Clause In Law May Take Bite From Dog Case

The case against two dog owners charged in the mauling death of a wheelchair-bound Yakima man should be dismissed because of an ambiguous clause in the state’s dangerous-dogs law, a defense attorney contends.

At issue is what attorney Adam Moore calls the “whether clause” in the 1989 law. It reads:

“The owner of any dog that aggressively attacks and causes severe injury or death of any human, whether the dog has previously been declared potentially dangerous or dangerous, shall be guilty of a class C felony …”

The wording requires prosecutors to prove that Lawrence Delzer, 26, and Edward Bash, 34, both of Yakima, realized their pit bull terriers had the potential to be vicious or had trained them to attack, said Moore, Delzer’s attorney.

On Tuesday, Moore filed a motion in Yakima County Superior Court asking that felony charges against his client be dismissed. Bash’s attorney is expected to file a similar motion.

“Neither knowledge nor intent were even alleged in the charges filed against these men,” Moore said.

Prosecutor Jeff Sullivan conceded the clause poses “serious problems” for his case against the two men.

If the Legislature had included the words “or not” after “whether,” it would be clear that a dog owner could be charged for an attack, regardless of knowledge or intent, Sullivan said.

“The law could definitely be clearer,” Sullivan said. “We have to see if the legislators intended for this to be a non-specific intent crime.”

Delzer and Bash, whose pit bulls attacked and killed 75-year-old Walter Feser on Oct. 20, 1995, are set to go on trial Feb. 26. It would be the first trial under the dangerous-dogs law.

Feser’s stepson, Terry Kline, who has lobbied the Legislature to broaden the law to hold dog owners more accountable, said he isn’t surprised by the defense’s move for dismissal.

“It upsets me, but it fits Mr. Delzer and Mr. Bash,” Kline said. “They’ve never contacted us or expressed sympathy. This is just another move to avoid responsibility - and more proof that we need to fix the holes in this law.”

Moore said a “lynch-mob mentality” was behind the charges and he’s confident there won’t be a trial.

“What they’re doing to these guys is wrong,” Moore said. “What happened to Walter Feser is wrong, but these guys didn’t do it. Their dogs did it.”

The “whether clause,” he said, would have been left out entirely if the Legislature had intended for strict liability to be placed on dog owners, he said.