Richard H. Polsky, Ph.D.

Website author

Expert Witness for the defense

Animal Behavior Counseling Services, Inc.

Los Angeles, CA.

Q. What was the significance of the fact that although Bane and Hera had several opportunities to severely attack a person prior to the mauling of Whipple, they never actually did so?

A. The fact that Bane and Hera never attacked anyone in a severe manner prior to the mauling of Whipple despite having opportunities to do so suggests that these dogs were not as vicious as the prosecution claimed prior to the mauling of Whipple. If Bane and Hera were truly vicious prior to January 26th, then given the fact that they had many opportunities to display their viciousness, they would have surely done so.

One needs to ask why didn’t the dogs display in their “killer instinct”? There are two explanations for this: Either because the defendants maintained sufficient control over her dog’s to stop vicious displays, or because the dogs had enough control over their own behavior to inhibit displays of viciousness. Technically speaking, I believe Bane and Hera were certainly dangerous; however, this is not the same as saying they were vicious.

Several important points need to be made in regard to this conclusion. First, perhaps to Schneider’s regret, Bane or Hera were never subjected to any procedures designed to make them vicious. They were never put on tread mills, nor were they were ever given steroids or trained to attack, etc.

Second, the nasty bite Bane inflicted to the hand of Noel should not be considered a response reflective of his vicious nature because the incident happened within the context of dog fight. Hence, I believe that Hammer grossly misled the jury in using Noel’s injury as an example to support his argument that Bane was vicious prior to the mauling of Whipple and that the defendants knew about this.

Third, many companion dogs consisting of many different breeds display territorial aggression in the form of lunging, growling, and snarling towards unfamiliar people. Yet these very same dogs never go beyond making such displays. Territorial aggression, or protective behavior, is a normal and common part of canine behavior. Owners know this and owners usually know the limits of their dogs. Such displays may indicate a potentially dangerous dog but they do not necessarily mean that a dog has the motivation to attack in a manner severe enough to kill.

My argument is that there was no basis to conclude that Bane and Hera were vicious prior to January 26th. If this be the case, then how in the world would one expect Knoller to know? I do not believe that Knoller knew, or could have anticipated, that her dogs would attack in a manner so severe that it would be lethal to a person.

Vicious behavior – as manifested in the form of a severe attack – was not consistent with the past aggressive displays of Bane and Hera. For example, take the aggressive charge to Henry Putik in the same hallway in which Whipple was mauled, and the aggressive charges to the US postal workers on the street outside the apartment. In each of these instances, the dogs did not attack, or for that matter even bite. Instead, they threatened their targets. If the dogs were truly vicious, then surely one would have predicted a severe attack given the circumstances.

In short, the dangerous behavior described by the bad dog witnesses was not sufficient, nor should it have been taken as definitive proof to indicate that Bane and Hera would later become vicious. As an animal behaviorist, I have trouble in accepting Hammer’s unchallenged argument that these dogs were vicious prior to the mauling of Whipple. Dangerous yes, but certainly not vicious.

Dangerous vs. Vicious Dogs

There is no clear legal distinction between vicious behavior and dangerous behavior in dogs. In appellate decisions the words are used interchangeably. Hammer in his arguments used the “dangerous” to infer that Bane and Hera were vicious and therefore had the potential to kill. Behaviorally there needs to be a distinction, however.

Vicious behavior is behavior that has an aggressive motivational basis and consists of repeated, intense, uninhibited biting. Vicious behavior is always dangerous in nature but the opposite may not be true: that is, aggressive intent by a dog is not necessarily vicious. For example, most forms territorial aggression, frequently consist of no more than threats such as snarls and growls, or “inhibited” bites. Displays such as these may be reflective of a dangerous dog because such behavior suggests that a dog might bite, thereby possibly causing injury. In contrast, displays of vicious behavior are more likely to lead to severe injury and have the potential of being fatal. The defining elements in differentiating between the two are the form the aggression takes, the intensity of the bite (e.g. a single hard bite may be vicious) and how quickly individual bites follow each other (e.g. an attack consisting of a series of intense bites in quick succession may be deemed “vicious”).