse and guilt after he shot the dog. He told the sheriff that he regretted his actions. [4]Independent of this civil lawsuit, earlier Babb was found guilty of animal cruelty. Nonetheless, in the civil action the reasonableness of Babb’s actions was an issue for the jury to decide. It … Continue reading

Outcome

I do not know the verdict the jury rendered at trial. I will update this post when more information becomes available. Those interested in learning about the outcome may consider contacting the defense legal team at Williams Law Firm in Missoula, Montana.

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Footnotes

Footnotes
1Unabomber, Theodore Kaczynski, was arrested in 1996, 5 miles south of Lincoln in a remote cabin in the woods.
2Nonetheless, the Court prohibited evidence and testimony at trial about the breed characteristics of Rottweilers due to its potentially prejudicial nature. However, other aspects of this particular Rottweiler’s behavior were sufficient to suggest that the defendant was reasonable in his fear of this dog.
3Hence, it’s conceivable that Babb had sufficient time to retreat to the safety of his home, rather than shooting the dog.
4Independent of this civil lawsuit, earlier Babb was found guilty of animal cruelty. Nonetheless, in the civil action the reasonableness of Babb’s actions was an issue for the jury to decide. It was not a question that required animal behavior expert opinion.