Off-Duty Law Enforcement Officer Kills Neighbor’s Chihuahua, States He Feared for His Safety

Posted by Stephanie Ulmer, Guest Blogger on September 1, 2011

Was Off-Duty Law Enforcement Officer Actually in Fear of his Safety When He Shot and Killed his Neighbor’s Chihuahua with a Bow and Arrow? Kansas Prosecutors Don’t Think So…

On September 8, 2010, Brian Dale Montgomery heard a “ruckus” outside in his backyard. Upon investigation, he found his neighbor’s Chihuahua, Flashito, biting at his dog, a black Labrador retriever. Montgomery attempted to break up the interaction to no avail. Because he felt that Flashito was behaving aggressively, he went back inside his home to get his bow and arrow–later saying that he did not retrieve a firearm out of consideration for the “safety of his neighbors.” Montgomery then shot Flashito with the bow and arrow (one that he had previously used to hunt bears), retrieved the arrow from Flashito, which had tore through his body, washed the arrow in his upstairs bathroom, and then proceeded to prepare his son for football practice. At no time did Montgomery tell anyone what he did to Flashito–not his wife, nor his son, nor Flashito’s owner. After being mortally wounded, Flashito crawled back under the fence to his own backyard.

Montgomery, an active field agent with the Kansas Bureau of Investigations, trained in tactical operations, did not contact law enforcement after killing Flashito. Montgomery later admitted to the killing, and it was also revealed that he had complained about Flashito being a nuisance for the past year and a half. On a previous occasion, he had informed Flashito’s owner that (1) the owner needed to take care of the dog coming into his yard, or (2) Montgomery would allow animal control to do so, or (3) Montgomery would take care of the problem himself.

Montgomery was later charged with cruelty to animals under K.S.A. 21-4310, but he was ordered discharged by the Ford County District Court on November 10, 2010 (case number 10 CR 441). The order was made following a preliminary hearing in which the district court agreed that Montgomery was justified in killing Flashito because he felt threatened by him. The State filed a notice of appeal on November 16, 2010, and recently submitted its appellate brief to the Court of Appeals of the State of Kansas.

On appeal, the State contends that the district court erred in reviewing the evidence submitted at the preliminary hearing, as the evidence introduced should have been viewed in a light most favorable to the State. As the State had presented a prima facie case of cruelty to animals (Montgomery freely admitted that he had killed Flashito), it was error for the district court to have dismissed the charge as the result of an affirmative defense raised by Montgomery, the defendant.

According to Montgomery, K.S.A. 21-4310(b)(7) provided a complete defense. That provision reads: “The provisions of this section shall not apply to: …the killing of any animal by any person at any time which may be found outside of the owned or rented property of the owner or custodian of such animal and which is found injuring or posing a threat to any person, farm animal or property.” The district court agreed with Montgomery that Flashito clearly posed a threat to him and his dog.

The State has now argued on appeal that in so holding, the district court found that the Animal Cruelty Statute did not require any severity or gravity of the threat to be determined–essentially ruling that any threat by Flashito justified the killing. The State claims that in holding that Montgomery did indeed feel threatened, the district court substituted its own judgment for what should have been a fact question for a jury. The district court’s determination that Montgomery was threatened was based solely upon his own testimony.

Clearly the weight and credibility Montgomery’s testimony carries lies within the province of a jury, as does the weight and credibility of the affirmative defense. It was absolutely error for the district court to have made a fact determination at a preliminary hearing when the testimony was supposed to be viewed in the light most favorable to the State. What about the prior evidence that Montgomery told Flashito’s owner that he would take care of the problem himself if it continued? Shouldn’t that have been considered as well?

The State is also arguing that the district court did not properly interpret the statute and that its “reading specifically” of the statute has undermined the legislative intent and purpose of the statute. In addition, the district court erred in finding that Montgomery acted without malice in killing Flashito. The district court failed to consider how an objectively reasonable person in the same or similar circumstances would have acted, looking only to Montgomery’s subjective intent. Based upon the evidence produced, a reasonable jury could objectively have found that Montgomery was not threatened, acted maliciously and therefore was not justified in killing Flashito.

If a very small dog wanders into his neighbor’s yard and causes a “ruckus,” a reasonable person would either contact the dog’s owner to come and get him, or call the animal authorities. A reasonable person does not retrieve a bow and arrow strong enough for a bear in order to “take care of” the situation. Doing so is animal cruelty, plain and simple. 

25 thoughts on “Off-Duty Law Enforcement Officer Kills Neighbor’s Chihuahua, States He Feared for His Safety

  1. donna rayburn says:

    The man should be in jail. We defend idiots like this and let them walk the streets and wonder why their are serial killings, murders and rapes. It is only then that we get concerned. This man is used to killing animals. When will killing dogs and bears get boring for him?

