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Published on Sunday, 20 March 2011 20:08

Written by Super User

Most Case Law Across the US Supports Breed Specific Legislation

The case law on Breed Specific Legislation is abysmal.  The courts have almost uniformly upheld Breed Specific Leglislation as a legitimate use of the government's police power, despite the murky factual basis underlying it. There are two recent cases, however, that may be helpful in trying to reverse this trend. The Dias and Smith case, both decided in the last two years may give BSL advocates some favorable precedent.  They are discussed below.

For the most current listing of states that have or are considering Breed Specific Legislatoin, click here.

The original basis for Breed Specific Legislation appears to be a study published in the Journal of the American Veterinary Medical Association in September of 2000 entitled "Breeds of Dog Involved in Fatal Human Attacks in the United States Between 1979 and 1998.  There has been a lot of publicity about the article, but even the authors admitted that they were unable "(t)o make science based recommendations for decreasing the number of dog bites."

CASES RULING BREED SPECIFIC LEGISLATION UNCONSTITUTIONAL

Caselaw

American Dog Owners v. City of Lynn, 533 NE2d 642 (Sup. Jud. Ct. Mass. 1989) - Held that the definition of Pit Bull was unconstitutionally vague.

Zuniga v. San Mateo Department of Health Services, 267 Cal. Rptr 755 (Cal. App. 1st Dist. Div. 1 1990) - Formed the foundation for the decision in Huntsville v. Tack, below.  The Court found that pit bull puppies born to a dog while it was impounded, were not dangerous animals, since there was no record evidence, other than breed, assumptions made about their mother, and aggressive caged behavior.  Since there was no evidence that puppies born of a mother rasied to fight were more likely to be aggressive the court found there could be no threat to the public safety. The court thus ruled that the puppies should be released to the owner.

American Dog Owners v. City of Des Moines, 469 NW2nd 416 (S.Ct. Iowa 1991) - Held only those portions of the pit bull ban relating to mixed breeds unconstitutional due to vaguenss concerns.

Carter v. Metro North Associates, 255 A. D. 2d 251 (S.Ct. App. Div. 1998) - The case does not involve breed specific legislation, but the liability of a landlord civilly for injuries sustained by a pit bull attack on a tenant.  The court ruled that it was improper for the trial court to take judicial notice of the vicious nature of the breed, therby imputing such knowledge to the landlord. It does contain an analysis of the conflicting data on the viciousness of pitbulls as it existed in 1998.

City of Huntsville v. Tack, 843 So2d 168 (S.Ct. Alabama 2002) - Not much can be found regarding this ruling.  The reported court decision simply affirmed the lower court, with a dissent arguing that Tack did not have the right to intervene. The lower court notes of the ruling are here, and an amicus curiae brief can be seen here. What can be gleaned from these documents is that the lower court ruled that four pit bulls puppies born at the shelter could be adopted out to Tack and three others, because they were not deemed vicious by the court. Although the puppies parents had been seized in a dog fighting case, there was no evidence in the record other than the fact that they were pit bulls, that they were vicious.

I am including Tellings here, because the lower court opinion (Tellings I) was well reasoned and the dissent in Tellings II was as well.

Toledo v. Tellings, 2006 WL 513946 (Ohio App. 6th Dist. 2006) - A copy of Appellant's brief against breed specific legislation can be read here.

Tellings v. Toledo, 871 NE.2d 1152 (Ohio 2007) - Reversed the lower appellate court which had found Breed Specific Legislation agains pit bulls unconstitutional.

American Canine Foundation v. City of Aurora, 2008 WL 2229943 (D. Colo 2008) - Held that the City of Aurora had not provided a rational basis in it's Motion for Summary Judgment to support a pit bull ban. However, it was a short lived victory as the City supplemented it's Motion for Summary Judgement to include the reasons for the ban and the Court then granted summary judgement, 618 F. Supp. 2nd 1271.

Dias v. The City and County of Denver, 567 F.3d 1169 (Tenth Cir. Ct. App. 2009) - Allowed Plaintiff's 1983 claim to proceed (denied government's motion for summary judgment) based on a lack of evidence that pit bulls as a breed constituted a public nuisance.  Also implied that if ownership of a dog is a fundamental right, that government infringement must be narrowly tailored to  serve a compelling government interest. The complaint can be read here.

State of Ohio/City of Toledo v. Smith, 2010 WL 231681 (Ohio Mun. 2010) - Holds Toledo Municipal Ordinance conflicts with State law and therefore unconstitutional, and definition of pit bull unconstitutionally vague.

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