mcneely vs. united states: the pit bull and rottweiler dangerous dog designation emergency amendment...

371D. C.McNEELY v. U.S.Cite as 874 A.2d 371 (D.C. 2005)

Robert L. McNEELY, Appellant,

v.

UNITED STATES, Appellee.

No. 98–CF–924.

District of Columbia Court of Appeals.

Argued June 18, 2001.Decided May 12, 2005.

Background: Defendant was convicted ina jury trial in the Superior Court, WilliamM. Jackson, J., of violating the Pit Bull andRottweiler Dangerous Dog DesignationEmergency Amendment Act. Defendantappealed.Holdings: The Court of Appeals, Ruiz, J.,held that:(1) Act did not deprive defendant of fair

warning of the proscribed conduct;(2) defendant was required to know that

he owned pit bulls in order to be con-victed under Act; and

(3) prosecutor’s improper comment wasrendered harmless by curative instruc-tions.

Affirmed.

1. Constitutional Law O38A facial challenge to a statute alleges

that the law is invalid in toto and thereforeincapable of any valid application.

2. Constitutional Law O82(4)The overbreadth doctrine permits the

facial invalidation of laws that inhibit theexercise of First Amendment rights if theimpermissible applications of the law aresubstantial when judged in relation to thestatute’s plainly legitimate sweep.U.S.C.A. Const.Amend. 1.

3. Constitutional Law O42.2(1), 82(3)Dog ownership constituted a form of

property interest not protected by theFirst Amendment, and thus, defendant

lacked standing to claim that statute re-garding pit bull ownership was faciallyoverbroad. U.S.C.A. Const.Amend. 1.

4. Constitutional Law O258(2)

The vagueness doctrine forms a basisfor a facial challenge to a statute where,even if the enactment does not reach asubstantial amount of constitutionally pro-tected conduct, it nonetheless fails to es-tablish standards for the police that aresufficient to guard against the arbitrarydeprivation of liberty interests, or it failsto provide the kind of notice that willenable ordinary people to understand whatconduct it prohibits.

5. Constitutional Law O42.2(1)

Whereas the absence of First Amend-ment concerns renders an overbreadthclaim non-justiciable under notions of pru-dential third party standing, a vaguenessclaim not implicating the First Amend-ment remains cognizable, but only as ap-plied to the facts of the case presented.U.S.C.A. Const.Amend. 1.

6. Constitutional Law O258(2)

The Due Process Clauses of the Fifthand Fourteenth Amendments of the Con-stitution have been construed as requiringthat notice be given of the conduct pro-scribed by criminal statutes. U.S.C.A.Const.Amends. 5, 14.

7. Constitutional Law O251.6

Notice for purposes of satisfying dueprocess requirements under the Fifth andFourteenth Amendments refers to the ob-jective intelligibility of the law’s content toa reasonable person rather than the claim-ant’s subjective awareness and under-standing.

8. Criminal Law O13.1(1)

The ‘‘void-for-vagueness doctrine’’ re-quires that a penal statute define the crim-

372 874 ATLANTIC REPORTER, 2d SERIESD. C.

inal offense with sufficient definitenessthat ordinary people can understand whatconduct is prohibited.

See publication Words and Phrasesfor other judicial constructions anddefinitions.

9. Constitutional Law O258(2)Where criminal penalties are at stake,

the constitutionally tolerable limits of stat-utory imprecision under the Due ProcessClauses of the Fifth and FourteenthAmendments contract and a relativelystrict vagueness test is appropriate.U.S.C.A. Const.Amends. 5, 14.

10. Constitutional Law O251.4A statute is not unconstitutionally

vague under the Due Process Clauses ofthe Fifth and Fourteenth Amendmentseven if it requires that a person’s conductconform to a somewhat amorphous, yetcomprehensible, standard; it is unconstitu-tionally vague only if no standard of con-duct is specified at all. U.S.C.A. Const.Amends. 5, 14.

11. Constitutional Law O251.4A law fails to meet the requirements

of the Due Process Clause of the Fifth andFourteenth Amendments if it is so vagueand standardless that it leaves the publicuncertain as to the conduct it prohibits.U.S.C.A. Const.Amends. 5, 14.

12. Animals O75 Constitutional Law O293

The Pit Bull and Rottweiler Danger-ous Dog Designation Emergency Amend-ment Act, which imposed penalties onowners of pit bulls that caused injury tohumans without provocation, did not de-prive defendant of a fair warning of theproscribed conduct so as to violate the dueprocess clause of the Fifth and FourteenthAmendments, where the Act criminalized avery narrow range of conduct that waseasily understood by focusing on two par-

ticular dog breeds, unprovoked attacks,and injury in fact. U.S.C.A. Const.Amends. 5, 14; D.C. Official Code, 2001Ed. § 8–1906(b).

13. Statutes O47Although the absence of a scienter

requirement may be a factor consideredwhen testing a statute for constitutionalvagueness, the absence of a scienter re-quirement is not a sufficient basis to strikea legislative enactment as unconstitutional-ly vague; rather, the absence of a scienterrequirement may be weighed in determin-ing that the express language of a statuteis void for vagueness, while the presence ofa scienter requirement may save a statutefrom invalidation despite the apparentvagueness of its wording.

14. Animals O4The temperament of pit bulls, particu-

larly their volatile capacity for hostilityand violent behavior, is sufficiently well-known that these dogs are proper subjectsof regulatory measures adopted in the ex-ercise of a state’s police power. D.C. Offi-cial Code, 2001 Ed. § 8–1906(b) .

15. Animals O4 Constitutional Law O293

Although the usual legislative graceperiod for acts to take effect was reducedby half for the Pit Bull and RottweilerDangerous Dog Designation EmergencyAmendment Act, defendant had fair warn-ing of the conduct proscribed by the Actfor purposes of the due process clause ofthe Fifth and Fourteenth Amendments,where the Act had been in effect for al-most four weeks before its sanctions fell ondefendant. U.S.C.A. Const.Amends. 5, 14;D.C. Official Code, 2001 Ed. § 8–1906(b).

16. Constitutional Law O270(1), 303A statute defining an offense malum

prohibitum may impose a fine and/or im-prisonment on a strict liability basis with-


out offending due process of law.U.S.C.A. Const.Amends. 5, 14.

17. Criminal Law O1139Court of Appeals reviews de novo is-

sues of statutory interpretation.

18. Statutes O181(2), 190A cornerstone of statutory interpreta-

tion is the rule that a court will not lookbeyond the plain meaning of a statutewhen the language is unambiguous anddoes not produce an absurd result.

19. Statutes O190It is elementary that the meaning of a

statute must, in the first instance, besought in the language in which the act isframed, and if that is plain, and if the lawis within the constitutional authority of thelaw-making body which passed it, the solefunction of the courts is to enforce it ac-cording to its terms.

20. Statutes O190Where the language in a statute is

plain and admits of no more than onemeaning, the duty of interpretation doesnot arise.

21. Animals O75Although the Pit Bull and Rottweiler

Dangerous Dog Designation EmergencyAmendment Act, which imposed penaltieson pit bull owners whose dogs attackedindividuals, was a strict liability offenseand did not specify a mens rea require-ment, defendant was required to know thathe or she owned a pit bull in order to beconvicted under the Act; conviction underthe Act did not require a finding of culpa-ble intent on the part of defendant. D.C.Official Code, 2001 Ed. § 8–1906(b).

22. Criminal Law O713, 730(1)When reviewing an allegation of im-

proper prosecutorial argument, the Courtof Appeals first determines whether any ofthe challenged comments were, in fact,

improper; if so, the court must, viewingthe remarks in context, consider the gravi-ty of the impropriety, its relationship tothe issue of guilt, the effect of any correc-tive action by the trial judge, and thestrength of the government’s case.

23. Criminal Law O1171.1(2.1)

Where an objection was lodged at trialto a prosecutor’s comment that was indeedimproper, and where the trial court thuserred in overruling the objection, theCourt of Appeals will reverse the convic-tion unless the defendant was not substan-tially prejudiced by the court’s error.


Where there was no objection at trialto the prosecutor’s alleged improper com-ments, the Court of Appeals may reverseonly if the trial court’s failure, sua sponte,to intervene and to prevent the misconductso clearly prejudiced the appellant’s sub-stantial rights as to jeopardize the fairnessand integrity of his trial.


Assuming comment by prosecutor inclosing argument that defendant negligent-ly released his pit bulls was unfounded, thetrial court’s failure to sua sponte strike thecomment did not result in a miscarriage ofjustice in defendant’s trial for violating thePit Bull and Rottweiler Dangerous DogDesignation Emergency Amendment Act,where the brief reference to defendant’snegligence was not emphasized as a pri-mary argument nor urged as a legal theo-ry of the case. D.C. Official Code, 2001Ed. § 8–1906(b).

26. Criminal Law O720(7.1)

Prosecution’s comment in closing ar-gument that defendant intentionally re-leased pit bulls did not prejudice defendantin trial for violation of the Pit Bull andRottweiler Dangerous Dog Designation


Emergency Amendment Act; violation ofthe Act was a strict liability offense, andthus, the issue of fault had no bearing onthe case. D.C. Official Code, 2001 Ed.§ 8–1906(b).

27. Criminal Law O1144.15The jury is presumed to follow in-

structions, and the Court of Appeals willnot upset the verdict by assuming that thejury declined to do so.

28. Criminal Law O726, 730(16)Prosecutor’s grossly improper com-

ment during rebuttal argument, in whichprosecutor stated that the jury only need-ed to read the newspaper and use theircommon sense to know why defendant wasguilty, was rendered harmless by trialcourt’s two clear and strongly worded cu-rative instructions, and thus, defendantwas not prejudiced by remark, where courtimmediately instructed jury to disregardthe comment and then later instructed thejury that it was required to decide basedsolely on the evidence presented duringtrial.

Kenneth D. Auerbach, Silver Spring,MD, for appellant.

