by Kim Courtney
In recent years, a number of state and local governments have implemented Breed Specific Legislation, which regulates ownership of certain dog breeds considered “dangerous”, in an attempt to decrease the number of serious dog attacks in their jurisdictions. This trend has started a hot debate among communities, dog owners, dog organizations, and even in our court systems. Breeds such as Pit Bulls, Rottweilers, Chow Chows, German Shepherds and Doberman Pinchers have been restricted or banned. Opponents argue that the dog bite statistics can not be relied upon to determine which dogs are the most “dangerous” because those reports are not comprehensive, the identification of breeds in unreliable, and we lack a detailed accounting of the demographics of the entire dog population. There is also a constitutional argument against breed specific legislation, that has been successful in defeating breed specific legislation in some jurisdictions. That position states that restricting ownership of certain breeds is a deprivation of property and violates due process. This debate is far from over, and is likely to eventually reach the U.S. Supreme Court for consideration.
A Review of Breed Specific Legislation in the United States
With approximately 800,000 dog bites per year requiring medical attention, and the number of fatal dog attacks steadily on the rise, communities and legislatures have tried to come up with a solution in order to decrease the number of dog attacks (Weiss, 1998). One of those proposed solutions is Breed Specific Legislation (BSL), more and more popular over recent years, which targets certain dog breeds considered to be “dangerous” and restricts or bans their ownership (Weiss, 2001). This trend has started a hot debate among communities, dog owners, dog organizations, and even in our court systems. Breeds such as Pit Bulls, Rottweilers, Chow Chows, German Shepherds and Doberman Pinchers have been restricted or banned.
Opponents of BSL argue that the dog bite statistics can not be relied upon to determine which dogs are the most “dangerous” because those reports are not comprehensive, the identification of breeds in unreliable, and we lack a detailed accounting of the demographics of the entire dog population (Weiss, 2001). There is also a constitutional position against breed specific legislation, successful in some jursdictions and unsuccessful in others, which argues that restricting ownership of certain breeds is a deprivation of property and violates due process. That position has successfully defeated BSL in only some jurisdictions (Campbell, 2009). This debate is far from over, and is likely to eventually reach the U.S. Supreme Court.
Scope of the Problem: Why Does Breed Specific Legislation Exist?
In 2009 there were approximately 77.5 million dogs living in homes in the United States, with 39% of households having at least one dog (ASPCA, 2009). We have more dogs per capita in the United States than in any other country in the world (Beaver, 1999). Unfortunately, with this high rate of dog ownership comes the increased risk of dog bite incidents, which occur approximately 4.5 million times per year (Sacks, Kresnow & Houston, 1996; Quinlan & Sacks, 1999). Approximately 800,000 bites per year (one out of every six) cause serious enough injury to require medical attention (Weiss, Friedman & Coben, 1998). The fifth most common reason for emergency room visits by children is a dog bite (Weiss, at al., 1998). The number of fatal dog attacks has been steadily rising from an average of 17 per year in the 1980s, to 33 in 2007, 23 in 2008 and 30 in 2009 (Weiss, et al., 1998).
These statistics clearly show that society has good reason to be concerned for the safety of its citizens in regards to dog bites and attacks. The costs of these incidents on society, although difficult to measure, include medical costs, emotional impact on the victim and dog owner, possible civil or criminal liability for the owner, deteriorated relationships between neighbors, increased public concern over the safety of citizens, and higher home owner’s insurance rates (AVMA, 2001). In response to these concerns, various state and local legislatures have created laws referred to as Breed Specific Legislation (BSL), which is defined as “a law or statute that equates the qualities of a dangerous dog with a certain breed, and bans or restricts certain breeds based on identity, not behavior of a specific animal” (Weiss, 2001).
