COMMERCE CITY, Colo. - The Adams County District Attorney's Office is declining to file charges against a man who shot and killed a family's dog, after it jumped a fence and attacked his dog.
In a letter to Commerce City police, the District Attorney's chief trial deputy states that "the evidence is insufficient for prosecution and conviction."
On Wednesday, District Attorney Dave Young spoke publicly about the case. Young said his office looked into both aggravated animal assault and felony menacing charges, but determined there was not enough evidence to prove the man "needlessly" killed Clifford.
"Do I condone his actions, absolutely not, can I prove beyond a reasonable doubt that a crime was committed, I don't think so," further explained Young.
Young also said Kevin Burr, the man who shot Clifford, was justified in his actions because he was protecting his dog.
"His mouth was on the dog's throat, there's evidence to corroborate that when the other dog was taken to the vet, bruising around his neck," he said.
"I am horrified that this man could get away with this," said Emily Martinez, whose Labrador retriever mix, Clifford, was killed Saturday night. "How is this possible? There were witnesses who haven't even been interviewed."
However, Burr's family said he was simply trying to protect his dog after Clifford jumped the fence.
"It was a tragic end to something that was preventable," said Pam Burr, wife of Kevin. "We grieve as well. Our hearts go out to the family. And we want to start healing."
The incident started Saturday night, when officers responded to several 911 calls in the 14800 block of East 116th Avenue just after 5 p.m.
"Residents reported a Labrador mix jumped the property fence and attacked a border collie mix," the police statement read. "The owner of the collie was unable to separate the animals and discharged his legally concealed weapon."
Witnesses, however, reported a slightly different version of events.
"He had no right to shoot that dog," said neighbor Chris Keumerle, who witnessed the shooting and said he saw the Lab mix, running from the side of the house and starting to skirmish with the other dog.
"The gentleman tried pulling his dog by the leash a couple of times and when that didn't work he pulled out a gun and shot the dog," he said. "They teach you when you have your concealed weapons permit that using your gun should be your last force of defense, and it was his first."
Raymond and Emily Martinez, Clifford's owners, said they were celebrating their daughter's 5th birthday, when they heard the gunshot.
"I heard it fire, I looked out to see my dog with legs in the air shaking," said Raymond Martinez. "When we ran out, that man then pointed the gun at me and my wife and our 14-year-old nephew, so I went inside to get my gun to defend my family. When I came back out, he had run away."
Keumerle said he thought the man seemed confused and was flailing around with the weapon, but not intentionally pointing it at anyone.
Clifford died shortly after at a veterinarian's office.
Pam Burr said her husband never pointed the gun at people and that he immediately called police when he got home.
She said that he was simply trying to protect their border collie mix, BronYaur.
Pam Burr showed 7NEWS that they have had their dog's neck shaved to look for puncture wounds, and while there were no bite marks, there was bruising.
"He had on a thick leather collar that day," said Pam Burr. "But the other dog was going for the jugular."
She said her husband is ex-military and has a concealed carry permit.
"He does walk along the canal where there are coyotes," said Pam Burr.
The Martinez family wondered if Kevin Burr had been waiting for this to happen.
"Two months ago, he confronted me and said he thought Clifford could jump the fence," said Raymond Martinez. "He was looking for trouble."
"He's never jumped the fence before," said Emily Martinez. "Today was the first time, and the last."
Jennifer Reba Edwards, an attorney with the Animal Law Center, said that people are protected by law if they shoot a dog chasing livestock or wildlife, but pets are not included in that protection.
"I do not think there is a law that says you can shoot a dog based on the fact that it's attacking your dog," said Edwards, who said that in this case, there is little evidence Clifford was trying to kill the other dog. "If a dog was actually out for blood then I would think there would be blood."
7NEWS talked to Joe Deedon, a former Jefferson County sheriff's deputy and National Rifle Association Certified Firearms Instructor -- who holds regular CCW courses through his company TAC*ONE Consulting -- about what a concealed handgun permit allows for when it comes to defense of a pet.
"Unless I am missing something under a dangerous dog statute, you cannot pull, fire or use deadly force on a domestic animal attacking another domestic animal. When it comes to deadly force you can only do so while defending yourself or a third party from immanent serious bodily injury or death," said Deedon.
Another firearms expert agreed that what happened was against what he teaches in his concealed carry classes.
"We definitely train students not to use deadly force in defense of property or animals -- that's pretty universal," said Jacob Paulsen, an NRA Certified Firearm Instructor. "My first concern is that this individual felt it was appropriate to use deadly force to protect an animal from another animal. It is really critical as instructors that we teach students the difference between legal and illegal and smart and stupid."
Commerce City police said they would release a statement Wednesday.
Before 7NEWS obtained the letter from the Adams County District Attorney's Office, a D.A. spokeswoman said we would be notified when a charging decision was made.