Elizabeth Trosman, Assistant UnitedStates Attorney, with whom Wilma A.Lewis, United States Attorney at the timethe brief was filed, and John R. Fisher,Roy W. McLeese, III, Darrell C. Valdez,and Maria N. Lerner, Assistant UnitedStates Attorneys, were on the brief, forappellee.

Before SCHWELB, RUIZ andGLICKMAN, Associate Judges.

RUIZ, Associate Judge:

Robert McNeely appeals convictions ontwo counts of violating the Pit Bull andRottweiler Dangerous Dog Designation

Emergency Amendment Act of 1996 (the‘‘Pit Bull Act’’ or ‘‘Act’’). See D.C. Act 11–257, 43 D.C.Reg. 2156 (Apr. 16, 1996),amending D.C.Code § 6–1021.6(b) (1995),re-codified at D.C.Code § 8–1906(b)(2001). He argues that his convictionsshould be reversed because the Pit BullAct denies due process of law and becausethe prosecutor engaged in improper clos-ing and rebuttal arguments. In support ofthe former claim, McNeely contends, first,that the Pit Bull Act does not give ‘‘fairwarning’’ of the criminally proscribed con-duct and, second, that the Act constitutesan impermissible strict liability felony.We affirm.

I.

At approximately 1:00 a.m. on May 13,1996, Helen Avery carried a bag of spoiledfood to the trash can behind her home. Asshe replaced the can’s lid, Avery saw twodogs appear from under the steps of herback porch. The dogs charged towardsher, forcing Avery to seek an escape byscaling a fence to her neighbor’s yard.Unfortunately, she did not evade the dogsquickly enough: one of then seized Averyby the back of her leg and pulled her offthe fence, while the other dog jumped ontop of her as she fell backwards. Duringthe ensuing attack, skin, muscle, and nervetissues were bitten off from various partsof her body, including her leg and botharms; one of her toes was nearly bittenoff; and she lost a large amount of blood.The attack finally ended when Avery’s son,Jerrel Bryant, and two other men success-fully chased the dogs off by beating themwith an ax and baseball bat.

Officer Patrick Keller of the Metropoli-tan Police Department responded to anemergency phone call placed by CareySmith, one of Avery’s neighbors who hadwitnessed the attack. The dogs had since


departed from the scene, but Officer Kel-ler was able to follow a trail of blood hefound in the alley which led several hun-dred feet to a badly wounded dog col-lapsed in the backyard of McNeely’s homeat 79 Q Street, S.W. Another dog was alsopresent. Having recently returned homefrom a wedding earlier that day, McNeelyspoke with Officer Keller and admittedthat he owned both dogs.1 Officer Kellerinspected McNeely’s dog kennel and back-yard, noting that, while the kennel wasclosed, secured, and had no openings in itfrom which the dogs could escape, thebackyard fence was dilapidated and hadbeen dug out in various places.2

On May 29, 1996, McNeely was indictedon two counts of violating the Pit Bull Actby allegedly owning the two pit bulls thatunprovokedly attacked Avery. See D.C.Act 11–257, 43 D.C.Reg. 2156, amendingD.C.Code § 6–1021.6(b). Under the Act,each violation exposed McNeely to a po-tential fine not to exceed $20,000 and twoyears of imprisonment. See id. Defensecounsel filed a pre-trial motion seekingdismissal of the indictment on variousgrounds, including that the Act contra-vened due process of law because it wasimpermissibly vague and because it im-posed felony liability in the absence offault. The government opposed the mo-tion, arguing that the Pit Bull Act was notvague because it was not standardless, andalthough it did not expressly require amental state reflecting some sort of maliceor fault, it could properly be construed asrequiring proof that the accused knowingly

owned a pit bull. Applying Staples v.United States, 511 U.S. 600, 606, 114 S.Ct.1793, 128 L.Ed.2d 608 (1994), the courtreasoned that, because the express lan-guage of the Act was silent in regard tocriminal mens rea, and because the Coun-cil of the District of Columbia did nototherwise expressly or impliedly indicatethat it intended to impose strict criminalliability, the court must impute to the PitBull Act a basic scienter requirement.The judge accordingly interpreted the lawas requiring the prosecution to prove notonly that the pit bulls attacked withoutprovocation, but also that McNeely knewthat the dogs he owned were pit bulls.

McNeely did not dispute at trial, nordoes he now on appeal, that he knew thathis dogs were pit bulls. His defense attrial centered largely on the absence ofevidence establishing beyond a reasonabledoubt that the attack upon Avery wasunprovoked. Lending general support toMcNeely, Susan Simms testified that theyboth lived at 79 Q Street, S.W., and that,on the day preceding the attack, she andMcNeely left the house around noon for awedding reception in Maryland and did notreturn until 2:00 a.m. the next morning,after the attack had occurred. She statedthat she had fed the dogs the previousmorning at 10:00 a.m. and that the dogshad been locked in the kennel.

During the government’s closing argu-ment, the prosecutor reminded the jurythat McNeely’s knowing ownership of thepit bulls was established by his own admis-

1. Officer Keller believed the dogs’ nameswere ‘‘Bruno’’ and ‘‘White Boy.’’ As he de-scribed them, ‘‘[o]ne was basically all blackand the other one was basically all white.’’

2. With regard to the apparently well-con-structed kennel, McNeely was given specifica-tions by Rosemary Vozobule, director of theWashington Humane Society’s (‘‘WHS’’) lawenforcement program, at an indiscernible

‘‘time when we [WHS] placed a requirementupon Mr. McNeely in order to retrieve a cou-ple of dogs that we had in our custody.’’ It isunclear whether the ‘‘couple of dogs’’ towhich Vozobule referred in her trial testimo-ny are the same pit bulls at issue here, otherpit bulls, or dogs of some other breed ownedby appellant.


sion. Apparently attempting to summa-rize the evidence of the unprovoked natureof the attack, the prosecutor also remindedthe jury that Bryant had testified that herecalled seeing the dogs running loose infront of his mother’s home earlier in theevening, and that there was no other per-son or animal in the vicinity when the dogsattacked her.3 The circumstances of thedogs’ escape from the backyard was alsodiscussed during closing argument. Draw-ing on Officer Keller’s testimony, the pros-ecutor argued without objection that sincethe police found the kennel secured whileat the same time the dogs were runningloose, the jury could conclude that‘‘through negligence, recklessness[, or] TTTan omission by the defendant’’ the dogswere allowed to run loose and attackAvery. During rebuttal argument, theprosecutor’s argument evolved into an as-sertion that McNeely likely allowed hisdogs to run free after he returned fromthe wedding reception: ‘‘What happenedthat night, ladies and gentlemen[?] Thedefendant came home with his girlfriend.They put the dogs in the back yard TTTT’’Defense counsel objected that there wasno evidence to support such an argument.The court sustained the objection, rulingthat there was no evidence that upon re-turning with Simms, McNeely let the dogsout of the kennel thinking that the dogswould remain in the yard. No curativejury instruction was requested or given.Later in rebuttal, the prosecutor said:

Should the defendant be criminally re-sponsible? The District Council govern-ment has already determined the an-swer to be ‘‘yes.’’ If you find that he didknow he owned pit bulls and they gotout and they hurt somebody withoutprovocation, the answer is ‘‘yes.’’ Youonly need to read the newspaper anduse your common sense to know why.

The Court interjected sua sponte: ‘‘Youcannot read the newspaper. You cannotread the newspaper TTTT Disregard thecomment you only need to read the news-paper.’’ The trial court denied McNeely’sensuing motion for a mistrial, preferringinstead to give an immediate curative in-struction and to remind the jury later dur-ing final instructions that they could notrely on what they read in the newspapersto decide the case.

After the jury reached its verdicts ofguilt, the trial court asked counsel to briefthe issue of improper argument by theprosecutor in closing so that the courtcould revisit the matter at sentencing. Af-ter taking the issue under advisement, thejudge denied at sentencing defense coun-sel’s motion for a new trial. The courtagreed that the prosecutor’s newspapercomment was ‘‘grossly improper,’’ but italso determined that its sua sponte inter-jection required harmless error analysis.Given the ‘‘low standard of proof’’ and thestrength of the government’s case, thecourt ruled that the prosecutor’s unwar-ranted comment was harmless. After lis-

3. The record vaguely suggests that there mayhave been a third dog. Prosecution witnessTony Queen, an animal control officer withthe WHS who was called to the scene, testi-fied that he was familiar with the facts of thiscase because ‘‘there was also a third dog—’’ Itis unclear whether this dog was present at thescene of the attack, McNeely’s home, or sim-ply impounded elsewhere in the city becauseQueen’s testimony was interrupted by a benchconference in which the prosecutor informedthe court that Queen was about to testify that

‘‘there was a third dog that was not owned bythe defendant that was taken in TTT to see if itwas related to these two dogs and they [ani-mal control] found that it wasn’t. So[,] TTT[the government is] not claiming the third dogwas in any way related to these—was ownedby the defendant.’’ Simms also refers to thepresence of what may have been a third‘‘black and white’’ dog by the name of ‘‘Mat-tie’’ in the backyard at 79 Q Street, perhapsowned by McNeely.


tening to the parties sentencing requests,4

the trial court sentenced McNeely to: (1)eight to twenty-four months concurrentterms of imprisonment, with execution ofthe sentence suspended; (2) three years ofsupervised probation; (3) 150 hours ofcommunity service; and (4) a fine of $5,000payable in monthly installments of $100.This appeal timely followed.

II.

