Article in Animal Law Journal on BSL (part 1)

Article in Animal Law Journal on BSL

Overview of issues in BSL. Will be in multiple posts because it's long!
Copyright (c) 2004 Animal Law
Animal Law 2004 (at 10 Animal L. 313)
BREED SPECIFIC LEGISLATION: UNFAIR PREJUDICE & INEFFECTIVE POLICY
NAME: By Devin Burstein*
BIO:
* © Devin Burstein, 2004. Mr. Burstein is an associate at Proskauer Rose LLP. He graduated Cum Laude, Order of the Coif from the Benjamin N. Cardozo School of Law, where an earlier version of this article won the Benjamin N. Cardozo Writing Award for the Best Course/Independent Research Paper.
SUMMARY:
... Pit bull - the name alone strikes fear, or at least raises suspicion among many in the general public. ... Section VI, Paragraph I of the ordinance makes it unlawful "to own or possess in the Village any dog of the breed known as American Pit Bull Terrier. ... a. The owner or keeper of a pit bull dog or rottweiler dog shall present to the police department proof that the owner or keeper has procured liability insurance in the amount of at least $ 100,000.00 covering any damage or injury which may be caused by such vicious dog during the period for which licensing is sought. ... No person shall permit a pit bull dog or vicious dog to be kept on a chain, rope or other type of leash outside its enclosure or pen unless a person is in physical control of the leash. ...
HIGHLIGHT: This comment examines breed specific legislation - the unfortunate attempt of legislatures throughout the country to address the valid concern over vicious dog attacks by prohibiting or strictly regulating entire breeds, most often, pit bulls. Such legislation has succeeded in perpetuating uninformed stereotypes and creating a false sense of security for the public. However, breed specific legislation has failed to accomplish the goal of making society safer because it fails to address the responsibility of dog owners for dog attacks. In addition, these laws unfairly punish animal and owner alike by ignoring the obvious facts that dogs are individuals capable of a variety of emotions and behaviors, and that no breed is inherently good or evil. To prevent the tragedies that can occur when a dog attacks a human, legislation must take aim at the heart of the problem, the human owners that allow, through negligence or intentional mistreatment and training, these attacks to occur.
TEXT:
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I. INTRODUCTION
Pit bull n1 - the name alone strikes fear, or at least raises suspicion among many in the general public. n2 The mistrust of this breed is due in no small part to its portrayal in the media, n3 over the past fifteen years, as a terrifying menace, engineered to fight and kill. n4 As a result of this fearsome reputation, pit bulls have garnered a great deal of legislative attention. n5 In response to media accounts and public fears, numerous local governments across the United States have enacted breed-specific legislation - legislation that attempts to deal with the valid concern over vicious dog attacks by irrationally banning or strictly regulating the ownership of pit bulls and other allegedly vicious breeds. n6
Much to the chagrin of dog owners who have challenged breed-specific ordinances and regulations on constitutional grounds, these laws are usually upheld, under a minimum scrutiny analysis. n7 However, simply because a piece of legislation passes minimum scrutiny does not mean that it is practical, sensible, or just. n8 For a law to meet [*315] minimum scrutiny, it must only bear a rational relationship to its objective; it need not be the best, or even a well thought-out approach to the problem. n9
This article looks past the constitutional questions and into the policy of breed-specific legislation. For the sake of comprehensiveness, it will discuss the basic constitutional arguments, but will focus on whether breed-specific legislation aimed at banning or restricting pit bull ownership is a fair and practical approach to protecting society from vicious dog attacks. Also, to increase the value of this article as a research tool, the appendix contains the relevant text of a number of breed-specific laws and ordinances. Although not all such laws are accounted for, the appendix provides a thorough overview. n10
II. BREED-SPECIFIC LAWS
Breed-specific restriction legislation singles out the owners of a particular breed of dog and requires them to comply with special regulations not applicable to other dog owners. n11 Such legislation is prevalent throughout the United States and comes in two general forms,n12 [*316] specific restrictions and outright bans. n13 More often than not, such restrictions and bans are directed towards pit bulls. n14
Breed-specific legislation in the form of a ban is a ban on pit bulls and other breeds.n15 In 1984, the Village of Tijeras, New Mexico passed such an ordinance. n16 Section VI, Paragraph I of the ordinance makes it unlawful "to own or possess in the Village any dog of the breed known as American Pit Bull Terrier." n17 It further provides that "any such dog may be impounded by the Mayor or Animal Control Officer to be destroyed as provided herein."n18 The ordinance did not prohibit the ownership of any other type of dog. n19 Similarly, ordinances in Ferguson, [*317] Missouri and Yakima, Washington also established bans on pit bulls within city limits. n20
While a handful of municipalities ban pit bull ownership altogether, most jurisdictions considering the issue, have chosen to impose various restrictions on pit bull ownership. For example, an ordinance in South Bend, Indiana requires all pit bull owners to obtain a special license and demonstrate that they have $ 300,000 in liability insurance to cover any potential injuries caused by their dog(s). n21 Owners must also provide proof of their age and address, as well as pictures of their dog(s). n22 Once the owner receives the special pit bull license, a veterinarian must tattoo the dog with an individual identification number. n23 A similar ordinance in Morgan, Louisiana defines all pit bulls as vicious dogs and provides that owners must keep them in special enclosures with walls at least six feet high. n24 This ordinance also requires that pit bull owners maintain $ 100,000 in liability insurance, have their dogs tattooed with special identification numbers, and obtain special vicious dog licenses. n25
Regardless of the form, all breed-specific legislation shares the essential characteristic of singling out breeds in an attempt to protect society. There is no consideration given to the individuality of dogs. Instead, any dog fitting a particular description is treated as a menace, even if that treatment is unwarranted and the individual animal poses no actual threat to the community. This type of legislation is based on the belief that dogs such as pit bulls possess inherent traits, like strength and aggression, which make all members of the group dangerous. n26 Even if a particular animal has behaved as a "model citizen," the potential for disaster is always just beneath the surface, and it is this potential danger that justifies blanket prohibitions. n27 However, these justifications are nothing more than a flagrantly mistaken stereotype of a misunderstood breed. Indeed, these generalizations appear facially equivalent to violations of equal protection pertaining to humans.
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Re: Article in Animal Law Journal on BSL

