Breed Discriminatory Laws

Kos

Over the years, different breeds — Dobermans, German Shepherds, Rottweilers, Mastiffs, Dalmatians, Chow Chows, and “pit bulls” (American Pit Bull Terriers, American Staffordshire Terriers, Staffordshire Bull Terriers) — have been victims of bad press and the resulting fear it generates among a misguided public. “Breed specific” legislation (BSL) refers to any laws that regulate or ban certain breeds, with authorities justifying these laws as necessary for public safety, as a means of reducing the number of dog-biting incidences.

State Laws: Breed Specific & Victims in Dogfighting Cases
Currently, thirteen states have “dangerous dog” laws that discriminate against particular breeds, most notably pit bull type dogs that are seized in dogfighting cases: Colorado, Delaware, Louisiana, Massachusetts, Michigan, Minnesota, New Jersey, North Carolina, South Carolina, Oklahoma, Rhode Island, South Dakota, and Wisconsin. In these states, dogs confiscated in dogfighting cases immediately are labeled as dangerous and therefore euthanized. When I was volunteering at Best Friends Animal Sanctuary in September, I spent time with one of the former Michael Vick dogs, a well-mannered and affectionate little lady named Layla. She is living proof that not all victims of dogfighting are beyond rehabilitation. (For the dogs of the Vick case, the Court must approve each dog as “adoptable” before (s)he is adopted out.)

Local Laws: Breed Bans & Confiscation
Cities and municipalities sometimes discriminate through the establishment of breed bans that prohibit ownership of certain breeds. Homeowner associations and landlords also often single out specific breeds as unacceptable. And, before former President George W. Bush left office, the Pentagon issued a memorandum prohibiting pit bulls, German Shepherds, Dobermans, and Rottweilers in military housing. Bans typically give local authorities and law enforcement the power to seize any dogs of the targeted breeds, even if they are living peacefully in a private home, even if the dogs have no history of aggression.

In response to the confiscation of one’s dog, an owner has a right under 42 U.S.C. sec. 1983 to claim that he has been deprived of the constitutional right to due process. In litigation, the state will bear the burden of proof to show that the dog is, in fact, a member of the targeted breed and that (s)he is “dangerous.”

Key cases related to discriminatory laws/bans and liabilities:

  • Sak v. the City of Aurelia (Iowa): James Sak moved to Aurelia with his family, including his service dog Snickers, who was a pit bull. The city council ordered retired police officer Sak to exile Snickers. Eventually, the city settled this case and Sak got to keep Snickers — but with restrictions. 832 F.Supp.2d 1026 (2011).
  • Carter v. Metro North (New York): Dog bite case against a landlord, in which the appellate court held that the trial court erred when it took notice of the vicious propensity of pit bulls as a whole, in light of divergent opinions on the subject. 680 N.Y.S. 2d, 239, 240-41 (1998).
  • City of Pierre v. Blackwell (South Dakota): Court held that the city of Pierre brought criminal charges and therefore needed to prove the “dangerousness” of the dog, meeting the “beyond a reasonable doubt” standard. Because the court relied solely on the animal control officer’s decision and there was no independent assessment of the evidence presented by both sides, due process was not satisfied. 635 N.W.2d 581 (S.D. 2001).
  • Tracey v. Solesky (Maryland): Defines the pit bull as inherently dangerous. “Upon a plaintiff’s sufficient proof that a dog involved in an attack is a pit bull … and that the owner… (including a landlord who has the right and/or opportunity to prohibit such dogs on leased premises as in this case) knows, or has reason to know, that the dog is a pit bull or cross-bred pit bull mix, that person is strictly liable for damages…” 25 A.3d 1025 (2011).

Misidentification of dogs often leads to the confiscation and euthanization of dogs who not only are harmless, but also are not even a member of the targeted breed. Before reading further, I invite you to take the few minutes to test your own ability to accurately identify a dog’s breed by identifying the one American Pit Bull Terrier among the array of dogs pictured on Find the Pit Bull (Pit Bull Rescue Central web site). Current statistics suggest Animal Control usually identifies a dog’s breed correctly only 25% of the time. Meanwhile, breed bans that can lead to the euthanization of dogs often require that a dog be at least 51% of the targeted breed. To address this problem, the use of a dog’s DNA is gaining acceptance in the courtrooms.

w/Layla, one of the rehabilitated Michael Vick dogs

Positive Changes: Anti-Discriminatory Laws & Policies
While BSL continues to threaten the lives of countless dogs, there also have been many affirmative steps taken in defense of targeted breeds.