The Council enacted the first legislationin this jurisdiction to regulate dangerousdogs in 1988. See generally D.C. Act 7–190, D.C. Reg. 35–4787, codified at

D.C.Code §§ 6–1021.1—6–1021.8 (1995).This law continues to apply today.5 Anydog that ‘‘[h]as bitten or attacked a personor domestic animal without provocation,’’or ‘‘[i]n a menacing manner, approacheswithout provocation any person or domes-tic animal as if to attack, or has demon-strated a propensity to attack withoutprovocation or otherwise to endanger thesafety of human beings or domestic ani-mals,’’ is a ‘‘dangerous dog’’ within themeaning of the statute. D.C.Code § 6–1021.1(1)(A)(i) & (ii). Once a dog has beenclassified as ‘‘dangerous’’ after a hearingconducted before the Mayor, see D.C.Code§ 6–1021.2,6 the owner must, in addition to

4. Referring to the Act’s ‘‘dubious constitution-ality’’ and the absence of any prior convic-tions, defense counsel urged the trial judge toimpose probation with a requirement thatMcNeely refrain from ever owning a pit bullagain. The prosecutor agreed with defensecounsel’s suggestion that probation was ap-propriate and added a request that the courtorder McNeely to pay restitution. The gov-ernment also urged the court to impose a‘‘lengthy probation’’ period, in part, becauseof the seriousness of other unrelated priorincidents involving McNeely’s dogs—inci-dents that the judge excluded from the evi-dence at trial. See Caldwell v. United States,595 A.2d 961, 966 (D.C.1991) (explaining thata sentencing judge may consider any evi-dence, ‘‘including that which was not intro-duced at trial,’’ provided it is not based on‘‘material false assumptions’’) (internal quota-tions omitted). The prosecutor stated thatthere

were the prior attacks that this defendantowned dogs that was [sic], that did attackother people and in fact, one of the dogsinvolved in this case, the one that washatched [sic], Bruno, had just about threemonths prior to had attacked somebodyand Animal Control had to respond. Thedefendant owns another dog that was at-tacked a person [sic] and when a policeofficer went out to investigate the dog at-tacked the officer and the officer shot andkilled that dog. And that was approximate-ly, I think that was four or five months to[sic] this incident. In addition to that therewere a couple of other attacks, Your Honor,

and they were dogs that belonged to thedefendant.

5. The law is currently codified at §§ 8–1901to –1908 (2001). We use in the opinion theprevious code sections, which were in effectat the time the offense occurred.

6. Section 6–1021.2, entitled ‘‘Determinationof a dangerous dog,’’ provides as follows:

(a) If the Mayor has probable cause to be-lieve that a dog is a dangerous dog, theMayor may convene a hearing for the pur-pose of determining whether the dog inquestion shall be declared a dangerous dogand to determine if the dog would consti-tute a significant threat to the public healthand safety if returned to its owner. Prior toa hearing, the Mayor shall conduct or causeto be conducted an investigation and shallprovide reasonable notification of the hear-ing to the owner.(b) Following notice to the owner and priorto the hearing, if the Mayor has probablecause to believe that a dog is a dangerousdog and may pose an immediate threat ofserious harm to human beings or otherdomestic animals, the Mayor may obtain asearch warrant pursuant to Rule 204 of theDistrict of Columbia Superior Court Rulesof Civil Procedure and impound the dogpending disposition of the case. The ownerof the dog shall be liable to the District forthe costs and expenses of keeping the dog.(c) The hearing shall be held within no lessthan 5, and no more than 10 days, exclud-ing holidays, Saturdays and Sundays, after


complying with universally applicable li-censing obligations, see D.C.Code § 6–1004(1995), specially register his or her dog as

a dangerous dog, see D.C.Code § 6–1021.4,7 and fulfill special responsibilitiesthat apply only to owners of dangerousdogs. See D.C.Code § 6–1021.5.8 Violation

service of notice upon the owner of the dog.The hearing shall be informal and open tothe public. The owner shall have the op-portunity to present evidence as to why thedog should not be declared a dangerousdog or not determined to be a significantthreat to the public health and safety ifreturned to its owner. The Mayor maydecide all issues for or against the owner ofthe dog regardless of whether the ownerfails to appear at the hearing.(d) Within 5 days after the hearing, theowner shall be notified in writing of thedetermination by the Mayor.(e) If the owner contests the determination,the owner may, within 5 days of the deter-mination, bring a petition in the SuperiorCourt of the District of Columbia seeking denovo review of the determination. A deci-sion by the Superior Court of the District ofColumbia shall not affect the Mayor’s rightto later declare a dog to be a dangerous dogor to determine that the dog constitutes athreat to the public health and safety, forany subsequent actions of the dog.

7. Section 6–1021.4, entitled ‘‘Dangerous dogregistration requirements,’’ states that:

The Mayor shall issue a certificate of reg-istration to the owner of a dangerous dog ifthe owner establishes to the satisfaction ofthe animal control agency that:

(1) The owner of the dangerous dog is 18years of age or older;

(2) A valid license has been issued for thedangerous dog pursuant to District law;

(3) The dangerous dog has current vacci-nations;

(4) The owner of the dangerous dog hasthe written permission of the property own-er where the dangerous dog will be kept;

(5) The owner of the dangerous dog has aproper enclosure to confine the dangerousdog;

(6) The owner of the dangerous dog hasposted on the premises a clearly visiblewritten warning sign that there is a danger-ous dog on the property with a conspicuouswarning symbol that informs children ofthe presence of a dangerous dog;

(7) The owner of the dangerous dog hassecured a policy of liability insurance issuedby an insurer qualified under District law in

the amount of at least $50,000 insuring theowner for any personal injuries inflicted bythe dangerous dog and containing a provi-sion requiring the District to be named asan additional insured for the sole purposeof requiring the insurance company to noti-fy the District of any cancellation, termi-nation, or expiration of the liability insur-ance policy;

(8) The dangerous dog has been present-ed to the appropriate agency to be photo-graphed for identification purposes; and

(9) The owner has paid an annual fee inan amount to be determined by the Mayor,in addition to regular dog licensing fees, toregister the dangerous dog.

8. Section 6–1021.5, entitled ‘‘Dangerous dogowner responsibility,’’ provides as follows:

It shall be unlawful for the owner of adangerous dog in the District to:

(1) Keep a dangerous dog without a validcertificate of registration issued under § 6–1021.4;

(2) Permit the dangerous dog to be out-side the proper enclosure unless the dan-gerous dog is under the control of a respon-sible person and is muzzled and restrainedby a substantial chain or leash, not exceed-ing 4 feet in length. The muzzle shall bemade in a manner that will not cause injuryto the dangerous dog or interfere with itsvision or respiration but shall prevent itfrom biting any human being or animal;

(3) Fail to notify the Mayor within 24hours if a dangerous dog is on the loose, isunconfined, has attacked another animal,has attacked a human being, has died, hasbeen sold, or has been given away. If thedangerous dog has been sold or given awaythe owner shall also provide the Mayor withthe name, address, and telephone numberof the new owner of the dangerous dog;

(4) Fail to maintain the liability insur-ance coverage required under § 6–1021.4;

(5) Fail to surrender a dangerous dog tothe Mayor for safe confinement pending adisposition of the case when there is a rea-son to believe that the dangerous dog is asignificant threat to the public health andsafety; or

(6) Fail to comply with any special secu-rity or care requirements established by theMayor pursuant to § 6–1021.3.


of any of these heightened duties mayresult in a fine not to exceed $300 for afirst offense and $500 for a second offense.See D.C.Code § 1021.6(a). In addition,‘‘[a]n owner of a dangerous dog that causesserious injury to or kills a human being ora domestic animal without provocationshall be fined up to $10,000.’’ D.C.Code§ 6–1021.6(b).

This statutory framework was tempo-rarily amended on an emergency basis in1996 by the Pit Bull Act, pursuant to whichMcNeely was convicted.9 In relevant part,the Act added the pit bull breed—as de-fined by either the American Kennel Clubor the United Kennel Club—to the defini-tion of a dangerous dog.10 See sec. 2(a), 43D.C.Reg. at 2156. It further excepted allpit bulls from the provisions of D.C.Code§§ 6–1021.2 and 6–1021.3, thus removingthe need for an administrative hearing inorder to classify any particular pit bull as adangerous dog. See sec. 2(b), 43 D.C.Reg.at 2156. A new provision was added toallow the Mayor to impound and humanelydestroy any pit bull found within the Dis-trict which had not been licensed and spe-cially registered under D.C.Code § 6–1021.4, unless the owner provided suffi-cient evidence to prove in an administra-tive hearing either that the dog was in factnot a pit bull, or that the pit bull would bepermanently removed from the District ofColumbia. See sec. 2(c), 43 D.C.Reg. at2157. Most pivotal to this case is the Act’samendment of the penalty provisions of

D.C.Code § 6–1021.6. While excepting allowners of pit bulls from civil fines arisingfrom technical violations of the special reg-istration provisions,11 see sec. 2(f)(1), 43D.C.Reg. at 2158, the Pit Bull Act substan-tially augmented the penalty imposed uponan owner when a pit bull causes injury toanother person or domestic animal:

[a] pit bull or a Rottweiler that causesinjury to or kills a human being or adomestic animal without provocationshall be humanly [sic] destroyed and theowner of such dog shall be fined up to$20,000 and may be sentenced to notmore than 2 years of imprisonment.

43 D.C.Reg. at 2158. It was under thisparticular provision that McNeely was con-victed and sentenced.

III.

McNeely asserts that the Pit Bull Actdenies due process of law because it failsto provide ‘‘fair warning’’ of the conduct itproscribes and because it constitutes animpermissible strict liability felony. Thegovernment disagrees with the formerclaim because the Act’s penalty provisionexpressly provides constitutionally ade-quate notice of the conditions under whichcriminal liability may attach. The govern-ment responds to the second claim by ar-guing that strict liability statutes imposingcriminal sanctions are, as a constitutionalmatter, permissible, and, that as a matterof statutory interpretation, the common

9. The Pit Bull Act was effective for only ninetydays, and has not been re-enacted. SeeD.C.Code § 1–229(a) (1999) (defining the per-missible term of emergency legislation). Giv-en its emergency and temporary status, theAct is unaccompanied by legislative history,and the present case appears to be the onlyprosecution brought under it. In addition,we have not heretofore considered an appealconcerning the penalty provision of the dan-gerous dog law, either as it exists today or asit stood temporarily amended.

