Breed Specific Legislation
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Over the years, newspapers and broadcasts across the United States have reported on injuries inflicted by dogs on humans or other animals. The attacks have occurred in a variety of situations: organized dog fighting, responses of dogs to mistreatment, dogs acting as attack or guard animals, or the unexpected, random neighborhood altercation. In an attempt to curtail these types of attacks, government officials have adopted a number of measures, including licensing laws, statutes that outlaw organized dogfights, and leash laws.
In recent years, however, many state and local governments have adopted a new tactic for eliminating dog aggression. This tool, Breed-Specific Legislation (BSL), has been embraced by some communities, shunned by others, and strongly opposed by a number of dog owners and canine organizations. The promulgation and implementation of laws that ban specific breeds from a state or municipality have become hotly debated topics, both in town hall meetings and in courts, and a number of Constitutional law issues have been at the forefront of the debate. A number of breeds have been restricted or banned, including Rottweilers, American Staffordshire Bull Terriers (“Pit Bulls”), Chow Chows, German Shepherd Dogs, and Doberman Pinschers, and the list is growing.
This paper will describe the purposes and results of BSL, the legal questions which have arisen surrounding this type of legislation, and proposals for addressing the problem of canine aggression without infringing on the rights of dog owners and community members.
History of Breed-Specific Legislation
Breed-Specific Legislation (BSL) is, in simple terms, a statute or regulation that is directed toward one or more specific breeds of dogs. The majority of BSL is focused on breeds traditionally known as “dangerous,” or those that have demonstrated particular propensities for aggression and violent behavior. In the early 1980s, a number of fatalities and serious injuries caused by certain breeds, including pit bull dogs, brought to the public’s attention a perceived need for more stringent laws governing restraint of dogs.1 In 1980, for example, Hollywood, Florida’s City Commission passed an ordinance that required persons who owned pit bull dogs to “complete special registration forms and prove the possession of $25,000 of public liability insurance.”2 The regulation applied to several breeds, collectively identified as pit bulls. In 1984, a New Mexico town completely banned pit bulls and allowed county officers to confiscate and euthanize the dogs.3 Also that year, Cincinnati, Ohio enacted a regulation that “defined vicious dogs to include all pit bull terriers,” and put special restrictions on the confinement, sale, and control of those dogs which were not applicable to other breeds.4 In each of these situations, one breed of dog has been singled out as “inherently dangerous to society,” regardless of the individual dogs’ present or past behavior.5
While this paper will focus on BSL as pertaining to dogs, it is important to note that similar laws have been applied to other animals.6 For example, historically some municipalities have banned potbellied pigs from the city limits or heavily regulated them, claiming that they are farm animals rather than pets.7 Goats have also been the target of restrictive legislation.8
Proponents of these laws cite a number of reasons for supporting breed-specific regulations. For example, Peg Jordan, an Oakland, California resident, was mauled by a dog recently, and spent several days in the hospital with more surgery in the future.9 Although she owns two German Shepherd Dogs, which are members of a breed that has been tagged “dangerous” by some, she argues that dog owners rationalize their dogs’ conduct, and that she is fed up with dog owners who intend their dogs to be “fuzzy guns.”10
In Fort Lauderdale, Florida, a legislative committee is considering a bill that would allow Broward County locales to ban specific breeds of dogs from public areas.11 The Fort Lauderdale community has become concerned about “intimidating pit bulls” on the beachfront which are “scaring ‘family’ tourists.” A state representative told committee members that in 1999, Broward County was the site of 115 pit bull dog bites. The bill’s proponents view the legislation as a means for reducing the pit bull threat, while the opponents state that the law would be unenforceable and unfair . . . [and that] the bill doesn’t limit the types of breeds that could be restricted.”12
Opponents of BSL also make a number of arguments in support of their opposition. The American Kennel Club (AKC), one of the most prominent canine organizations in the world, recently issued a position statement on breed-specific laws:
The American Kennel Club (AKC) strongly supports dangerous dog control. Dog control legislation must be reasonable, non-discriminatory and enforceable as detailed in the AKC Position Statement.
