August 10, 2012
Pit Bull Profiling and the ABA
Posted by Christine Hurt

So, this post is sort of a stretch for me, and I need to make some disclaimers:  (1) I love dogs and am lovingly tolerant of cats; (2) I eat animals, though not dogs, and make use of animal by-products; (3) I prefer to eat animals that have been humanely raised and killed, but do not go to great lengths to do so; (4) I'm not particularly against gun control law, though I have always had guns in the house; and (5) I'm a poodle-person, not a pit bull-person.

So, the ABA House of Delegates has passed a resolution urging cities and states to pass dangerous dog laws that are breed neutral.  (Friend of the Glom Rebecca Huss is on the committee that wrote the report.)  OK, so let's get a sense of what a breed-discriminatory law looks like compared to a breed-neutral one.  (I will say that the report is a little light on breed-discriminatory cites and I could only find a few more, suggesting these laws may not be that prevalent.)

Illinois (breed-neutral) -- Counties must pass ordinances in line with Animal Control Act, which provides for a process to determine if a dog is a "vicious dog," which includes investigations, medical records, interviews, expert testimony, etc.  The burden is on the petitioner, and the standard is "clear and convincing evidence."  If a dog is deemed a vicious dog, the owner must pay a fine, the dog must be spayed and microchipped, and the dog must be fenced.  if not, the dog will be impounded.  If the impoundment isn't appealed, then the dog is euthanized.  Sounds like sufficient (some might say "due" process).

Prince Georges County, MD (breed-discriminatory) -- prohibits the ownership or keeping of Staffordshire Bull Terriers, American Staffordshire Bull Terriers, American Pit Bull Terriers, or "dogs which have the appearance of being predominantly of the breed of" those listed breeds.  (The county also prohibits wild animals, poisonous snakes and reptiles, hogs, skunks, raccoons, possum, foxes, bears, wolves and any member of the cat family besides the domesticated cat.)  Dogs that meet that definition are impounded, and then you know what happens then.

So, the ABA report argues that laws like the Prince George's County ordinance are bad for a number of reasons, which seem to fall into two categories:  the law is stupid and the law is unfair.

Bad Idea Jeans Law -- According to the ABA report, a study found that the PGC lawmakers must have ahd on their "bad idea jeans" because the no pit bull law has been extraordinarily expensive for PGC.  And, if this was a nationwide law, it would cost hundreds of millions of dollars to impound and euthanize every dog "which has the appearance of" a pit bull.  Perhaps 7% of the nation's dogs would fit this definition.  And, if the goal is to prevent dog attacks/dog bites, this doesn't seem to be the best way to do this.  This may be a variation of the "stop and frisk" argument.  If you have to stop and kennel every dog that looks like a pit bull, this takes resources away from the problem.  And, unfairly targets innocent dogs, which brings us to. . . .

Unfair -- vague.  What does "have the appearnce of a pit bull terrier" mean?  I vaguely remember something from first-year con law on "void for vagueness."  Of course, this has to be unfair to the owner, not the dog.  Dogs are property.  I saw this repeatedly and make my Torts students say it out loud.  I knwo that bar examiners (and Torts exam writers) like to make you forget that dogs are property for purposes of Torts, but the law treats them as property.  Any duties we owe to dogs are derivative of the duty we owe their owners.  Which brings us to. . . .

Unfair -- due process.  So, this argument is that before the State deprives someone of their property, the State must afford some sort of "process."  The Illinois state law requires a lot of process before declaring a dog to be "vicious."  The PGC ordinance just says that all pit bull-like dogs are prohibited, assuming that they are all vicious or dangerous.  So, I'm on board with saying that before the State takes a dog I own and destroys it, I need to be afforded process.  But I'm not sure about dogs I don't own yet.  The PGC grandfathers in already-owned pit bull-like dogs, though there is some fencing, spaying sorts of requirements.  Otherwise, it just prohibits them, like other sorts of property, including poisonous snakes, foxes, raccoons, hogs, etc.  Each individual fox may not be dangerous, but they are all prohibited.  I think I'm ok with that.  I'm not sure how I feel about people who move to PGC with previously-owned pit bulls though.  There, my thinking gets a little clouded.  I imagine a pit bull rescue center on the county line, with foxes and chickens and other things.  But lastly. . . .

Unfair -- generally (not law-based).  This argument is pit bulls are not solely responsible for all dog attacks, and studies are conflicted as to whether they are responsible for more than their fair share.  Pit bull owners definitely think that these dogs have gotten a bum rap and so owners who wish to have them should be allowed to have them.  I would put this argument in the same pile as residents who want to have chickens or clotheslines.  There are a lot of good reasons to have backyard chickens and clotheslines, so I would urge folks in a community to allow residents to do that.  But, I'm not sure I have a moral right to these things or even a moral right to be able to keep a certain kind of dog within city limits.  (that doesn't sound very American, though.)

Finally, what's sort of interesting to me is that the base of the argument is that "pit bulls don't attack people; bad pit bull owners negligently let  pit bulls attack people."  Pit bulls aren't inherently vicious; bad owners mistreat/don't train pit bulls, who then may become vicious.  This is sort of like guns, right?  Except guns can't get free and round around. 

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