  2. Alison says:

    Threatened by a Chihuahua? Sounds like this guy got let off just because he was in law enforcement. That’s a disgrace! Poor Flashito! he did not deserve this …. :'(

  3. Mariam says:

    What a pathetic person…shame on him!!! He should be in jail…Its people like him who endanger us all!

  4. Michael says:

    I have a chihuahua. If this guy did this to my dog I would end up in prison for doing something bad to this asshole, guaranteed.

  5. Jason says:

    I have no problem with what Montgomery did, a well-trained labrador is no match for an overly aggressive chihuaha when it comes down to a fight and even small dogs can pose a serious threat to a fully grown man. The chihuaha’s owners were clearly lax and inconsiderate to allow their dog to wander into their neighbors’ property for over a year despite repeated warnings and the dog had to pay the price for their stupidity.

  6. Deborah Mitchell says:

    This man should not be allowed to just go free. He shot this small dog with a bow and arrow just because he was annoying him. Not only did he shoot the little dog with a bow and arrow, he pulled the arrow out of the dog, washed it off, and then went to football practice with his family as if nothing had happened. The poor dog drug itself back in under the fence and under his owner’s house. Given the opportunity, the owner may have tried to save the dog, but the owner was not given a chance to help his dog. Pathetic! I know small dogs can be annoying, but you can’t tell me that this man had no alternative but to shoot the dog with a bow and arrow. He needs to be punished for this terribly cruel act of anger. If he can do that to such a small dog, what is he capable of???????

  7. Becky Ewens says:

    Unbelievable! This man is obviously not rational and should NEVER been in law enforcement.

    Anyone who thinks that using a bow and arrow on an animal is a cruel person- something is just not right with ANYONE who would cause an animal such pain.

  8. Lorraine says:

    This guy should rot in jail for what he did to this poor fur baby he did it in self defense for his dog and because he was threatened over a little dog what bullshit so pathetic and then he continues to get his son ready for football.As they say it starts out with killing animals then it moves on to killing humans (becoming a serial killer) and we defend people like this asshole.He wouldn’t want hurt any of my fur babies because what I’d do to him I’d go to jail for.He was scared for his Labrador lmfao over a little chihuahua was bullshit and lies,his dog would have looked at little flashito thinking man your so tiny and funny his dog wouldn’t have been scared of this little guy.What is this world seriously coming to that we defend assholes like this and let them away with animal cruelty and neglect.

  9. cynthia says:

    I agree with Michael. My chihuahua, as well as my other animals are my family. You hurt one of them, and you will unleash the REAL beast—ME!!

  10. Mike R says:

    As a police officer I am both embarrassed and disgusted by his actions. I am thankful to the prosecutors for bringing charges against him. I hope that his agency fires him as he is clearly not fit for duty and is likely a liability to both his agency and to the community he “protects”.

  11. Stacy says:

    This is wrong on so many levels. That man should be shot with a bow and arrow and put in jail for a long time with Big Bubba.

  12. angel says:

    This is the type of idiot the police dept hires? This guy is clearly NUTS and they allow him to have a gun and a badge? If you don’t want people to hate the police, get rid of the NUTS that are in your dept. Ever hear of EXCESSIVE FORCE? Yes, I’m sure he was worried about the little ankle biter jumping on him and biting his throat off. What a pansy! Pick on someone your own size, you murderer. I’ve never heard something so ridiculous in my entire life. Sheesh! Grow up. Just because you have a badge and a bow and arrow, doesn’t give you the right to be ABUSIVE toward an animal. You are a DISCREDIT to the badge and uniform you wear. I pray that in your line of duty, someone does the same to you.

  13. LISA says:

    Like most of the other people up here said he is a disgrase to the uniform. Im a chihuahua owner myself…you mess with my baby…you mess with me and that wont be pretty.HE SHOULD BE IN JAIL FOR HIS CRIME.

  14. jackie says:

    I would love it if someone would shoot him in his butt with an arrow and pull it out. He is the threat to his community. Why is he not in a psychiatric hospital.

  15. Linda S. says:

    First I want to reply to Jason (#5). I think you are as big an idiot has the guy who injured this little dog. Did this grown man feel as if his life were threatened? He clearly has serious problems and should not be in law enforcement. The fact that he could do what he did and go on as if nothing happened speaks volumes on his frame of mind. I was married to a man like this and it carried over into our family life. Notice, I said WAS. He should be punished to the full extent.

