In October of 2016, officials in Tijeras, New Mexico notified Katrina Flanagan that her family would need get rid of their pit bull “Brewskey,” even though he was a service dog. Katrina Flanagan adopted the certified service dog from a rescue group a year and a half ago for her 11-year-old son, Conor. The letter clarified that unless the pit bull was removed, he would be “seized and destroyed.” The city cited to a breed specific ordinance outlawing the breed, which was enacted after a young girl was mauled and killed by several pit bulls in the early 1980’s. See Garcia v. Tijeras, 767 P.2d 355 (1988).
This is an example of typical breed specific legislation (hereinafter “BSL”), which consists of local and state laws that prohibit, regulate or in some way limit ownership of specific breeds of dogs. A local government may opt to enforce this legislation even when the dog serves a legitimate function such as a service animal or has never evidenced any aggression. This legislation ranges from complete bans on possessing these dogs, to restrictions and conditions on ownership, and sometimes establishes a legal presumption that these dogs are prima facie "dangerous" or "vicious.” In recent trends, some state-level governments in the United States have prohibited or restricted the ability of municipal or local governments within those states from enacting breed-specific legislation. Despite the state preemption, older BSL still remains enforceable due to “grandfathering in” those provisions or providing municipalities with a “home rule” exemption.
Breed specific legislation can be categorized numerous ways. Some view BSL as an extension of the state and local laws that ban ownership of exotic, dangerous or wild animals because of the perception of danger some breeds carry. For example, proponents of BSL believe that certain breeds pose such a public safety concern that measures like banning ownership, mandatory spay/neuter, mandatory microchip implants, and liability insurance are deemed necessary.
Opponents of BSL argue that this type of legislation is nothing more than a knee-jerk reaction to dog bite attacks. They claim to effectively address the dangerous dog problem, BSL would be better replaced by education and legally mandating responsible pet owner practices, rather than banning and destroying dogs of a certain breed. There is also a third perspective that claims that BSL should not ban dogs outright, but rather strictly regulate ownership of certain breeds and enforce restrictive conditions. These restrictions include specifying public areas where breeds are prohibited, like public parks or dog parks, or establishing other conditions like muzzle requirements while the breed is in any public space.
Regardless of the varying views on BSL, it is evident that the concept has become engrained in local code and state statutes. This paper first examines the anatomy of a typical breed ban and outlines which dogs are restricted and what tests are used to identify them. Next, it explores the history of breed bans and their introduction into modern society – focusing in particular on the 1980’s media coverage of fatal dog attacks that spread fear and fueled the passage of BSL. The paper finally considers the current status of breed specific legislation.
II. Testing for "Breed"
A breed ban is another name for a BSL ordinance that restricts ownership or possession of certain breeds of dogs. The ban may describe physical characteristics of prohibited breeds, or it may list specific breeds that are prohibited, or both. The statutory structure typically provides for a procedure to follow once the dog is identified as matching the prohibited description. Part of this procedure includes a visual identification test to ensure the prohibition is accurate. However, these tests have been widely criticized due to their often subjective nature.
A. Breeds Affected
Breed specific legislation usually targets dogs of larger stature, muscular build, and other physical characteristics that are generally associated with aggression. In addition to pit bulls, BSL commonly outlaws Rottweilers, Akitas, Mastiffs, Dobermans, Presa Canarios, Dogo Argentinos, and even more traditionally family friendly breeds like Dalmatians and Chow Chows. Prior to being outlawed, many of these breeds occupied more noble roles of working and livestock herding dogs, as well as skilled big game hunters. Breed-Specific Legislation, ASPCA (September 2017), available at https://www.aspca.org/animal-cruelty/dog-fighting/what-breed-specific-legislation.
Legislation will ban breeds by describing the breed by name, type, and physical characteristics. Today, breed bans almost exclusively focus on one breed: the pit bull. However, a “pit bull” is not necessarily a single breed, but a rough categorization of three or more breeds: the American Pit Bull Terrier, the American Staffordshire Terrier, and the Staffordshire Bull Terrier. Technically, the one “true” pit bull may be an American Pit Bull Terrier, though the others listed are frequently mistaken for one. Despite gaining an aggressive and unruly reputation in the 1980’s, in the early half of the century, pit bulls were instead known for their loyalty and docile nature. They were nicknamed “nanny dogs” for their affectionate nature and watchfulness over children. In fact, in World War I, recruitment posters featured a pit bull named Tige, who was the companion of popular cartoon character, Buster Brown. The History of the American Pitbull Terrier, The Spruce (July 2016), available at https://www.aspca.org/animal-cruelty/dog-fighting/what-breed-specific-legislation.
B. Historically "Banned Breeds"
While today, pit bulls are the likely the subjects of BSL, throughout history, BSL has targeted other breeds like German Shepherds, Rottweilers and Dobermans. Some suggest that BSL may have its roots in both pseudo-science and war propaganda. In 1945, doctors Scott and Fuller embarked on a thirteen-year study of canines to answer the question of what heredity does to dog behavior. This was then used to predict traits related to breed and utilize dogs for specific service roles in war and violence. As an example, Dobermans were introduced into the United Kingdom and America from Germany in the early 1900's and quickly gained a reputation as trustworthy guard dogs and status symbols. By World War II, images of Dobermans guarding concentration camps surfaced and their image changed drastically. Films and media would commonly refer to them as “demon dogs” and their reputation has been quite unfavorable ever since then. The Post-Conviction Remedy for Pit Bulls: What Today’s Science Tells Us About Breed-Specific Legislation, Kaite Barnett, 67 Syracuse L. Rev. 241, 244.
C. Testing the Dogs: Visual Identification to DNA
Testing for a breed may involve something as basic as meeting a checklist of physical attributes. For example, pit bulls are typically identified by their short hair, boxy head, and broad chest. A qualified expert like an animal control specialist or veterinarian usually makes the initial determination and later testifies in proceedings regarding the identifiability of a breed. See Melvindale, Michigan Ord. No. 495, § 8, 4-4-90 (Pit bull determination guidelines). See also Preston, Idaho Code of Ordinances § 6.16.010, requiring a veterinarian licensed by the state to make the determination. Other times, the identification takes a more layman approach, allowing for a reasonable person assessment. See Des Moines, Iowa Code of Ordinances § 18-66, which provides that a “contractor” may make this determination. This section further defines “contractor” as a nonprofit corporation that provides animal care, adoption and cremation services that has contracted with the City of Des Moines to provide animal shelter services. Des Moines, Iowa Code of Ordinances § 18-1.
Some tests opt to rely on breed “standards” set by private breed organizations. For example, Denver’s breed ban, adopted in 1989, makes it unlawful “for any person to own, possess, keep, exercise control over, maintain, harbor, transport, or sell within the city any pit bull.” Denver, Colorado Code of Ordinances § 8-55. The test used relies on external breed standards, which the city keeps on file:
A "pit bull," for purposes of this chapter, is defined 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. The A.K.C. and U.K.C. standards for the above breeds are on file in the office of the clerk and recorder, ex officio clerk of the City and County of Denver, at City Clerk Filing No. 89457.
Denver, Colorado Code of Ordinances § 8-55.
