Practicality of BSL Laws

Practicality of Breed Specific Legislation by Diane Blackman



Background:

Most municipalities have long had laws regulating dogs that have a history of excessive aggression or viciousness. More recently however, some agencies have enacted ordinances designating certain breeds as dangerous or vicious. These ordinances may regulate or prohibit certain breeds regardless of the temperament or behavior of the individual animal. This was written in response to the question as to whether it is appropriate to enact a breed specific ordinance.



Summary:

Breed specific legislation is probably not a practicable approach to regulation of dogs. Breed specific legislation is generally upheld only when it refers to named breeds of dogs and the standards set by recognized breed clubs. Proving that a particular dog falls within the ordinance usually requires expert testimony. Application of breed specific ordinances to mixed breed dogs presents both legal and practical difficulties. Whether even an expert can adequately identify a mixed breed dog is itself subject to controversy.

Regulation defining prohibited dog behavior is probably a more practicable approach than breed specific regulation. Such regulation is more likely to be supported. Properly drafted it has a stronger legal and evidentiary basis. Specificity aids enforcement and understanding of what is necessary to comply.



Discussion:

CONSTITUTIONALITY OF BREED SPECIFIC REGULATIONS

Dog owners often challenge the constitutionality of breed specific regulations. The challenge is a difficult one because in general the courts defer to lawmakers, upholding legislation when there is some rational connection to the promotion of public safety. Discrimination by breed of dog does not discriminate on the basis of a constitutionally protected class such as race, sex, religion etc. Discrimination, therefore, on the basis of breed of dog is constitutional if there is a rational basis for the classification and a reasonable relationship between the classification and the purpose of the law.

Opponents of breed specific ordinances vigorously deny the rationality of the classification, while proponents just as vigorously support it. In many cases, courts uphold breed specific regulations as constitutional. In some cases, all or parts of regulations have been struck down, primarily on the basis that the language identifying the breed is too vague.



A BREED SPECIFIC ORDINANCE IS NOT UNCONSTITUTIONALLY VAGUE IF IT GIVES FAIR NOTICE TO A PERSON OF ORDINARY INTELLIGENCE OF WHAT IS PROHIBITED.

An ordinance is unconstitutionally vague if it encourages arbitrary and erratic law enforcement. A law regulating conduct must give adequate notice of what is prohibited, so that a person knows what is prohibited and so as not to delegate basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis. Strict precision is not required. The language used, however, must be sufficiently clear that the person subject to its requirements does not have to guess at the meaning. A court will uphold the law if the meaning of the statute is clear to a person of ordinary intelligence.



COMMON NAMES ALONE DO NOT PROVIDE SUFFICIENT GUIDANCE TO ENFORCE BREED SPECIFIC ORDINANCES.

The breed most often named in breed specific legislation is commonly referred to as a "pit bull." I was not able to find any court that upheld legislation when that term was used alone. The problem with such ordinances is that they don't provide adequate notice of the prohibited conduct. There is no breed known simply as a "pit bull" and therefore no means by which a person could determine whether their dog is of the regulated breed. For the same reason, such an ordinance is too subjective to the individual whim of the enforcing officer.



BREED STANDARDS PROVIDE SUFFICIENT GUIDANCE TO ENFORCE ORDINANCES AGAINST PUREBRED, OR CLOSE TO PUREBRED DOGS.

Nationwide many courts uphold breed specific ordinances when the ordinance defines them by names recognized by national dog breed registry organizations such as the American Kennel Club or the United Kennel Club. The courts note that these organizations publish specific physical characteristics to guide enforcement. These standards provided a basis for examining the physical characteristics of the dog in question and comparing them with breed standards published by the two clubs. A few courts have upheld ordinances that define the breed in question to mean "any dog which exhibits those distinguishing characteristics" that "substantially conform to the standards" established either by the American Kennel Club or United Kennel Club. Other courts have struck such ordinances down as vague because of the difficulty for even experts to determine the breeding of mixed breed dogs.



A BREED SPECIFIC ORDINANCE DOES NOT VIOLATE EQUAL PROTECTION; IT IS NEITHER OVERINCLUSIVE NOR UNDERINCLUSIVE.

