The Johnston County District Attorney’s Office has ruled that no criminal charges will be filed against a police captain who shot and killed his next door neighbors dog.
The incident happened Tuesday night while Clayton Police Captain James ‘Richie’ Herring was off duty and at his home in the Benson city limits.
Captain Herring and Benson Police are giving one version of events, while the co-owner of the dog, Myra Esterilla says it occurred differently.
Around 8:30pm, Captain Herring said Esterilla’s 3-1/2 year-old Sheppard dog knocked down a fence separating their properties, and while barking and snarling at him and his children, the dog reportedly charged at them. Herring pulled out a 9mm handgun and shot the animal 4 times. At issue is whether the dog was shot in Herring’s backyard or while still in its owner’s yard.
The dog named “Wakoda” died while on the way to a Wake County animal hospital.
Herring called 911 immediately after the shooting and Benson Police responded. Police said they tried to contact Esterilla and co-owner Zebulon Moore but they did not answer a knock at the door of their Virginia Avenue home. Eventually they arrived, police said.
Police said there was evidence the dog had knocked down the fence and there was blood on the ground in Captain Herring’s backyard.
Officer Videotaped Shooting
Herring told Benson Police he happened to be videotaping how aggressive the dog was acting when it knocked down the fence and charged towards him and his family. Police said they reviewed the cell phone video. Although police said the video was too dark to visually see what occurred, the recording allegedly captured the sound of the wood fence breaking and the firearm discharging.
WTSB and JoCoReport.com requested a copy of the video from Captain Herring but so far we have not obtained a copy.
Benson Police said they responded back to the address around 12:30am Wednesday and found Moore and Captain Herring outside their homes arguing about the incident. According to a Benson Police report, Moore claimed Benson Police were covering up the incident and ruled the shooting justified because Herring was a police officer.
Police said they told Moore the shooting was justified because his dog was aggressive and Captain Herring feared for his safety and his children’s safety.
Esterilla spoke with JoCoReport.com on Thursday saying since she moved to the neighborhood in August 2017 Captain Herring has complained about the dog’s aggressiveness. Due to his concerns, Esterilla said she only allowed Wakoda out of her home a short time each morning and late at night.
Where Was Dog Shot?
Esterilla admits the dog broke the fence but claims Captain Herring shot the dog while it was still in her backyard. She claims there was no blood evidence in Herring’s back yard as Benson police claimed.
“He should not be a police officer. When you shoot out of fear, the next time it could be a child,” Esterilla said. “Oh gosh. People who are afraid like that should not be in law enforcement.”
WTSB News requested to speak with Captain Herring. He declined to comment, however Clayton Police Chief Blair Myhand did speak with us on his behalf on Thursday.
Chief Myhand said Officer Herring contacted him after the shooting Tuesday night stating a neighbor’s aggressive dog had charged at Herring and his children while he was videotaping the animal. Myhand said Herring planned to send the video to the owners to show them just how aggressive the dog was acting. When the dog knocked down a portion of the fence and came into Herring’s yard, Myhand said the off-duty officer shot the animal.
Myhand said he spoke with Benson Police Chief Kenneth Edwards who told Myhand that blood evidence confirmed the dog was in Herring’s backyard. Myhand said shell casings were also found in Herring’s back yard.
Benson Police consulted with the Johnston County District Attorney’s Office who determined no criminal charges were warranted, according to Chief Myhand. Police also elected not to file charges against the owners of the dog for allowing an aggressive animal to run at large.
Internal Investigation Not Needed
Since the 9mm handgun used by Herring was not a Clayton police service weapon and because Benson police had already cleared the off-duty officer of any wrongdoing, Chief Myhand said no internal investigation by Clayton Police was necessary.
“I am satisfied this was an off duty incident, unrelated to the police department,” Chief Myhand told WTSB. “The firearm was a personal weapon, not ours.”
In a statement from the Town of Benson, Town Manager Matt Zapp confirmed the incident occurred and the dog was shot by a neighbor in “self-defense.”
“Following an investigation, Benson Police determined the resident (Captain Herring) was justified in his actions due to the aggressive nature of the animal,” the statement read.
In a statement Johnston County District Attorney Susan Doyle said the shooting was justified. “I have reviewed the case with Benson Police Department. All of the evidence, including the video that Captain Herring took of the dog, supports his version of the events that took place. Based upon the facts of this case, Captain Herring was legally justified in shooting the dog.”
Esterilla initially claimed Captain Herring was a member of the Benson Police Department but later stated he was a Clayton police officer.
Esterilla said the five page Benson police report on the shooting contained numerous factual errors. She has now filed a personnel complaint with Chief Edwards alleging misconduct in their investigation.
Esterilla tells WTSB News she is simply looking for justice.