Miami-Dade County takes a similar approach. That city’s ordinance, enacted in 1989, also relies on characteristics that “substantially conform” to A.K.C. and U.K.C. standards. The county also adds that, “[t]estimony by a veterinarian, zoologist, animal behaviorist, or animal control officer that a particular dog exhibits distinguishing physical characteristics of a pit bull shall establish a rebuttable presumption that the dog is a pit bull.” Miami Dade Ord. No. 89-22, § 2, 4-4-89.
In the course of identifying breeds, the presumption of a dog meeting the standards will stand unless someone - usually the owner or another interested party - comes forth to dispute it. In other words, pit bulls and mixed breeds may be deemed “pit bulls” in a court of law until proven not to be. If no party comes forward to dispute this presumption, it will stand regardless of the dog actually being a pit bull or not. Critics contend that these tests are vague, and result in inaccurate identification and penalties. The skeptics ask, how can one be sure of something as complicated as genetics and breed classification simply by comparing visual traits?
Just as DNA is relatively new in identifying suspects from samples in criminal cases, its functions are expanding to breed identification as well. As a result, some jurisdictions require a more definite testing approach involving veterinary identification or even a DNA test. See New Llano, Louisiana Ord. 4 (2013). See also Nelson v. Town of New Llano, filed in U.S. District Court for the Western District of Louisiana (Case No. 2-14-cv-00803) (Case brought by pit bull owners alleging the town wrongly relies on DNA testing in instituting its breed ban). Once an action against a dog has ensued, a veterinarian must sign off on the dog's pedigree. For mixed breeds, the enforcement authority may also ask that the dog take a DNA test. Typically, upon results, if a dog is made up of 50 percent or more of the forbidden breed, they would be treated as meeting the outlawed qualifications. Some jurisdictions do not set the DNA standard at 50% and instead impose that an outlawed breed, of any degree qualifies as the restricted breed under the legislation. In this way, imposing DNA could negatively impact owners of mixed breed dogs or “mutts” who’s DNA is composed of a minimal amount of the prohibited breed. DNA testing could identify and outlaw many more dogs than visual identification might. BSL: Why Breed Specific Legislation is All Bark and Fiscal Bite, Best Friends Animal Society (2009), available at https://bestfriends.org/resources/bsl-why-breed-specific-legislation-all-bark-and-fiscal-bite.
D. Requirements Governing Banned Breeds
The types of BSL ordinances enacted vary as much as the communities that pass them. Some laws require registration, insurance and restrict the breeding of certain breeds. Others outright ban ownership or keeping of certain breeds, while others place restrictions on ownership in creative ways, such as requiring all dogs of certain breeds to be muzzled and leashed when outside, requiring certain fence heights or materials, or even requiring the tattooing of restricted breeds kept in the city limits. More often than not, municipal regulations will combine two or more of these types of requirements. For example, in Mayfield, Kentucky pit bulls located outside their owner’s premises must be muzzled and restrained by a “substantial chain.” The city also prohibits persons under 18 years of age from owning a pit bull, and requires proof of $100,000 liability insurance. Violation of this provision constitutes a misdemeanor and is punishable by a $500 fine or up to 12 months in county jail, or both. Mayfield, Kentucky Code of Ordinances § 3-5.1.
The city of North Chicago regulates pit bulls by requiring owners obtain a license from the city and consistently report removal, death, birth of offspring or any new address involving their pit bull(s). An application for a pit bull license costs $50 and the license issuance fee is $500 per pit bill, with a limit of no more than two pit bulls owned by owner at any given time. Ownership is further regulated by prohibiting the sales or gifts of pit bulls without notifying the animal warden. Confinement of pit bulls in a building, fenced yard at least eight feet high or other enclosure is mandatory, as well as a sign outside notifying the general public that a pit bull is nearby. Violations of the North Chicago pit bull ordinance result in revocation of the pit bull license and the inability to obtain another one for five years, in effect barring future ownership of pit bulls or mixed breeds. North Chicago, Illinois Code of Ordinances § 8-17-1.
Enforcement of bans can range from the severe - seizure and destruction of the prohibited dogs - to more lax penalties like notices, fines, hearings and administrative proceedings. Often in the case of severely restrictive BSL laws, the local government must provide owners with notice and an opportunity to remove their dog prior to destruction. Per Wash. Rev. Code Ann. § 16.36.098, “any person whose animal is placed under a destruct order may request a hearing.” See also Barking Up the Wrong Tree: Regulating Fear, Not Risk, Ann L. Schiavone, 22 Animal L. 9, 24-28 (2015).
III. History of Breed Bans
Breed specific legislation is typically predated by violent pit bull attacks on community members. News stories of the strong canines attacking children and the elderly would grab national attention. Citizens then, in turn, demand a solution to the violent pit bull problem plaguing their streets, putting pressure on local and state government. Finally, fearful constituents identify breed bans as a necessary community safety measure despite its drastic outcomes.
A. Tools of Violence
Using dogs to invoke violent attacks is not a new development. In fact, dogs have been used as weapons since the Roman Empire, specifically for guarding and patrol duties. These functions are not far from how people still use dogs today, although their companion role is elevated in today’s modern society. Pit bull dogs were bred in the 1800s for use in blood sports such as bull baiting, bear baiting, and cock fighting. Once bull baiting was banned in 1835, breeders turned to dog fighting. Leading up to the national crack down on dog bites in the 1980’s, pit bulls and other “bully” breeds dogs were often personified and utilized in the violent culture of gang and drug criminal underworld. Before the 1980’s, there were few deaths reported from dog attacks, but that quickly changed and public perception shifted with it. In 1987, a pit bull guarding a marijuana crop mauled and killed a two-year boy in California. Sports Illustrated reported the story and ran a cover portraying a snarling pit bull and the headline read, “Beware of this dog”. This same scenario tragically played out over and over again in various parts of the country with innocent civilians falling victim to dangerous dogs being kept in their community for often illicit purposes. How America’s Dog Became Public Enemy No. 1, Bark Post (2016), available at http://stories.barkpost.com/pit-bulls-history-of-americas-dog/.
The push toward the nationwide breed specific legislation craze in the 1990’s through today was supported by a combination of numerical statistics and science centered around the breed’s physical characteristics. Dog bite statistics along with heavily publicized dog mauling attacks make up the bulk of the research in favor of BSL. As an example, in 2006, approximately 334,000 people visited an emergency room for dog bites, with an additional unknown number of individuals incurring other dog bite-related injuries (e.g., breaking a bone while fleeing a threatening dog) (AVMA, 2006). However, a statistic like this leaves out the fact that there were nearly 74 million companion dogs in the United States at this same time. Comparatively, the bite to dog ratio is minimal. Following a dog attack, media coverage would also contribute to the hysteria surrounding dangerous dogs. Reports of attacks typically described the dog(s) as unpredictable, ruthless and frequently attacking unprovoked. Additional reasoning to support BSL often includes description of the “breed” physical features, like locking jaws, super strength or even the inability to feel pain. Some of these claims have been rebuked by experts at the American Veterinary Medical Association (AVMA). The AVMA, along with other research based organizations have taken to advancing new science on breed specific legislation. In fact, Centers for Disease Control and Prevention warns against using any breed as a factor in dog-bite prevention policies like BSL and claim, “[a]ny dog of any breed has the potential to bite”. The AVMA clarifies that, “[o]wners of pit bull-type dogs deal with a strong breed stigma, however controlled studies have not identified this breed group as disproportionately dangerous.” Dog Bite Risk and Prevention: The Role of Breed, AVMA Literature Review (May 2014), available at https://www.avma.org/KB/Resources/LiteratureReviews/Pages/The-Role-of-Breed-in-Dog-Bite-Risk-and-Prevention.aspx.