There is much controversy about these types of laws. Proponents argue that some breeds are more likely to attack and cause serious injury to a person (Mouchard, 2001), while opponents argue that the breed is not the problem, but rather irresponsible ownership (AKC, 2001). A number of organizations have made formal statements against BSL, including the American Veterinary Medical Association (AVMA, 2001), who convened a Task Force on Canine Aggression and Human-Canine Interactions, and refers to such laws as “inappropriate and ineffective” (AVMA, 2001). The American Kennel Club (AKC) also opposes BSL, stating in a position statement that legislation “must be reasonable, non-discriminatory and enforceable”, and “must not be breed specific” (AKC, 2001). The Westminster Kennel Club and the National Center for Disease Control also oppose BSL (Weiss, 2001). There are even organizations formed for the sole purpose of challenging BSL, such as the Endangered Breed Association, which was created in 1980 and focuses on Pit Bulls in particular (EBA, 2010), and the American Dog Owners Association, which opposes banning “dangerous breeds” (ADOA, 2010).
Dog Bite Statistics in the US
From 1978 to 1998, at least 25 breeds of dogs were involved in 238 serious dog attacks, more than 50% of which involved either Pit Bulls or Rottweilers (Sacks, Sinclair, Golab & Lockwood, 2000). In a more recent detailed study of dog bites in the United States and Canada, Merritt Clifton, the editor of Animal People, outlines the numbers of dog attacks resulting in serious injuries from 1982 to 2006 (Clifton, 2006). Clifton found that 74% of the dog attacks during that period were by Pit Bulls, Rottweilers, Presa Canarios and their mixes (Clifton, 2006). In addition, 68% of the attacks by those specific breeds were upon children, 82% were on adults, 65% resulted in death, and 68% resulted in maimings (Clifton, 2006). It is also interesting to note that in more than two thirds of the cases in the study, the attack was the first dangerous behavior known to the owner (Clifton, 2006).
Another study published in the Journal of the American Veterinary Medical Association found similar results to the Clifton study - Pit Bulls were found to be involved in approximately a third of dog bite related fatalities from 1981 to 1992 (Sacks, at al., 2000). While Rottweilers were responsible for about half of fatalities from 1993 to 1996 (Sacks, at al., 2000). Those two breeds were found to have accounted for 67% of the fatalities between 1997 and 1998 (Sacks, et al., 2000).
Opponents of BSL argue that identifying one breed as “dangerous” over another based upon dog attack statistics is meaningless, because from year to year the breed responsible for most serious attacks changes in proportion to how popular the breed is (Weiss, 2001). In addition, they argue that these statistics are not accurate because we lack comprehensive reports of all bites, reliable breed identification, and details about the demographics of the entire dog population (Weiss, 2001).
Are Certain Breeds More Dangerous?
BSL Proponents. Those in favor of BSL argue that certain breeds are “per se” a danger to society and should be either highly regulated or banned all together (Weiss, 2001). Although opponents argue that it is presently impossible to determine which breeds are more dangerous because we do not have reliable statistics on the numbers and breeds of dogs existing in our society, BSL supporters continue to rely heavily upon the dog bite statistics as support for their position (Weiss, 2001).
There are a number of experts who have testified in court cases involving BSL that certain breeds are more dangerous, regardless of the statistics. In a case involving a Denver Colorado law banning Pit Bulls, the court noted fourteen separate areas of differences between Pit Bulls and other breeds, including aggressiveness, athletic ability, biting, catch instinct, destructiveness, fighting ability and killing instinct, frenzy, gameness, health status, manageability, strength, temperament, tolerance to pain, and unpredictability (Colorado Dog Fanciers, Inc. v. City and County of Denver, 1990).
In an article by Kory Nelson entitled “One city’s experience: Why pit bulls are more dangerous and breed-specific legislation is justified” (2005), he argues that pit bulls are not like other dogs because they were selectively bred for fighting, which resulted in “better, stronger, and bolder dogs, more inclined to engage in the dangerous behaviors likely to win in the ring.” Thus, he argues, pit bulls, compared to other breeds, have a higher propensity to exhibit unique behavioral traits during an attack (Nelson, 2005). Those traits include:
Strength –Unusually strong for their size
Manageability and Temperament – Require special attention and discipline
Unpredictability of Aggression – Unlike other dogs, they may give no warning before an attack
Tenacity – They possess “gameness”, a tenacious refusal to give up a fight
Pain Tolerance – Unlikely to retreat from a fight, even when considerable pain is inflicted upon them (Nelson, 2005)
Other experts agree with Nelson’s description of Pit Bulls. In a 2005 trial Dr. Peter Borchelt, a Certified Applied Animal Behaviorist, testified on behalf of the City of Denver in a case involving a Pit Bull ban ordinance (Borchelt Testimony, 2005). Borchelt testified that there is a rational basis to differentiate Pit Bulls from other breeds of dogs. (Borchelt Testimony, 2005). He disagreed with those who say that Pit Bulls were not bred to be aggressive towards humans, saying that increased demand for the breed causes breeders to no longer have the incentive to cull human aggressiveness (Borchelt Testimony, 2005). He testified that when these dogs are sold to the unknowing public and then bred, it can further dilute the suppression of this behavior (Borchelt Testimony, 2005).
