«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 ...»
The amount of money received in pit bull licensing and registration, and the bond paid upon impounding the dog, is supposed to cover the costs associated with management of dogs in the county.108 However, in 2001 the county received only $15,561 from pit bull registration but spent $235,824 in the enforcement of BSL.109 Prince George’s County also cited extra loss of income associated with dog ownership, such as income to veterinarians and pet supply stores.110 The benefits of BSL are not enough to outweigh the costs. Many respected animal advocates assert that pit bulls are the dog of choice for criminals such as drug dealers and pimps.111 People for the Ethical Treatment of Animals (PETA) is of the opinion that laws that mandate bans, euthanization, or sterilization of pit bulls will eliminate the number of pit bulls that are trained as weapons.112 Even if a pit bull is not trained to be an aggressive dog, they are stronger than many other breeds. A spokesperson for PETA rightfully relayed this concern: “[A]n unpredictable Chihuahua is one thing, an unpredictable [pit bull] another.”113 Though this is true, BSL is a quick and expensive pseudo-solution that does not get to the root of the problem, especially when there are many other large breeds that are not 108 Id.
110 VICIOUS ANIMAL TASKFORCE REPORT, supra note 64, at 3.
111 Ingrid Newkirk, Controlling an Animal as a Deadly Weapon, DOG BITE LAW, http://dogbitelaw.com/breed-specific-laws/arguments-for-and-against-breed-specific-laws.html (last visited Jan. 8, 2013).
widely targeted by BSL. Overall, the costs of BSL are too high and the laws too ineffective and inefficient to stop the dog bite problem in the United States.
B. Dangerous Dog Laws In theory, dogs classified by the county or state should have actually demonstrated aggressive and dangerous behaviors pursuant to the statute, but this is not always the case.114 For example, though a dog may be guilty of running at large, but not of displaying dangerous behavior, with enough complaints it could be deemed dangerous by the county or state.115 This is because the launch of an investigation into a potentially dangerous dog usually relies on complaints from members of the public or bite victims.116 It is also often difficult to appeal once a dog has been classified as dangerous.117 This appeal process can be costly and lengthy, requiring animal control officers or humane law enforcement officers to question multiple witnesses and impound the potentially dangerous dog for a long period of time.118 Once a dog has been declared dangerous, the owner may be required to obtain insurance for up to $100,000 to cover their dog’s potential bite victims.119 The owner’s homeowner’s insurance may also increase or be cancelled completely.120 The length of the declaring process is a problem in itself as it can give more time for an aggressive dog to continue its aggressive behavior as the “diagnosis [of dominance aggression] cannot be made on the basis of a onetime event.”121 If an owner has an aggressive dog that has not actually bitten someone, it could take many complaints by neighbors and visits by the local animal law enforcement before the city can start the process to declare the dog dangerous.122 This can leave ample time for a dog to actually attack someone before the owner is required to restrict the dog’s behavior.
In addition, some states are attempting to change their culpability standards for dog owners from the traditional “one-bite” rule to a strict liaMcneely & Lindquist, supra note 15, at 116.
115 Id. at 129.
116 Hussain, supra note 12, at 2882.
117 Mcneely & Lindquist, supra note 15, at 124 (demonstrating the difficulty of the appeal process).
118 Id. at 115.
119 Id. at 116.
120 Id. at 115.
121 Id. at 106.
122 Cynthia A. Mcneely & Sarah A Lindquist, Dangerous Dog Laws: Failing to Give Man’s Best Friend a Fair Shake at Justice, 3 J. ANIMAL L. 99, 121–22 (2007). A case study in Florida demonstrated that it could take over two months to go through the administrative process to have a dog declared “dangerous” leaving ample time for an attack to occur. Id.
2014] SHOULD WE BEWARE OF DOG OR BEWARE OF BREED? 479 bility rule for all dog owners regardless of whether the dog has bitten someone in the past.123 By owning a dog that is frequently “running at large,” or that has been declared “potentially dangerous” or “dangerous,” an owner is put on notice of their liability, and comparative negligence cannot be used as a defense to any resulting dog bite.124 In this situation, the owner would be strictly liable for all damages if his dog attacks someone even if the dog’s only past crime was running loose in the neighborhood and therefore was mistakenly deemed “dangerous.” Dangerous Dog Laws are often hard to enforce due to the lack of uniformity with animal control databases.125 An owner may have had a dog declared “dangerous” in the past and have been deemed unfit to own a dog, but if the owner moves to a new city, with a different system of tracking, then the owner could merely obtain a new dog and the same dog behavior could begin again.