III. CONSTITUTIONAL CHALLENGES
Dog owners faced with breed-specific legislation must rely on the judicial system to protect them from breed-specific regulations. As such, they have brought numerous suits challenging the constitutionality of the ordinances and laws burdening them. n28 These suits generally allege that breed-specific legislation is unconstitutionally vague, as well as in violation of substantive due process and equal protection. n29
A. Substantive Due Process
The substantive due process challenge is relatively simple. Under a minimum scrutiny analysis, in order for a statute to satisfy the due process clauses of the fifth and fourteenth amendments, it must be rationally related to a legitimate legislative goal or purpose. n30 Strict scrutiny is applied only when the law at issue implicates a fundamental right or involves a suspect classification of people.n31 As dog ownership is not a fundamental right, n32 and pit bulls are not a suspect class, breed-specific laws will overcome substantive due process challenges as long as they bear some rational relationship to the legitimate goal of public safety. n33
Therefore, state and local governments may enact constitutionally valid breed-specific legislation under their broad police powers. n34 "Police power encompasses the protection of the health, safety, and welfare of the public" and as a general rule, exercises of police power by a state or city are presumed to be constitutionally valid. n35 Accordingly, courts will generally uphold breed-specific legislation against substantive due process challenges. n36
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B. Equal Protection
Although the same minimum level of scrutiny applies to challenges based on equal protection, the issues are more complex. n37 Under an equal protection analysis, the essential question is whether there is a rational purpose for the divergent treatment of pit bull owners and other dog owners. n38 In other words, the discrimination against pit bull owners must rationally relate to the purpose of the statute. n39
Equal protection challenges often focus on the scope of the statute at issue by arguing that it is either overinclusive or underinclusive. n40 Overinclusive laws regulate a larger category of subjects than is necessary to accomplish the legislation's objective, and underinclusive laws regulate groups too small to effectively accomplish the statute's purpose. n41
Pit bull owners bringing equal protection challenges attack the reasonableness of breed-specific laws by asserting that they are underinclusive, overinclusive, or both. n42 Thus, owners claim that pit bulls are not uniquely dangerous, and that many other types of dogs cause serious injury. A law relating exclusively to pit bulls is unreasonably underinclusive because it fails to include other potentially dangerous types of dogs. n43 Thus, it irrationally prejudices pit bull owners while ignoring owners of dogs that pose an equal or greater threat to society. n44
Some owners also claim that breed-specific laws are unreasonable because they are overinclusive. n45 They argue that breed-specific laws go too far in attempting to protect society. n46 As not all pit bulls are vicious, laws that apply to good-natured dogs unreasonably and unnecessarily burden the owners of dogs that pose no threat. n47 Therefore, these owners argue that it is unreasonable to prejudice all pit bull owners, when not all of their dogs are dangerous. n48
[*320] Even if a breed-specific law is proven to be overinclusive or underinclusive, it is not necessarily unconstitutional. n49 As long as the government can show that the law is rationally related to its objective, it will be upheld under the traditional minimum scrutiny review. n50 Consequently, it is extremely difficult to succeed with an equal protection challenge to a breed-specific law.
C. Vagueness
In addition to equal protection challenges, pit bull owners also attack breed-specific laws on vagueness or procedural due process grounds. n51 Procedural due process requires that the law at issue provide those affected with sufficient notice of the conduct being regulated or prohibited. n52 A law failing to provide sufficient notice is considered unconstitutionally vague. n53 Essentially, pit bull owners allege that ordinances relating specifically to pit bulls fail to put owners on proper notice, because there is no real pit bull breed and it is difficult for owners of mixed breed dogs or adopted dogs without genealogical records to determine whether their dogs are covered by the ordinance. n54