Borchelt testified that another concern is that you can’t tell by looking at a Pit Bull whether it will exhibit dangerous behaviors, because they all share the same phenotype or physical characteristics (Borchelt Testimony, 2005). He also cited concerns about attacks on humans involving multiple Pit Bulls, stating that rather than a simple multiplying effect present with other breeds, the effect of an attack involving multiple pit bulls would be closer to an exponential effect (Borchelt Testimony, 2005).
BSL Opponents. The Task Force on Canine Aggression and Human-Canine Interactions, created by the American Veterinary Medical Association, argues that a dog’s propensity to bite or attack is based upon more than just heredity, but rather on five factors, including heredity, early experience, later socialization and training, mental and physical health, and victim behavior (AVMA, 2001). Their report states that “singling out 1 or 2 breeds for control can result in a false sense of accomplishment. Doing so ignores the true scope of the problem and will not result in a responsible approach to protecting a community’s citizens.” (AVMA, 2001).
There are numerous other explanations for aggressive behavior in a dog besides breed alone. For example, studies show that chaining a dog can cause aggression, which is in fact considered inhumane and is illegal in many communities (Sacks, et al., 2000). In fact, approximately 26% of fatal dog attacks involved dogs that were chained at the time (Sacks, et al., 2000).
Another factor that can contribute to aggressiveness is sex – male dogs account for 70-87% of attacks studied, and 60% of those were unneutered males (Voith & Borchelt, 1996). Dogs from puppy mills and pet stores have a higher incidence of aggression (Serpell & Jagoe, 1995). There is also clear evidence that lack of socialization during the first 14 weeks of age can result in higher incidence of aggression (Scott & Fuller, 1965). Poor health can also be a factor that causes aggression in dogs (Campbell, 1975), in addition to pain and fear (Overall , 1997).
Current State of Breed Specific Legislation
Statutes and Ordinances. The majority of BSL regulates breeds of dogs that are traditionally thought of as “dangerous”, such as pit bulls, rotweillers and german shephards (Weiss, 2001). These laws became more popular in the early 1980s, when there were a number of serious injuries and fatalities caused by particular breeds, which brought to the public’s attention the need to take some sort of action (Weiss, 2001). As of July 2000, thirty-eight states had enacted or were considering statewide or municipal BSL (Weiss, 2001).
Regulation on the state level rarely restricts specific breeds, but rather tends to focus more on the dangerous behavior of the dog and the dog’s owner (Weiss, 2001). While legislation restricting specific breeds is seen more on the local level. For example, there is an existing breed specific ordinance in the Township of Waterford, in Denver, Colorado, which prohibits “any person to own, possess, keep, exercise control over, maintain, harbor, transport, or sell within the city any pit bull” (Denver, Colorado, Rev. Muni. Code, Section 8-55(a)(2001).
Constitutionality of Breed Specific Legislation. Procedural due process requires that laws provide the public with sufficient notice of the activity or conduct being regulated or banned (Cornell, 2010). This is set forth in the Fifth Amendment (Amendment V) to the United States Constitution, which is part of the Bill of Rights, and states that no person shall “be deprived of life, liberty, or property, without due process of law” (Cornell, 2010).
