SPOKANE - A dog owner is challenging the shooting of his pet and the Moses Lake hazardous dog ordinance in U.S. District Court.
Nick Criscuolo filed a civil lawsuit against Grant County, the Grant County Sheriff's Office and Deputy Beau Lamens, claiming they violated his Fourth Amendment rights, maliciously injured his dog, were negligent and inflicted emotional distress in the January 2009 shooting of Criscuolo's dog in Neppel Park.
Criscuolo claims the city's enforcement of the hazardous dog ordinance violated Criscuolo's Fourth, Fifth and Fourteenth Amendment rights.
When he brought his dogs to the park, Criscuolo claims he asked a police officer whether he could let his dogs off their leashes. The officer reportedly replied, "What do I care?" according to the complaint.
While Criscuolo was playing with his dogs, Moses Lake police requested the assistance of the Grant County Sheriff's Office's police dog, Maddox. Lamens brought the dog to respond to the traffic stop.
"When Criscuolo saw Lamens and Maddox up the hill from the park toward Ash Street, he respectfully yelled to Lamens not to panic as his dogs might approach Maddox simply to play, adding that he needed to leash Slyder and Dymond and gesturing at Lamens to keep Maddox in the vehicle until this could be accomplished," according to the complaint.
When Lamens reportedly didn't respond, Criscuolo ordered his dogs to lie down, according to the complaint. One of his dogs, Dymond, reacted, and his other dog, Slyder, continued toward Maddox and reportedly sniffed the dog.
"Maddox, an unneutered (sic) male, reacted aggressively, snapping at Slyder. Lamens then overreacted, nearly helicoptering Maddox by leash as he tried to spin away from Slyder," according to the complaint. "He also kicked at Slyder to keep some distance. Moments later, Maddox slipped out of his collar and returned to Lamens' vehicle, allowing the dogs to achieve yet further distance."
Criscuolo's attorney, Adam P. Karp, claims Slyder was running away, when Lamens shot the dog three times. Criscuolo reportedly was trying to leash the dog at the time, according to the complaint.
"At no time did Lamens attempt to use less-than-lethal or non-lethal force on Slyder, such as a Taser, baton, or (pepper) spray, nor at any time did he speak to Criscuolo or attempt to solicit Criscuolo's assistance in recovering Slyder," according to the complaint.
A Chelan County Sheriff's Office investigation into the shooting determined Lamens was justified in shooting the dog. The investigation stated Slyder was returning to attack Maddox, according to the report.
Investigators found officers and civilian witnesses split on whether it was necessary to shoot Slyder. The officers agreed it was necessary and civilian witnesses said it wasn't. The one exception was the man arrested during the traffic stop who agreed it was necessary.
The investigation determined Criscuolo was not in the line of fire, but Karp disputes it in the complaint, stating his client was "mere feet away" from Slyder at the time of the incident.
Commissioner Carolann Swartz said she wasn't aware of the lawsuit, so she couldn't comment on it.
In the second part of the case, Karp claims Moses Lake's enforcement of its hazardous dog ordinance is too vague. Following the shooting, the city cited Criscuolo twice for a total of $1,738. One citation was for Slyder. The second was for failing to register his nine-month-old Lab mix as a hazardous dog, according to the complaint. Both citations were dismissed.
"Following dismissal of the citations, Criscuolo attempted to license Dymond with the city as a spayed, non-hazardous dog," according to the complaint. "Despite several attempts, (the) city animal control officer ... refused, insisting Criscuolo pay the $150 hazardous dog registration fee."
Criscuolo reportedly paid the hazardous dog fee under protest, according to the complaint. When he asked the city to refund him the difference, City Attorney Jim Whitaker allegedly refused, stating the police chief determined the dog was part pit bull.
"Whitaker contended that if Criscuolo did not like it, he could sue," according to the complaint.
The ordinance fails to specify how the city determines if a dog contains "an element of the breed ... as to be identifiable as partially of the breed," according to the complaint. It also doesn't list how much of the hazardous dog breed needs to be part of the animal's genetic makeup to classify it as a hazardous dog.
"No ascertainable (much less authoritative) source exists for mixed-breed standards to which a government official may refer to avoid exercising unbridled, highly subjective discretion in 'identifying' a dog as wholly or partially of the prohibited breeds, rendering the statute unconstitutionally vague, overbroad and under-broad, violating equal protection and privileges and immunities clauses," according to the complaint.
City Manager Joe Gavinski said he had not heard about the lawsuit, so he couldn't comment on it.
Criscuolo is seeking more than $10,000 in damages.