10. Although the Act applies equally to Rott-weilers, we refer primarily to pit bullsthroughout this opinion as that is the breedinvolved in this case.

11. It appears that such civil fines were sup-planted by the Mayor’s new authority underthe Pit Bull Act to humanely destroy or deportany pit bull found without proper registration.


law presumption in favor of imposing amens rea requirement where a statute isotherwise silent does not permit the courtto read into the statute an intent require-ment that cannot be reconciled with theCouncil’s obvious purpose. Mindful thatthe ‘‘definition of the elements of a crimi-nal offense is entrusted to the legislature,’’Liparota v. United States, 471 U.S. 419,424, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985),and that ‘‘a strong presumption of consti-tutionality inheres in legislative enact-ments’’ not easily overborne by a challeng-ing party, In re W.T.L., 656 A.2d 1123,1131 (D.C.1995) (citing Cobb v. Bynum,387 A.2d 1095, 1097 (D.C.1978)), we con-clude that the Pit Bull Act is sufficientlydefinite to comport with the demands ofthe Constitution’s Due Process Clause andthat the Council created through the Act aconstitutional strict liability felony, withoutrequiring a culpable state of mind, so longas it is proved that the defendant knew heor she owned a pit bull.12

A. Standing

[1] McNeely presses his ‘‘fair warn-ing’’ claim on appeal in general termswithout reference to any of the particularcircumstances of his case. We thereforeassume that he raises a facial challenge tothe Pit Bull Act’s constitutionality. A ‘‘fa-cial’’ challenge to a statute alleges that thelaw is ‘‘invalid in toto—and therefore in-capable of any valid application TTTT’’ Stef-fel v. Thompson, 415 U.S. 452, 474, 94S.Ct. 1209, 39 L.Ed.2d 505 (1974); see alsoCity of Chicago v. Morales, 527 U.S. 41, 55n. 22, 119 S.Ct. 1849, 144 L.Ed.2d 67(1999) (explaining that a party mounting a

facial challenge ‘‘seeks to vindicate notonly his own rights, but those of otherswho may also be adversely impacted bythe statute in question’’). Because thisform of objection to an assertedly vaguelegislative enactment implicates the rightsof third parties not present before thecourt, we address a threshold matter ofprudential third party standing, which de-pends upon the substantive doctrine un-dergirding the claim of error. AlthoughMcNeely’s constitutional challenge is castin general terms, the Supreme Court hasrecognized at least two bases for a facialchallenge to a statute.

[2, 3] ‘‘First, the overbreadth doctrinepermits the facial invalidation of laws thatinhibit the exercise of First Amendmentrights if the impermissible applications ofthe law are substantial when ‘judged inrelation to the statute’s plainly legitimatesweep.’ ’’ Morales, 527 U.S. at 52, 119S.Ct. 1849 (quoting Broadrick v. Okla-homa, 413 U.S. 601, 612–15, 93 S.Ct. 2908,37 L.Ed.2d 830 (1973)). We have accord-ingly held that, in order for a party chal-lenging a statute as overly-broad to haveprudential standing, the statute must im-plicate First Amendment concerns. SeeGerman v. United States, 525 A.2d 596,605 (D.C.1987) (citing New York v. Ferber,458 U.S. 747, 767–68, 102 S.Ct. 3348, 73L.Ed.2d 1113 (1982); Broadrick, 413 U.S.at 613, 93 S.Ct. 2908). McNeely assertsthat the Act does not give fair warningbecause it too broadly criminalizes pit bullownership, the evidence of which is a ser-ies of unrelated hypothetical situations de-tailed in his brief in which application ofthe Pit Bull Act would have ‘‘surprisingly’’

12. Genuine strict liability does not requirethat a defendant know the facts underlyingcriminal liability, in this case, ownership ofpit bulls. See Staples, 511 U.S. at 607 n. 3,114 S.Ct. 1793. By requiring this baselineknowledge we avoid application of the mostrigorous form of strict liability. See id. How-

ever, to be consistent with both McNeely’sclaim on appeal, as well as the broader andmore popularly understood meaning of strictliability, i.e., the absence of a culpable mentalstate, we continue in this opinion to employthe strict liability rubric. See id.


untoward results. Because dog ownershipis a form of property interest not protect-ed by the First Amendment, see Nicchia v.New York, 254 U.S. 228, 230, 41 S.Ct. 103,65 L.Ed. 235 (1920) (‘‘Property in dogs isof an imperfect or qualified nature andthey may be subjected to peculiar anddrastic police regulations by the Statewithout depriving their owners of any fed-eral right.’’); cf. State v. Peters, 534 So.2d760, 763–64 (Fla.Dist.Ct.App.1988)(‘‘Where there is no fundamental right orsuspect class at issue—as here, where theclassification concerns animals—courts willusually uphold the constitutionality of thelaw.’’), McNeely lacks prudential standingto raise an overbreadth challenge.

[4, 5] The vagueness doctrine forms asecond potential basis for a facial challengeto a statute where, ‘‘even if [the] enact-ment does not reach a substantial amountof constitutionally protected conduct, TTT it[nonetheless] fails to establish standardsfor the police TTT that are sufficient toguard against the arbitrary deprivation ofliberty interests,’’ Morales, 527 U.S. at 52,119 S.Ct. 1849, or it ‘‘fail[s] to provide thekind of notice that will enable ordinarypeople to understand what conduct it pro-hibits.’’ Id. at 56, 119 S.Ct. 1849. McNee-ly’s fair warning claim falls within the lat-ter category. Whereas the absence ofFirst Amendment concerns renders anoverbreadth claim non-justiciable under

notions of prudential third party standing,a vagueness claim not implicating the FirstAmendment remains cognizable, but onlyas applied to the facts of the case present-ed. See Chapman v. United States, 500U.S. 453, 467, 111 S.Ct. 1919, 114 L.Ed.2d524 (1991) (citing United States v. Powell,423 U.S. 87, 92, 96 S.Ct. 316, 46 L.Ed.2d228 (1975) (‘‘[i]t is well established thatvagueness challenges to statutes which donot involve First Amendment freedomsmust be examined in the light of the factsof the case at hand’’) (quoting UnitedStates v. Mazurie, 419 U.S. 544, 550, 95S.Ct. 710, 42 L.Ed.2d 706 (1975))). Wetherefore turn to the merits of McNeely’sfair warning argument as an applied chal-lenge to the constitutional vagueness of thePit Bull Act.

B. Vagueness Challenge

[6–11] The Due Process Clauses of theFifth and Fourteenth Amendments of theConstitution have been construed as re-quiring that notice be given of the conductproscribed by criminal statutes.13 See,e.g., Colten v. Kentucky, 407 U.S. 104, 110,92 S.Ct. 1953, 32 L.Ed.2d 584 (1972). Toenforce this guarantee, courts haveadopted a ‘‘void-for-vagueness’’ doctrine,which ‘‘requires that a penal statute definethe criminal offense with sufficient defi-niteness that ordinary people can under-stand what conduct is prohibited TTTT’’ 14

13. ‘‘Notice’’ in this context refers to the objec-tive intelligibility of the law’s content to areasonable person rather than the claimant’ssubjective awareness and understanding.See, e.g., Lyng v. Payne, 476 U.S. 926, 942, 106S.Ct. 2333, 90 L.Ed.2d 921 (1986) (holdingthat publication of legislative enactments, inthis case, regulations governing disaster reliefloans that had been published in the FederalRegister, presumptively satisfies proceduraldue process of law governing notice).

14. The Supreme Court has recently explainedthat several related analytical tools fall under

the doctrinal umbrella protecting citizensagainst statutory vagueness:

There are three related manifestations ofthe fair warning requirement. First, thevagueness doctrine bars enforcement of astatute which either forbids or requires thedoing of an act in terms so vague that menof common intelligence must necessarilyguess at its meaning and differ as to itsapplication. Second, as a sort of ‘‘juniorversion of the vagueness doctrine,’’ the can-on of strict construction of criminal stat-utes, or rule of lenity, ensures fair warningby so resolving ambiguity in a criminal


Kolender v. Lawson, 461 U.S. 352, 357, 103S.Ct. 1855, 75 L.Ed.2d 903 (1983); accordUnited States v. Smith, 685 A.2d 380, 384(D.C.1996); Chemalali v. District of Co-lumbia, 655 A.2d 1226, 1230 (D.C.1995).‘‘Sufficient definiteness’’ is an elastic con-cept. Where criminal penalties are atstake, the constitutionally tolerable limitsof statutory imprecision contract and arelatively strict vagueness test is appropri-ate. See Hoffman Estates v. Flipside,Hoffman Estates, Inc., 455 U.S. 489, 498–99, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982)(explaining the Constitution permits agreater degree of imprecision in a civilstatute than in a criminal statute) (citingBarenblatt v. United States, 360 U.S. 109,137, 79 S.Ct. 1081, 3 L.Ed.2d 1115 (1959))(Black, J., with whom Warren, C.J., andDouglas, J., joined, dissenting)); Wintersv. New York, 333 U.S. 507, 515, 68 S.Ct.665, 92 L.Ed. 840 (1948)). Whatever thelevel of scrutiny, however, a statute is notunconstitutionally vague even if it requiresthat a person’s conduct conform to a some-

what amorphous—yet comprehensible—standard; it is unconstitutionally vagueonly if ‘‘no standard of conduct is specifiedat all.’’ Tuck v. United States, 467 A.2d727, 731 (D.C.1983) (internal quotationmarks omitted) (quoting Coates v. City ofCincinnati, 402 U.S. 611, 614, 91 S.Ct.1686, 29 L.Ed.2d 214 (1971)). Therefore,it is well established that ‘‘a law fails tomeet the requirements of the Due ProcessClause if it is so vague and standardlessthat it leaves the public uncertain as to theconduct it prohibits TTTT’’ 15 Morales, 527U.S. at 56, 119 S.Ct. 1849 (citing Giaccio v.Pennsylvania, 382 U.S. 399, 402–403, 86S.Ct. 518, 15 L.Ed.2d 447 (1966)).