B. Media Reports Call for Action
Yakima, Washington introduced their early breed specific legislation to the country in 1987 after three pit bull attacks on unsuspecting citizens made the news. The ordinance and litigation that followed was a prediction the BSL landscape for the next three decades. On July 28th, 1987, the city adopted ordinance 3034, banning dogs known to owners as pit bulls (Bull Terrier, American Pit Bull Terrier, American Staffordshire Terrier) as well as dogs "identifiable" as having any pit bull variety as an element of their breeding or “trait.”
Not long after its adoption, pit bull owners brought an action to challenge the regulation. In 1989, in American Dog Owners Ass'n v. City of Yakima, owners asked a state court to prevent Yakima from enforcing its ban on pit bull dogs. The trial court issued a temporary injunction against the city and accepted motions for summary judgment from both the dog owners and the city. After consideration, the court ultimately ruled in favor of the city and lifted the injunction. Dog owners appealed to the Washington Supreme Court on the grounds that the ordinance was unconstitutionally vague because a person of ordinary intelligence could not tell what exactly which dogs were prohibited. 777 P.2d 1046 (1989). The Washington Supreme Court ruled that the ordinance was not unconstitutionally vague because it specified the dog breeds that together fit the definition of "pit bull.” In sum, the higher court ruled that the summary judgment had been properly awarded, thus upholding the Yakima pit bull ban which still remains good law 30 years later.
Later, in December 2013, the Yakima City Council reconsidered the ordinance, but affirmed and voted 6-1 to keep the BSL on the books. However, they did later amend it in April 2014 to exempt “service” or “therapy” dogs to avoid potential conflict with the Americans With Disabilities Act (ADA). Under the exemption, pit bulls serving as service dogs must be kept on leashes and muzzled when out in public, and confined to pens or locked enclosures when at home. The exemption came just weeks before a service pit bull dog ran loose in a neighborhood and injured another dog and his owner. This incident started when the dog escaped out the front door of a home in the 1300 block of Garfield Avenue while its owner was in the backyard, as described by city Code Enforcement Officer Joe Caruso. The Yakima service pit bull attack was preceded by many others around the U.S. Most notably, in 2010, a man in Fort Worth, Texas named Steven Woods claimed to be a disabled veteran of Operation Iraqi Freedom. His three pit bulls were cited nine times in April 2010 for running at large. Pit Bull Service Dog Attacks, Yakima Herald (May 2014), available at http://www.yakimaherald.com/news/local/pit-bull-service-dog-attacks-three-people-in-yakima/article_abea956c-f4a6-5d05-bcc1-efb3a8ba0cdc.html.
Critics of BSL claim that there is a media bias in reporting stories featuring a pit bull or other banned breeds. These stories often occur in a vacuum without reference to other animals or provoking actions. The constant media frenzy has led many pit bull owners to become advocates, urging repeals of local bans and state legislators to step in and prevent laws. Depending on the ordinance structure and legal climate, opponents of BSL are sometimes successful. Unlike the ending for the BSL in Yakima, a case that challenged BSL in Massachusetts, American Dog Owners Ass'n, Inc. v. Lynn, 404 Mass. 73, 533 N.E.2d 642 (1989), resulted in the pit bull ban being annulled because the ordinance did not specify in sufficient detail what exactly a "pit bull" was. Despite these limited successes, most bans are upheld and the number of communities with BSL has exploded in the decades since the first cities enacted it.
IV. Status of Breed Bans in Local Communities Today
According to DogBite.org, 2016 data estimates a total of 36 states have adopted breed specific legislation. This includes 1052 United States cities, 38 counties, and 292 military bases which impose breed specific laws. From a global perspective, of 196 countries, 43 nations worldwide have some form breed specific legislation on the books. Dog Bite Statistics, DogBite (July 2016), available at https://www.dogsbite.org/dog-bite-statistics-quick-statistics.php#breedspecific-statistics. In the United States, BSL exists in a range of communities and geographical landscapes. In recent decades, BSL has come under fire as a form of “canine discrimination.” As a result, some states have begun to respond with legislation reducing or even outlawing new bans.
A. Cultural Landscape of BSL Communities
It was the 1980’s, a time of heightened fear, the Cold War and U.S.- Soviet relations balanced on a tightrope, and the Iran-Contra hearings were in full swing. And yet America had other dangerous things on its mind - vicious dogs. During this period communities across the U.S. are being told they are under attack, not only from foreign governments or communists, but also from dogs in their community, known as 'pit bulls.' In one month, no less than four major national magazines ran stories sensationalizing the danger of these dogs that supposedly prowled the streets of their neighborhoods, ready to attack at a moment's notice, unexpected and unprovoked.
During the three decades since it was first passed, BSL and its supporting reasoning based in propaganda has spread. Breed specific legislation can be found in both urban and rural communities, spread vastly across the United States. BSL appears more frequently in densely populated urban areas. East Coast, Southeast and Mid-Western states lead the trend in BSL passage and maintaining old laws. The further you continue toward the West Coast, the more common it is that BSL is either less restricted, not enforced or non-existent. Barking Up the Wrong Tree: Regulating Fear, Not Risk, Ann L. Schiavone, 22 Animal L. 9, 10 - 11.
B. Breed Ban Effects on Dog Mortality
Denver’s breed ban was enacted in 1989 and widely enforced in the years that followed. Other cities quickly followed in its footsteps. The neighboring city of Aurora passed its ban much later in 2005. According to a statement from Aurora Animal Care Specialist Cheryl Conway, on January 27th, 2006, 636 pit bulls were killed in the first year since the city ban was passed. 173 were killed in 2007 and roughly 100 every year since then. The 2005 ordinance in Aurora has led to the direct killing of more than 1,000 dogs since it was enacted. Countless numbers more that had their pets removed from the territory or went into hiding. An article from the Aurora Sentinel put the death tally at 1,158 in total. The larger city of Denver, Colorado estimated that between 2006 and 2009, 3,500 pit bulls were destroyed in city animal shelters. 7 Facts About Aurora, Huffington Post (November 2014), available at http://www.huffingtonpost.com/brent-toellner/aurora-colorado-breed-ban_b_6078432.html. Many of those destroyed dogs were family pets and companions, who had no record of ever having harmed anyone.
