This article will provide an overview of BSL ordinances by discussing 1) common breed definitions, 2) patterns in the regulations, and 3) common exceptions to the regulations. The article will also discuss the constitutionality of these ordinances, focusing on how they meet due process requirements.
Breed Specific Legislation (BSL) refers to laws that regulate the ownership of specific animal breeds, focusing on dog breeds that have been deemed vicious or dangerous.[ i ] The goal of BSL is to protect the public from potentially dangerous dogs before an attack occurs or without having to make a determination on whether an individual dog is dangerous. This article will provide an overview of BSL ordinances by discussing 1) common breed definitions, 2) patterns in the regulations, and 3) common exceptions to the regulations. The article will also discuss the constitutionality of these ordinances, focusing on how they meet due process requirements.
II. Breed Definitions
A. Pit Bulls
By far the most commonly regulated breeds are “pit bulls.” As the Miami-Dade ordinance notes in a section on legislative intent, “the unique history, nature and characteristics of pit bull dogs have been determined to require . . . special regulations and provisions [to protect the public’s health, safety, and welfare].”[ ii ] Because “pit bull” is not a dog breed, ordinances regulating pit bulls generally provide further clarity on the definition of “pit bull.” Specific breeds commonly considered “pit bulls” include American Pit Bull Terriers, American Staffordshire Terriers, and Staffordshire Bull Terriers. Often, the ordinance will also regulate mixed breeds that contain an element of those breeds, display physical traits of those breeds, has the appearance of those breeds, or exhibit distinguishing characteristics that substantially conform to the American Kennel Club (AKC) or United Kennel Club (UKC) standards of those breeds.[ iii ]
B. Other Regulated Breeds
Occasionally, breeds other than pit bulls are regulated, including wolf-hybrids, Rottweilers, and Chow Chows. With the exception of wolf-hybrids, these are recognized dog breeds; therefore, their definitions are usually straightforward and include dogs that have the appearance or characteristics of being the specified breed. Wolf-hybrids are any domesticated dog breeds that have crossbred with wolves.[ iv ]
BSL ordinances tend to fall into one of two categories: 1) Prohibiting ownership of targeted breeds, except under certain circumstances or 2) Permitting ownership of targeted breeds if certain requirements are satisfied. This section discusses patters in these two types of ordinances.
A. Ownership of Regulated Breeds Prohibited
Under this type of ordinance, regulated breeds are not permitted within the city/county, except under specific circumstances. These ordinances tend to be very broad in their prohibited activities, including owning, possessing, transporting, keeping, harboring, exercising control over, maintaining, selling, purchasing, obtaining, or acquiring the regulated breed.
Most ordinances have a grandfather clause that allows owners who had a dog before the ordinance was passed to keep the dog if they meet certain requirements. Those requirements may include:
- keeping up-to-date with the rabies vaccine;
- paying the annual licensing fee;
- spaying or neutering the dog;
- proving the ability to pay for potential damages caused by the dog through insurance, surety bond, personal bond, or a personal statement;
- confinement while inside the owner’s home;
- confinement in a secure, locked structure or leashed and muzzled when outside the owner’s home;
- posting “Dangerous Dog” or “Beware of Dog” signs;
- registering color photos;
- destroying or removing litters born; and
- reporting the death, removal, or new address of the dog.
Most jurisdictions also prohibit selling or transferring the animal to anyone except a family member. Some jurisdictions also require the owner to be a certain age.
B. Ownership of Regulated Breeds Permitted, but Controlled
Under this type of ordinance, an owner may keep a regulated dog breed within the city/county regardless of when the owner acquired the individual dog, provided that the owner satisfies certain requirements. Those requirements are similar to the grandfather clause requirements, and may include:
- registering the dog, including the owner’s name, address, and phone number, the dog’s genus and species, photographs of the dog, and the dog’s color, weight, and distinguishing physical characteristics;
- keeping up-to-date with the rabies vaccine;
- providing proof of spaying or neutering;
- inserting a microchip;
- providing proof of the owner’s ability to pay for potential damages; and
- confining, leashing, or muzzling the dog.
The owner may also have to report the death of the dog, the removal of the dog from the city/county, the birth of offspring, an attack on a person or animal, or the dog running at large.[ v ]
C. Exceptions to the Regulations
Most ordinances have a list of exceptions that describe circumstances where the regulations are relaxed or inapplicable. The exceptions for both types of ordinances are generally the same. Frequently they include events that require a dog to enter the city/county temporarily, for example dog shows, transportation through the city/county, hunting, or veterinary care. Animal shelters and law enforcement dogs may also be exempt.
