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«JOURNAL OF LAW, ECONOMICS & POLICY VOLUME 10 SPRING 2014 NUMBER 2 EDITORIAL BOARD 2013-2014 Steve Dunn Editor-in-Chief Crystal Yi Meagan Dziura Sarah ...»

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This CDC report found that the majority of the dogs that attack humans are larger and more powerful breeds.21 From the years 1991–1996, pit bulls were responsible for fourteen attacks on humans, whereas Rottweilers were responsible for a total of twenty-three.22 While these statistics seem convincing, the results are problematic.23 The CDC reported that these results uncovered only approximately 74% of dog bite-related fatalities.24 Problems specifically concerning the interpretation of narrative studies concern the lack of narrative when publishing the numerical results. For example, a study using data collected from hospital emergency departments included the following accounts: a young girl bitten when she attempted to take away a dog’s food, a man bitten when trying to break up fighting dogs, and a woman bitten by her own dog after the dog had been hit by a car and had become disoriented.25 These stories illustrate the discrepancy between the numerical outcome and the actual situation.26 Furthermore, most of the studies do not distinguish between an aggressive attack, an unprovoked attack, a confused and scared bite, or an accidental nip.27 The result of this skewed reporting results in unreliable statistics, causing problems for advocates both for and against BSL.

–  –  –

In another narrative study, Lee E. Pinckney and Leslie A. Kennedy from the University of Texas Southwestern Medical School attempted to gather statistics solely using newspaper reports concerning dog attacks.28 They sent requests to major United States newspapers for all of published dog attack fatality stories between 1966 and 1980.29

–  –  –

The number of fatalities for the breeds listed in Table 2 between 1966 and 1980 totaled fifty-eight.30 German shepherds caused the most attacks with sixteen, whereas pit bulls (referred to as a “Bullterrier” in this study) caused only six.31 However, because this study relied solely on newspapers to respond to the researchers’ requests, the responses were limited, and only 48% of the newspapers responded.32 This means that these results are unreliable.

Another study—shown in Table 333—conducted by doctors at the CDC attempted to narrow the scope of the data to focus the results, but because the original set of data was flawed, the CDC’s data is also suspect.34 First, they selected dog bite cases from incidents reported to Denver Municipal Animal Shelter (the Denver animal control) in 1991.35 The results were 28 Lee E. Pinckney & Leslie A. Kennedy, Traumatic Deaths From Dog Attacks in the United States, 69 PEDIATRICS 193, 193 (1982).

29 Id.

30 Id. at 194.

31 Id.

32 Id. at 193.

33 Kenneth A. Gershman et. al., Which Dogs Bite? A Case-Control Study of Risk Factors, 93 PEDIATRICS 913, 914 (1991).

34 Id. at 913.

35 Id.

–  –  –

In these initial findings, the animal control reported far more German Shepherds and Chow Chows biting humans than any other dog breed, with thirty-four and thirty-one dogs respectively.37 Pit bulls are not listed in this study because pit bulls had officially been banned in the City of Denver since August of 1989.38 Despite the pit bull ban being in effect for two years, there were still a total of 160 bites requiring medical attention.39 The researchers then broke the statistics down further by asking more specific questions about the situation surrounding the dog bite, such as the age of the dog and whether the dog had been chained in the yard, had been to obedience class, had been bought at a pet store, or had been taken in as a stray.40 Though this study is far more thorough than other studies of its kind, it still has limitations. The researchers found that only half of potentially suitable dog owners were reached by phone.41 Also, because the study was 36 Id.

37 Id. at 914.

38 Colo. Dog Fanciers, Inc. v. City & Cnty. of Denver, 820 P.2d 644, 646 (Colo. 1991).

39 Gershman, supra note 33, at 914.

40 Id. at 915.

41 Id. at 914.

2014] SHOULD WE BEWARE OF DOG OR BEWARE OF BREED? 469 limited to those victims who sought medical attention, the results are not representative of all bites.42 Pit bulls and pit bull breeds are obviously not accounted for because of the ban existing in Denver at the time; however, the breed may still have been represented in the “all other breeds” category.

Other results, such as the number of dogs that had been disciplined using “takedowns” or “string-ups,” may not be indicative of all of the dogs that had been disciplined with those harsh methods43 as the owners may have been hesitant to report disciplining their dogs in a manner similar to abuse.