The potential constitutional problem with BSL is that certain breeds that are considered to be “aggressive” are difficult to define, and thus those laws may not be specific enough to meet due process requirements. A Pit Bull is generally considered to be a type of dog bred for fighting, and is not a specific breed, making a Pit Bull difficult to identify, especially with mixed breeds (Campbell, 2009). The Merriam-Webster Dictionary defines a Pit Bull as “a dog (as an American Staffordshire terrier) of any of several breeds or a real or apparent hybrid with one or more of these breeds that was developed and is now often trained for fighting and is noted for strength and stamina (Merriam-Webster Dictionary, 2010)(emphasis added). Some refer to three breeds as Pit Bulls - the American Pit Bull Terrier, the American Staffordshire Terrier, and the Staffordshire Bull Terrier (Nelson, 2005). Since there is no clear definition of Pit Bull, some argue that BSL is too vague to sufficiently inform dog owners and those enforcing the laws whether a dog falls under the law, especially if the dog was adopted or is a mixed breed (Campbell, 2009).
Court Decisions. Legislation regulating particular breeds of dogs has been upheld by some courts, and found unconstitutional by others. For example, in the case of American Dog Owners Association v. Dade County, 728 F. Supp. 1533 (S.D. Fla., 1989), a Florida ordinance restricting the ownership of pit bulls was challenged. The plaintiffs argued that the ordinance violated the Constitution because it was vague and would take away people’s property without due process (ADOA v. Dade County, 1989). However, the court disagreed and ruled in favor of the County, stating that the ordinance gave sufficient guidance to dog owners (ADOA v. Dade County, 1989).
There have also been court cases where laws have been defeated by use of this same constitutional argument. In American Dog Owner’s Association v. Lynn, 533 N.E. 2d 642, 646 (Mass. 1989), a Massachusetts ordinance was found to be unconstitutionally vague: “If identification by breed name does not provide sufficient ascertainable standards for enforcement, then the ‘definition’ of “Pit Bull” in the … ordinance, which is devoid of any reference to a particular breed, but relies instead on the even less clear “common understanding and usage” of the term “Pit Bull”, is not sufficiently definite to meet due process requirements” (ADOA v. Lynn, 1989).
Alternatives to Breed Specific Legislation
There are numerous individuals and organizations in disagreement with BSL, who consider it to be inappropriate and ineffective. They have suggested alternatives to BSL, which include, among others, behavior based legislation, sanctions, use of media, community outreach and education, and stricter licensing requirements, among others (AVMA, 2001). An example of a dog bite statute that targets undesirable behavior rather than specific breeds is in Michigan, where they have created a near “absolute liability” - no knowledge of dangerous tendencies is necessary on the part of the owner for liability (Weiss, 2001).
In Cleveland, a breed specific law that initially banned Akitas, Rottweilers, Chows, Wolf hybrids, and Pit Bulls, was rejected in favor of enforcing generic “dangerous dog laws” and starting an educational program (Weiss, 2001). The cost of BSL can also be prohibitive, as seen in Cincinnati, Ohio, where they overturned a ban on Pit Bulls after the cost of enforcement dramatically increased (Weiss, 2001).
The overwhelming agreement among BSL opponents is that alternative measures should be taken to regulate the misconduct of dogs and their owners, rather than penalizing a breed in the absence of misconduct. There are also a number of precautions that owners can take, for example placing signs on their property informing the public of the presence of their dog, keeping dogs secure whether inside or outside, muzzling their dogs, purchasing liability insurance, and upon transfer of ownership of a dog informing the new owner of any previous dangerous behavior (Weiss, 2001).
Jurisdictions across the country are currently falling on both sides of the BSL debate. This hot topic is not likely to go away anytime soon, and will likely need to be resolved by the US Supreme Court.
American Dog Owners Association (ADOA)(2010). http://www.adoa.org/legislation.html
American Dog Owners Association (ADOA) v. Dade County, 728 F. Supp. 1533 (S.D. Fla., 1989).
American Dog Owner’s Association (ADOA) v. Lynn, 533 N.E. 2d 642, 646 (Mass. 1989).
American Kennel Club (AKC), American Kennel Club Statement on Dangerous Dogs (2010). http://www.akc.org/love/dip/legislat/dangerous.cfm
Endangered Breeds Association (EBA)(2010). http://www.angelfire.com/la/breeds
American Society for the Prevention of Cruelty to Animals (ASPCA), US Pet Ownership Statistics (2009). www.aspca.org/about-us/faq/pet-statistics.html
American Veterinary Medical Association (AVMA)(2001). A community approach to dog bite prevention. Journal of the American Veterinary Medical Association, 218, 11.