C. State Laws: A Response to Growing Criticism
Stories of such mass euthanasia have led some localities to question the propriety of BSL. While a majority of U.S. states allow municipalities to pass BSL, a growing number of states have preempted local ordinances on this issue, and instead passed laws that prohibit local governments from regulating the keeping or ownership of dogs based on breed. Currently, about 20 states have laws that either prohibit local communities from enacting BSL or prevent regulation based on breed. California was the first state to preempt BSL in 1989, although it does still currently provide for breed-specific spay/neuter requirements. Twenty-five years after BSL was at its height, the number of states banning BSL has grown to eighteen, although a few of those have grandfathered local BSL enacted before passage of the statewide statute. Each of these state laws is different. For example, South Dakota’s 2014 BSL ban prohibits local governments from enacting "any ordinance, policy, resolution, or other enactment that is specific as to the breed or perceived breed of a dog." S D C L § 40-34-16. Pennsylvania, taking further steps, has not only preempted local governments from passing BSL, but has also preempted any ordinance from regulating dangerous dogs by breed, and prohibits insurance discrimination based on breed. Pennsylvania’s statute states; “[t]hose provisions of local ordinances relating to dangerous dogs are hereby abrogated. A local ordinance otherwise dealing with dogs may not prohibit or otherwise limit a specific breed of dog.” 3 P.S. § 459-507-A. Utah prohibits BSL by providing that, “[a] municipality may not adopt or enforce a breed-specific rule, regulation, policy, or ordinance regarding dogs and [a]ny breed-specific rule, regulation, policy, or ordinance regarding dogs is void. U.C.A. 1953 § 18-2-101.
V. Case Study: Miami Dade County
Miami enacted some of the earliest breed specific legislation. The County Commission enacted the original BSL ban in 1989 after a pit bull severely injured an 8-year-old girl in West Kendall. Other portions of the country following suit shortly after, enacting BSL ordinances in places like Colorado as well as previously mentioned Washington and New Mexico. Miami-Dade May Repeal, Miami Herald (October 1, 2016) available at http://www.miamiherald.com/news/local/community/miami-dade/article105263446.html.
In response to its passage, pit bull owners and advocates pushed back. In American Dog Owners Ass’n, Inc. v. Dade County, Fla., 728 F. Supp. 1533 (1989), dog owners sued Dade County, Florida seeking declaratory judgment that an ordinance that regulated “pit bull” dogs was unconstitutionally vague. Plaintiffs contended that there is no such breed as a pit bull, but rather three breeds that this ordinance has mistakenly lumped together. However, the District Court held that ordinance sufficiently defined “pit bull” dogs by specifically referencing three breeds recognized by kennel clubs, including a description of the characteristics of such dogs, and provided a mechanism for verification of whether a particular dog was included. The undisputed testimony of the various veterinarians reflected that most dog owners know the breed of their dog and that most dog owners look for and select a dog of a particular breed.
Prior to the Dade County case, State of Florida v. Peters, 534 So.2d 760 (1988), appealed an order of the county court invalidating a City of North Miami ordinance regulating the ownership of pit bull dogs. The ordinance in question, City of North Miami Ordinance No. 422.5, regulates the ownership of pit bulls by requiring their owners to carry insurance or furnish other evidence of financial responsibility, register their pit bulls with the City, and confine the dogs indoors or in a locked pen. The court dismissed defendants’ claims that the ordinance violates equal protection and due process, and that the ordinance's definition of a pit bull is on its face unconstitutionally vague.
A few years later, in 1990, Florida’s state legislature prohibited jurisdictions from enacting BSL. Consequently, the City of North Miami’s law at issue in State v. Peters is no longer on the books. However, Miami-Dade was allowed to keep its previous legislation under a "home rule" exemption. On August 14th, 2012 Miami Dade county residents voted on whether or not pit bulls should remain outlawed in Miami-Dade County, despite the state prohibition against BSL. Although many voters complained that the wording of the ballot was confusing, the result was 63% voted to keep the ban on pit bull-type dogs. Florida HB 997/SB 1322 would have repealed Miami-Dade County BSL, but the bill died.
VI. Case Study of Denver: Preemption Does Not Defeat BSL
Breed specific legislation is aimed to protect the public from vicious dog attacks. It is largely justified by the vast government power to protect citizens and promote public safety. Despite Colorado outlawing breed specific legislation at the state level, cities like Denver and Aurora maintain their no pit bull laws. Denver first unsuccessfully challenged breed specific legislation in 1991 in Colorado Dog Fanciers v. City and County of Denver, Colorado, 820 P. 2d 644 (Colo. 1991). The dog owners in this case claimed the ordinance was unconstitutional, violating their rights to procedural and substantive due process and equal protection. Further, they claimed it was also unconstitutionally vague, and constituted a taking of private property. Regarding due process, the court found the ordinance did not violate procedural due process where the ordinance is not fundamentally unfair and the burden of proof upon the dog owner in the civil context was valid. Agreeing with previous cases, the court did not find the ordinance overbroad in its classification of pit bulls as 'dangerous' nor was it vague, as it provided fair notice of the conduct circumscribed by ordinance. Moreover, to the issue of equal protection, the court held that since ample evidence exists to establish a rational relationship between the city's classification of certain dogs as pit bulls and the legitimate governmental purpose of protecting the health and safety of the city's residents and dogs. Finally, considering taking, the court found the ordinance to be a valid police power exercise to protect the health and safety of the citizens since the evidence showed pit bulls to be inherently dangerous. 820 P. 2d 644 (Colo. 1991).
A. Colorado Enacts Anti-BSL
Denver’s BSL situation is complicated by the fact that the Colorado state legislature amended the state law in 2004 to prohibit municipalities from regulating dangerous dogs by breed:
(5)(a) Nothing in this section shall be construed to prohibit a municipality from adopting any rule or law for the control of dangerous dogs; except that any such rule or law shall not regulate dangerous dogs in a manner that is specific to breed.
(b) Nothing in this section shall be construed to abrogate a county's authority under part 1 of article 15 of title 30, C.R.S., to adopt dog control and licensing resolutions and to impose the penalties set forth in section 30- 15-102, C.R.S.; except that any such resolution shall not regulate dangerous dogs in a manner that is specific to breed.
(c) No municipality or county may destroy or dispose of a dog that is awaiting destruction or disposition as of April 21, 2004, in connection with a violation or charged violation of a municipal or county ban on one or more specific dog breeds.
As a result, the City and County of Denver filed a suit against the State for declaratory judgment, asking for a ruling that the regulation of pit bulls by Sec. 8-55 preempts the state law. In other words, the City wanted the court to say that the anti-BSL state law did not affect the previously enacted municipal ordinance. In late 2004, Denver County District Court Judge Martin Engelhoff ruled that Section 8-55 of the Denver Revised Municipal Code did not conflict with the state law because the regulation of which breeds of dogs are permitted or restricted in the city is purely an issue of local concern. Thus, under the concept of “home rule” authority, the city of Denver has the supreme authority to regulate matters that are of a local concern. The court viewed the regulation of dogs by breed in Denver as a matter of local concern. Since the State withdrew its appeal of this issue, it has been thought that it more or less agreed with the lower court that home rule authority prevails on this issue.
As the law stands today, under Denver’s Ordinance Sec. 8-55, pit bull breeds (American Pit Bull Terrier, American Staffordshire Terrier, or Staffordshire Bull Terrier) are banned in the City and County of Denver. Pit bull type dogs are defined as any dog displaying the majority of physical traits of any one or more of the above breeds, or any dog exhibiting those distinguishing physical characteristics, which substantially conform to the standards established by American Kennel Club or United Kennel Club. If a resident’s dog is impounded by Denver Animal Protection as an illegal pit bull, it will be brought to the Denver Animal Shelter for an official breed evaluation and further proceedings.