In order to overcome a vagueness challenge, a statute must clearly notify an ordinary individual of the prohibited conduct. n55 For example, breed-specific legislation must not only notify the community that it is illegal to keep pit bulls within the jurisdiction, but also define what exactly a pit bull is for the purpose of the statute. n56 Due to the difficulty in properly identifying which individual dogs are pit bulls, constitutional challenges based on vagueness have had some success. n57 [*321] However, courts do not generally invalidate breed-specific legislation on constitutional grounds. n58
In Greenwood, the Supreme Court of Utah upheld a breed-specific ordinance against constitutional challenges by pit bull owners and breeders. n59 The ordinance imposed special licensing, confinement and insurance requirements on fierce, dangerous, and vicious dogs, defined as including pit bulls. n60 Plaintiffs claimed the ordinance was unconditionally vague and violated equal protection.n61 The lower court disagreed and found the ordinance to be constitutional. n62
The Supreme Court of Utah, in addressing the vagueness claim, held that the ordinance was not unconstitutionally vague as applied to plaintiffs. n63 The court found that plaintiffs were given adequate notice that the ordinance applied to their dogs, and that any uncertainty could be ameliorated through an administrative remedy allowing owners who were unclear about whether their dogs were covered to obtain a determination by the city manager. n64 Therefore, the court held that even though the ordinance could have been more clearly written, it was not void for vagueness. n65
In terms of equal protection, the opinion noted that minimum scrutiny applied because no fundamental right was at issue. n66 The court held that the ordinance was not overinclusive, stating that "although it may be true that not all pit bulls are dangerous, the evidence supports the conclusion that, as a group, pit bulls are dangerous animals. Clearly, the ordinance's classification treating pit bull breeds differently than other breeds reasonably furthers and is rationally related to public safety." n67 The court also held that the ordinance was not underinclusive, explaining that although the ordinance did not cover all potentially dangerous dogs, "a law is not made unconstitutional simply because it does not cover all possible evils." n68 Further, [*322] legislatures have the right to address a perceived problem one step at a time.n69 Thus, the ordinance did not violate equal protection. n70
Similarly, in Garcia v. Village of Tijeras, the court upheld an ordinance banning pit bulls within the village. n71 In response to a vagueness challenge, the court found that pit bulls share typical physical characteristics, which made it possible to identify them, whether or not they were registered. Therefore, because plaintiffs had adequate notice that the ordinance applied to them, it was not unconstitutionally vague. n72 The court also held that the ban did not violate substantive due process because it bore a rationale relationship to the legitimate purpose of protecting the health and safety of the village residents. n73 Evidence introduced at trial showed that on more than one occasion a pit bull caused injury to a village resident. n74 Therefore, even though the court recognized that there were good pit bulls as well as bad pit bulls, the ban was rationally related to increasing village safety. n75 Likewise, the divergent treatment of pit bull owners and the owners of other types of dogs did not violate equal protection, because the legislature was "entitled to address threats in a piecemeal fashion, countering each threat as it arises." n76
In Starkey v. Chester Township, pit bull owners sought a preliminary injunction against an ordinance requiring them to obtain special licenses and follow stringent confinement requirements. n77 The court, deferring to legislative judgment as to the reasonableness of the ordinance, found it unlikely that plaintiffs would prevail on the merits, and therefore denied the motion for preliminary injunction. n78 It held that the township could reasonably conclude that pit bulls posed a danger, and thus, the ordinance was rationally related to the legitimate legislative purpose of protecting the citizens. n79
[*323] These cases clearly demonstrate the general opinion of courts in many jurisdictions; breed-specific regulations are not unconstitutional and will be upheld despite claims asserting the opposite.