  • State Law: Currently, thirteen states have preemptive laws that prohibit breed discrimination through canine profiling. In Illinois, the Ryan Armstrong Act that went into effect in 2003 provides that no regulation or ordinance is specific to breed (Illinois Animal Control Act, Section 24). In February 2012, the state of Ohio repealed its breed-discriminatory law. Also in 2012, Massachusetts passed a comprehensive animal control bill that prohibits canine profiling. States like New York and Texas provide good models of breed-neutral laws that favor tracking dangerous dogs individually.
  • City/Municipal Ordinances: The cities of Toledo, Topeka, and Cleveland are among those that have repealed breed discriminatory laws. In 2007, Spokane, Washington’s “dangerous dog” ordinance was found unconstitutional because it denied owners the right of due process. Changes at this level are important especially in “Home Rule” states, where local governments have greater decision-making powers and are able to regulate local matters without interference by the state.
  • International Law: Countries such as Italy, Sweden, and the Netherlands prohibit breed discrimination.
  • Department of Justice, Service Dogs & the American Disabilities Act: Regarding service dogs that are identified as a member of a targeted breed, the US Department of Justice has established that “[the DOJ] does not believe it is either appropriate or consistent with the American Disabilities Act (ADA) to defer to local laws that prohibit certain breeds of dogs based on local concerns that these breeds may have a history of unprovoked aggression.” 23 CFR Part 35.
  • American Bar Association, House of Delegates Resolution 100-2012: Passed last August, the ABA resolved to urge all state, territorial, and local legislative bodies and governmental agencies to adopt comprehensive breed neutral dangerous dog/reckless owner laws that ensure due process protections for owners, encourage responsible pet ownership and focus on the behavior of both dog owners and dogs, and to repeal any breed-discriminatory or breed-specific provisions.

Positive Changes: A Holistic Approach
In addition to repealing discriminatory laws and creating breed-neutral laws and preemptive laws, we need to take additional measures to rectify the negative stereotype of these breeds and promote responsible ownership. Some recommendations:

  • Considering The Other End of the Leash
    In 2006, in cases involving dog-related fatalities, 84% of the cases involved “reckless owners” (National Canine Research Council). Part of any effective response, therefore, requires us to more clearly define the responsibilities of owning and caring for a dog and enforcing greater penalties when negligence results in a harm. For example, in the cities of Takoma and St. Paul, pet owners found to be “reckless” (involved in dogfighting, letting dogs run at large, etc.) are prohibited from owning dogs, usually for a set period of time. The states of Illinois and Ohio have made it a Class A Misdemeanor for certain felons to own dogs that have not been spayed or neutered (which statistically have greater incidences of aggression and biting) or dogs determined by the court to be vicious.
  • Dangerous Dog Registries
    The state of Virginia has created a Dangerous Dog Registry, which functions much the same as state sex-offender registries and the newly emerging animal-abuser registries. Owners convicted of the Virginia’s dangerous dog law are placed on the list as well as the dog (only information already a matter of public record is included); in this way, the registry  underscores the human role in any incident. Also, those who strongly advocate for breed discrimination laws would do well to look closely at Virginia’s list, where pit bull types keep company with beagles and chihuahuas.
  • Educating & Training Police Officers
    Unnecessary use of deadly force against dogs by law officers happens because officers have not been specifically educated about dogs (for example, the distinction between a “resident dog” and “family dog”) or trained to deal with volatile situations involving dogs; consequently, many officers are unable to discern the level of threat that would warrant actually shooting a dog in self-defense. The Department of Justice has created a free, downloadable reference for officers, The Problem of Dog-Related Incidents and Encounters, that is a good starting point for police departments to educate their officers. In dog shootings, an owner may use the Fourth Amendment protection against unlawful search and seizure (dog, as property). Key cases that address the issue of how law officers interact with dogs on the scene:

    • San Jose Charter of Hell’s Angels Motorcycle Club v. City of San Jose: “a reasonable officer should have known that… to enter the perimeter of a person’s property, knowing all the while about the presence of dogs on the property, without considering a method for subduing the dogs besides killing them, would violate the Fourth Amendment.” 402 F.3d 962, 9th Cir. (2005).
    • Villo v. Eyre: “use of deadly force against a household pet is reasonable only if the pet poses an immediate danger and the use of force is unavoidable” (italics added for emphasis). 547 F. 3d 707 (2008).

As illustrated, it will take a combination of legislation, public outreach, and more specific training for law enforcement to effectively address the issues surrounding BSL. Through positive changes in the law — and, we hope, subsequent decisions in the courtroom based on those laws — we can help correct the negative stereotype of pit bulls and other “bully” breeds targeted by BSL initiatives that, in fact, have had little or no effect on the number of dog-biting incidences. Success in reducing such incidences is much more likely by taking a multi-pronged approach that encourages cooperation between community members and law enforcement. In doing so, we can better protect the interests of both the animals and their human counterparts.

Sources of information for this article: Presentation by Ledy VanKavage, Senior Legislative Attorney for Best Friends Animal Society, given at the Animal Law Conference at Lewis & Clark Law School on October 21, 2012; and Guilty ‘Til Proven Innocent, a documentary by Jeff Theman and Bryan Porter.

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Author: Sharon Discorfano

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