To provide communities with the most effective dangerous dog control possible, laws must not be breed specific. Instead of holding all dog owners accountable for their behavior, breed specific laws place restrictions only on the owners of certain breeds of dogs. If specific breeds are banned, owners of these breeds intent on using their dogs for malicious purposes, such as dog fighting or criminal activities, will simply change to another breed of dog and continue to jeopardize public safety.
Strongly enforced dog control laws such as leash laws, generic guidelines for dealing with dangerous dogs and increased public education efforts to promote responsible dog ownership are all positive ways to protect communities from dangerous dogs. Increasing public education efforts is significant because it helps address the root cause of the problem — irresponsible dog owners.
The AKC and the purebred dog fancy have worked together to promote non-breed specific dangerous dog control legislation throughout the country. Concerned dog lovers are encouraged to serve on or start animal control advisory boards to monitor problems and help develop reasonable solutions to dangerous dog issues. The AKC can help by providing model legislation that can be tailored to the needs of individual communities.
American Kennel Club, American Kennel Club Statement On Dangerous Dogs, available at http://www.akc.org/love/dip/legislat/dangerous.cfm (last visited March 10, 2001).
Entire organizations have been formed solely to challenge BSL. One such organization, the Endangered Breed Association, was formed in 1980 and has focused on the preservation of the American Pit Bull Terrier breed, one of the breeds that has been deemed “dangerous” by some legislatures and courts.13 The American Dog Owners Association opposes bans on “dangerous breeds,” including those affecting Rottweilers.14 These organizations argue that the constitutional rights of the dogs’ human companions are being violated by the application of special restrictions to certain dog breeds, in the absence of any injury or illegal conduct on the part of either the dogs or the dogs’ owners.
Although BSL has focused on a few breeds such as pit bulls, Rottweilers, and chows, statistics show that serious attacks have been inflicted by a variety of dog breeds, including many which have not been subject to BSL.15 In addition, opponents of BSL have pointed out that those in charge of law enforcement do not always accurately identify breeds, and that the imposition of penalties on dogs and their owners merely as a result of breed identification can be unjust and arbitrary.16
One organization that opposes BSL, the Ohio Valley Dog Owners (OVDO), suggests several reasons why breed-specific ordinances are an ineffective method for regulating dangerous dogs and protecting the public:17
Dog control problems are people problems, and are not limited to a breed or mix.
Banning a breed or declaring it inherently vicious punishes those responsible dog owners who are the type of citizens that communities need to keep, not drive away.
Communities that have instituted such bans often find that the irresponsible owners and the criminals who use dogs for illegal purposes simply switch to another breed.
Banning a breed or particular mix of breeds punishes those dogs that are reliable community citizens, therapy dogs, assistance dogs for handicapped owners, search and rescue dogs, drug-sniffing dogs, police dogs, etc., and drives them out of the community.
Breeds and mixes are often difficult to identify.
The “pit bull” is a type of dog bred for fighting, not a specific breed.
Passage of laws that are only enforced on complaint cause two problems: they create disrespect for the law if the authorities require compliance only upon complaint, and they provide ammunition for neighborhood feuds.18
Officials in Prince George, Maryland are considering a repeal of the community’s BSL, arguing that the legislation has simply encouraged owners of vicious dogs to either “go underground” or “get fighting dogs not covered by the ban.”19
Some opponents of BSL, such as the American Medical Veterinary Association, American Dog Owners Association, American Kennel Club, Westminster Kennel Club, and National Centers for Disease Control, claim that dog owners bear the burden for properly training and socializing all dog breeds and properly confining and leashing dogs.20 They argue that the breed itself is not the problem – but the lack of socialization and training, and owner responsibility, is.21
Opponents also claim that identifying one breed over another as more “dangerous” is meaningless, because from year to year the breed of dog responsible for the most serious bites and attacks often changes, frequently in proportion to how popular the breed is overall.22 Accurate information on dog bites and the proportion of bites to breeds is difficult to determine at best, because accurate statistics would require “comprehensive reports of all bites, reliable breed identification, and detailed information about the demographics of the entire dog population of the area in question. Such numbers are often unreliable since compliance with local dog licensing or registration requirements is usually below 20% in most U.S. communities.23 While a few dog bite statistical studies have been attempted, bite-rate analysis cannot be accurate without a comprehensive census of dog population in the United States. One study reported, however, that, of 101 animals in the study, pit bulls and put bull mixes were responsible for the largest number of bites, followed by German Shepherd Dogs and mixes, Siberian Huskies, Malamutes, Dobermans, and Rottweilers.24 Until more extensive statistical studies, using comprehensive counts of dogs and reliable breed identification, can be conducted, dog bite study results will not be certain enough to form the foundation for BSL, and even then the wisdom of BSL is suspect.
