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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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BSL was in fact working or whether the county should return to the previously enforced Dangerous Dog Laws.66 The Task Force noted many initial reasons they opposed BSL. They indicated their worry that the current BSL punishes good dog owners, whereas law should hold the irresponsible dog owner responsible for dog attacks.67 The task force also found that BSL was hard to enforce and created a backlog of Animal Control Commission cases.68 Other counties have indicated that BSL banning certain dog breeds is just not working. Despite having an outright ban of pit bulls since 1989,69 for example, Denver, Colorado authorities estimate that there are still 4,500 pit bulls residing within the city limits.70 Also, in Miami–Dade County, Florida an outright ban of pit bulls has been in place since 2003,71 yet authorities estimate that there are still 50,000 pit bulls residing within the city limits.72 Many counties are beginning to realize that BSL is not a quick fix to the dog bite problems plaguing their citizens. In addition to the ineffectiveness of this type of legislation, counties are finding it far more costly than expected.

C. Dangerous Dog Laws

The ability of the state to regulate dog ownership began when dog owners attempted to recover for the loss of their dog when the dog was killed.73 The constitutionality of regulating dog ownership established, cities and counties began to impose regulations on the number of dogs a person can own and the acceptable behavior for those dogs.

The history of liability and legislation of dog bites began with the common law assertion that an owner was “under no obligation to guard against injuries which he has no reason to expect on account of some disposition of the individual animal different from the species generally, unless he has notice of such disposition.”74 The common law was more of a “oneVICIOUS ANIMAL TASKFORCE REPORT, supra note 64, at 1–2.

67 Id. at 3.

68 Id.

69 DENVER, COLO., CITY COUNCIL BILL NO. 434 (1989).

70 Medlin, supra note 10, at 1312.

71 MIAMI–DADE CNTY., FLA., CODE OF ORDINANCES § 5-17.6(b) (2003).

72 Medlin, supra note 10, at 1312.

73 Sentell v. New Orleans & Carrollton R.R., 166 U.S. 698, 702 (1897) (considering dogs as “properly falling within the police powers of the several states”).

74 Domm v. Hollenbeck, 102 N.E. 782, 783 (Ill. 1913) (“The owner or keeper of a domestic animal of a species not inclined to mischief, such as dogs, horses, and oxen, is not liable for any injury committed by it to the person of another, unless it be shown that the animal had a mischievous propensity to commit such an injury, and the owner had notice of it, or that the injury was attributable to some 2014] SHOULD WE BEWARE OF DOG OR BEWARE OF BREED? 473 bite rule” (instead of a strict liability rule), requiring the plaintiff to prove owner negligence in order to recover for injuries caused by a pet dog.75 By 1953, states like California had added sections to their civil code, making dog owners at least partially liable to injuries caused by their dogs “regardless of the former viciousness of the dog or the owner’s knowledge of such viciousness.”76 This has developed into today’s dangerous dog laws, which often vary from state to state and municipality to municipality.

Dangerous Dog Laws commonly contain four sections: (1) a definition of a "dangerous dog" or "vicious dog”; (2) a procedure for officially declaring a dog dangerous; (3) restrictions applicable to those dogs officially declared dangerous; and (4) penalties for violating the restrictions.77 For example, the District of Columbia has non-breed-specific dog laws that designate a dog as a “Dangerous Dog” or a “Potentially Dangerous Dog” based upon whether the animal causes either a serious injury to a person or domestic animal without provocation, or chases or menaces a person or domestic animal in an aggressive manner.78 Once a dog has been declared ”Dangerous” or “Potentially Dangerous,” based on the facts of the situation where the dog was acting in a vicious manner, the owner must comply with the regulations imposed by the city.79 These regulations include additional security or care requirements established by the governing office, mandatory spaying or neutering, microchipping, current vaccinations, additional annual fees, and posting a warning sign on the owner’s property alerting people that there is a dangerous dog on the premises.80 The penalties for noncompliance or repeat offenders include the destruction of the dog, a fine of up to $10,000, and imprisonment.81

II. COST–BENEFIT ANALYSIS OF BSL AND DDL

A. Breed Specific Legislation The cost of Breed Specific Legislation on the community is high. By singling out one breed as a problem, the message sent to residents is that wholesale removal of the breed deemed offensive will solve all of the dog bite problems, even if an outright ban has not been issued by the legislature.

other neglect on his part. If the owner of a vicious animal knows its character and disposition to commit injury to mankind he is liable for all injuries it may inflict.”).