Ultimately, the researchers concluded that, despite the multiple factors they asked dog owners about, their study required further analysis, such as determination of each dog’s breed and an analysis of the victim’s behavior in each bite situation.44 The most important result that the researchers say readers should take from the study is that owners “may be able to reduce the likelihood of owning a dog that will eventually bite” through owner behavior and breed selection based on owner lifestyle.45 Though experts in the dog industry have generally deemed statistics on attacks unreliable,46 there is still a public outcry for the banning or restriction of specific dog breeds.47 This can be attributed to the high publicity that dog attacks receive, especially when they are perpetrated by a controversial dog breed, and because of the astounding amount of dogs we share our lives with today.48 In 2011, it was estimated that there were 46.3 million American households that owned dogs; this amounts to 78.2 million dogs living as pets in the United States.49 As it is with any species living in extremely close quarters with another species, there can be conflicts.50 42 Id. at 915.





43 Marc Bekoff, Did Cesar Millan Have to Hang the Husky?, PSYCHOL. TODAY (Apr. 12, 2012), http://www.psychologytoday.com/blog/animal-emotions/201204/did-cesar-millan-have-hang-the-husky (explaining that many animal experts feel that techniques such as “string-ups” are overly harsh and unnecessary for disciplining even strong dog breeds).

44 Gershman, supra note 33, at 916.

45 Id. at 916.

46 See Phillips, supra note 27 (describing general problems with dog bite statistics); see also Cunningham, supra note 6, at 17–27 (discussing several different studies related to dog bites and the statistical limitations of each).

47 Swann, supra note 9, at 854.

48 Linda S. Weiss, Breed Specific Legislation in the United States, ANIMAL LEGAL & HIST. WEB CTR. (2001), http://www.animallaw.info/articles/aruslweiss2001.htm.

49 Breakdown of Pet Ownership in the United States According to the 2011–2012 APPA National AM. PET PROD. ASS’N, Pet Owners Survey, http://www.americanpetproducts.org/press_industrytrends.asp (last visited Sept. 21, 2012).

50 Ronald Bailey, North America's Most Dangerous Mammal: How Best to Deal with the Menace of Bambi, REASON (Nov. 21, 2011), http://reason.com/archives/2001/11/21/north-americas-mostdangerous. On average, there are 1.5 million deer/vehicle collisions annually, resulting in 29,000 human injuries and more than $1 billion in insurance claims in addition to the death toll. Id.; see also Boehm v. City of Philadelphia, 59 Pa. Super. 441, 444 (1915) (upholding an ordinance banning pigs from residing in the City of Philadelphia as it conflicted with the comfort and health of the community).

87470 JOURNAL OF LAW, ECONOMICS & POLICY [VOL. 10:2

The popularity of certain dog breeds also skews statistics. The Humane Society gives a good example of the problem with statistics based on breed: If there is a study citing five attacks by golden retrievers and ten attacks by pit bulls, it would appear that pit bulls are the more dangerous of the two dogs.51 However, if when looking at the total population of the two breeds the study shows that there are fifty golden retrievers and fivehundred pit bulls, then statistically speaking, pit bulls are the safer breed as the pit bull’s bite rate would be two percent to the golden retriever’s ten percent.52 Though these numbers are not based on a real study, the popularity of pit bulls compared to other dogs is in reality quite high53 and could account for skewed results and the seemingly higher incidents of pit bull attacks.

B. Breed Specific Legislation

Because of the millions of dogs living as pets in the United States,54 and the high publicity given to dog attacks on humans, legislators must decide how to best address this issue. The two most common ways legislatures address this problem is through Breed Specific Legislation or through Dangerous Dog Laws.

Breed Specific Legislation is a highly contested approach to solving the dog bite problem in the United States. There are several types of restrictions these laws can impose, including labeling certain breeds as “vicious,” mandatory sterilization, outright ownership bans, mandatory muzzling, or restraining only specific dog breeds.55 However, the commonality with this type of legislation is that it singles out certain dog breeds and attributes society’s dog bite problem to solely those breeds.56 A number of breeds have been targeted by restrictions, including Rottweilers, American Staffordshire Terriers (pit bulls), Chow Chows, German Shepherds, 51 Public Memorandum from Stephanie Shain, Dir. of Outreach for Companion Animals, The Humane Soc’y of the U. S. (Mar. 2003) (on file with author).

52 Id.

53 Weiss, supra note 48; Swann, supra note 9, at 851–52 (discussing the town of Tijeras, N.M.

where a number of attacks by pit bulls caused a public outcry which led to a breed ban, and how pre-ban 25% of the households in Tijeras owned a pit bull).

