TYNDALL — A circuit judge has dismissed a protection order that an Avon couple sought against the Avon mayor, saying the mayor did not harass the couple when he shot their aggressive dog out of fear for his safety and others.
Judge Cheryle Gering issued the ruling Monday following an hour-long hearing involving Avon Mayor Mike Petrik and the dog owners, Mathew and Ashley Counts.
Gering had approved a temporary protection order that ended Monday. The Countses were seeking a permanent order.
The dog shooting incident occurred Aug. 21 at the Countses residence while they were not home. Petrik responded to residents’ calls about the dog’s threatening behavior.
Petrik said he was standing on the sidewalk, and the dog, named Ruby, came angrily toward him. He felt forced to get his gun and shoot the dog for his safety and to protect the general public.
“The hair stood up on the back of my neck, knowing it was me or the dog,” he told the judge Monday.
The Avon town council had previously received numerous complaints about the dog, from its aggressiveness to its roaming around town, Petrik said.
“People were nervous about walking down the street. The dog would growl and jerk its chain,” the mayor said. “People felt, if the dog was to get off its chain, it wasn’t going to be good.”
The Countses disputed the characterization of their dog, saying it was friendly toward a number of people. In addition, they questioned Petrik’s actions before, during and after the shooting, all while they were out of town.
“Isn’t it harassment for (Petrik) to be in my yard when I’m not home, and he knows I’m not home? And (the mayor) was there with a gun,” Mathew said. “I thought that was harassment. I just don’t get it. It would be like if I would go in his yard.”
TELLING THEIR STORY
At the outset, Gering noted Monday’s hearing was limited to the protection order and was not a civil lawsuit about shooting the dog.
“The burden of proof is on the Countses to show harassment,” she said.
The two sides presented different statements on Ruby’s temperament and the events surrounding the dog’s shooting. Petrik disposed of the animal without informing the Countses of what had occurred.
Petrik responded to the scene that evening because no law enforcement was available to answer complaints about the dog.
Avon has no city police officer, and the Bon Homme County sheriff’s office was working on another case involving an alleged pipe bomber and explosion in Tabor. With no available law enforcement that evening, Petrik followed a chain of command and responded to calls about Ruby’s aggressive behavior.
The Countses were attending Riverboat Days at Yankton. They contended that Petrik was on their property when he shot their dog.
In his statement, Mathew Counts said he noticed Ruby wasn’t in the yard upon the family’s return. The yard had temporary fencing, and Ruby was gone while the other dog was still in the yard, he said.
Counts searched for the missing dog without success, asked if neighbors had seen the dog and posted a notice on the town’s Facebook site.
With no results, Counts texted Petrik, who didn’t respond. Counts then contacted the Bon Homme County sheriff’s office, who didn’t know the dog’s whereabouts.
A law enforcement officer later informed Counts that Ruby had been shot but didn’t offer details. Based on the location of blood, Counts said Ruby was shot in his yard.
The following day, Counts texted Petrik, who said he was attending a game and would contact Counts later to talk about the dog situation.
During the follow-up conversation, Petrik said Ruby had been aggressive toward Avon residents that day and he wanted to put the dog in a fenced area. However, the mayor said the dog was threatening when he approached the animal, and he felt no choice but to shoot the dog.
Mathew Counts disagreed on that course of action. “I just don’t understand why it happened like this,” he said.
In her statements, Ashley Counts said the family decided it would be safe to leave the dog outside while in Yankton. They returned home to find one dog but not the other one.
Ashley said the couple went searching for the dog that night. Mathew continued the search and came home about 1-2 a.m., reporting he couldn’t find Ruby at all.
The next day, the family’s roommate came to Ashley’s workplace, telling her Ruby had been shot. She called Mathew, who told her the details.
She got off work at 4 p.m. and was home with her children while Mathew was outside talking with Petrik. She didn’t know what was said between the two men.
Gering asked what Ashley Counts considered harassment.
“We have a private property sign that he (Petrik) violated when he stepped on our yard,” Ashley Counts said.