 

Re: Article in Animal Law Journal on BSL

IV. POLICY AND REASONING
Despite the fact that breed-specific ordinances are often upheld against constitutional challenges, such ordinances do not necessarily reflect good or sensible policy. A rational relationship to a goal and an effective, fair, and efficient means of accomplishing that goal can be two very different things. The rationale behind breed-specific legislation is erroneous. At first glance it may seem like a sensible way to ameliorate the problem of vicious dog attacks. However, a deeper analysis clearly demonstrates that banning a whole breed of dog, whether the individual animals are vicious or not, is an imprudent approach. n80 In fact, breed-specific legislation is a product of the same type of shortsighted thinking that forms the basis of many negative stereotypes and prejudices.
Laws applying this type of reasoning to humans are almost always recognized as unacceptable. In our modern culture, legislation restricting the rights of a particular ethnic group, based on some perceived stereotype, is repulsive. The analogy to breed-specific legislation is obvious. Although dogs are not people, they are sentient, intelligent individuals, capable of learning. Therefore, just as it is with humans, it is ridiculous to stereotype an entire group.
The two main oversights of breed-specific legislation are that it ignores, or at least does not fully consider the role of animal owners in dog attacks, and that it does not fully take into consideration that a dog is an individual sentient being capable of a variety of emotions and behaviors. It is not the breed that is inherently good or evil, but rather people who determine whether dogs will be useful inhabitants of society. n81
A. Owners
No matter how aggressive a dog may be, if it is well trained and properly controlled, it is not a significant danger. For example, it is almost impossible for a dog on a leash, with an alert owner to cause harm. The dog is under control, and therefore, cannot actively pursue or attack anyone. At the same time, a conscientious owner can warn anyone seeking to approach the dog that it is unsafe. Thus, a good owner can virtually eliminate the dangers posed by an aggressive dog.
Unfortunately, not every dog owner is responsible or sensible. Generally, the dog owners that pose the greatest threat are those who [*324] obtain an aggressive dog as a status symbol or to use as a weapon, neglecting to properly care for and contain their dogs. n82 Breed-specific legislation fails to deal with the problems posed by these owners. n83
The person who owns a dog in order to portray an intimidating image does not care about having a specific breed of dog; all he cares about is that the dog is tough, aggressive, sending a clear message to those around him. Therefore, a law banning pit bulls will not protect society from this person.n84 He will obtain another type of aggressive dog. n85 Thus, in order for breed-specific legislation to effectively deal with problems posed by this type of dog owner, it would have to enumerate and ban every type of potentially aggressive dog. However, even if this were possible, it is not a true solution to the problem posed by these owners, because they could simply obtain a non-aggressive dog and turn it, through improper treatment and abuse, into a vicious animal.
What the proponents of bans of specific breeds fail to recognize is that a given breed is incidental to the cruder human impulse it is made to serve: the illicit thrill of bloody fighting rings, or of simply having the baddest dog on the block. Ban one breed, and there will be another to take its place. Ban, or at least crack down on, the human abuses of these animals ... and all breeds revert to their better natures. n86
Breed-specific legislation ignores both the fact that vigilant and caring dog owners can virtually eliminate the risk to the public associated with even the most aggressive dogs, and that the danger posed by irresponsible dog owners is not effectively addressed by banning dog breeds in a piece meal fashion. In addition, such legislation fails to properly account for the individuality of specific animals. Therefore, breed-specific legislation is faulty because it fails to look at the main cause behind aggressive dogs - the human owners.
B. Dogs as Individuals
The very breed that strikes fear in the heart of mainstream America, the pit bull, was once an American icon in the form of a dog named Petey. Pete the Pup, also known as Petey from the "Little Rascals/Our Gang" television show, was a pit bull. n87 This dog worked long hours on a set with children without ever harming anyone. n88 Although this does not prove every pit bull is a friendly lap dog, it does prove [*325] that not all pit bulls are vicious killers. Every pit bull, as a sentient and intelligent animal, is truly an individual.
One of the most obtuse arguments made in support of breed-specific ordinances is that keeping any pit bull is analogous to keeping a dangerous wild animal. n89 Even worse is the analogy of a pit pull to a weapon like a loaded gun, because it suggests that an intelligent living being is similar to an inanimate piece of metal designed for the sole purpose of causing injury and death. n90 These views are heavily influenced by the fact that pit bulls were originally bred as fighting dogs. n91 However, unknown to the general public, the pit bull's history as a fighting dog does not predispose it to aggression toward people.n92 In fact, the opposite is true. n93
Historically, aggression toward humans was a trait despised by those breeding pit fighting dogs. n94 These people wanted the dogs to fight each other, not the handlers who went into the pit to oversee the fights. n95 Part of the handlers' job was to separate the dogs at various times during the fight. n96 If the dogs were prone to biting people, the handlers would have been unable to do their jobs. n97 Nobody would willingly attempt to separate two powerful dogs in the middle of fighting if they were afraid of being attacked. Indeed, pit bull aficionados take pride in the fact that pit bulls are the only breed controlled enough to avoid biting people even during mortal combat with another dog. n98
Despite the facts behind the history of pit bull breeding, the myth of the pit bull as a berserk killer has lead to ridiculous stereotyping. One author has gone so far as to say, "no pit bull can ever be completely trusted to remain a docile family pet," n99 and that pit bulls attack people in crazed frenzies that do not occur in any other breed. n100 These types of generalizations when applied to other groups, such as [*326] ethnic groups, are comical to the educated mind. However, because of the media driven fear of pit bulls, many people are willing to abandon their critical thinking in order to accept the stereotype.
Labeling a whole group of dogs as vicious without considering the individual characteristics of the animals that make up that group is more than shortsighted - it is ludicrous. A New York court recognized this absurdity when it refused to take judicial notice of the viciousness of pit bulls. n101 In Carter v. Metro North Associates, the court recognized that while
many sources ... assert the viciousness of pit bulls in general, numerous other experts suggest that at most pit bulls possess the potential to be trained to behave viciously [and that] scientific evidence more definitive than articles discussing the dogs' breeding history is necessary before it is established that pit bulls ... are inherently vicious or unsuited for domestic living, such as ... wolves and leopards would be. n102
Laws singling out pit bulls for special restrictions are the legislative equivalent to judicially stereotyping pit bulls as vicious. However, as the court in Carter made clear, such generalizations are unwarranted. n103 In addition to unjustifiably punishing all pit bulls and their owners, breed-specific legislation fails to properly protect society from the danger posed by improperly contained vicious dogs.
Breed-specific legislation creates a false sense of security. n104 It gives the impression that because a specific breed of dog is banned or restricted, dog attacks will no longer be a danger. However, nothing could be further from the truth. Any type of dog can be dangerous, and "vicious dogs" are not the only dogs that bite. Sometimes the offending dog can be perfectly gentle, but bites out of fear or is antagonized into biting. If legislation aims to successfully protect society without unnecessarily punishing innocent dogs and dog owners, it must deal with the reality that every dog is an individual. n105