75 Janis v. Graham, 946 N.E.2d 983, 987 (Ill. App. Ct. 2011).

76 CAL. CIV. CODE § 3342(a) (1953).

77 McNeely & Lindquist, supra note 15, at 112.

78 D.C. CODE § 8-1901 to -05 (1988).





79 Id.

80 Id. § 8-1904.

81 Id. § 8-1906.

89474 JOURNAL OF LAW, ECONOMICS & POLICY [VOL. 10:2

The consequences of this limited approach can be far-reaching. Because the term “pit bull” can describe a variety of terrier breed and breed mixes, it can be hard for owners to know whether their dog falls under the local BSL.82 Despite many companies offering DNA testing for dogs,83 these tests are not always accurate and only contain a limited number of dog breeds under which the tested dog can fall.84 This ambiguity can result in suits brought against the local government by the owners of restricted or banned breeds challenging the vagueness of the laws.85 Challenges to BSL have also included challenges to their constitutionality, citing violations to the owners’ Due Process and Equal Protection rights,86 and challenges to the reach of the government’s police power.87 When municipal or state laws are challenged, the administrative costs are high because these challenges clog up the court system and force the city or county to use funds to defend the city when these funds could be used toward stopping abusive and irresponsible dog ownership. Other negative costs can include a public outcry for a vigilante-style justice that only leads to a further need for enforcement,88 the creation of a black market for dogs that are labeled as dangerous or vicious by legislatures,89 and lowering the chance of recovery by dog bite victims.90 The inability of dog bite victims to receive compensation is particularly troubling as it undermines the legislature’s ability to compensate the community for dog bites. Without BSL, a dog owner has incentives to pay for proper dog training, to properly care for their dog, and to prevent it from 82 Swann, supra note 9, at 840–41.

83 WISDOM PANEL: CANINE GENETIC ANALYSIS, http://www.wisdompanel.com/ (last visited Nov.

14, 2012); HAPPY DOG DNA, http://www.happydogdna.com/ (last visited Nov. 14, 2012); Animal DNA Testing, DDC VETERINARY, http://www.vetdnacenter.com/canine.html (last visited Nov. 14, 2012).

84 Paula Szuchman, Beagle or Bichon, Can Drool Provide Insight?, WALL ST. JOURNAL (Sept. 18, 2009), http://online.wsj.com/article/SB10001424052970204518504574416810535466706.html.

85 See generally Devin Burstein, Breed Specific Legislation: Unfair Prejudice & Ineffective Policy, 10 ANIMAL L. 313, 318 (2004) (explaining that these cases generally challenge the constitutionality of Breed Specific Legislation alleging vagueness and violations of due process); see also State v. Peters, 534 So. 2d 760, 762 (Fla. Dist. Ct. App. 1988) (challenging a statute regulating pit bulls for vagueness).

86 Colo. Dog Fanciers, Inc. v. City & Cnty. of Denver, 820 P.2d 644, 647 (Colo. 1991) (holding that the ordinance did not violate the owner’s due process though the owner was not given a hearing prior to the impounding of his dog).

87 Vanater v. Village of South Point, 717 F. Supp 1236, 1242 (S.D. Ohio 1989) (holding that though dogs are individual property, they are still subject to the police power of the state).

88 Tim Omarzu, ‘Kill a Pitbull Day’ Sparks Online Fire, TIMES FREE PRESS (Sept. 21, 2012), http://www.timesfreepress.com/news/2012/sep/21/kill-a-pitbull-day-sparks-online-firechattanooga/?local. Someone wrote a Facebook post declaring Halloween night as “Kill-a-Pitbull Night” instructing people to use “baseball bats, knives, bricks, poisons... hot dog soaked in radiator fluid.” 89 Jonathan R. Shulan, Animal Law-When Dogs Bite: A Fair, Effective, and Comprehensive Solution to the Contemporary Problem of Dog Attacks, 32 U. ARK. LITTLE ROCK L. REV. 259, 278 (2010).

90 Hilary M. Schwartzberg, Tort Law in Action and Dog Bite Liability: How the American Legal

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developing aggressive behavior toward others.91 These incentives can take the form of tort lawsuits, nuisance fines, or the impounding of the dog. In order for the incentives to work, the cost of the fine or lawsuit from a potential dog bite victim must be more than the cost of training and care for dog owners to be willing to train, sterilize, and properly care for their dog.92 However, because BSL places the blame on the breed of dog, and not the owner’s behavior, BSL disincentivizes positive owner behavior. As Heather Mizeur, representative of Montgomery County, Maryland, in the Maryland House of Delegates indicated, owner accountability is a problem with BSL, as “everyone should get the same legal protection whether they’re bitten by a Chihuahua, a Saint Bernard, or a pit bull.”93 Laws must be successful in targeting negligent owners, or dog attacks will not be curbed.

