Carl Fiocchi may or may not be aware of the fact that his name is impressed in the Connecticut Appellate Reports and part of the rich legal tapestry surrounding the complicated relationship between man and his four-legged friends. His problem, and the solution he employed, were no different than the problems and solutions employed by many others throughout history. State v. Fiocchi, 17 Conn. App. 326 (1989).
Absent from the bland and sterile opinion are the eloquent and turgid prose of earlier decisions deciding similar claims. The court barely addressed the defendant's claim of justification and focused instead on the more mundane issues popular in criminal appeals of the eighties. There are few things that outrage a community more than when a crime is committed against a defenseless animal. The laws protect most animals from neglect, torture, and abuse. Dogs and cats, however, have always been treated differently than other domestic animals with gentler dispositions. The common law allowed "every dog a free bite" – the presumption of innocence. While not entirely accurate, it reflects our understanding that any domesticated animal can be vicious and expose their owners to civil and criminal liability.
Relations between otherwise amiable neighbors break down when a roaming dog tramples flower beds, bites their child, chases their cat, defecates, or incessantly barks at all hours of the day and night. While the owners of these animals may be sued civilly, or even prosecuted criminally, lex talionis, or the law of revenge, is not an uncommon reaction to this type of nuisance. To their surprise, the perpetrators of such vengeful acts quickly learn that the vigilante is labeled a criminal, not a victim.
One of the rudely awakened in such circumstances was Carl Fiocchi.
By all accounts, Mr. Fiocchi was a hardworking, intelligent, and otherwise law-abiding man who lived with his wife, daughter, horse, cat, and twelve silver laced Wyandotte chickens in the bucolic community of South Glastonbury, CT. He had a problem; it was not so much his problem as that of the chickens. They were being harassed by Blue - a four-year-old Brittany Spaniel owned by a neighbor. On several occasions prior to June 23, 1986, several witnesses had seen the dog wandering around the neighborhood - untethered and engaged in mischievous behavior. On a prior occasion, he had maliciously attacked and killed one of the Fiocchi chickens.
On the evening of June 23, Mr. Fiocchi, tired of the reign of terror being imposed on his fowl, resolved the problem by shooting the hound three times in the head. While this was a godsend to the defenseless chickens, it created a different problem for Mr. Fiocchi; he was charged with cruelty to animals, criminal mischief in the third degree, and unlawful discharge of a firearm.
Mr. Fiocchi's problems were compounded by the fact that the local prosecutor, Bea Creamer was running roughshod over any defendant unfortunate enough to appear in that venue. During her long career, she was known as tough, hardnosed, uncompromising, and aggressive. The defense bar labeled her overzealous - an assessment shared by some colleagues on her side of the aisle. At one point, the Division of Criminal Justice was obliged to send in reinforcements to deal with the backlog of cases that followed in her wake. The Fiocchi matter was one such case.
A client with principles and deep pockets is a rare and welcome find for a criminal defense lawyer. The beneficiary of this particular bonanza was Paul Spinella, a prominent lawyer and the author of a well-respected book, Connecticut Criminal Procedure. Before allowing the state to slap his client on the wrist, he required the taxpayers of Connecticut to pay dearly. Eight impartial citizens were impaneled for a trial that took several days. They patiently listened to the evidence, argued amongst themselves, and delivered a verdict. Mr. Fiocchi was convicted of a single count of unlawful discharge of a firearm and sentenced to a brief period of probation.
Unhappy with the result, Mr. Fiocchi filed an appeal. Three appellate court justices listened to the arguments of counsel and waded through the lengthy briefs before affirming the judgement. The case was then presented to the Connecticut Supreme Court which reviewed, and denied, the petition for certiorari. For better or worse, Mr. Fiocchi's conviction was finally final. Prosecutors cannot be expected to fold their tents every time they are confronted with an unyielding defendant that steadfastly maintains his innocence. On the other hand, they should be mindful of the fact that crimes do not occur in a vacuum and attempt to understand the motivations that precipitated the conduct. With 20/20 hindsight, one can always assert that the costs in dollars and manpower were wasted. Whatever the cost/benefit analysis, the Fiocchi matter consumed time and provided a measure of job security for those involved in the process.
Unbeknownst to the jury, the factual questions they resolved were of the type and magnitude of disputes common in a bygone era. Had the trial taken place in the statelier and more antiquated courtrooms of New Haven or Hartford, rather than the relatively modern facility in Manchester, the witnesses would have felt as if they had returned to a time before cars, airplanes, telephones, computers, and the other amenities that are now taken for granted - a time before CSI, DNA, and all the other acronyms that litter today's legal landscape.