[12] McNeely fails to identify any im-precision in the express language of thePit Bull Act that deprives him of fairwarning of the proscribed conduct. Exam-ining it ourselves, we observe that the PitBull Act specifically and unambiguouslyimposes liability on the owner of a pit bullor Rottweiler that attacks and causes inju-ry without provocation. By focusing on (1)

statute as to apply it only to conduct clearlycovered. Third, although clarity at the req-uisite level may be supplied by judicial glosson an otherwise uncertain statute, due pro-cess bars courts from applying a novel con-struction of a criminal statute to conductthat neither the statute nor any prior judi-cial decision has fairly disclosed to be with-in its scope. In each of these guises, thetouchstone is whether the statute, eitherstanding alone or as construed, made itreasonably clear at the relevant time thatthe defendant’s conduct was criminal.

United States v. Lanier, 520 U.S. 259, 266–67,117 S.Ct. 1219, 137 L.Ed.2d 432 (1997) (in-ternal quotation marks and citations omitted).

15. McNeely argues that our analysis of hisfair warning claim is governed by Liparota,471 U.S. 419, 105 S.Ct. 2084, 85 L.Ed.2d 434(1985), which he understands as announcinga strand of constitutional vagueness doctrineapplicable when a statute ‘‘provides no noticewhere it purports to regulate widespread, in-nocent conduct TTTT’’ The discussion in Lipa-rota to which he cites, however, explicates the

Court’s reasoning in adhering to the commonlaw presumption favoring statutory interpre-tations requiring scienter where the legisla-ture has otherwise been silent. 471 U.S. at426–27, 105 S.Ct. 2084. See section III.D,infra. Contrary to McNeely’s suggestion, theCourt did not rely on the ubiquitous nature ofthe regulated conduct in order to strike downthe statute as unconstitutionally vague. Thebroad reach of a statute does not necessarilyrender its terms indefinite for purposes of thevoid-for-vagueness doctrine. The Court’s ex-press observation that neither party chal-lenged the statute at issue as being unconsti-tutional, see id. at 424 n. 6, 105 S.Ct. 2084,assures us that Liparota cannot lend supportto McNeely’s constitutional claim. We notethat, even as a matter of statutory interpreta-tion, the Court made clear in Liparota that,where a statute may criminalize a broadrange of apparently innocent conduct, the leg-islature, with adequate expression of purpose,‘‘could have intended this broad range of con-duct be made illegal.’’ Id. at 427, 105 S.Ct.2084.


the ownership of (2) two specific breeds,(3) unprovoked attacks, and (4) injury infact, the Act criminalizes a narrow rangeof conduct that is easily understood.McNeely complains that the Act subjectsowners of pit bulls to criminal liability‘‘without regard to any behavior that theycould take to avoid violating the law.’’ Wedo not agree because the plain, non-techni-cal language of the Act’s penalty provisionclearly indicates that ownership of pit bullsis highly disfavored in the District of Co-lumbia and that desisting in such owner-ship is the most immediately available andeffective recourse to avoiding criminal lia-bility. The wording of the Act is thus notlacking in fair warning such ‘‘that men ofcommon intelligence must necessarilyguess at its meaning and differ as to itsapplication TTTT’’ Connally v. Gen. Constr.Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70L.Ed. 322 (1926).

[13] McNeely nonetheless asserts thatthe Pit Bull Act is unconstitutionally vaguebecause it imposes criminal liability with-out regard to fault. Although the absenceof a scienter requirement may be a factorconsidered when testing a statute for con-stitutional vagueness, see, e.g., Colautti v.Franklin, 439 U.S. 379, 395, 99 S.Ct. 675,58 L.Ed.2d 596 (1979) (‘‘This Court haslong recognized that the constitutionalityof a vague statutory standard is closelyrelated to whether that standard incorpo-rates a requirement of mens rea.’’) (citing,inter alia, United States v. Ragen, 314U.S. 513, 524, 62 S.Ct. 374, 86 L.Ed. 383(1942) (stating that in the absence of ascienter requirement, a statute may be-come little more than ‘‘a trap for thosewho act in good faith’’)), the absence of ascienter requirement is not a sufficientbasis to strike a legislative enactment asunconstitutionally vague. Rather, the ab-sence of a scienter requirement may beweighed in determining that the express

language of a statute is void for vagueness,while the presence of a scienter require-ment may save a statute from invalidationdespite the apparent vagueness of itswording. See Hoffman, 455 U.S. at 499,102 S.Ct. 1186 (‘‘a scienter requirementmay mitigate a law’s vagueness, especiallywith respect to the adequacy of notice tothe complainant that his conduct is pro-scribed’’) (citing Screws v. United States,325 U.S. 91, 101–03, 65 S.Ct. 1031, 89L.Ed. 1495 (1945) (plurality opinion)(‘‘[the] requirement of a specific intent todo a prohibited act may avoid those conse-quences to the accused which may other-wise render a vague or indefinite statuteinvalid TTTT The requirement that the actmust be willful or purposeful may TTTrelieve the statute of the objection that itpunishes without warning an offense ofwhich the accused was unaware’’)). Wefind no support for McNeely’s assertionthat the strict liability nature of the PitBull Act renders it inherently void forvagueness—a proposition made plainly un-tenable by the fact that strict liability of-fenses are constitutionally enforced in thelaws of this jurisdiction and across thenation. See section III. C, infra.

Finally, McNeely draws our attention toLambert v. California, 355 U.S. 225, 78S.Ct. 240, 2 L.Ed.2d 228 (1957), where theCourt considered the validity, under theDue Process Clause of the FourteenthAmendment, of an ordinance that made ita criminal offense for a convicted felon toremain in the city of Los Angeles for fivedays without registering with the chief ofpolice. The Court invalidated the statuteas it applied to Lambert, holding that

actual knowledge of the duty to registeror proof of the probability of suchknowledge and subsequent failure tocomply are necessary before a convictionunder the ordinance can stand. AsHolmes wrote in THE COMMON LAW,‘‘A law which punished conduct which


would not be blameworthy in the aver-age member of the community would betoo severe for that community to bear.’’

Id. at 229, 78 S.Ct. 240. The Court drewthis conclusion for two reasons. First, theordinance punished wholly passive con-duct, that is to say, ‘‘[v]iolation of its provi-sions [was] unaccompanied by any activitywhatever, mere presence in the city beingthe test.’’ Id. Second, ‘‘circumstanceswhich might move one to inquire as to thenecessity of registration [were] completelylacking.’’ Id. Because physical presencewithin a city is presumptively innocent, theCourt reasoned that there was no ‘‘com-mission of acts, or the failure to act undercircumstances that should alert the doer tothe consequences of his deed.’’ Id. at 228.Lambert is thus a rare instance in whichthe Supreme Court has held that, contraryto the well-established tenet that igno-rance of the law is not a defense to crimi-nal prosecution, see Cheek v. UnitedStates, 498 U.S. 192, 199, 111 S.Ct. 604,112 L.Ed.2d 617 (1991), actual knowledgeof the law is a prerequisite to criminalliability.

[14] McNeely contends that the PitBull Act is similar to the ordinance inLambert because it subjects to criminalprosecution an individual engaged in other-wise innocent conduct—ownership of pitbulls. But, as we have already discussed,the Pit Bull Act more limitedly criminal-izes ownership of pit bulls that cause seri-ous injury or death to a human being oranother domestic animal. The tempera-ment of pit bulls, particularly their volatilecapacity for hostility and violent behavior,is sufficiently well-known that these dogsare ‘‘proper subject[s] of regulatory mea-sures adopted in the exercise of a state’s‘police power TTTT’ ’’ 16 McIntosh v. Wash-ington, 395 A.2d 744, 756 (D.C.1978) (citing

United States v. Inter’l Minerals &Chems. Corp., 402 U.S. 558, 91 S.Ct. 1697,29 L.Ed.2d 178 (1971) (corrosive liquids);United States v. Freed, 401 U.S. 601, 91S.Ct. 1112, 28 L.Ed.2d 356 (1971) (gre-nades); United States v. Balint, 258 U.S.250, 42 S.Ct. 301, 66 L.Ed. 604 (1922)(narcotics); United States v. Dotterweich,320 U.S. 277, 64 S.Ct. 134, 88 L.Ed. 48(1943) (adulterated and misbrandeddrugs)). Moreover, unlike in Lambert,McNeely’s undisputed knowledge that hisdogs were pit bulls should have moved himto inquire into his heightened obligationsunder the Act. See Lambert, 355 U.S. at229, 78 S.Ct. 240. Where such character-istically dangerous dogs are knowinglyowned, ‘‘the probability of regulation is sogreat that anyone who is aware that he iseither in possession of or dealing withthem must be presumed to be aware of theregulation.’’ McIntosh, 395 A.2d at 756(citing Shevlin–Carpenter Co. v. Minneso-ta, 218 U.S. 57, 64–65, 30 S.Ct. 663, 54L.Ed. 930 (1910)). Moreover, it appearsthat McNeely had previous experiencewith the dangerous propensities of hisdogs that had brought him in contact withthe Washington Humane Society and thepolice. See supra note 4. McNeely wasthus, at least, on inquiry notice of hisobligations under the Pit Bull Act and hecannot avail himself of Lambert.