The debate is ongoing, but the laws and regulations impacting “dangerous” breeds seem to fluctuate continually, and those restrictions differ in jurisdictions across the nation.
Current State of the Law
Statutes and Ordinances
Breed Specific Legislation (BSL) is defined as a law or statute that equates the qualities of a dangerous dog with a certain breed, and bans or restricts certain breeds based on identity, not behavior of a specific animal.25 This type of legislation does not make concessions for those members of the breed who are valuable assets to their communities, such as therapy dogs, assistance dogs, or advanced trained dogs such as drug dogs and search and rescue dogs. BSL identifies a dog as “dangerous” based upon its breed alone and not based on any action or offense that the individual dog has ever committed.26
As of July, 2000, thirty-eight states had enacted BSL on a statewide level or in certain municipalities, or were considering BSL on one of those levels.27 Some examples of currently active breed-specific municipal ordinances:
(1) Denver, Colorado has prohibited “any person to own, possess, keep, exercise control over, maintain, harbor, transport, or sell within the city any pit bull.”28 The ordinance defines “pit bull” as “any dog that is an American Pit Bull Terrier, American Staffordshire Terrier, Staffordshire Bull Terrier, or any dog displaying the majority of physical traits of any one (1) or more of the above breeds, or any dog exhibiting those distinguishing characteristics which substantially conform to the standards established by the American Kennel Club or United Kennel Club for any of the above breeds.”29
(2) Waterford Charter Township, Michigan has prohibited any prospective “possession, maintenance, and harboring” of any “pit bull terriers,” and justifies the prohibition by stating that “the township has further concluded that it is in the interest of public health, safety and welfare that the presence of pit bull terriers be limited in this community to only those existing licensed pit bull terrier dogs in order that the threat of this breed will eventually be removed from this community.”30
(3) Des Moines, Iowa defines “vicious dog” to include the American Staffordshire Bull Terrier and the Pit Bull Terrier, and imposes stringent confinement, licensure, and control requirements (including provisions for animal seizure and disposal) upon any animals deemed “vicious” under the ordinance.31
(4) North Little Rock, Arkansas has restricted ownership of Rottweilers, Pit Bulls, or Bull Terriers or mixes thereof by implementing a breed-specific licensure fee of $500.00 – far more than license fees for other breeds.32
The general purpose of these laws is to either discourage, restrict, or prohibit certain breeds of dogs which are defined as “dangerous” within certain jurisdictions. Nearly all the laws, when implemented, included a “grandfather clause” which allowed current owners of the specified breeds to keep their dogs, but prohibited any prospective acquisitions or breeding. Because current owners were not stripped of their rights to keep their “banned breed” dogs, merely due to their breed identity, the enactment of the BSL did not amount to a taking of their property.