The witnesses called by both parties were common country folk, and their colorful testimony reflected the simple values of an earlier time. One witness testified as to the dog's reputation claiming, "he was a nuisance that had not become a menace yet." As to his roaming, another claimed "it was frequent enough that I would say, 'oh, no, there is that spaniel again'." The jurors also were privileged to witness two skilled advocates plying their trade in what was a hotly contested affair. Their ultimate decision - convicting the defendant of one charge and acquitting him on two others was a testament to the quality of representation provided by the attorneys to their respective clients.
The trial court instructed the jury that the killing would be justified only if the dog was pursuing or worrying Mr. Fiocchi’s poultry. Because the jury concluded that Blue - the protagonist of this story – was sniffing garbage, not chasing chickens, the defendant's act had violated a criminal statute. In three sentences, the court dismissed the defendant's claim that there was a general non-codified justification defense. They did not discuss the competing interests between pet owners and their neighbors that has existed for hundred, if not thousands of years.
From time immemorial, dogs have held their lives at the will of the legislature. The Mesopotamian Code of Eshnunna (circa 1930 BCE) recognized the problems caused by these animals and imposed fines on the owners of rabid dogs who bit another person. Under our common law, the property interest in these animals was considered imperfect or qualified. Dogs (and cats) were entitled to less protection than other domestic animals.
By the mid 19th century, a number of states, including Connecticut, had enacted statutes allowing municipalities to regulate and tax dogs. In 1875, the legislature authorized both civil and criminal sanctions for the unlawful killing of a dog. In 1897, the United States Supreme Court held that the regulation of these animals was a proper exercise of the state's police powers. Sentell v. New Orleans & Carrollton Railroad Co.
The Sentell case offers some interesting and prolix observations on the nature of dogs and their owners. At one point the court notes that "although dogs are ordinarily harmless, they preserve some of their hereditary wolfish instincts, which occasionally break forth in the destruction of sheep and other helpless animals. Others, too small to attack these animals, are simply vicious, noisy, and pestilent. As their depredations are often committed at night, it is usually impossible to identify the dog or to fix the liability upon the owner, who, moreover, is likely to be pecuniarily irresponsible."
Later, they state that dogs "are peculiar in the fact that they differ among themselves more widely than any other class of animals and can hardly be said to have a characteristic common to the entire race. While the higher breeds rank among the noblest representatives of the animal kingdom, and are justly esteemed for their intelligence, sagacity, fidelity, watchfulness, affection, and, above all, for their natural companionship with man, others are afflicted with such serious infirmities of temper as to be little better than a public nuisance. All are more or less subject to attacks of hydrophobic madness."
Recognition of the dual nature of these animals is replete in legal history. The statute relied on in the Fiocchi decision has its roots in colonial times. In 1765, the legislature first adopted "An act for preventing mischief by dogs" (ST. 1769, p.323) which allowed a person to kill "any dog found mad, or suspected to be mad; or otherwise, shall be found doing mischief, or attempting to do the same, when alone, out of the possessions of his owner, and distant from the care and command of any person having the charge of such dog". In Massachusetts, a similar statute dates back to 1742. The term "mischief" was construed to mean worry, chase, frighten, or annoy either a person or animal. This legitimized most canine killings including the rather innocuous behavior of sleeping on crops or flowers. See, Simmonds v. Holmes, 61 Conn.1 (1891). Ten years after the Simmonds case, the court decided Ford v. Glennon, 74 Conn. 6 (190).
The victim in the Ford case was a large, good natured, and jovial St. Barnard with a penchant for chasing cats. In charge of this massive beast, was a petite six-year-old girl. The dog's respect for child's authority was overcome by his love of chasing cats. The cat, an inherently mischief creature, was momentarily saved by the defendant's wife - her screaming distracted the dog long enough for the cat find refuge in a nearby tree. Out of harm’s way, the cat looked down in fright at the huge animal stand stood with its forepaws on the tree and gleefully wagging his tail. The defendant immediately shot and killed the dog rather than attempt to chase him off. The court acknowledged that the dog was clearly engaged in an act of "mischief" when shot. They concluded that more reasonable and less drastic alternatives were available to the defendant. Several years later, the statute was amended to its present form-replacing the term "mischief" with the requirement that the dog may only be shot if it is pursuing or worrying domestic animals or poultry.
There are several lessons to be learned from all this:
1. If you own a dog, do not let him roam or otherwise bother your neighbor. Sooner or later, your neighbor will either shoot you and/or the dog, report you to the police, or sue you. 2. If your neighbor owns a dog, don't shoot it (or your neighbor) even if you feel justified in doing so. The police will ask a lot of questions. You should not answer as you will probably be arrested no matter what you tell them. 3. Finally, good fences make for good neighbors.