[15] We have also taken into accountthat the Pit Bull Act which was enacted asemergency legislation, greatly augmentedthe liability attaching to McNeely’s exist-ing ownership of pit bulls, and might havecome as an ‘‘unfair surprise.’’ Specifically,the immediately effective emergency en-actment of the Pit Bull Act on April 16,1996, and the occurrence of the May 13attack on Avery afforded McNeely twenty-

16. As noted by the government and acknowl-edged by the pre-trial motions judge, District

residents reported 81 pit bull bites in 1994out of a total of 477 reported animal bites.


seven days to familiarize himself with thepenalty provision and to decide whether hewould accept the risk of criminal liabilityby continuing to own two pit bulls housedin the District of Columbia. Barring dis-approval by Congress, Council legislationcreating criminal offenses under Title 22 ofthe D.C.Code ordinarily takes effect sixtydays after the Chair of the Council trans-mits the act to the Speaker of the U.S.House of Representatives and the Presi-dent of the U.S. Senate. See D.C.Code§ 1–233(c)(2) (1999). McNeely thus hadthirty-three fewer days than in the case ofnon-emergency legislation to take note ofthe amendment to the dangerous dog stat-ute. The Supreme Court has stated thatthe presumption charging citizens withknowledge of the law arguably ‘‘may beovercome in cases in which the statutedoes not allow a sufficient ‘grace period’ toprovide the persons affected by a changein the law with an adequate opportunity tobecome familiar with their obligations un-der it.’’ Atkins v. Parker, 472 U.S. 115,130, 105 S.Ct. 2520, 86 L.Ed.2d 81 (1985);see also United States v. Locke, 471 U.S.84, 108, 105 S.Ct. 1785, 85 L.Ed.2d 64(1985) (‘‘[A] legislature generally providesconstitutionally adequate process simplyby enacting the statute, publishing it, and,to the extent the statute regulates privateconduct, affording those within the stat-ute’s reach a reasonable opportunity both

to familiarize themselves with the generalrequirements imposed and to comply withthose requirements.’’). In this case, eventhough the usual legislative grace periodwas reduced by half, the amendment tothe statute had been in effect almost fourweeks before its sanction fell on McNeely.We take note that the longer grace periodusually afforded by the legislative processin the District of Columbia is unusual dueto the unique feature of a Congressionallayover period. McNeely’s fair warningargument is presented in the most generalmanner, and does not reveal whether hewas personally prejudiced by the rapiddevelopment in the District’s dangerousdog law.17 On this record, we cannot saythat McNeely has carried his burden inchallenging that the period provided byenactment of the Pit bull Act on an emer-gency basis did not, in his case, comportwith due process of law.

C. The Constitutionality of aStrict Liability Felony

McNeely asserts that, separate andapart from vagueness, the Pit Bull Actviolates the Due Process Clause because itis a strict liability felony.18 A great weightof case law rejects the notion that there isa constitutional bar to strict liabilitycrimes or a prohibition against imprison-ment for conviction on a strict liabilitybasis.19 Strict liability criminal offenses—

17. It might be that the new sanction did notcome as a surprise to McNeely who, as notedpreviously, had dealt with both animal protec-tion and police authorities in connection withhis dogs. See supra note 4.

18. McNeely’s counsel stated in oral argumentthat the language of the statute does not per-mit this court to interpret the statute in such away as to impose what McNeely would con-sider an adequate scienter requirement, andcontended that without such a requirementthe statute was unconstitutional. We discusshere the constitutional argument, and subse-quently consider the interpretative issue.

19. See, e.g., Powell v. Texas, 392 U.S. 514,535–36, 88 S.Ct. 2145, 20 L.Ed.2d 1254(1968) (stating that the Court has neveradopted a constitutional doctrine of mens rea,leaving negotiation of such issues to thestates); Chicago, Burlington, & Quincey Ry. v.United States, 220 U.S. 559, 578, 31 S.Ct. 612,55 L.Ed. 582 (1911) (‘‘The power of the legis-lature to declare an offense, and exclude theelements of knowledge and due diligencefrom any inquiry as to its commission, can-not, we think, be questioned.’’); United Statesv. Engler, 806 F.2d 425, 433 (3d Cir.1986) (‘‘Itis well established that a criminal statute is


including felonies—are not unprecedentedin the District of Columbia; the Councilhas enacted several such statutes in thepast.20 Moreover, this court has upheldthe Council’s constitutional authority to doso. See, e.g., Harris v. United States, 162A.2d 503, 505 (D.C.1960) (stating that ‘‘it isnow too settled to doubt that the legisla-ture may dispense with intent as an ele-ment of criminal liability when the regula-tion is in the exercise of the police powerfor the benefit of the people’’); accordCommonwealth v. Koczwara, 188 Pa.Su-per. 153, 146 A.2d 306, 308 (1958); Kirk-ham v. City of North Little Rock, 227 Ark.789, 301 S.W.2d 559, 563–64 (1957); Peoplev. Darby, 114 Cal.App.2d 412, 250 P.2d743, 754 (1952); People v. Cramer, 247Mich. 127, 225 N.W. 595, 598 (1929); Statev. Striggles, 202 Iowa 1318, 210 N.W. 137,138 (Iowa 1926).

These precedents, moreover, are consis-tent with the Supreme Court’s acknowl-edgment that ‘‘conduct alone without re-gard to the intent of the doer is oftensufficient’’ to constitute a crime becauselawmakers have ‘‘wide latitude TTT to de-

clare an offense and to exclude elements ofknowledge and diligence from its defini-tion.’’ Lambert, 355 U.S. at 228, 78 S.Ct.240. This latitude is justified in the inter-est of the ‘‘larger good TTT [which] putsthe burden of acting at hazard upon aperson otherwise innocent but standing inresponsible relation to a public danger.’’Morissette v. United States, 342 U.S. 246,260, 72 S.Ct. 240, 96 L.Ed. 288 (1952)(quoting Dotterweich, 320 U.S. at 281, 64S.Ct. 134); see also United States v. Park,421 U.S. 658, 674, 95 S.Ct. 1903, 44L.Ed.2d 489 (1975).

[16] Thus, a statute defining an offensemalum prohibitum may impose a fineand/or imprisonment on a strict liabilitybasis without offending due process of law.Our conclusion is supported by the accept-ed proposition that ‘‘[t]he accused, if hedoes not will the violation, usually is in aposition to prevent it with no more carethan society might reasonably expect andno more exertion than it might reasonablyexact from one who assumed his responsi-bilities.’’ 21 Morissette, 342 U.S. at 256, 72S.Ct. 240.

not necessarily unconstitutional because itsdefinition of a felony lacks the element ofscienter.’’) (citing cases); United States v.Greenbaum, 138 F.2d 437, 438 (3d Cir.1943)(‘‘The Constitutional requirement of due pro-cess is not violated merely because mens reais not a required element of a prescribedcrime.’’); Owens v. State, 352 Md. 663, 724A.2d 43, 49 (1999) (‘‘Appellant finds littlesupport in any Court of Appeals or UnitedStates Supreme Court decision for the propo-sition that a mental element is constitutionallyrequired for criminal liability, even when sub-stantial penalties are involved.’’), cert. denied,527 U.S. 1012, 119 S.Ct. 2354, 144 L.Ed.2d250 (1999); State v. Maldonado, 137 N.J. 536,645 A.2d 1165, 1171 (1994) (upholding theconstitutionality of a statute that imposedstrict criminal liability on manufacturers anddistributors of certain controlled dangeroussubstances that cause death when ingested);cf. Staples, 511 U.S. at 618, 114 S.Ct. 1793(cautioning that as a matter of statutory inter-

pretation offenses not requiring mens rea aregenerally disfavored).

20. See, e.g., D.C.Code § 6–751.18 (Supp.2000)(strict liability misdemeanor for unlawful pes-ticide operations); § 6–997.12 (Supp.2000)(strict liability misdemeanor for unlawful useof lead-based paints); § 22–3214(a) (1996)(strict liability misdemeanor for unlawful pos-session of a sawed-off shot gun authorizingnot more than one year imprisonment); § 6–2311(a) (1995 & Supp.2000) (strict liabilitymisdemeanor for failure to register a fire-arm); § 22–3204(a) (1996) (strict liabilitymisdemeanor for carrying a pistol without alicense with exceptions that can make it afelony); § 6–2912(b)(2) (Supp.2000) (strict li-ability felony for unlawful solid waste disposalfor commercial purposes).

21. As discussed below, however, affirmativedefenses may be available where circum-stances allow no choice but to run afoul of thestatute.


D. Statutory Interpretation

As a corollary to his contention that, asa strict liability felony the Pit Bull Act isunconstitutional, McNeely argues that thetrial court could not interpret the Pit BullAct as including a scienter requirement inorder to ameliorate what he contends is itsillicit strict liability character.22 The courtimputed two elements of scienter to thestatute: (1) whether the accused knew heowned the dog, and (2) whether the ac-cused knew the dog he owned was a pitbull. We hold that the trial court’s inter-pretation preserves the Act’s strict liabilitynature, see note 12, supra, and thus com-ports with the legislature’s intent.

[17–20] We review de novo issues ofstatutory interpretation. See Porter v.United States, 769 A.2d 143, 148 (D.C.2001); District of Columbia v. Jerry M.,717 A.2d 866, 868 (D.C.1998). ‘‘A corner-stone of statutory interpretation is the rulethat a court ‘will not look beyond the plainmeaning of a statute when the language isunambiguous and does not produce an ab-surd result.’ ’’ J. Frog, Ltd. v. Fleming,598 A.2d 735, 738 (D.C.1991) (quoting Gib-son v. Johnson, 492 A.2d 574, 577 (D.C.1985)); see also Peoples Drug Stores v.District of Columbia, 470 A.2d 751, 753(D.C.1983) (en banc). ‘‘It is elementarythat the meaning of a statute must, in thefirst instance, be sought in the language inwhich the act is framed, and if that isplain, and if the law is within the constitu-tional authority of the law-making bodywhich passed it, the sole function of thecourts is to enforce it according to itsterms TTTT Where the language is plainand admits of no more than one meaning,the duty of interpretation does not arise.’’United States v. Young, 376 A.2d 809, 813

(D.C.1977) (quoting Caminetti v. UnitedStates, 242 U.S. 470, 485, 37 S.Ct. 192, 61L.Ed. 442 (1917)).