At the state level, statutes rarely prohibit or restrict specific breeds. Instead, the statutes tend to focus more on the dogs’ and owners’ conduct, and on dangerous behavior regardless of breed. For example, Michigan’s state statutes define a “dangerous animal” as:
[A] dog or other animal that bites or attacks a person, or a dog that bites or attacks and causes serious injury or death to another dog while the other dog is on the property or under the control of its owner. However, a dangerous animal does not include any of the following: (i) An animal that bites or attacks a person who is knowingly trespassing on the property of the animal’s owner. (ii) An animal that bites or attacks a person who provokes or torments the animal. (iii) An animal that is responding in a manner that an ordinary and reasonable person would conclude was designed to protect a person if that person is engaged in a lawful activity or is the subject of an assault. (iv) Livestock 33.
Nowhere in the Michigan statute governing “dangerous animals” will the reader find specific breeds listed. The statute regulates dog behavior, rather than the identified breed of dog.34 In contrast, enforcement of BSL is not dependent on a dog’s behavior; instead a specific dog can be deemed “dangerous” as a result of the breed an animal control officer believes it to be, even if the dog has displayed no vicious or aggressive tendencies.
Florida state law contains a similar section, which again does not specify particular breeds of dogs, but instead proscribes types of behavior by dogs which are subject to penalty. “Dangerous dogs” are defined, in part, as those which have “aggressively bitten, attacked, or endangered or has inflicted severe injury on a human being on public or private property,” as well as those which have “when unprovoked, chased or approached a person upon the streets, sidewalks, or any public grounds in a menacing fashion or apparent attitude of attack . . . .”35
Ohio, on the other hand, has specifically pointed to “pit bulls” as vicious dogs per se. In Section 955.11(A)(4)(a)(iii), the Ohio Legislature has stated that a vicious dog includes one which “belongs to a breed that is commonly known as a pit bull dog. The ownership, keeping, or harboring of such a breed of dog shall be prima-facie evidence of the ownership, keeping, or harboring of a vicious dog.” [Emphasis added.]36
Interestingly, two states have actually prohibited local governments from adopting ordinances that regulate dangerous dogs based solely on the breed of the dog.”37
Diane Blackman, in her article “Practicality of Breed Specific Legislation in Reducing or Eliminating Dog Attacks on Humans and Dogs,” gives a concise summary of legal jurisprudence related to BSL:
Breed specific legislation is probably not a practicable approach to regulation of dogs. Breed specific legislation is generally upheld only when it refers to named breeds of dogs and the standards set by recognized breed clubs. Proving that a particular dog falls within the ordinance usually requires expert testimony.
Application of breed specific ordinances to mixed breed dogs presents both legal and practical difficulties. Whether even an expert can adequately identify a mixed breed dog is itself subject to controversy. Regulation defining prohibited dog behavior is probably a more practicable approach than breed specific regulation. Such regulation is more likely to be supported. Properly drafted it has a stronger legal and evidentiary basis. Specificity aids enforcement and understanding of what is necessary to comply.
Diane Blackman, Practicality of Breed Specific Legislation in Reducing or Eliminating Dog Attacks on Humans and Dogs (1995), available at http://www.dog-play.com/pitbull.html (last visited on March 10, 2001).