She agreed with her husband’s account of the incident, adding there were no holes in the fencing for the dogs and she had no idea how they got out. The fence looked like it had been pushed at the top and pulled at the bottom, she said.
Petrik provided his account when he made his statement in court.
The mayor said he received a call from the 911 dispatch around 8:30 p.m. Saturday. “I was getting reports of a vicious dog running at large in Avon,” he said.
Petrik and his son went to the northwest part of Avon, looking for the dog. Petrik parked in the middle of the street, where a woman informed him nobody was home at the Counts residence and the family had been gone all day.
Ruby was standing on the curb by the sidewalk. Petrik described the dog as getting vicious.
“She started growling and proceeding like it was going to attack me,” he said. “I had no other option than to dispatch the dog.”
Petrik said he told his son three times to get the mayor’s handgun, Petrik said he was standing on the sidewalk, within six feet of the dog, and thought the canine was coming toward him.
At that point, Petrik shot the dog, put down his gun and removed the animal.
Prior to the shooting, Petrik said he had received calls from residents complaining the dog was roaming the community during the late afternoon. Several residents had chased the dog out of their yards, the mayor said.
During Monday’s hearing, Petrik called one of those residents, Bridgette Muller, as a witness on his behalf. She testified that, around 5:18 p.m., she called the sheriff’s dispatch about two dogs in her yard. She went out for dinner and returned about 7:15 p.m. to walk her dog on a retractable leash.
Muller opened the garage door to find another dog, later identified as Ruby.
“The dog was growling, barking and running straight at me,” Muller said, adding she barely got herself and her dog back into the garage safely before Ruby reached them.
Over the course of the evening, Ruby returned to Muller’s home, where there were children, ages 17, 11 and 6.
“The dog came straight after us, and (one of us) grabbed a baseball bat to get the dog off our property,” she said, noting the sheriff’s dispatch advised her to call Petrik.
Shortly afterwards, Petrik arrived on the scene and tried to get the dog back onto the Countses’ property and put it in a kennel.
The mayor did not have his gun at first and had no interest in destroying the dog, Muller said.
THE JUDGE SPEAKS
As mayor, Petrik said he received reports of dogs barking around midnight, being chained up and running at large.
Mathew Counts got the dog in May or June from a person in Tripp, Petrik said, so he contacted the Tripp police officer who said his town had the same issues with the same dog.
Avon has a city ordinance that all dogs are to be tagged and with vaccination records, Petrik said, noting the Countses have not complied with the rule. In addition, Avon has a vicious-dog policy that tells when dogs are to be dispatched.
In their rebuttal, Ashley Counts said she had five children living with her and, if she had considered the dog a danger, she would have done something about the situation.
The Countses’ dogs can become territorial, Ashley said. “They are very protective of their yard,” she said.
However, neighbors and others have found the dogs as good animals “and not aggressive at all,” Ashley said. On the night in question, neighbors working in their yard saw the dog return home down the street, the Countses said.
Petrik disputed that remark, saying the neighbor’s home didn’t have the available view from their front yard to see the dog return to the Countses’ house.
Petrik also criticized the way that the Countses treated their dogs. He said the animals were not fed, watered or housed properly and were allowed to become and remain tangled up. The Countses also yelled at the dogs, he added.
“I love pets, and I wouldn’t treat them that way,” the mayor said. “If you don’t take care of a dog, you shouldn’t have one.”
In making her decision, Gering said she reviewed the South Dakota statutes regarding stalking and harassment. She did not find Petrik’s actions fit any of those definitions.
A number of Avon residents, including Muller, feared for their safety, Gering said, adding that, as mayor, Petrik was deemed responsible for the task of protecting them.
Gering determined the mayor was standing on the sidewalk and curb at the time of the shooting, meaning he was on public property and not trespassing.
Petrik could have communicated to the Countses what had happened rather than have them learn it from another source, the judge said.
“(Petrik) may have handled it better, but he did no go on the property past the public sidewalk, and his actions served a legitimate purpose,” she said.
“The Countses failed to show harassment, and the protection order is rescinded.”
Gering ordered a dismissal, and the Countses have 30 days to appeal her decision to the South Dakota Supreme Court.
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