[21] The language of the statute beforeus is plain and direct. As its full titleindicates, the Pit Bull and Rottweiler Dan-gerous Dog Designation EmergencyAmendment Act of 1996 specifically identi-fies both pit bulls and Rottweilers as dan-gerous dogs. The unique treatment ofthese dogs is made clear from their desig-nation as dangerous per se, which is quitedistinct from the way in which other dogsare treated under the statute. See supranote 6. The meaning of the statute is un-ambiguous, setting forth a criminal penaltyfor specifically proscribed conduct, i.e.,ownership of a pit bull or Rottweiler thatunprovokedly attacks: ‘‘A pit bull or aRottweiler that causes injury to or kills ahuman being or a domestic animal withoutprovocation shall be humanly [sic] de-stroyed and the owner of such dog shall befined up to $20,000 and may be sentencedto not more than 2 years of imprison-ment.’’ 43 D.C.Reg. 2158. This result isnot only not absurd, but reflects a legiti-mate legislative judgment that owners ofcertain dogs—well known to be potentiallydangerous animals—should be held crimi-nally accountable for serious injury causedby dogs over which they voluntarily as-sumed ownership and control. See Moris-sette, 342 U.S. at 256, 72 S.Ct. 240; seealso Model Penal Code (U.L.A.)§ 2.06(2)(b) (2001) (stating that an individ-ual is legally accountable for the conduct ofanother person when the code or the lawdefining the offense so provides).

The required element of ownership—and, by implication, control—are weighty

22. Presumably, McNeely’s purpose is to makehis constitutional attack more effective byprecluding the trial court’s ameliorated inter-pretation of the statute. As discussed in the

previous section, however, even a purelystrict liability criminal statute does not neces-sarily offend the Constitution.


considerations in our decision. Whetherone conceives of the owner’s liability underthe Pit Bull Act as springing from the factof ownership or as a variation on tradition-al vicarious liability, the underlying prem-ise remains the same—an owner is respon-sible for that which he owns. In Park, 421U.S. at 673 95 S.Ct. 1903, the Court upheldthe conviction of a corporation presidentwho stood in responsible relation to thoseengaged in criminal corporate conduct andwho did not show he was ‘‘powerless’’ toprevent it. As the Court noted, ‘‘[t]heduty imposed by Congress on responsiblecorporate agents is, we emphasize, onethat requires the highest standard of fore-sight and vigilance, but the Act, in itscriminal aspect, does not require thatwhich is objectively impossible.’’ Id. Thesame is true in the case before us. Theliability imposed by the Council upon dog

owners is not, on its face, objectively im-possible to avoid.23

McNeely argues that the Act should beinterpreted applying the common law pre-sumption in favor of requiring a culpablestate of mind scienter requirement whenthe express language of a statute is silenton the matter. See Staples, 511 U.S. at606, 625, 114 S.Ct. 1793. The presumptionis based on the common understanding ofmalum in se offenses, which traditionallyare ‘‘generally constituted only from con-currence of an evil-meaning mind with anevil-doing hand.’’ Morissette, 342 U.S. at251, 72 S.Ct. 240. Silence, however, is notalways dispositive, and where the legisla-ture is acting in its capacity to regulatepublic welfare, silence can be construed asa legislative choice to dispense with themens rea requirement.24 See id. at 262, 72

23. We are not presented here, and thereforedo not reach, situations in which there mightbe affirmative defenses to strict liability. Be-cause notions of ownership and control un-derlie strict liability crimes, see Park, 421 U.S.at 673, 95 S.Ct. 1903; Morissette, 342 U.S. at256, 72 S.Ct. 240, strict liability might not liewhere substantive ownership itself is lacking,or where ownership is substantially vitiated, ifthe owner no longer stands ‘‘in responsiblerelation to a public danger.’’ Id. at 260, 72S.Ct. 240. As courts have recognized in thecontext of vicarious liability, for example,there are certain violations which are beyondthe owner’s control precisely because theyoccur when an individual is deprived of hiscapacity to act as owner. In other words, theindividual standing in responsible relation toa public danger is made ‘‘powerless.’’ SeePark, 421 U.S. at 673, 95 S.Ct. 1903. See alsoUnited States v. Bailey, 444 U.S. 394, 409, 100S.Ct. 624, 62 L.Ed.2d 575 (1980) (holdingthat duress requires a showing that there wasno opportunity to refuse the criminal act andavoid the threatened harm); Stewart v. UnitedStates, 370 A.2d 1374, 1376 (D.C.1977) (hold-ing that duress is available in the presence ofa well grounded apprehension of immediatedeath or serious bodily injury).

For recognized defenses to other strict lia-bility offenses, see Iowa City v. Nolan, 239

N.W.2d 102, 105 (Iowa 1976) (holding that astatute making the owner of a vehicle strictlyand vicariously liable for all parking citationsis constitutional because the burden of rebut-ting the government’s prima facie case simplyshifts to the defendant, who may show, forexample, that the car was stolen); cf. City ofCampbellsburg v. Odewalt, 72 S.W. 314, 315(Ky.1903) (holding that an ordinance impos-ing criminal sanctions on the person in pos-session of premises on which alcohol is sold isunconstitutional because the defendant maynot affirmatively show that those actually dis-pensing the alcohol entered the premiseswithout his authority).

24. Although the express language of the Act issilent with regard to scienter, the structure ofthe statute as amended is an indication fromthe Council that pit bulls are to be treateddifferently from all other dangerous dogs, seesec. 2(b), 43 D.C.Reg. at 2156 (making admin-istrative procedures of D.C.Code §§ 6–1021.2and 6–1021.3 inapplicable to pit bulls), thusimplying an intent to impose unique penaltieson pit bull owners, evidently including strictliability. See, e.g., Lanier, 520 U.S. at 267,117 S.Ct. 1219 n. 6 (stating that legislativeintent is discerned by reference not only tothe language of the statute, but its structure aswell). This implied statement of legislativeintent further supports our conclusion that


S.Ct. 240; Staples, 511 U.S. at 607, 114S.Ct. 1793.

It is worth noting that the interpretativepresumption favoring an element of mensrea—a concept comprising not just specificintent, but general intent as well—‘‘re-quires knowledge only of the facts thatmake the defendant’s conduct illegal TTTT’’Staples, 511 U.S. at 627 n. 3, 114 S.Ct.1793 (Ginsburg, J., concurring) (quotingCheek v. United States, 498 U.S. 192, 199,111 S.Ct. 604, 112 L.Ed.2d 617 (1991)); seesupra note 12. This is the presumptionthat the trial court applied in requiringthat the defendant know that he owned pitbulls. McNeely, however, considers it in-sufficient because the common law pre-sumption commends that a culpable mentalstate be proved.

In Staples, the Court identified severalconsiderations, beyond mere statutory si-lence, which bear upon legislative intent toimpose strict liability, including: (1) thecontextual rules of the common law; (2)whether the crime can be characterized asa ‘‘public welfare offense’’ created by thelegislature; 25 (3) the extent to which astrict liability reading of the statute wouldseemingly encompass entirely innocentconduct; and (4) the harshness of the pen-alty. See Staples, 511 U.S. at 605–18, 114S.Ct. 1793. Consideration of these factorsleads us to conclude that the Pit Bull Actshould be enforced according to the plainmeaning of its terms, without imposing amens rea requirement of culpable intent,but with a requirement that the accusedknow he or she owns a pit bull.

As to the first factor, it is inappropriateto construe the Pit Bull Act in the light ofbackground rules of the common lawwhere such rules no longer apply to theparticular offense.

While the general rule at common lawwas that the scienter was a necessaryelement in the indictment and proof ofevery crime, and this was followed inregard to statutory crimes even wherethe statutory definition did not in termsinclude it TTT, there has been a modifica-tion of this view in respect to prosecu-tions under statutes the purpose ofwhich would be obstructed by such arequirement. It is a question of legisla-tive intent to be construed by the court.

See also Balint, 258 U.S. at 251–52, 42S.Ct. 301; accord Patton v. United States,326 A.2d 818, 820 (D.C.1974); see alsoHutchison Bros., 278 A.2d at 321 (statingthat ‘‘[w]here the peculiar nature of thelegislation requires an effective means ofregulation, such legislation may dispensewith the conventional requirement forcriminal conduct, i.e., awareness of somewrongdoing’’) (citations omitted). Wethink that the Pit Bull Act falls within thatclass of statutes the purpose of whichwould be obstructed by a requirement ofproof of culpable intent. Once the legisla-ture has determined that a particularbreed poses a heightened danger that jus-tifies a special regime, to require proofthat a dog owner purposefully, recklessly,or negligently set his dog upon anotherwould undermine the balance struck by

the Pit Bull Act creates a strict liability felony.See Staples, 511 U.S. at 606, 114 S.Ct. 1793(stating that ‘‘some indication of congression-al intent, express or implied, [apart from astatute’s mere silence], is required to dispensewith mens rea as an element of a crime’’)(citations omitted).

25. This court addressed the meaning of ‘‘pub-lic welfare offense’’ in Hutchison Brothers Ex-

cavation Co. v. District of Columbia, 278 A.2d318, 321 n. 7 (D.C.1971) (internal quotationand citation omitted):

The term, public welfare offense, is used todenote the group of police offenses andcriminal nuisances, punishable irrespectiveof the actor’s state of mind, which havebeen developing in England and Americawithin the past TTT century TTTT


the legislature in the statute. See Patton,326 A.2d at 820.

As to the second factor, the Pit Bull Actis primarily a public welfare offense thatregulates potentially harmful or injuriousitems, not merely a codification of a com-mon law crime.26

In such situations, [the courts] have rea-soned that as long as a defendant knowsthat he is dealing with a dangerous de-vice of a character that places him ‘‘inresponsible relation to a public danger,’’he should be alerted to the probability ofstrict regulation, and we have assumedthat in such cases [the legislature] in-tended to place the burden on the defen-dant to ‘‘ascertain at his peril whether[his conduct] comes within the inhibitionof the statute.’’