Breed specific bans have been upheld in some cases, but found unconstitutional in others. For example, in a 1989 decision, the Kansas Supreme Court held that an ordinance regulating the ownership of pit bulls within the city was permissible.38 In particular, the court affirmed the district court’s statement “that pit bull dogs represented a unique hazard to the public safety, and the city ordinance regulating the ownership and possession of these dogs was therefore reasonably related to a legitimate governmental objective . . . [P]it bull dogs possess a strongly developed “kill instinct” not shared by other breeds of dogs . . . [and]are unique in their “savageness and unpredictability.” The court further opined that, based on research, pit bull dogs are “twice as likely to cause multiple injuries as other breeds of dogs, . . . [And] the injuries inflicted by pit bull dogs are far worse that those inflicted by other breeds.”39 The Kansas Supreme Court affirmed the district court’s findings that (1) the ordinance was not unconstitutionally vague or overbroad; (2) the ordinance did not violate the state or federal due process rights of the plaintiffs; and (3) the ordinance did not violate the plaintiffs’ equal protection rights under the United States and Kansas Constitutions.40
A similar case, American Dog Owners Ass’n v. Dade County, 728 F. Supp. 1533 (S.D. Fla., 1989), challenged an ordinance strictly restricting ownership of pit bulls in Dade County. The plaintiffs contended that the definitional sections of the ordinance were “so vague and uncertain as to deprive plaintiffs of their liberty and property without due process of law.”41 The district court held for the County, stating that the ordinance “provides sufficient guidance to dog owners, both in its explicit reference to pit bull dogs, and in its definitional section, to enable pit bull owners to determine whether their dogs fall within the proscriptions of the ordinance. Whether the ordinance will be applied in a discriminatory fashion is a question that cannot be determined in the context of this pre-enforcement action.”42
The Court of Appeals of Wisconsin reviewed a lower court decision which determined that a City of South Milwaukee ordinance imposing restrictions on the ownership and keeping of “pit bulls” was valid.43 The appellate court affirmed the lower court holding that the “pit bull” aspects of the ordinance were not facially invalid for vagueness or overbreadth, nor did the ordinance violate the dogs’ owners’ right to equal protection of the law.44
Conversely, in a 1989 decision, a Massachusetts court found an ordinance severely restricting possession of pit bulls to be unconstitutionally vague: “If identification by breed name does not provide sufficient ascertainable standards for enforcement, then the ‘definition’ of “Pit Bull” in the . . . ordinance, which is devoid of any reference to a particular breed, but relies instead on the even less clear “common understanding and usage” of the term “Pit Bull,” is not sufficiently definite to meet due process requirements. Dog owners do not receive fair notice from the ordinance of the conduct proscribed or the dog “types” covered by the law.”45 The Massachusetts Supreme Judicial Court noted that the challenged ordinance, which banned pit bulls, “depends for enforcement on the subjective understanding of dog officers of the appearance of an ill-defined ‘breed,’ leaves dog owners to guess at what conduct or dog “look” is prohibited,” and “gives unleashed discretion to the dog officers charged with its enforcement, [relying] on their subjective speculation whether a dog’s physical characteristics make [the dog] what is ‘commonly understood’ to be a ‘Pit Bull.'”46
Proposals for Action
BSL should be replaced with behavior-based regulations and sanctions if communities wish to effectively control the potential for canine aggression and encourage owner responsibility. The Michigan Court of Appeals, in a January, 2001 decision, ruled in a dog bite case which involved an interpretation of the Michigan dog-bite statute, M.C.L. § 287.351.47 The statute provides, in pertinent part:
If a dog bites a person, without provocation while the person is on public property, or lawfully on private property, including the property of the owner of the dog, the owner of the dog shall be liable for any damages suffered by the person bitten, regardless of the former viciousness of the dog or the owner’s knowledge of such viciousness.48
This Michigan dog-bite statute is an example of a law which targets the undesired behavior (biting), regardless of the breed of dog doing the biting. It creates a nearly “absolute liability,” since no knowledge of vicious tendencies is required on the part of the dog’s owner.49 As a conduct-driven statute, the law focuses on the undesired behavior of the dog in order to curb it, rather than arbitrarily designating a particular breed as “vicious” and, by implication, recognizing other breeds as incapable of serious aggression.