Another cost to society is the inability of certain breed owners to purchase a home.94 Homeowners’ insurance companies will often not write policies for owners of pit bulls, making getting a mortgage, and therefore buying a house, almost impossible.95 This leaves the law-abiding owners of banned breeds with few options other than giving up their beloved pet, living outside the limits of local BSL, or attempting to rent a home. Limiting homeownership may have adverse effects on a community with a BSL.

Homeownership has been shown to increase the community’s desirability.96 According to Habitat for Humanity, homeowners are more likely than renters to be politically active (especially in local politics), more likely to invest in solving local problems, more likely to improve the community’s appearance, and more likely to belong to local organizations.97 Renting a home can also prove difficult to owners of dogs deemed dangerous by BSL. Even if BSL does not exist in a particular community, because of the hype surrounding dogs like pit bulls, many apartment buildings have banned pit bulls and other breeds that are frequently targeted by BSL.98 Limiting tenants to non-pet owners can be costly to rental communities as well. In a survey of renters and landlords conducted by the FoundaId.

92 Id.

93 The Kojo Nnamdi Show: Pit Bulls in Maryland, WAMU RADIO (July 25, 2012), transcript available at http://thekojonnamdishow.org/shows/2012-07-25/pit-bulls-maryland/transcript.

94 Cunningham, supra note 6, at 3 (explaining his struggle with buying a home for him and his

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tion for Interdisciplinary Research and Education Promoting Animal Welfare (FIREPAW), researchers found that tenants with pets stayed an average of twenty-six months longer than renters without pets.99 The researchers also found that the vacancy rates for pet-friendly rentals were much lower than rentals that allowed no pets or significantly restricted them.100 An increase in BSL also increases the amount of money spent on impounding and euthanizing members of the banned breed. In cities where pit-bull-targeted BSL exists, or existed in the case of counties in Ohio,101 shelters see a high kill rate with pit bulls.102 In Franklin County, Ohio, 2,291 pit bulls were euthanized out of the 5,225 dogs total.103 Experts say that the high kill rate of pit bulls is attributed to the Ohio state law (now repealed) requiring pit bulls to be labeled as inherently vicious.104 Though this state law did not require counties to enact ordinances along the same lines as the State law, most county shelters still did.105 The cost of euthanasia alone is not the only cost associated with impounding a banned or “vicious” dog. Prince George’s County, Maryland, found that while they had BSL against pit bulls, it cost the county on average $235,824 to run the BSL program for an average of 829 pit bulls throughout the entire process of impounding, appeal, and possible euthanasia.106 The following chart shows the cost associated with the impounding and euthanasia of pit bulls in Prince George’s County.107 99 Pamela Carlisle-Frank et al., Companion Animal Renters and Pet-Friendly Housing in the U.S., FOUND. FOR INTERDISCIPLINARY RES. & EDUC. PROMOTING ANIMAL WELFARE 1, 10 (2005), http://www.firepaw.org/CompanionAnimalRentersPetFriendly.pdf.

100 Id. (finding the vacancy rates for rentals that did not allow pets was 14% whereas vacancy rates for pet-friendly housing was at only 10%).

101 Catherine Candisky, Ohio won’t Label Pit Bulls ‘Vicious’ but Bexley Still Can, THE COLUMBUS DISPATCH, (Feb. 9, 2012, 5:42 AM), http://www.dispatch.com/content/stories/local/2012/02/09/ohiowont-label-pit-bulls-vicious-but-city-still-can.html (repealing the labeling of pit bulls as “vicious” after BSL had existed for twenty-five years in the state of Ohio and enacting Dangerous Dog Laws; this ruling will not require local ordinances from repealing their specific rules on pit bulls).

102 Mary Beth Lane, Kill Rates Vary Widely at Ohio Dog Shelters, THE COLUMBUS DISPATCH, (Oct. 21, 2012, 9:02 AM), http://www.dispatch.com/content/stories/local/2012/10/21/kill-rates-varywidely-at-ohio-dog-shelters.html.

103 Id.

104 Id.

105 Id.

106 VICIOUS ANIMAL TASKFORCE REPORT, supra note 64, at Attachment F.

107 Id.

2014] SHOULD WE BEWARE OF DOG OR BEWARE OF BREED? 477

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