Pet owner sues city for shooting dog
Aug. 10, 2013 at 3:10 a.m.
CIVIL PRACTICE AND REMEDIES CODE
Sec. 101.106. ELECTION OF REMEDIES.
• A. Under this chapter against a governmental unit constitutes an irrevocable election by the plaintiff and immediately and forever bars any suit or recovery by the plaintiff against any individual or employee of the governmental unit regarding the same subject matter.
• B. The filing of a suit against any employee of a governmental unit constitutes an irrevocable election by the plaintiff and immediately and forever bars any suit or recovery by the plaintiff against the governmental unit regarding the same subject matter unless the governmental unit consents.
SOURCE: TEXAS CIVIL PRACTICE AND REMEDIES CODE
THE POLICE REPORT
"The boxer barked and began charging toward me. Out of fear of being mauled by the dog, I drew my service pistol and fired two shots at the dog. I fired in rapid succession as I've been trained to do."
• "If I had known that the backyard was occupied by dog(s) I would not have entered the yard."
"Due to the quickness of the situation and the fact that I was faced with two dogs, I did not attempt to utilize my pepper spray or my ASP Baton. I have seen dogs sprayed with pepper spray not be affected and become more aggressive. I did not want to take the risk of combating the dog with my baton as there were two large, aggressive dogs to deal with, and I was by myself in the yard."
SOURCE: REPORTING OFFICER NARRATIVE
The last thing Francie Byrne expected to hear when she came home was, "We shot your dog."
She had run around the corner to visit a friend in the Cimarron subdivision, put two of her dogs in the fenced backyard and turned on the alarm system that night - April 4, 2012.
"Sometimes, my dogs will hit the alarm and make it go off," said Byrne, 55.
When she returned home, two officers were waiting.
"They said, 'Well, we shot your dog.'"
Byrne is seeking damages against the city totaling $1,400, including veterinarian bills plus time missed from work to help her pet recover.
"They told me the night they shot my dog - they said the city of Victoria would pay for this," she said. "Then they refused it."
Byrne said she isn't the suing type.
City Attorney Thomas Gwosdz said the case should be thrown out.
"State law says she cannot refile her suit against the city unless the city gives permission, and it hasn't," Gwosdz said.
Byrne filed suit Sept. 18 against Sgt. Eline Moya, who she said promised the city would take care of Beaudro's medical bills.
That case was thrown out because public employees are protected from lawsuits.
Byrne refiled Nov. 8 against the city of Victoria.
Since then, three court dates have passed, and the city has brought on an outside attorney at $75 an hour. The next court date is Sept. 4 in front of Justice of the Peace Richard Castillo.
For the $1,400 claim, the city has spent $1,087.50 for representation by Hatley and Lewis, a Victoria law firm, according to records obtained in a public information request. Those records showed a total of $1,087.50 billed to the city, which includes other cases.
"I want to get it over with and the city to take care of what they said they were going to do," Byrne said.
Gwosdz, from his position as city attorney, is counting on state law to dismiss the case.
"I believe the city cannot pay, as a matter of law, her vet bills," Gwosdz said.
Byrne said she believes the officer overreacted.
"Where was his pepper spray? Where was his stun gun?" she asked. She wants to see an end to this type of police behavior.
Lt. Michael Tatum was the supervisor the night officers shot Byrne's dog, according to the police report.
Tatum refused to comment about how the department expects officers to handle cases involving animals.
"She (Byrne) will find a way to twist my words. ... She'll find a way to get money out of the city," Tatum said.
Tatum further refused to release a copy of the department's written policy on dealing with aggressive animals.
Byrne described the ordeal as "a cluster-mess."
Police Chief J.J. Craig said the policy allows officers to use deadly force as justified for self-defense, defense of another person and "to the killing of aggressive animals."
Craig said if officers can use other means - calling in animal control, using a Taser or pepper spray - he encourages that.
"You have to judge each case on its merits," he said, regardless of whether the animal is fenced so long as the officer had an investigative or legal right to be there.
More than year after the shooting, Beaudro, a 3-year-old tan and white boxer, stands close to Byrne, savoring a chunk of bone.
"He's the sweetest thing in the world," Byrne said.
Although he is very protective of Byrne and her family, she said, "he's got a louder bark than his bite."
Beaudro, nicknamed Boo, weighed about 75 pounds at the time of the shooting and now is up to 90 pounds.
"I don't know how he survived," Byrne said. "There was blood everywhere."
The bullet wounds on his left leg and across his chest are still visible, but his strength is back, and he has full use of his leg.
The other dog, an American bulldog named Cadie, who was in the fence with Boo the night of the shooting, is still traumatized from the event, Byrne said.
"I understand the police were doing their job, but my dog was doing his job, too," she said.
Corrected Aug. 13, 2013