Courts often hold that for a dog owner to be liable under a common law rule regarding dangerous dogs (based on behavior, not breed), the owner must have known that the dog was “vicious” or had a “vicious propensity,” and that if the owner had no knowledge or reason to know that the dog could be vicious, she could not be held liable for any resultant injury. In this context, the term “vicious” does not address a dog’s temperament – it simply is a synonym for “dangerous,” even if the dangerous behavior is a result of a dog’s tendency to be overly friendly.50
The Ohio Valley Dog Owners, Inc. suggests other means of preventing dog aggression without using BSL which can be vague, overbroad, or ineffective. For example, the OVDO encourages “vigorous [enforcement of] dangerous dog laws,” such as the Michigan dog-bite law.51 It also recognizes that proactive measures, such as education sessions which promote responsible dog ownership and provide safety information about dealing with strange dogs, can be more effective than sanctions after an attack. In addition, the OVDO believes that the rights of all citizens should be protected through laws of general applicability regarding nuisances such as noise (anti-barking) and “pooper-scooper” laws. Finally, the OVDO urges the education of the community’s children about responsible dog ownership and treatment, in order to prevent dog behavior problems before they start.52
One breed-specific ordinance in Ohio was recently rejected in Cleveland, in favor of an educational program such as the one suggested by the OVDO.53 The Cleveland City Council had initially proposed bans on Akitas, Rottweilers, Chows, and wolf hybrids, as well as pit bulls. After a task force researched the issue and made recommendations, the Council voted instead to enforce generic “dangerous dog laws,” and implement a preventative educational program.
Another impetus for overturning breed bans has been cost. Cincinnati, Ohio recently overturned a ban on pit bulls and pit bull mixes after the cost of enforcement dramatically increased.54 After not enforcing the ban for nine years, the city began to implement the statute, which led to “dozens of dogs in custody and court cases to decide,” a situation leading to gridlock in the animal control and court systems. The city’s breed ban was overturned in favor of a conduct-based law, although all pit bulls in Ohio must still be registered with police, marked with tattoos and microchips, photographed, confined, and insured.55
A bill proposed in California after a recent fatal mauling by two Presa Canario dogs does not focus on that breed in particular, but instead gives prosecutors power to press felony charges against “any person owning or having custody or control” of a dangerous dog, even if the person is not the dog’s owner.56 A comparable bill in Indiana allows prosecutors to hold dog owners responsible if their pets “attack anyone carrying out duties imposed by state, local, and federal law,” including government and utility employees.57
Owners can take a number of precautions to prevent aggressive situations with their dogs. Whether the owner is forced to take one or more of these measures by a governing body or chooses to initiate proactive measures on her own, these actions can help reduce the need for reactive sanctions, including BSL, by preventing attacks in the first place. For example, a dog owner can post “Beware of Dog” signs prominently on his property, including warning symbols that are understood by non-reading young children. A dog should be kept in a locked enclosure when either inside or outside, especially when the owner is not present and in direct control of the animal. Owners may choose to purchase liability insurance covering damage or injury caused by their dogs, or post a bond with the city or county to cover such expenses. And, in the event that a dog has caused injury or damage in the past, and the dog is sold or otherwise rehomed, the owner should notify the new owner in writing that the dog has injured or damaged in the past, so the new owner can take appropriate precautions as well.58
The common thread running through these proposals is a focus on preventing dogs’ ) and their owners’) misconduct, rather than preventing a breed in the absence of misconduct. By regulating the behavior, state and local officials can be most effective in using their resources to keep their communities safe from truly “dangerous dogs,” without infringing on the freedoms of dog owners whose animals are singled out solely because of an American Kennel Club designation.
Breed-specific legislation is not an effective approach for regulating dogs’ behavior in communities. Although such bans might comfort individuals who have had unpleasant experiences with particular breeds or have heard of attacks by specific dog breeds in the media, the bans do not act to effectively regulate the behavior of any breed or of dogs and their owners collectively. The bans carry with them too much potential for arbitrary or improper enforcement: inaccurate breed identification by officials, difficulty enforcing breed bans against mixed-breed dogs, animal control, and court system overload, and the potential for not identifying a genuinely “dangerous dog” as such because it doesn’t fall into the specified breed categories. Unfortunately, large breeds of dogs such as Dobermans, German Shepherd Dogs, and Pit Bulls are popularly believed to be dangerous, and therefore may be judged more severely by judges than smaller, “cuddlier” breeds.59
Government officials at the local and state level should focus on the problem itself – dangerous canine behavior – and concentrate their efforts on dogs’ and owners’ conduct. In doing so, officials can maintain a safe community for both dog owners and other residents.
Referenced from http://www.animallaw.info/articles/aruslweiss2001.htm