54 AM. PET PROD. ASS’N, supra note 49.

55 See, e.g., DES MOINES, IOWA, CODE OF ORDINANCES § 18-41(6)–(9) (2001) (defining as vicious, “Staffordshire terrier breed of dog; The American pit bull terrier breed of dog; The American Staffordshire terrier breed of dog; or Any dog which has the appearance and characteristics of being predominately of the breeds of Staffordshire terrier, American pit bull terrier, American Staffordshire terrier.”); MIAMI–DADE CNTY., FLA., CODE OF ORDINANCES § 5-17.6(b) (1992) (an outright ban of newly acquired pit bulls, under penalty of civil violation and “humane destruction” of the dog); SAN FRANCISCO, CA., HEALTH CODE § 43.1 (2005) (mandating the mandatory sterilization of all pit bulls).

56 Weiss, supra note 48.

2014] SHOULD WE BEWARE OF DOG OR BEWARE OF BREED? 471 Doberman Pinschers, and Akitas.57 This kind of BSL is not a new concept.

The first law of its kind targeting dogs was enacted in 1980 in Hollywood, Florida.58 Today, almost 650 cities in the United States have enacted some form of BSL, and ten states and the District of Columbia have upheld the constitutionality of statewide BSL.59 For example, in San Francisco, California, the law requires the mandatory spaying and neutering of pit bulls,60 and the city requires a permit to breed, sell, or transport pit bulls or pit bull puppies.61 Prince George’s County, Maryland, also has BSL that consists of an outright ban of ownership of pit bulls within the county limits.62 With the lack of information on dog bites and definitive data showing which breeds cause the most bites, why do legislators insist on passing laws discriminating against one specific type of breed? For the most part, it is due to misinterpretation of studies, such as the CDC’s two studies discussed above.

Cities and counties have spent millions of dollars attempting to enforce these laws, and many have failed.63 There are many cities that have discussed repealing, or have actually repealed, BSL after realizing the enforcement was too costly and that the banning of certain breeds was not effectively curbing dog bites.64 The Prince George’s County, Maryland pit bull ban has been in effect since 1996.65 However, in 2003 the county put together a Task Force to conduct a study to determine whether the current 57 MANHATTAN, KAN., CODE OF ORDINANCES § 6-25(c) (1987) (defining as inherently “dangerous,” American Pit Bull Terrier, American Staffordshire Terrier, Argentine Dogo, Cane Corso, Chow, Dogue de Bordeaux, Doberman Pinscher, Fila Brasileiro, German Shepherd, Perro de Presa Canario, Rottweiler, Staffordshire Bull Terrier”).

58 Weiss, supra note 48.

59 BSL State-by-State, DOGSBITE.ORG, http://www.dogsbite.org/legislating-dangerous-dogs-stateby-state.php (last visited Oct. 12, 2012).

60 S.F., CAL., HEALTH CODE § 43.1 (2008).

61 Id. at § 44.

62 PRINCE GEORGE’S CNTY., MD., MUN. CODE, § 3-185.01 (1997).

63 Sandy Miller, The High Cost of Breed Discriminatory Legislation, BEST FRIENDS NETWORK (May 29, 2009, 3:58 PM), http://network.bestfriends.org/11240/news.aspx.

64 VICIOUS ANIMAL TASKFORCE REPORT, PRINCE GEORGE’S CNTY., MD. DEP’T OF ENVTL. RES.

Attachment J (2003) [hereinafter VICIOUS ANIMAL TASKFORCE REPORT] (citing other jurisdictions that repealed BSL and have opted for “more responsible ownership” and “better enforcement of generic law”); see, e.g., Proposed Amendments to the Code of the City of Topeka, Kansas § 6.05.010:Before the (Sept. 28, 2010), council chamber of Topeka, KS available at http://www.topeka.org/pdfs/AnimalControlDraft.pdf (proposing to Topeka, Kansas that BSL is too costly and should be repealed); Justin Michaels, Pit Bulls Not Considered Vicious Under Cleveland NEWS CHANNEL 5 (June 6, 2011), Ordinance Change, http://www.newsnet5.com/dpp/news/local_news/cleveland_metro/pit-bulls-no-longer-consideredvicious-by-the-city-of-cleveland-after-ordinance-change (discussing the repeal of the mandatory labeling of pit bulls as “vicious” in Cleveland); Pit Bulls Freed From Muzzles, WIDBEY NEWS-TIMES (Nov.

6, 2009, 3:43 PM), http://www.whidbeynewstimes.com/news/69420532.html (discussing the repeal of the pit bull BSL in Widbey, Washington).

65 PRINCE GEORGE’S CNTY., MD., MUN. CODE, § 3-185.01 (1997).

88472 JOURNAL OF LAW, ECONOMICS & POLICY [VOL. 10:2



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