In Brooklyn Weapons Possession Case, the Dangerous Objects Were Dogs

That would all change in a matter of seconds.

A drug suspect, being pursued by two plainclothes officers, ran into Mr. Austin’s building. The authorities said Mr. Austin commanded the dogs to attack the officers, who responded by opening fire, killing Dutchess and inadvertently shooting Mr. Austin in the leg.

Mr. Austin, 23, was arrested on charges of menacing, assault, attempted assault and criminal possession of a weapon. “Namely,” the indictment reads, “a pit bull dog.”

The case, from August 2012, is a rare example of a New Yorker’s being arrested on a weapons possession charge, a misdemeanor, for a dog.

Courts around the country have long grappled with the question of canine weaponization. Over the years, judges have mostly arrived at the same conclusion: if you use Fido as a weapon, he becomes one.

“In the past, one had to really strive hard to convict somebody of a felony when a dog was the instrument that caused the damage,” said Kenneth M. Phillips, a Los Angeles-based lawyer focused on canine law. “Now, prosecutors are using these laws that usually apply to guns and other weapons to enhance charges. That is going on all over the country right now. Far more than it was even two years ago.”

He traced recent changes in attitude back to the 2001 mauling death of a San Francisco woman, Diane Whipple, which received national attention and resulted in a murder conviction for the dog’s owner. Courts from Arkansas to Washington have come down against defendants.

In Washington, a state appeals court denied a claim by a dog owner, Robbie Hoeldt, that his dog could not be considered a deadly weapon, even though it had attacked a police officer, Detective Bryan Acee. “If Hoeldt had used a gun instead of an attack dog,” the court wrote in 2007, “Detective Acee could have testified that Hoeldt pointed the gun at his chest.”

Criminal laws generally do not include dogs on the list of potentially deadly items whose possession is a crime. In New York, the penal code explicitly lists many items — cane sword, chuka stick, kung fu star — as deadly weapons alongside a gun, a knife and “other dangerous instruments.”

Prosecutors have found that courts will allow broad latitude for classifying ordinary objects as dangerous instruments, depending on the context in which they are used. Over the years in New York, that has included a belt, a wadded-up paper towel used as a gag, a baseball bat, a stickball bat and a spatula. And, in some cases, a dog.

While it is not uncommon now to see convictions in dog attacks for assault with a deadly weapon, the question of whether a person can also be charged with weapons possession in such instances has been more muddled.

In 1956, a Manhattan man was charged with weapons offenses under the Sullivan Law, one of the nation’s first gun-control laws, after his German shepherd jumped on a pair of police officers responding to a dispute. “This is an intelligent and well-trained animal that was ordered to attack the police by its master,” a prosecutor said at the time. In a bit of flair, the 100-pound dog — named Prince — was brought to court as evidence.

Twenty years later, in the case of another German shepherd used in a crime, a Bronx criminal court judge tossed out a weapons possession charge against his owner, who was convicted of other charges. “It is impossible to sustain the argument that a German shepherd dog,” the court wrote, “is includable in the statutory definition of the term ‘deadly weapon.’” It did, however, find that the dog qualified as a dangerous instrument.

That was enough in 1992 for a New York appellate court to uphold a weapons possession conviction in Binghamton, N.Y., finding that a dog is an instrument and therefore a weapon. “Defendant caused the animal to growl and lunge at the officers while being restrained only by a leash, which defendant held and could release at any time,” the court said.

Recent cases for criminal possession of a weapon are few and far between in New York City and have not always resulted in convictions, prosecutors said. “Having a C.P.W. charge where the weapon is a dog is rare,” said Sandy Silverstein, a spokesman for the Brooklyn district attorney’s office. Asked about such charges in Manhattan, a spokeswoman for the district attorney declined to comment on “hypotheticals.” A recent case in the Bronx was dismissed. (Last year, a Queens man was sentenced to 12 years for siccing his dog on an officer, but he was not charged with weapons possession.)

Nate Schweber contributed reporting.

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