Off-Duty Law Enforcement Officer Kills Neighbor's Chihuahua, State

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Off-Duty Law Enforcement Officer Kills Neighbor's Chihuahua, States He Feared for His Safety

By Stephanie Ulmer on Animal Legal Defense Fund (ALDF)
September 2011

If a very small dog wanders into his neighbor’s yard and causes a “ruckus,” a reasonable person would either contact the dog’s owner to come and get him, or call the animal authorities. A reasonable person does not retrieve a bow and arrow strong enough for a bear in order to “take care of” the situation. Doing so is animal cruelty, plain and simple.

Was Off-Duty Law Enforcement Officer Actually in Fear of his Safety When He Shot and Killed his Neighbor’s Chihuahua with a Bow and Arrow? Kansas Prosecutors Don’t Think So...

On September 8, 2010, Brian Dale Montgomery heard a “ruckus” outside in his backyard. Upon investigation, he found his neighbor’s Chihuahua, Flashito, biting at his dog, a black Labrador retriever. Montgomery attempted to break up the interaction to no avail. Because he felt that Flashito was behaving aggressively, he went back inside his home to get his bow and arrow—later saying that he did not retrieve a firearm out of consideration for the “safety of his neighbors.” Montgomery then shot Flashito with the bow and arrow (one that he had previously used to hunt bears), retrieved the arrow from Flashito, which had tore through his body, washed the arrow in his upstairs bathroom, and then proceeded to prepare his son for football practice. At no time did Montgomery tell anyone what he did to Flashito—not his wife, nor his son, nor Flashito’s owner. After being mortally wounded, Flashito crawled back under the fence to his own backyard.

Montgomery, an active field agent with the Kansas Bureau of Investigations, trained in tactical operations, did not contact law enforcement after killing Flashito. Montgomery later admitted to the killing, and it was also revealed that he had complained about Flashito being a nuisance for the past year and a half. On a previous occasion, he had informed Flashito’s owner that (1) the owner needed to take care of the dog coming into his yard, or (2) Montgomery would allow animal control to do so, or (3) Montgomery would take care of the problem himself.

Montgomery was later charged with cruelty to animals under K.S.A. 21-4310, but he was ordered discharged by the Ford County District Court on November 10, 2010 (case number 10 CR 441). The order was made following a preliminary hearing in which the district court agreed that Montgomery was justified in killing Flashito because he felt threatened by him. The State filed a notice of appeal on November 16, 2010, and recently submitted its appellate brief to the Court of Appeals of the State of Kansas.

On appeal, the State contends that the district court erred in reviewing the evidence submitted at the preliminary hearing, as the evidence introduced should have been viewed in a light most favorable to the State. As the State had presented a prima facie case of cruelty to animals (Montgomery freely admitted that he had killed Flashito), it was error for the district court to have dismissed the charge as the result of an affirmative defense raised by Montgomery, the defendant.

According to Montgomery, K.S.A. 21-4310(b)(7) provided a complete defense. That provision reads: “The provisions of this section shall not apply to: ...the killing of any animal by any person at any time which may be found outside of the owned or rented property of the owner or custodian of such animal and which is found injuring or posing a threat to any person, farm animal or property.” The district court agreed with Montgomery that Flashito clearly posed a threat to him and his dog.

The State has now argued on appeal that in so holding, the district court found that the Animal Cruelty Statute did not require any severity or gravity of the threat to be determined—essentially ruling that any threat by Flashito justified the killing. The State claims that in holding that Montgomery did indeed feel threatened, the district court substituted its own judgment for what should have been a fact question for a jury. The district court’s determination that Montgomery was threatened was based solely upon his own testimony.

Clearly the weight and credibility Montgomery’s testimony carries lies within the province of a jury, as does the weight and credibility of the affirmative defense. It was absolutely an error for the district court to have made a fact determination at a preliminary hearing when the testimony was supposed to be viewed in the light most favorable to the State. What about the prior evidence that Montgomery told Flashito’s owner that he would take care of the problem himself if it continued? Shouldn’t that have been considered as well?

The State is also arguing that the district court did not properly interpret the statute and that its “reading specifically” of the statute has undermined the legislative intent and purpose of the statute. In addition, the district court erred in finding that Montgomery acted without malice in killing Flashito. The district court failed to consider how an objectively reasonable person in the same or similar circumstances would have acted, looking only to Montgomery’s subjective intent. Based upon the evidence produced, a reasonable jury could objectively have found that Montgomery was not threatened, acted maliciously and therefore was not justified in killing Flashito.

If a very small dog wanders into his neighbor’s yard and causes a “ruckus,” a reasonable person would either contact the dog’s owner to come and get him, or call the animal authorities. A reasonable person does not retrieve a bow and arrow strong enough for a bear in order to “take care of” the situation. Doing so is animal cruelty, plain and simple.