Beaver, B. V. (1999). Canine Behavior: a guide for veterinarians. Philadelphia: WB Saunders Co.
Campbell, D. (2009). Pit Bull Bans: The State of Breed–Specific Legislation. GP-Solo, American Bar Association, 26 (5). http://www.abanet.org/genpractice/magazine/2009/jul_aug/pitbull.html
Campbell, W. (1975). Behavior Problems in Dogs (p. 88). Goleta, CA: American Veterinary Publications, Inc.
Colorado Dog Fanciers, Inc. v. City and County of Denver, No. 89CV12348 at Para. 28 (Denver Dist. Ct., June 28, 1990)(Rothenberg, J.).
Cornell University Law School (2010). Bill of Rights. http://www.law.cornell.edu/constitution/constitution.billofrights.html#amendmentv
DENVER, COLORADO, REV. MUNI. CODE SECTION 8-55(a)(2001).
Merriam-Webster Dictionary (2010). http://www.merriamwebster.com/dictionary/pit+bull
Clifton, M. (2006). Dog attack deaths and maimings, U.S. & Canada, September 1982 to November 13, 2006. Animal People. www.dogbitelaw.com/Dog%20Attacks%201982%20to%202006%20Clifton.pdf
Mouchard, A. (2001). Good dogs, bad dogs: Recent canine attacks put the spotlight on so-called vicious breeds. The Orange County Register. http://www.ocregister.com/living/dog00212cci1.shtml.
Nelson, K. A. (2005). One city’s experience: Why pit bulls are more dangerous and breed-specific legislation is justified. Municipal Lawyer, 46, 6.
Overall, K. (1997). Clinical behavioral medicine for small animals. Mosby Year Book, Inc.
Quinlan K. P., Sacks, J. J. (1999). Hospitalizations for dog bite injuries. Journal of the American Medical Association, 281: 232-233.
Sacks, J. J., Kresnow, M., Houston, B. (1996). Dog bites: how big a problem? Injury Prevention, 2: 52-54.
Sacks, J. J., Sattin, R. W. & Bonzo, S. E. (1965). Dog Bite Related Fatalities from 1979 through 1988. Journal of the American Veterinary Medical Association, J.P. Scott & J.L. Fuller Genetics & the Social Behavior of the Dog. Chicago: University of Chicago Press.
Sacks, J. J., Sinclair, L., Golab, G. C., Lockwood, K. (2000). Breeds of dogs involved in fatal human attacks in the United States between 1979 and 1998. Journal of the American Veterinary Medical Association, 217, 6, 836-840. Doi: 10.2460/javma.2000.217.836.
Scott, J. P., Fuller, J. L. (1965). Genetics and the social behavior of the day. Chicago: University of Chicago Press.
Serpell, J., Jagoe, J. A. (1995). Early Experience and the Development of Behavior, in The Domestic Dog, Its Evolution, Behavior & Interactions with People. Boston, MA: Cambridge University Press.
Testimony of Dr. Peter L. Borchelt (2005). Denver v. Colorado, No. 04CV3756 (Denver Dist. Ct., April 7, 2005).
Voelker, R. (1997). Dog bites recognized as public health problem. Journal of the American Medical Association, 277: 278, 280.
Voith, V. L., Borchelt, P. (1996). Readings in Companion Animal Behavior. Trenton, NJ: Veterinary Learning Systems, 226-235.
Weiss, H. B., Friedman, D., Coben, J. H. (1998). Incidence of dog bite injuries treated in emergency departments. Journal of the American Medical Association, 279: 51-53.
Weiss, L. (2001). Breed-Specific Legislation in the United States. Michigan State University College of Law, Animal Legal and Historical Web Center. http://www.animallaw.info/articles/aruslweiss2001.htm
Wise, J. K., Yang, J. J. (1998). Dog and Cat Ownership, 1991-1998. Journal of the American Medical Association, 204: 1166-67.
 As of the date of this article.
By Kim Courtney, Esq., Courtney Law (www.KimCourtneyLaw.com) and Canine Behavior Therapy(www.CanineBehaviorTherapy.com).
Copyright 2014 Kim Courtney