The Select Board found a dog that bit a Wareham man not dangerous and declined a request to euthanize it at a hearing on Tuesday, March 25.

Mathew Hernon called for the hearing after the dog, named Smokey, owned by his relative, Erin Bagen, bit him in October 2022.

The incident occurred at Bagen’s wedding. During an altercation between family members, Smokey, a roughly 55-pound male, 13-year-old, Labrador-Pitbull mix, bit Hernon on the upper arm. According to Hernon and witnesses who testified on Tuesday night, the bite punctured an artery, caused profuse bleeding, muscle disconnection and nerve damage.

Hernon represented himself, while attorney Jeremy Cohen represented Bagen. Hernon’s prosecution focused on the detrimental effects the bite has had on his life and the circumstances leading up to the incident. Cohen hinged the defense of Smokey on a state law that clearly outlines when a dog can and cannot be deemed dangerous.

The law effectively states that if a dog reacts to a situation like an attack, assault or similar provocation it cannot be “deemed dangerous” as long as the dog’s response is not "grossly disproportionate" to the threat.

Cohen argued that since both parties testified an altercation did occur, Smokey biting Hernon was not “grossly disproportionate” to the circumstances.

Members of the Select Board generally agreed with Cohen’s assessment of the law and the incident.

“Do we all agree that Smokey bit someone that night? Yes,” said Select Board member Ron Besse. “The burden of proof needs to be met, that did not happen tonight. We have to apply the law to the facts. Smoky attacked someone that night, not out of natural aggression but because it was doing what a dog is intended to do.”

Wareham Animal Control Officer Devin Cloutier also testified, sharing the facts she collected after police and emergency services were called to the incident.

“It's an unfortunate situation and everything that has come from it afterwards. It’s a significant injury and a significant bite but the bite itself does not seem like a dangerous dog,” Cloutier said.

Cloutier described the bite as a “significant puncture” but not a mauling, meaning Smokey did not continually attack with uncontrolled aggression.

All of the board members expressed sympathy for Hernon who said he has reduced function in his hand and arm.

Because of the injury, Hernon told the board he lost his job as a welder and was discharged from the military.

Smokey has bitten an individual before, but also in defense of his owner. In 2017 an intruder broke into Bagen’s home, during the incident, Smokey bit the intruder. Wareham Animal Control did not pursue action against the dog after the incident. 

The Select Board did recommend Smokey be kept on a leash in public and not be walked by anyone who could not maintain control. The board also asked Bagen to seek insurance for Smokey, but did not mandate action.

Bagen voluntarily agreed to follow the Select Board’s recommendations.

“I’ve heard that since October 2022 that there have not been any incidents, the dog is on a leash, the dog is neutered, the dog is contained,” said Select Board Chair Judith Whiteside. “Everything that would need to happen, it seems to me, has already been done.”