Other jurisdictions have a muddier landscape when it comes to breed specific legislation. This legislation exists in several West Virginia cities like Fayetteville and Montgomery where pit bulls (along with wolf hybrids) are banned or declared “vicious." Despite this, the recent holding in State v. Blatt, 235 W. Va. 489 (2015), may contradict such ordinances. The court in this case held that the lower court clearly erred by adopting a presumption that pit bull breeds were vicious, dangerous, aggressive, a public health hazard, and unpredictable in nature within the meaning of W. Va. Code § 19-20-20. In essence, the appellate court found the circuit court erred by finding that the pit bull was vicious, dangerous, and in the habit of biting people and ordering her destruction under the same statute. Whether the Blatt ruling will have any effect on existing BSL in the state or whether the “local concern” rationale of Denver will prevail remains to be seen.
VII. Constitutional Challenges
After Miami and Denver’s breed bans were validated by court, other plaintiffs continued to challenge local bans by focusing on particular constitutional challenges. As of 2017, no court has overturned a ban due to a legal challenge. Since passage of BSL, individuals have challenged breed specific ordinances on vagueness, notice, due process and equal protection grounds. This section highlights some of the important cases.
A. Police Power and Presumption of Constitutionality
One of the most difficult issues facing litigants who challenge breed bans is the presumption that the ban is valid and is rationally related to its purported public safety goal. This was established early in BSL history by Vanater v. S. Point, a case that attempted to challenge the BSL ordinance in the Village of South Point, Ohio. The holding clarified not only that the ordinance was valid, but that it also was proper exercise of a state’s police power. The case outlines that dogs are property, and that property of citizens is subject to the general police power of the state and therefore could be regulated by the state. 717 F. Supp. 1236, 1246 (S.D. Ohio 1989).
In Toledo v. Tellings, a 2007 Ohio case, the defendant owner of several pit bulls was convicted for violating the Toledo city ordinance that limited ownership to only one pit bull per household. On appeal by the City, the Supreme Court found the state and the city have a legitimate interest in protecting citizens against unsafe conditions caused by pit bulls. The evidence presented in the trial court supports the conclusion that pit bulls pose a serious danger to the safety of citizens. The statutes and the city ordinance were rationally related to serve the legitimate interests of protecting Ohio and Toledo citizens. 871 N.E.2d 1152 (2007).
In a U.S. territory outside the continental states, breed specific legislation is also exists in Puerto Rico in the form of Act No. 158. When the act was challenged, the Puerto Rico Supreme Court held in Lopez v. Departamento de Agricultura Estado Libre de P.R. Recurridos, that pit bulls are hereby outlawed and subject to destruction. In this case, petitioner had a pit bull puppy in his home, in violation of Act No. 158, 5 L.P.R.A. § 1601 and argued that the law was unconstitutional. The Supreme Court is equally divided as to the correct resolution of the case, so it confirmed the Judgment of the Court of Appeal that confirmed an order of euthanasia. 179 D.P.R. 643 (2010).
B. Equal Protection Challenges
The Equal Protection Clause is found within the Fourteenth Amendment of the United States Constitution. The clause provides that no state shall deny to any person within its jurisdiction "the equal protection of the laws". This means that people within state’s jurisdiction should receive fair and equal treatment and the laws should apply to all in an objective manner. Equal protection when raised as a constitutional challenge claims that citizens within one state’s jurisdiction are not receiving fair treatment. In a BSL context, the plaintiff asserted that there was no rational basis for the ordinance's special regulation of pit bulls, and therefore disproportionately impacts some dog owners and not others. Dog Fed’n of Wis. v. City of S. Milwaukee, 504 N.W.2d 375 (Wis.App., 1993). The court sided with the city in this case, holding that the ordinance applies equally to the affected class of persons owning or keeping pit bulls and this justifies any disparate treatment. The plaintiff Federation of Wisconsin failed to establish beyond a reasonable doubt that the ordinance denies them equal protection under the law. 504 N.W.2d 375, 381 (Wis.App., 1993).
C. Void for Vagueness
A void for vagueness challenge is another typical argument raised in a challenge to BSL. It strikes at the actual language of the law by asserting ambiguity and, in effect, claims that it is impossible to tell from the language what exactly the law prohibits. For example, in Am. Dog Owners Ass'n v. City of Lynn, appellant dog owners filed an action, seeking damages and declaratory and injunctive relief against appellee city, alleging that city ordinances restricting the ownership and control of "pit bulls" were unconstitutionally vague. Plaintiffs claimed that the BSL ordinance was impermissibly vague because of the inherent difficulty in identifying the breed of a given dog. The trial court agreed in part, and disagreed in part, holding that enforcement of the City of Lynn pit bull ban depends on the subjective understanding of dog officers of the appearance of an ill-defined "breed," and leaves dog owners to guess at what conduct or dog "look" is prohibited. It also requires "proof" of a dog's "type" which, unless the dog is registered, may be impossible to furnish. 533 N.E.2d 642, 647 (1989). Although the court discussed that this is a law gives too much unleashed discretion to the dog officers enforcing the ban, and clearly relies on their subjective speculation whether a dog's physical characteristics, the holding did not reflect the same result. The court held that the vague ordinance was impliedly repealed by the passage of a subsequent fourth "Pit Bull" ordinance on June 30, 1987. Because the ordinance was effectively repealed, the case was declared moot and the judgment that initially affirmed the vague ordinance was vacated, with the notation that the decision is not on the merits. The case was remanded to the Superior Court with directions to dismiss the action. 533 N.E.2d 642, 647 (1989).
D. Due Process Challenges
Due process claims arise in cases challenging breed specific legislation under the premise of fair treatment and notice for dog owners. In 2007, a plaintiff brought such a due process complaint in Am. Canine Found. v. Sun, and also asserted that a local BSL ordinance violated his constitutional right to procedural due process that is guaranteed by the Fourteenth Amendment of the United Stated Constitution. The plaintiff explained that the ordinance violated this right by allowing dog owners to be subjected to criminal sanctions and loss of their property (a banned dog they have as a pet) without a hearing to determine if a dog is actually dangerous. 2007 U.S. Dist. LEXIS 24920, at *3 (N.D. Cal. Mar. 21, 2007). The defendant city moved to dismiss the due process cause of action, relying on Wilkinson v. Austin. The Supreme Court in the Wilkinson case held that "the requirements of due process are flexible and call for such procedural protections as the particular situation demands[.]" 125 S. Ct. 2384 (2005). The court agreed with the city and dismissed the due process claims brought by the plaintiff.
In Garcia v. Village of Tijeras, (mentioned in I) plaintiffs appealed from a judgment upholding the constitutionality of an ordinance of the Village of Tijeras, New Mexico, which banned the ownership or possession of a breed of dog “known as American Pit Bull Terrier.” The District Court of Bernalillo County upheld the ordinance and plaintiffs appealed. The Court of Appeals found that plaintiffs had notice that the ordinance proscribes the conduct in which they were engaged; thus, it was not void for vagueness. With regard to the argument that the ordinance violated substantive due process, the court found that ordinance was rationally related to legitimate village purpose of protecting the health and safety of the community. Finally, the court found that the ordinance did not violate procedural due process because the ordinance provides that a hearing is held after impoundment to determine whether the dog is a pit bull. 767 P.2d 355 (1988).