D. Penalties for Violations
Most BSL ordinances permit an animal officer to seize and impound any dog that is in violation of the ordinance. Many ordinances allow an official to decide whether to euthanize or remove the dog from the city/county. Owners cited for violating BSL ordinances are subject to fines and/or jail, often with each day of violation constituting a separate offense. Owners are also often liable for any expenses incurred with impounding the dog, including shelter, food, and veterinary care.
U nder the 14 th Amendment, states cannot “deprive any person of life, liberty, or property, without due process of law.”[ vi ] Since the legal system treats animals as personal property, a BSL ordinance that permits impounding or destroying a dog triggers due process scrutiny. There are two forms of due process: substantive due process, which concerns the substance of the law, and procedural due process, which concerns the administration of the law.
A. Substantive Due Process
Successfully challenging a BSL ordinance under a substantive due process claim is difficult. Under a substantive due process claim, courts review laws with varying levels of scrutiny, depending on the right being impinged upon and the class of people being regulated. Only laws that impinge upon fundamental rights or involve suspect classes receive strict scrutiny, the highest level of scrutiny. Because owning a dog is not a fundamental right and dog breeds are not a suspect class, BSL ordinances are subject to only minimal scrutiny. Under this level of scrutiny, the government’s action of regulating certain dog breeds must be rationally related to its interest in protecting the public. Additionally, under police powers, governments have broad authority to enact laws intended to protect the public health, safety, and welfare. Accordingly, laws enacted under that police power are presumed constitutional.
B. Procedural Due Process
P rocedural due process requires 1) notice of the proscribed behavior and 2) an opportunity for those people implicated to be heard. Therefore, to withstand a procedural due process challenge, a BSL ordinance must describe any prohibited conduct, including identifying regulated breeds, and provide an opportunity for people owning those breeds to have a hearing before deprivation through impoundment or euthanasia.
i. Notice of Proscribed Behavior
Courts have held that notice requires the ordinance to be sufficiently definite so that a person of ordinary intelligence can reasonably tell what conduct is prohibited, but that the language need not be precise. A common constitutional challenge against a BSL ordinance is that it is void for vagueness. Challengers may argue the term “pit bull” is vague since “pit bull” is not breed, and therefore a dog owner of ordinary intelligence cannot tell whether his/her dog is prohibited. Courts are divided in their decisions. Some courts have held that the term “pit bull” is commonly used to refer to certain breeds and that dog owners tend to know their dog’s breed, even sometimes seeking out specific breeds.[ vii ] Other courts have held that merely identifying dogs by a type is not sufficient.[ viii ] An ordinance that further defines “pit bull” by specific breeds (i.e. American Pit Bull Terrier) will likely be constitutional. Another possible vagueness challenge arises when “mixed breeds” are prohibited, since mixed breeds can be difficult to identify without a pedigree.
ii. Opportunity to be Heard
The purpose of requiring a hearing is to give the implicated parties a chance to respond to the law. Courts have held that a post-impoundment hearing is constitutionally sufficient, and therefore, a pre-impoundment hearing is not necessary.[ ix ] Often, a BSL ordinance will at least allow an owner to petition for a hearing to dispute the classification of his/her dog as a regulated breed. Some jurisdictions have a judge oversee the hearing and decide the dog’s breed in municipal court[ x ]; other jurisdictions have a city/county official or a panel oversee the hearing and make the decision. [ xi ] The latter processes are usually subject to judicial review.[ xii ] If, after the hearing, the animal is classified as a regulated breed, the deciding authority may order its destruction or may permit the owner to remove the dog from the city. Often, an owner is not entitled to a hearing if the dog was impounded as the result of an attack or bite. If the owner does not request a hearing within the specified period, the dog will generally be destroyed.
As might be expected, BSL ordinances are a controversial topic. Anytime a state attempts to deprive its citizens of property, there will be complaints. Furthermore, people tend to value their pets as part of the family, rather than just property. With this added sentiment, BSL ordinances will continue to be a contentious topic as proponents and opponents debate the constitutionality and effectiveness of these laws. In terms of constitutionality, as long as the ordinance provides clear breed definitions, clear descriptions of regulated conduct and any exceptions to the regulations, and an opportunity for a hearing, courts will generally uphold the ordinance.
B. In recent years vicious and unpredictable pit bull terriers have, without provocation, attacked and seriously injured and killed individuals across the country, with children or the elderly being the most frequent victims.
C. In one four-year period, pit bull terriers were responsible for 20 of the nation's 28 deaths from attacks by dogs, although accounting for only an estimated 1% of the nation's dog population.
D. The number and severity of such attacks have been generally attributable to the selective breeding of such animals as fighting dogs, which has tended to promote and exacerbate certain inherent aggressive and vicious propensities combined with their owners' failure to properly confine and control them.