There are many similar costs to society with Dangerous Dog Laws as there are with BSL. The process of declaring a dog as “dangerous” may take a long time—time in which cost continues to grow.126 In addition, government fees are associated with the appeal process, whether it be in front of a board, city manager, or a panel of experts.127 In one case, the process of declaring a woman’s show dogs as “dangerous” took over two months and required a number of administrative hearings and visits to the owner’s property by animal control officers.128 Other costs include the normal operations of animal control divisions or humane law enforcement divisions such as euthanasia costs, impounding costs, and the cost of defending appeals from owners whose dogs have been impounded.129 Despite the drawbacks of Dangerous Dog Laws to society, especially through the administrative appeal process, they are still far less problematic than BSL. Dangerous Dog Laws do not discriminate against specific types or breeds of dogs and focus instead on owner behavior, making the owner culpable for the dog’s behavior. Because owner behavior is 123 Cynthia Hodges, Table of Dog Bite Strict Liability Statutes, ANIMAL LEGAL AND HISTORICAL CTR. (2012), http://animallaw.info/articles/State%20Tables/tbusdogbite.htm (last visted Nov. 16, 2012).
Georgia, New York, North Carolina, Tennessee, and West Virginia all have laws that make an owner of a previously declared “dangerous” or “vicious” dog strictly liable. Id.
124 Id. In some states, “provocation” by the victim is the only defense available to owners residing under strict liability laws. Id.
125 Safia Gray Hussain, Attacking the Dog Bite Epidemic: Why Breed Specific Legislation Won’t Solve the Dangerous Dog Dilemma, 74 FORDHAM L. REV. 2847, 2875 (2006).
126 Mcneely & Lindquist, supra note 15, at 118 (describing the type of fees that were associated with one case in which an owner appealed its dog’s classification as “dangerous”).
127 Id. at 115 (explaining the lack of uniformity between the types of panels that declare dogs as “dangerous” or “potentially dangerous”; in one panel in Florida, there is a minister to address “spiritual matters”).
128 Id. at 122–25.
129 See supra notes 106–07 and accompanying text.
something that can be punished and regulated by the community, it is far more logical to make an owner responsible for their dog than make a dog’s breed responsible for the dog’s behavior.
III. BREED SPECIFIC LEGISLATION OR DANGEROUS DOG LAWS: AN
ANALYSIS OF THE SOLUTIONA. Breed Specific Legislation: Not the Solution Enacting BSL and enforcing the removal of an entire breed of dogs from a given locality are far more costly than Dangerous Dog Laws as it does not get to the root of the dog bite problem and ultimately the majority of dog bite problems will still exist.
The biggest argument against BSL is the monetary cost to the community. As shown by the Prince George’s County Task Force report, the maintenance of just a single dog throughout the process of impounding, appeal, and eventual euthanasia costs $68,000.130 Other costs directly attributed to BSL that are not attributed to Dangerous Dog Laws are the false sense of safety that the public is lulled into.131 Similar to the problem with the lack of tort recovery with BSL, the blame is placed on the dog breed itself and not the owner. If the owner does not have to take responsibility for their dog, they can blame any dog bites on the breed and not their own negligence. The government then must bear the costs of the owner’s lack of culpability—by taking the dog and eventually destroying it.
Unlike the community costs associated with BSL, the costs associated with Dangerous Dog Laws rest predominately on the dog owner. With Dangerous Dog Laws, the owner is fined and must go through several costly processes to continue ownership of their dog; however, these costs are placed on the owner and not the state. Though greater enforcement of Dangerous Dog Laws may require more funds for stricter enforcement of licensing and cruelty violations, as indicated by the Prince George’s report, the violation fines should balance out the enforcement costs.132 Under BSL, even if an owner takes his dog to obedience class, always properly restrains his dog pursuant to the local leash laws, and the dog happens to be a pit bull, or look like one, an animal control officer can seize the dog and ask the owner to relocate the animal to outside the jurisdiction of 130 Memorandum from the Office of Audits and Investigations, Prince County, Md. to Assoc. Dir.
of Animal Mgmt. Div., Prince County, Md. (Mar. 5, 2003) (on file with author).
