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Punish the Deeds, Not the Breeds: Beware of Breed Specific Laws

by Sara Chisnell-Voigt, Esq.

The issues of dog bites and attacks in this nation have grown as urban populations increase, and more people own more dogs in more confined spaces. It has especially attracted media attention as the popularity of pit bull type dogs as a status symbol and also their role in dog fighting has increased incredibly over the past few years. States and municipalities have reacted by putting these two together and creating breed specific laws. Many have, as of late, enacted breed specific legislation that singles out and blames certain breeds for these problems. These targeted breeds seem to change over the years; German Shepherds and Rottweilers have been chosen before; presently pit bull types are in vogue for being targets of BSL.

Most laws targeting specific breeds have traditionally been municipal, or local, laws. Only one state to date has taken it further with their “vicious” dog provisions and that’s Ohio. Ohio defined dangerous and vicious dogs as ones that have committed varying degrees of dog crimes: from unprovoked attacks, to killing or causing serious injuries to humans or other dogs. Also within the definition of vicious dogs is the “crime” of belonging “to a breed that is commonly known as a pit bull dog.” Owners of dogs that fall under the vicious category must have specific enclosures on their properties, keep the dog on a chain link leash when off the property, and also keep the dog muzzled. Further, and most ridiculous, the statute stipulates that owners of these dogs must purchase SEPARATE from homeowner’s insurance, liability policies with a minimum coverage of one hundred thousand dollars per dog and incident.

Now, these regulations may be reasonable as applied to dogs who have committed violent acts, but it does not make sense to punish an owner simply for having a certain “type” of dog. It’s quite simply dog racism. Imagine if you had to put a muzzle on your sweet, gentle family pet every time you leave the house. The worst of the regulations by far is the insurance requirement. An insurance agent in Ohio stated that these policies are impossible to purchase, and unheard of as most insurance companies will not cover so called “vicious” dogs. Most insurance companies will not even grant homeowners’ insurance to homes with certain breeds considered inherently dangerous by the insurance industry. The most common excluded breeds have been APBT’s, American Staffordshire Terriers, German Shepherds, Dobermans, Rottweilers, and even Boxers. All dog owners should check their insurance policies to see what coverage they have when it comes to their dogs.

This Ohio dog law has been tested in the court system. In the City of Toledo v. Tellings, the trial court upheld its constitutionality. Tellings appealed the decision, and the appeals court declared it unconstitutional. However, recently the Ohio Supreme Court reversed that decision and it appears that the law will probably take effect again. While it has legal precedent to possibly take effect and stand in Ohio again, the Ohio Supreme Court got it wrong on this law. Breed specific legislation is ineffective and unconstitutional for many reasons.

While this Ohio law targeting pit bull breeds is intended to protect the safety and welfare of the public, it is a perfect illustration of why breed specific legislation falls far from its mark. First off, there really is no such breed “commonly known as a pit bull dog.” There are three breeds that share similar physical characteristics that are generically grouped by the public under the term pit bull: the American Pit Bull Terrier, the American Staffordshire Terrier (Am Staff), and the Staffordshire Bull Terrier. The Am Staff used to be one and the same as the American Pit Bull Terrier, but the AKC dropped the pit in the 1930’s to avoid the negative connotations associated with the term ‘pit bull.’ The UKC kept the name the same, and many of these dogs are dually registered. All three are noted to be great family dogs and good with children. The fact that there are three breeds, none with the name ‘pit bull dog,’ makes if very difficult to apply the law. Does it only apply to American Pit Bull Terrier owners? Or owners of all three breeds? What about mixed breeds of unknown origin that look like ‘pit bull dogs’? This leads to the legal problem of notice, as there is not a clear enough definition to put owners on notice of what dogs are within purview of the law.

Going hand in hand with the notice issue to owners goes the same to the authorities who must enforce the law. The vagueness of the definition leads to unfair, arbitrary, and subjective determinations of what dogs fall into the ‘pit bull’ category by enforcement authorities. This is a MAJOR problem. There are MANY breeds of dog that share similar characteristics as pit bull types, such as mastiffs, boxers, dogo argentinos, and presa canarios. Even a stocky headed Labrador could appear to the inexpert eye as if it has pit bull in its lineage, and the owner could then be forced to follow the regulations or lose the dog. ( See Find the Pit Bull Game, http://www.understand-a-bull.com/Findthebull/findpitbull_v3.html)

Even the Supreme Court of Ohio mentioned in an opinion on a contested case that the AKC does not register “pit bulls because of their unsavory tendencies” and does not recognize the breed. Does that mean that the 2 AKC recognized breeds mentioned above do not fall within the purview of the statute? What of the dogs that are registered American Staffordshire Terrier with the AKC and American Pit Bull Terrier with the UKC? If Ohio Supreme Court justices cannot discern which dogs are ‘pit bulls,’ how is the average owner or law enforcement authority to know when the law applies?

Consider this: a woman in Ohio who owned an American Bulldog (not one of the ‘pit bull’ type breeds mentioned above) was told her dog was a vicious dog by way of being a ‘pit bull’ and therefore had to follow the regulations laid out above. The police got involved because the dog got loose, a neighbor reported a ‘pit bull’ was on the loose, and it was found playing with a group of children in a sprinkler. The police exited their cars with guns drawn and were prepared to shoot the dog. The only thing that prevented them from doing so was a 5 year old child put its arms around the dog’s neck, crying. The owner was then given a short amount of time to comply with the requirements of the statute. She found she could not obtain the insurance, and could not afford monetarily to meet the other requirements in such a short time. So rather than let the cops confiscate the dog, she had her vet euthanize the dog, as she felt she had no other choice.

This is a perfect illustration of misapplication and probably common confusion of the law; had she contested it, she most likely would have found that the law did not apply to her. This example also could have proven to the courts why the law is unconstitutional because of its vagueness. As previously stated, Ohio has been the only state with such a law, SO FAR. Now that it has been upheld by the Ohio Supreme Court, this sets a bad precedent for other states and may possibly open the door for more state breed specific legislation. There was previously talk amongst lawmakers in Michigan for a STATEWIDE ban on ‘pit bulls.’ Other states with cities that have strong breed bans or regulations, such as Denver, Colorado, may now be compelled to make statewide regulations.

Conversely, after the nationally covered death of a woman in California, who was mauled to death by two dogs (which incidentally were NOT pit types), legislators in California wrote a new dangerous dog law. California punishes for acts ONLY, and specifically states that there can be no breed specific legislation to declare any single breed as dangerous or vicious in the state at any level. This law should be a model for all states, as it lays out specific, detailed acts and crimes dogs must commit in order to gain the designations ‘dangerous’ or ‘vicious.’ This accomplishes more to protect the public then does designating a single breed as dangerous or vicious. Hopefully this article serves as awareness to all dog owners, and even if you don’t own a so-called ‘dangerous’ breed, you’ll support your fellow owners and fight any nonsensical breed legislation that may arise in your state.

For more on your state’s dangerous dog laws, see: http://www.animallaw.info/statutes/topicstatutes/sttodd.htm