  16. frank says:

    My guess is that Jason is one of 2 things:

    1 A freaking idiot that believes a 5 -7 pound dog versus a 50 pound dog would not result in the severe injury or death of the chihuahua

    or 2 an insensitive asshole who is making a lame attempt at humor.

    I have 2 chihuahuas and I would gut this guy like a fish and leave him for his dog to eat.

  17. Debi Langlais says:

    I live in Hill, New Hampshire. The same type of thing happened here as well a couple of years ago. Our neighbor down the road had a Jack Russell who was allowed to roam and wander as he pleased. I, myself, had to stop for him to get out from underneath my vehicle on a couple of occasions. Apparently, the neighbor across the street was also being tormented by the little dog. He had been seen terrorizing chickens and chasing other pets in his yard.

    The homeowner decided to take his bow and arrow out and shoot the dog. Once the dog was killed he took the carcus and stuffed it into an empty road salt bag and drove off into another town. The dog owners had an incling that something happened and decided to follow the neighbor. Once the neighbor stopped the dog onwers looked in the back of his pickup truck and found the dog in the bag but were unable to retrieve it without a search warrant so they called the police.

    The police subsequently arrived and placed the neighbor under arrest for DWI and improper disposal of a carcus as well as not reporting the death of the dog which is a law in this state. He was also charged with cruelty to animals.

    While I agree there was a serious need to be addressed in this case, the neighbor did not have the right to kill the dog with a bow and arrow. I do feel that this was a cruel turn of events that could have ended much differently. I was pleased to learn that the dog did not suffer.

  18. Beth Stephens says:

    He was supposed to serve and protect, the man has no business being in law enforcement, he is a coward and is mentally incompetent of making the right decision. Excessive force against a chihuahua….hmmm…yeah a real threat.

  19. Pet Owner says:

    Keep your animal in your own yard. Your baby won’t have any problems. When your dog goes into someone elses yard for over a year he is subject to whatever he gets. It is the owner’s fault. They should be tried for negligence.

  20. Zee says:

    Whatever happened to using a garden hose to stop dogs from fighting? Tried and true, it seems like a much more sane idea.

  21. sue dillon says:

    This Chihuahua was not being confined properly. I’m sure the family knows that now.
    The big KBI man is afraid to touch a Chihuahua? OK, maybe he is! Is the way he handled it rational or appropriate? There are children involved here! It takes an idiot moron loser to mangle the guts out of a 3 pound house pet and leave it to lie on the ground for whomever to find! The little dog was suffering alive for some time!!! It takes a BIG MAN to rip up a Chihuahua.

    HEY, KBI JERK – Does your Lab live in a dog house?? I know, he makes a rukus when he’s inside doesn’t he? I’d BET that the dogs were playing when you saw them! I bet our KBI man was the cat who caught a mouse! We call it tiny (blank) syndrome… you can fill in the blank.

  22. Sue says:

    JASON @ Hopefully You will not be the victim of your own idiotic thinking. That would be cruel punishment to embellish even on an ass like you!

  23. Ana de la Piedra says:

    Give this piece of trash the same treatment and worse!

  24. Fendrayton says:

    HMMMMMMM…. Now lets see here.
    1/Man big and strong enough and (supposedly ) smart enough to get into law enforcement!
    2/ Off duty, so probably wearing jeans and at least shoes if not boots of some sort.
    3/ Labrador Retriever, probably a MINIMUM of 30 lbs. if he was still very young, otherwise, upwards of 50 lbs.
    4/ Recognition by the human (term used LOOSELY) of an animal he already disliked, and wanted shed of.
    5/ Dangerous weapon within reasonable reach.
    6/ OPPORTUNITY to “rid” himself of his “Nemsis” with no witnesses
    7/ One weapon fired in stealth, one life destroyed in agonizing pain and the lives of others dragged through the emotional torture of loss.
    8/ I’m SO glad I don’t live anywhere near there, coz it appears ALL you have to do to qualify for law enforcement, is to be a cowardly yellow-belly, a gutless bully who gets a sick joy out of picking on something that can’t fight back. I’m really glad he’s not out patrolling to keep the streets and citizens safe, coz who knows, he might run into a terrifying Chihuahua. What a WIMP!….. and the best part is that he actually got someone to BELIEVE his story.!!

  25. Mary Strand says:

    How did this guy get a clear shot with a bow and arrow at this seven (or less) pound dog if the dog was “aggressively attaching his dog or himself?” that’s what I don’t understand. I imagine you need some distance and a clear shot to shoot that small of a target with a bear-size bow and arrow. so, where was the aggression? what a jerk. if you can’t get him on some legality, then file a civil sue against him. and, to think this guy works in law enforcement. oy vey.

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