Staples, 511 U.S. at 607, 114 S.Ct. 1793(internal citations omitted); see alsoHolmes v. District of Columbia, 354 A.2d858, 860 (D.C.1976) (‘‘Where, as here, rea-sonable regulations establish public wel-fare offenses for the purpose of maintain-ing the health and safety of those illequipped to protect themselves, the de-fenses of good faith or lack of mens reaare unavailable.’’) (citations omitted). Theknown potential of pit bulls for dangerousbehavior—declared by the legislature inthe Act—places an owner in responsiblerelation to the public danger which his dogmay pose. Thus, a pit bull owner is oninquiry notice of a host of regulations per-taining to his dog, including those govern-ing licensing, registration, and generalconduct in public. In fact, McNeely’s pri-or interactions with WHS led him to con-firm the design specifications of his kennelwith the organization’s law enforcementprogram.

The third factor, whether the statute‘‘criminalize[s] a broad range of apparently

innocent conduct,’’ we have touched on al-ready in the context of McNeely’s constitu-tional challenges. Dogs in general are not‘‘deleterious devices or products or obnox-ious waste materials that put their ownerson notice that they stand in responsiblerelation to a public danger.’’ Staples, 511U.S. at 610–11, 114 S.Ct. 1793 (internalquotations omitted). The Act, however,does not outlaw ownership of all dogs, nordoes it generally criminalize the ownershipof pit bulls. It specifically criminalizes anarrow range of intelligible and grievousconduct, i.e., ownership of a pit bull thatcauses injury without provocation. Cf. id.(criminalizing mere possession of an un-registered gun).

Lastly, the relative severity of the pun-ishment, a fine of up to $20,000 and impris-onment of up to two years, favors theimposition of a mens rea requirement. Al-though the Court has expressed reluctancein interpreting felonies as strict liabilityoffenses, see Staples, 511 U.S. at 618, 114S.Ct. 1793, it has not created a bright linerule against it, and, in fact, it has expresslyso interpreted felony statutes when thestatutory language has required it. Seeid. (citing Balint, 258 U.S. at 250, 42 S.Ct.301). The message of the Pit Bull Act’ssanction is inescapable; it clearly articu-lates a legislative judgment on the gravityof the public harm by the very level ofpunishment exacted, which exceeds thatimposed on owners of other dogs thatcause injury, even though such owners aresubject to a lesser standard. Compare 43D.C.Reg. at 2158 (imposing up to twoyears of imprisonment and up to $20,000as fine for death or injury caused by pitbulls) with D.C.Code § 6–1021.6(b) (impos-ing fine of up to $10,000 for death or injurycaused by other ‘‘dangerous dogs’’). Al-

26. While not controlling, the Act’s codifica-tion under Title 6 dealing with Health and

Safety is some indication that it is consideredregulatory in nature.


though there is no legislative history avail-able, it is apparent from the discrepancy insanction that the severity of potential lia-bility may well have been intended as adisincentive to ownership of pit bulls be-cause of the Council’s understanding thatthey pose a greater risk of serious injurythan do other dogs.

Having considered the factors set out inStaples for applying the interpretative pre-sumption in favor of imposing a mens rearequirement, we read the elements of theoffense constrained by the clear languageof the statute, which does not indicate aculpable mental state for the offense. Nordo we think such a requirement consistentwith the Act’s purpose as a public welfareoffense based on the dangerous potentialof these particular breeds. In view of theimportance of the breed of the dog tocriminal liability under the Act and thelikely deterrent to their ownership builtinto the statute, however, we also think itclear that, for a conviction to stand, it mustbe shown that the defendant knew that heor she owned a pit bull, and to this limitedextent, we read in a mens rea element, notof culpable intent, but of knowledge of thefacts that make the conduct illegal. SeeStaples, 511 U.S. at 619, 114 S.Ct. 1793(requiring under the National FirearmsAct that the defendant know that the gunwas an automatic weapon).

IV.

[22–24] Finally, we turn to McNeely’sclaim that the prosecutor’s closing andrebuttal arguments were improper.When reviewing an allegation of improperprosecutorial argument, this court firstdetermines whether any of the challengedcomments were, in fact, improper. SeeFreeman v. United States, 689 A.2d 575,584 (D.C.1997). If so, the court must,‘‘viewing the remarks in context, ‘considerthe gravity of the [impropriety], its rela-

tionship to the issue of guilt, the effect ofany corrective action by the trial judge,and the strength of the government’scase.’ ’’ Id. (quoting McGrier v. UnitedStates, 597 A.2d 36, 41 (D.C.1991)).Where an objection was lodged at trial toa comment that was indeed improper,and where the trial court thus erred inoverruling the objection, we will reversethe conviction unless the defendant wasnot substantially prejudiced by the court’serror. See McGrier, 597 A.2d at 41. Onthe other hand, where there was no ob-jection at trial to the prosecutor’s com-ments, the court may reverse only if thetrial court’s failure, sua sponte, to inter-vene and to prevent the misconduct ‘‘soclearly prejudiced’’ the appellant’s sub-stantial rights ‘‘as to jeopardize the fair-ness and integrity of his trial.’’ Irick v.United States, 565 A.2d 26, 32 (D.C.1989).Reversal in such cases is confined to‘‘particularly egregious situations’’ wherea miscarriage of justice would result ifthis court were to stand idly by. See id.(citations omitted).

[25] The prosecutor stated in closingargument, without objection, that McNeelynegligently or recklessly released his dogs:

What you can believe, ladies and gentle-men, is that through negligence, reck-lessness and after the defendant—anomission by the defendant, those dogswere let loose on the people of south-west D.C. and they found their prey inMiss Helen Avery, and they chewed onher, and they chewed on her.

Assuming that the prosecutor’s remark im-plying negligence was unfounded, the trialcourt’s failure, sua sponte, to strike it didnot result in a miscarriage of justice. Thebrief reference to McNeely’s negligencewas not emphasized as a primary argu-ment nor urged as a legal theory of thecase. See Hunter v. United States, 606A.2d 139, 146 (D.C.1992) (‘‘[V]iewing the


offending remarks in the context of thecase as a whole, TTT it is most unlikely thata few lines of impermissible comment, towhich neither counsel nor the judge againalluded, compromised the fairness or in-tegrity of the entire trial or threatenedsuch a clear miscarriage of justice that theplain error doctrine may properly be in-voked.’’).

[26] The prosecutor also made a morepointed remark, this time over objection,that McNeely intentionally released hisdogs: ‘‘What happened that night, ladiesand gentlemen, the defendant came homewith his girlfriend. They put the dogs inthe backyard and then let me point outsomething.’’ While the trial court sus-tained defense counsel’s objection, no cu-rative jury instruction was requested orgiven. The prosecutor’s remark thatMcNeely purposely released the dogsfrom the pen may have introduced theissue of fault, but the statements borelittle relationship to the issue of guiltwhich, as we have discussed, was properlybased on strict liability. The prosecutoremphasized in his opening statement andthe court reemphasized in its instructionsto the jury that the only matters whichpertained to a determination of guilt wereknowing ownership of pit bulls and wheth-er the attack was unprovoked. To theextent the prosecutor’s comments suggest-

ed that McNeely’s fault was at issue, itincreased the government’s burden andcould have redounded to McNeely’s bene-fit. At worst, the prosecutor’s statementsmay have distracted the jury’s attentionfrom the sole disputed issue of provoca-tion, but on this record we do not believethat the prosecutor’s statements preju-diced the defendant in any meaningfulway.

[27, 28] Lastly, the prosecutor statedin rebuttal argument: ‘‘Should the defen-dant be held criminally responsible? TheDistrict council government has alreadydetermined that answer to be yes. Youonly need to read the newspaper and useyour common sense to know why.’’ Thetrial court interrupted sua sponte, declar-ing to the jury that ‘‘[y]ou cannot read thenewspaper. You cannot read the newspa-per TTTT Disregard the comment that youonly need to read the newspaper.’’ Whilethe trial court deemed the prosecutor’sstatement ‘‘grossly improper,’’ an assess-ment with which we agree, we concludethat the prosecutor’s remark was renderedharmless by the trial court’s two clear andstrongly worded curative instructions.The first occurred immediately after theprosecutor’s comment 27 and the secondoccurred in the context of final instruc-tions later that day.28 The jury is pre-

27. The trial court immediately gave the fol-lowing curative instruction:

There was a reference with the newspaper,that one need only look at the newspaper.Well, ladies and gentlemen, let me tell yousomething. You can’t do that. You can’tdo that because it is fundamentally unfair.One of the dangers is that you took an oathto decide this case on this case and notwhat may have happened somewhere else,to someone else. Mr. McNeely stands be-fore you charged in this case, the evidencein this case. He is not responsible for allthe ills of the world or anything that hap-pens in the newspaper.

The issue is, the only issue you must decide,is decide what happened in this case andyou took and oath as jurors to decide mat-ters based on this case and you took anoath also to resolve this matter withoutprejudice, without fear, without passion.Solely from the evidence in this case. Ibelieve and I have confidence that you will[do] of that.

28. The trial court instructed the jury that itmust decide the case

without prejudice, without fear, withoutsympathy or favoritism TTTT You must de-cide this case solely from a fair consider-ation of the evidence [and you] must notallow the nature of the charges to affect


sumed to follow instructions, see Clark v.United States, 593 A.2d 186, 193 (D.C.1991) (citations omitted), and we ‘‘will not‘upset the verdict by assuming that thejury declined to do so.’ ’’ Harris v. Unit-ed States, 602 A.2d 154, 165 (D.C.1992) (enbanc) (quoting Gray v. United States, 589A.2d 912, 918 (D.C.1991)). There is littlereason to doubt the ameliorative effect ofthese instructions given their forcefulnessand timing. Moreover, after being fullybriefed on the issue prior to sentencing,the trial court remained confident that theprosecutor’s remarks had not prejudicedthe defendant in light of the government’s

overwhelming case; we see no reason toquestion this determination.

* * * * * *

Because we detect no reversible error inthe trial proceedings, the judgments ofconviction are

Affirmed.

,

your verdict in this case. You must consid-er only the evidence that’s been presented

in this case in rendering a fair and impar-tial verdict.

mcneely vs. united states: the pit bull and rottweiler dangerous dog designation emergency amendment...

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