Whether a dog's temperament can fairly be predicted based upon its breed is a hotly debated issue. Owner's of the specified breeds will undoubtedly argue that a breed specific ordinance is overbroad because "it regulates all owners of dogs of all the named breeds ... despite substantial evidence that viciousness is not a specific breed characteristic." Opponents of breed specific legislation can easily obtain expert testimony as to the gentle, controllable, characteristics of properly bred and reared dogs of the regulated breed. Based on references in both case law and law review articles the statistical data in this area is highly subject to manipulation to support the desired viewpoint.

Even courts that have accepted the argument have not struck down the breed specific ordinance as overbroad. Courts do not require mathematical certainty in the application of ordinances, only that the ordinance be rationally related to a valid public purpose and that the classification further the objectives of the ordinance.

Proponents of breed specific legislation will point out that there is evidence to support their assertion that certain breeds are known for a unique combination of strength, agility, tolerance for pain, and aggressiveness. These breeds are often obtained for these qualities, and the qualities are enhanced by their rearing. They will point that, as a group, certain dogs have a higher incidence of aggression than others and selective treatment is appropriate regardless of whether the cause is nature or nurture. The courts generally accept this as a rational basis for breed specific legislation.

 

A BREED SPECIFIC ORDINANCE IS NOT UNCONSTITUTIONALLY UNDERINCLUSIVE.



Opponents of breed specific legislation will present evidence showing that viciousness can, and does, occur in any breed of dog. A law is not made unconstitutional simply because it does not cover all possible evils.

PRACTICABILITY OF BREED SPECIFIC REGULATIONS

A governmental entity legally may be able to single out one or more breeds of dog and impose different requirements on them. An important question, however, is whether this is a practicable endeavor.

NON-PUREBRED DOGS, OR THOSE SUBSTANTIALLY VARYING FROM BREED STANDARD MAY PRESENT AN EVIDENTIARY PROBLEM.

Even courts upholding breed specific ordinances note that there may be difficulty in proving that non-registered and or non-purebred dogs are of the defined breed. For example, boxers are often mistakenly identified as pit bulls even by supposed animal experts. A quick glance through a breed book will reveal how much one breed physically resembles another. For mixed breed dogs it may be impossible to determine the dogs actual heredity. In such cases, for example, a part boxer dog can easily be mistaken for a part pit bull. Most courts have placed the burden of proving that a dog is of the specified breed on the enforcing agency.



SELECTING SPECIFIC BREEDS FOR DIFFERENT TREATMENT MAY NOT ACCOMPLISH THE DESIRED GOALS.

Dog owner's will assert, and there is evidence to support, the contention that treating all pit bulls as dangerous has "no scientific or empirical basis" and that dangerousness is a function of "environment, training, and upbringing."

Indeed most court's agree that there is no scientific method for determining a dog's breed such as blood test, x-rays or scientific tests." Most court's rely on comparing the degree to which the dog meets the breed standards set by either the American Kennel Club or the United States Kennel Club.



Conclusion:

Breed specific legislation is not a practicable approach to regulation of dogs. Breed specific regulations may alleviate the anxieties of those who are particularly concerned about the reputation of particular dog breeds. Breed specific regulation is very controversial and difficult to administer. It requires training of enforcement personnel in the identification of those breeds and in distinguishing those breeds from others. It might not be possible to enforce such ordinances against mixed breed dogs that had only some of the physical characteristics of the named breed. Breed specific regulation is usually intended to avoid specific types of behavior believed to predominate in the breed. Whether aggression or other behaviors are so predictable in certain breeds as to justify separate treatment of the breed is a hotly debated topic.

Available statistical evidence is poor and, therefore, readily subject to manipulation to support the desired point of view. Opponents of breed specific legislation will point out that such regulation fails to adequately address the problem (aggressive dogs). They are also likely to argue that it treats unfairly owners of the specified breeds when the individual animal does not exhibit the feared characteristics. Proponents are likely to present statistical or testimonial evidence and argue that it supports treating certain breeds according to group characteristics even if it excludes individual dogs not exhibiting the undesirable behavior.

A more direct approach is to regulate the behavior. This has the advantage of wider acceptance and clearer standards resulting in easier administration. Legislation focusing on inappropriate and prohibited dog behavior is readily supportable legally, and creates fewer evidentiary problems. It also more directly addresses the concerns intended to be addressed by breed specific legislation.