 

Re: Article in Animal Law Journal on BSL

V. PROPOSAL AND CONCLUSION
For a dog control law to be both effective and just, it must take into account two essential principles: (1) it is unreasonable to ban or restrict an entire group of dogs based on an unsupportable stereotype about their viciousness; every dog is an individual and should be [*327] treated accordingly, and (2) dogs are considered property, and as such, owners should be held accountable for their dogs actions.
Perhaps the easiest and most effective way to protect people from dog attacks is to create and enforce laws requiring the appropriate containment of all dogs, regardless of breed.n106 These laws should prohibit unsupervised dogs from roaming freely. n107 Dogs would have to be enclosed or properly supervised on an owner's property and leashed when off the property, unless in a designated dog run or play area. n108 This type of law would avoid breed discrimination, while putting the onus for dog bite prevention on the animal's owner - where it belongs.
The nationwide enactment and effective enforcement of such laws would prevent dogs from coming into unsupervised contact with people. In order to compel compliance, legislatures should make owners strictly liable to victims for any dog attacks resulting from violations of these laws. Additionally, criminal liability for serious violations should amount to more than a slap on the wrist. n109
Proper containment can largely nullify the danger posed by even the most aggressive dog, and strict liability for failure to properly confine will convince owners either to be vigilant and responsible, or to forsake ownership of aggressive dogs. This combination will lead to a significant reduction in dog attacks, as well as proper compensation to victims. Although no vicious dog law can ever appropriately substitute for common sense and responsible behavior on the part of owners, imposing strict liability for failure to properly oversee a dog should help remind owners of their obligations.
As the above discussion suggests, an effective dog control law does not have to be a complex piece of legislation. Well-enforced laws that require owners to maintain control of their dogs, while holding them accountable if they do not, will protect society. Such laws will not only prevent dog bites, but will avoid discrimination against innocent dogs - and their owners - based upon unreasonable societal prejudice, driven by the media, and founded solely upon an ignorant stereotype.
(If anyone wants more info, like footnotes to this article or copies of specific laws, just email me)