Similarly, the court in Hearn v. City of Overland Park, considered an action to enjoin the City of Overland Park from enforcing an ordinance that regulated the ownership of pit bull dogs within the city. The court held: (1) the ordinance is not unconstitutionally vague or overbroad; (2) the ordinance did not violate the due process rights of plaintiffs under the United States and Kansas Constitutions; and (3) the ordinance does not violate the equal protection clauses of the United States and Kansas Constitutions relying largely on the “reasonable basis” of BSL. 244 Kan. 638 (1989).
VIII. The Long and Short-Term Effects of Breed Bans
The legal precedent has made one thing clear; local governments are within the scope of their duties when enacting BSL. Now the question arises, has BSL curbed dog bite statistics? Official reports from health departments and animal control agencies across the country show that the number of dog bites has plummeted to historic lows, despite the significant increase in both the human and dog population. Virtually all areas of the nation have witnessed dramatic reductions in the number of reported dog bites over the past 35+ years (approximately 1971-2007). However, it is important to note that Minneapolis, New York City, and Baltimore - cities that have never enacted breed specific legislation - have also experienced drastic reductions in the number of dog bites reported:
- Minneapolis shows an 86% reduction, from 1,692 to 239.
- New York City has a 90% reduction, from 37,488 to 3,776.
- Baltimore has seen a 91% reduction, from 6,809 to 593.
A 2008 report on media bias by the National Canine Research Council (available on their website at http://nationalcanineresearchcouncil.com/dog-bites/dog-bites-and-the-media/audience-interest) compared the type of media coverage given for dog attacks that occurred during a four-day period in August 2007 with intriguing results:
On day one, a Labrador mix attacked an elderly man, sending him to the hospital. News stories of his attack appeared in one article in the local paper.
On day two, a mixed-breed dog fatally injured a child. The local paper ran two stories.
On day three, a mixed-breed dog attacked a child, sending him to the hospital. One article ran in the local paper.
On day four, two pit bulls that broke off their chains attacked a woman trying to protect her small dog. She was hospitalized. Her dog was uninjured. This attack was reported in more than 230 articles in national and international newspapers and on the major cable news networks.
The National Canine Research Council has identified the most common factors found in fatal dog attacks occurring in 2006:
- 97 percent of the dogs involved were not spayed or neutered.
- 84 percent of the attacks involved owners who had abused or neglected their dogs, failed to contain their dogs, or failed to properly chain their dogs.
- 78 percent of the dogs were not kept as pets but as guard, breeding, or yard dogs.
Stephan Otto, director of legislative affairs for the Animal Legal Defense Fund, notes that “if a person keeps a dangerous dog to guard their drugs or property or for fighting purposes, they’ll just switch to a different breed and train that dog to be dangerous to get around a breed ban. The BSL accomplishes nothing in those cases.” Dealing with Aggressive Dogs, Animal Legal Defense Fund (2017), http://aldf.org/resources/advocating-for-animals/dealing-with-aggressive-dogs-community-solutions-that-consider-each-dog-not-their-breed/.
Miami-Dade has indeed realized a lesser decrease in the number of dog bites reported to Miami-Dade Animal Control - from almost 6000 bites reported in 1979 compared to 992 in 2007. This decline, of a little more than 80%, is at the lower end of the national trend. But note: most of this decline occurred before the ban was enacted. Between 1979 and 1988, dog bites reported to Miami-Dade Animal Control dropped from almost 6000 to fewer than 2600. Miami-Dade County: Two Decades of BSL Has Produced No Positive Results, Animal Law Coalition (July 29, 2009), available at https://animallawcoalition.com/miami-dade-county-two-decades-of-bsl-has-produced-no-positive-results/.
Fast forward to 2016, when Miami-Dade Commissioner Bruno Barreiro attempted to end the county’s nearly 30-year pit bull ban and repeal the breed specific legislation. Emotions were high and the community wanted a voice in the matter. About two dozen people signed up to speak about Commissioner Bruno Barreiro's proposed ordinance to repeal the 1989 ban. The speakers agreed, allowing commissioners to take up the draft ordinance without hearing from the public. But rather than advancing it to a hearing, the 13-member board voted against the legislation. As a result, the legendary BSL of Miami-Dade County remains in effect. Miami-Dade May Repeal, Miami Herald (October 1, 2016), available at http://www.miamiherald.com/news/local/community/miami-dade/article105263446.html.
Dr. Weiss of the ASPCA explains, “I can tell you some trends. Pit Bull-type dogs are increasingly more and more popular.” Yet, the same article estimates that each year, 1.2 million dogs are euthanized in shelters, approximately 40% of whom are pit bulls. How can these statistics co-exist? This means that nearly half a million pit bull-type dogs are killed in shelters annually, while they are only the third most likely to be adopted. Since many of the shelter population consists of pit bulls, this explains the breed’s presence in the rescue and adoption community. Overall, a growing popularity of this breed has been attributed to excessive backyard breeding, mass for-profit breeding and a more positive image of the breed developing over time. Barriers and Pit(Bull) Falls, ASPCA (December 2016), available at http://www.aspcapro.org/blog/2017/05/05/barriers-and-pitbullfalls.
IX. Pit Bulls as Inherently Dangerous Animals
A corollary to BSL is the issue of pit bulls as “inherently dangerous” animals. Under common law, the owner of a wild or non-domesticated animal is strictly liable for the injuries caused by that animal. In modern jurisprudence, this may even be formalized in law, mandating minimum amounts of liability insurance. Recent cases have attempted to extend this strict liability to a domesticated animal – the American Staffordshire Terrier, or other collective breeds commonly known as pit bulls. Using statistics and testimony, plaintiffs typically assert that the owner of the dog (and usually also the owner of the property the attack occurred on) are liable for injuries caused. This imposition of liability relies on the further assertion that the parties were aware of the breed of the animal, thus aware of the dangerousness, and should be held responsible for the results of their negligence.
A. Tracey v. Solesky and Statutory Change in Maryland
In 2012, a Maryland Condominium Owners Association faced this issue concerning breed and inherent dangerousness. In this case, parents of a minor sued a landlord in the trial court for the minor's injuries due to an attack by a pit bull owned by the landlord's tenant. The trial court granted judgment for the landlord, but the Court of Special Appeals reversed. Both parties appealed the ruling. The trial court held the evidence was insufficient, under then applicable common law, to present the issue of negligence in for a dog bite to a jury. However, the Court of Special Appeals held the evidence was in fact sufficient. The Court of Appeals of Maryland affirmed the Court of Special Appeals and held that a retrial was necessary because (1) the applicable common law was modified to provide that the landlord could be held strictly liable for the injuries if it were proved that the landlord knew or should have known that the dog was a pit bull or a pit bull mix, and (2) this modification applied to the parents' suit, as well as to all future such suits. It was further noted that it was necessary to modify the common law because extensive evidence showed pit bull dogs and cross-bred pit bull dog mixes were responsible for a disproportionate number of serious and often fatal attacks on humans. Tracey v. Solesky, 50 A.3d 1075, 1076 (2012).