131 Hussain, supra note 12, at 2872.
132 Memorandum from the Office of Audits and Investigations to Assoc. Dir. of Animal Mgmt.
the BSL.133 This absolute enforcement of breed discrimination disincentivizes responsible ownership. In a BSL community, the potentially responsible pit bull owner has no incentive to train the dog, as the dog will be targeted and restricted—and possibly euthanized—regardless of behavior. Likewise, a beagle owner, in a BSL community where pit bulls are targeted, has no incentive to train his dog, as the community is so worried about pit bulls that the beagle can become aggressive and misbehave without the same consequences as a targeted breed. Dangerous Dog Laws, on the other hand, are far less likely to punish compliant and responsible dog owners. If a pit bull owner neglects to train and properly restrain his dog pursuant to the local leash laws, and that pit bull bites someone, then that owner is held responsible, fined, and, if necessary, the dog is euthanized. The same situation would happen if the guilty dog were a beagle.
Regardless of breed, the dogs and owners would go through the same process, and the dogs past behavior would be evaluated along with the owner’s past behavior.
BSL also gives insurance companies the opportunity to discriminate against the owners of certain dogs. As homeowner’s insurance is essential to obtaining a mortgage, which is usually essential to buying a home, BSL can stop people from buying homes in the community. This can have disastrous effects on the community,134 especially if rental properties can also discriminate against certain breeds.135 With Dangerous Dog Laws, owners of dogs that have been declared “dangerous” due to past behavior may also find themselves limited in their housing options.136 However, the possibility of losing homeowner’s insurance, or the possibility of needing greater liability insurance, only acts as further incentive for dog owners to be responsible owners by training, socializing, and sterilizing their dog.
The most concerning consequence of BSL, a consequence practically nonexistent with Dangerous Dog Laws, is the dog owner’s fear that their dog will be the next one legislated against.137 The Doberman pinscher used to be considered one of the most dangerous dog breeds in America; similarly, the Presa Canario breed was almost unheard of when two of them fatally
133 See VICIOUS ANIMAL TASKFORCE REPORT, supra note 64, at 3; SHERWOOD, ARK., ORDINANCE
No. 1776 § 5B (2008), available at http://www.animallaw.info/local/lousarsherwoodbsl.htm (“Residents who are unaware of the Prohibited breed ban and house an animal within the corporate limits of the City of Sherwood are advised of the ordinance. If the resident has a secure location to confine their pet, a written warning is issued giving them a fifteen (15) day grace period to allow time to relocate the animal outside of the city limits.”).
134 See Cunningham, supra note 6, at 57.
135 Id. at 2 n.2. See also HABITAT FOR HUMANITY—N.Y.C., supra note 96, at 1–5 (describing the benefits brought to the community by an increase in home ownership).
136 McNeely & Lindquist, supra note 15, at 115–16.
137 Why Breed Specific Legislation Doesn’t Work, THE HUMANE SOC’Y OF THE U.S. (Jan. 9, 2013), http://www.humanesociety.org/issues/breed-specific-legislation/fact_sheets/breed-specific-legislationflaws.html.
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attacked a woman in California.138 Now legislatures have begun adding Presa Canarios to existing BSL that had already banned pit bulls, and in some cases, Doberman pinschers.139 However, any dog can be trained, neglected, or abused to create an aggressive animal. Recently, in Houston, Texas, police reported a German shepherd escaped a fenced enclosure and attacked a ten-year-old child as she walked to her mailbox.140 In May 2012, in Culpepper, Virginia, a Jack Russell terrier was left alone with an infant, bit off the baby’s ear, and delivered thirty more bites to the baby’s body before it was discovered and restrained.141 If an irresponsible dog owner wants to create a vicious dog, the dog breed does not matter. Therefore, if a community rids itself of a so-called vicious dog breed such as the pit bull, there is sure to be another breed that will soon top the list as the most aggressive and dangerous dog in the United States.