In this Maryland case, the Court of Special Appeals holding established a new standard of liability for a landlord who has knowledge of the presence of a pit bull or cross-bred pit bull dog and also modifies the common law liability as it relates to the pit bull breed of dogs. In doing so, the Court now holds that because of the "aggressive and vicious nature and its capability to inflict serious and sometimes fatal injuries," pit bull dogs and cross-bred pit bulls are now categorized as "inherently dangerous." Upon a plaintiff's sufficient proof that an attacking dog is a pit bull or pit bull mix, a person who knows that the dog is of the pit bull breed, including a landlord, is strictly liable for damages caused to the plaintiff who was attacked. The judgment of the Court of Special Appeals was affirmed, and the case was remanded to that court with directions to remand the case to the trial court for a retrial. Tracey v. Solesky, 50 A.3d 1075, 1076 (2012).
Prior to the Tracey holding, the common law of liability provided that “[i]n an action for personal injury damages or death caused by the dog, . . . is retained as to the person without regard to the breed or heritage of the dog.” MD CTS & JUD PRO § 3-1901. Since the holding and the legislative amendment, the presumption of dangerous has shifted to implicate dangerousness, a notion that hinges frequently on breed. After the Tracey case, § 3-1901 now states that, “[i]n an action against an owner of a dog for damages for personal injury or death, . . . evidence that the dog caused the personal injury or death creates a rebuttable presumption that the owner knew or should have known that the dog had vicious or dangerous propensities.”
B. Judicial Notice of inherently Dangerous
By contrast, in Morgan v. Marquis, after the plaintiff was bitten in the face by a dog she was caring for, the plaintiff sued the dog's owner on the theories of strict liability, negligence and statutory liability as provided in 7 M.R.S. § 3961(1). The superior court granted summary judgment in favor of the defendant on all claims rejecting plaintiff's claim that pit bull dogs are inherently abnormally dangerous dogs. Maine’s highest court held that the owners were entitled to summary judgment on the common law strict liability claim as the law did not recognize that pit bulls were per se abnormally dangerous, and the plaintiff did not show that the owners knew their dog was or could be dangerous. The plaintiff attempted to assert the following facts: (1) the dog had been kept chained to a porch at his previous home; (2) the dog had been removed due to concerns about his welfare; and (3) the dog was treated by the owners with caution around new people showed that the owners knew that the dog was likely to bite someone. Plaintiff claimed that the risk of harm to her was unreasonable and her injuries foreseeable, including that the owners did not tell her that the dog was part pit bull. Issues of fact precluded summary judgment on the common law negligence claim. Nevertheless, finding insufficient evidence that the defendant knew his dog was likely to bite someone, the Supreme Judicial Court of Maine affirmed the lower court's decision on the strict liability claim. However, the court vacated the lower court's decision towards the negligence and statutory liability claim because genuine issues of material fact remained. Morgan v. Marquis, 50 A.3d 1 (Me., 2012).
The Supreme Court of Appeals of West Virginia also rejected the State’s attempt to characterize pit bulls as inherently dangerous in a criminal case. In this case, the State brought charges against the Blatts pursuant to W. Va. Code § 19–20–20, which provides that it is unlawful for a person to own, keep, or harbor any dog known by that person to be vicious, dangerous or in the habit of biting or attacking other persons. If a dog is found to be vicious, dangerous, or in the habit of biting or attacking other persons or other dogs or animals pursuant to that statute, a circuit court or magistrate court may order the destruction of that dog.
In fact, the lower court made the following claim: “[i]t's my belief and I'm going to find that this is a Pit Bull Terrier, or a mixed breed of Pit Bull Terrier, that generally accepted by this [c]ourt, and also in other states and also the West Virginia Supreme Court, as being inherently vicious and unpredictable.” On appeal, the Court of Appeals first distinguished the case upon which the lower court relied, finding it was an ordinance that presumed pit bulls were vicious, not the judiciary. State v. Blatt, 235 W. Va. 489, 490.
The appellate court held that the lower court erred by finding that the pit bull was vicious, dangerous, and in the habit of biting people where there was only evidence of one instance in which the pit bull had bitten any human. In considering the facts of the bite incident giving rise to instant case, the only finding of fact the court found that supported the conclusion that the pit bull was vicious was the circuit court's breed-specific presumption. The higher court instead determined that it was likely that the child was accidentally bitten during what both the pit bull and the child perceived as the course of play.
In view of the disagreement surrounding breed-specific presumptions, it is clear that the viciousness or dangerousness of any breed within the meaning of W. Va.Code § 19–20–20 is not a simple factual matter of which a magistrate or circuit court can take judicial notice. Similar rulings have been issued in other jurisdictions advising against breed specific presumptions. See Rivers v. New York City Hous. Auth., 694 N.Y.S.2d 57, 58 (N.Y.App.Div.1999) (concluding that the court below had erred by taking judicial notice of “the vicious nature of pit bulls”); See also Carter v. Metro North Assocs., 680 N.Y.S.2d 239, 240 (N.Y.App.Div.1998) (“On the subject of the propensities of pit bull terriers as a breed there are alternative opinions that preclude judicial notice such as was taken by the Court.”).
C. Inherently Dangerous for Insurance Purposes and Landlord Liability
The inherently dangerous aspect of breeds of dogs arises in other contexts too. Homeowners and renters alike buy insurance to protect their home and belongings from future loss. However, through small print clauses, a pit bull owner may find it difficult to find a policy because of the breed of their dog. The majority of insurance providers forbid dangerous breeds and large dogs, deeming the owner uninsurable. State Farm, on the other hand, forges a difficult path. Instead, the insurance provider determines risk based on a dog's bite history rather than breed. Thus, State Farm, unlike most insurance companies, does not exclude insuring households solely based on breed. "All dogs can be 'great dogs,' regardless of breed, if they are properly cared for, loved and trained," stated Agent Rob Bills. All Dog Breeds Deserve a Chance, State Farm (2015), available at https://newsroom.statefarm.com/2015-09-29-all-dog-breeds-deserve-a-chance/#kTWogso03QBPr6Xm.99.
In addition to insurance issues, certain breeds can impact landlord liability for tenants’ dogs. Holcomb v. Colonial Associates, L.L.C. is a 2004 North Carolina case that involves the issue of whether a landlord can be held liable for negligence when his tenant's dogs injure a third party where a landlord has agreed by contract to remove "undesirable" dogs. Under the terms of the lease, the tenant, Olson, was allowed to keep one Rottweiler dog on the property. It was also stipulated that the landlord could require removal of any "undesirable" pets with 48-hour notice. The dogs in the instant action attacked a contractor who was making an estimate on some of the rental homes, and, according to testimony, had also committed two prior attacks. The court concluded that the Court of Appeals erred in not requiring the plaintiff to show that the landlord was an owner or keeper of the dogs in order to show the landlord was negligent. The court limited this requirement to only applying to strict liability actions, as opposed to negligence claims. As a result, the court found defendant landlord Colonial failed to use ordinary care by failing to require the defendant Olson to restrain his Rottweiler dogs, or remove them from the premises when the defendant knew, or in the exercise of reasonable care, should have known, from the dogs' past conduct, that they were likely, if not restrained, to do an act from which a reasonable person could foresee. It should be noted that, of particular importance to the court, was the lease provision, which the court felt contractually obligated the landlord to retain control over defendant's dogs. 597 S.E.2d 710, 712 (2004).
Breed issues also frequently arise in nuisance complaints. In Kensington Square II Ltd. Pshp. v. Perez, defined "serious nuisance" regarding the tenants' conduct and dog behavior. The court specified that the nuisance must have presented an immediate and serious danger to the safety of other tenants or the landlord. The court noted that the complaint did not allege any actual acts of menacing behavior by the dogs. The court then looked to articles discussing whether pit bull dogs were inherently dangerous. In turn, it concluded that the literature and scientific findings relative to the pit bull dog were insufficient for a finding that the tenants' pit bull dogs were per se an immediate and serious threat to the landlord or to any of its other tenants.) 1995 Conn. Super. LEXIS 3102, at *1 (Super. Ct. Oct. 17, 1995).
X. The Emerging clash of BSL and Service/Assistance Animals
As discussed in the Introduction, “Brewskey" the dog is an example of how ADA accommodation may clash with breed specific legislation. Similarly, jurisdictions adopting “inherently dangerous” presumption ordinances for pit bulls or other targeted breeds may indirectly discriminate against some service dogs. However, according to the Americans with Disabilities Act, a municipality cannot prohibit or limit ownership of a service dog even if an ordinance banning a breed of canine exists. See Final Rule to adopt enforceable accessibility standards under the Americans with Disabilities Act of 1990 (28 CFR Part 35). In response to commenters on the proposed rule, the Department stated that it " . . . does not believe that it is either appropriate or consistent with the 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 or attacks."
The ADA does provide an exception to this rule - if a dog in question poses an actual danger. For an example, see news article describing an Oregon Judge ordering muzzling and confinement for service dog, (Judge agrees: Blind woman’s guide dog must go, The Oregonian (September 2016) available at http://www.oregonlive.com/portland/index.ssf/2016/01/judge_agrees_blind_womans_guid.html.
Brewskey’s owners of course advocated on his behalf and insisted there was no evidence of their dog being a danger to anyone. Fortunately, the city commissioners agreed and explained, “[b]y the letter we wish to inform you that there is insufficient evidence on which we could conclude that Brewsky [sic] is ‘vicious’ under the ordinance. We appreciate your taking responsibility for your dog and complying with all provisions of the Village Ordinance #32 except, of course, the pit bull.” Evidence Insufficient, KOB4 (December 2016) available at http://www.kob.com/new-mexico-news/evidence-insufficient-tijeras-service-dog-vicious-village-katrina-flanagan-conor-brewskey-pit-bull-ban/4351983/.
In Denver, a few years prior, Federal Judge Marcia Krieger ruled against plaintiffs who claimed both Denver and Aurora were in violation of the Americans with Disabilities Act because of their bans on pit bulls. The Obama administration advised local governments they must allow pit bulls as service animals for the disabled under the ADA and voiced their disapproval of breed bans. In response, Denver adopted a “don’t ask, don’t tell” policy of sorts and told enforcement officials to look the other way if they encountered a pit bull whose owner maintained that it was a service dog. Aurora also grants exemptions to its ordinance, but through a much more formal process. To keep a pit bull, an owner/handler must “satisfy several requirements,” including having a fenced back yard and a warning sign “affixed to the gate of the structure notifying people a pit bull is contained within” — although the sign rule can be waived. These requirements are considered beyond the pale by those who sued, but the judge disagreed. She ruled that the plaintiffs in both Denver and Aurora had suffered no discernible harm from the rules and were in fact able to own pit bull service dogs, in compliance with the ADA. Pitbull Bans, The Denver Post (2013), available at http://www.denverpost.com/2013/08/05/pit-bull-bans-ada-rules-can-co-exist/.
When presented with a similar dispute, Iowa produced a very different result. In Sak v. City of Aurelia, a retired police officer’s pit bull mix was trained to become a service dog. The retiree recently had a disabling stroke and relied on animal for support. However, the town where the plaintiff resided had a breed specific ordinance that prohibited pit bulls. The retired police officer and his wife brought this suit against the city alleging that the ordinance violated his rights under Americans with Disabilities Act, and also sought a preliminary injunction to enjoin the city from enforcing the ordinance. The officer’s preliminary injunction was granted after the court found: (1) the officer was likely to succeed on merits of ADA claim; (2) the officer would suffer irreparable harm absent injunction; (3) the balance of equities was in favor of injunctive relief; (4) and the national public interest in enforcement of ADA trumped more local public interest in public health and safety reflected in ordinance. 832 F. Supp. 2d 1026 (N.D. Iowa 2011).
An Emotional Support Animal (hereinafter “ESA”) is any animal that provides a therapeutic benefit to people diagnosed with a mental, psychiatric or emotional disability. Since the 1980’s, ESAs have been widely recognized by courts as an accepted “reasonable accommodation” in housing under the federal Fair Housing Amendments Act (the “FHA”). ESAs are not specifically trained to do a task like service dogs are, and they do not have the same rights and privileges as a service dog, but they are protected by federal laws for housing. The issue of whether a “banned breed” may serve as an ESA has not been directly litigated. In Warren v. Delvista Towers Condominium Ass’n, Inc., the defendant argued plaintiff’s accommodation request under the Federal Fair Housing Act (the “FHA”) to modify defendant's “no pet” policy was unreasonable because Plaintiff's emotional support animal was a pit bull and pit bulls were banned by county ordinance. The District Court denied the defendant’s motion and found that changing a no pets policy for an emotional support animal was in fact a reasonable accommodation under the FHA, despite the breed of any particular ESA. The court suggested that enforcing the county ordinance would violate the FHA by permitting a discriminatory housing practice, as well as prevent equal housing opportunities based on the breed of a dog. The holding identified the breed ban as an “obstacle” to the objectives of Congress in enacting the FHA. As a matter of law, the Miami-Dade County ordinance was ruled preempted by the FHA. Warren v. Delvista Towers Condo. Ass'n, 49 F. Supp. 3d 1082 (S.D. Fla. 2014). Until HUD issues firm regulations or guidance on the use of banned breeds as assistance animals/ESAs, this issue remains less than clear.
XI. Conclusions and Recommendations
The number of places passing breed bans and prohibiting breeds continues to fluctuate widely. Perhaps the most accurate way to sum up the state of BSL in the United States today is to say the laws are controversial, generating both cries of protest and adamant support. Despite these contrasting views, pit bulls as a breed are increasing in popularity, frequently seen as family pets, as well as working animals and even service dogs. This leaves local governments as well as legislatures searching for a middle ground solution. A notable plan may be adopting the hybrid type ordinances mentioned early in this article. BSL of this form can opt for strictly regulating dogs, for example, by requiring insurance and/or licensing, as opposed to banning and subsequently destroying all outlawed breeds. This solution not only paves the way for flexibility and allows for exemptions in cases of service and emotional support animals, but may also reduce the high number of dogs impounded and euthanized due to breed bans. Similarly, increasing accessibility and training of animal control departments could help contribute to a foundational owner education platform, increasing community knowledge and setting care standards. As seen in several court decisions, creative regulations such as these would be considered an exercise of valid police power. To combat the actors that use pit bulls for illicit purposes, stricter enforcement of breeding regulations and cruelty codes is called for. Regardless of their legal status and local governments' inclination to regulate based on this breed, pit bulls continue to exist despite decades of resistance and advocacy against them.