REGULATING DANGEROUS DOGS TO BAN OR NOT TO BAN? John D. Joye, Esq. Senior Assistant City Attorney City of Charlotte – City Attorney’s Office International Municipal Lawyers Association 2008 Annual Conference

Headlines Pit Bulls maul, kill boy in father’s back yard Pit Bulls maul, kill boy in father’s back yard Charlotte Observer Father’s Pit Bulls maul Charlotte Boy to death Father’s Pit Bulls maul Charlotte Boy to death Los Angeles Times NC Boy killed by Father’s Pit Bulls NC Boy killed by Father’s Pit Bulls AP 4 Pitbulls kill Boy, 8 4 Pitbulls kill Boy, 8 Sunday Mirror, London, England Boy, 8, killed by dad’s dogs Boy, 8, killed by dad’s dogs Sunday Mercury, Birmingham, England

Can cities regulate dogs? YES Dogs = Property No Fundamental Right Sentell v. New Orleans 1897 Nicchia v. New York 1920 Altman v. High Point 2003 New York City Friends of Ferrets v. City of New York 1995

How will you regulate? To Ban? Breed Specific Legislation “BSL” Not to Ban? Dog Specific Legislation “ Non – BSL ”

Breed Specific Ban Does your state allow it? Ohio does it. 11 states forbid it. California Colorado Florida Maine Minnesota New Jersey New York Oklahoma Pennsylvania Texas Virginia

HSUS Statement on Dangerous Dogs and Breed-Specific Legislation The Humane Society of the United States offers the following position regarding breed-specific policies. The HSUS opposes legislation aimed at eradicating or strictly regulating dogs based solely on their breed for a number of reasons. Breed Specific Legislation (BSL) is a common first approach that many communities take. Thankfully, once research is conducted most community leaders correctly realize that BSL won't solve the problems they face with dangerous dogs. There are over 4.5 million dog bites each year. This is an estimate as there is no central reporting agency for dog bites, thus breed and other information is not captured. Out of the millions of bites, about are fatal each year. While certainly tragic, it represents a very small number statistically and should not be considered as a basis for sweeping legislative action…. Full statement available at ur_pets/dangerous_dogs.html

BSL: Issues & Pitfalls Equal Protection – Over-breadth – Under-inclusive Takings – Fair & just compensation Due Process – Substantive – Procedural Vagueness No Fundamental Right Rational Relation Test

EQUAL PROTECTION “[I]f the classification has some reasonable basis, it does not offend the Constitution simply because the classification is not made with mathematical nicety or because the practice results in some inequality.” Dandridge v. Williams, (1970) “The legislature may select one phase of one field and apply a remedy there, neglecting others.” Williamson v. Lee Optical of Oklahoma, Inc., (1955)

TAKINGS “Even were it assumed that dogs are property in the fullest sense of the word, they would still be subject to the police power of the state, and might be destroyed or otherwise dealt with…” Sentell v. New Orleans & C. R. Co., (1897) Limited Geographic Area

DUE PROCESS VAGUENESS Name Physical Characteristics Hybrids PROCEDURAL Notice & Hearing Meaningful – prior to destruction Neutral fact-finder

Hard Questions / Hard Issues Which breeds to ban How do you define Ban vs. restrain Partial Ban + restrain Appeals / process Moving target Promote the breed Enforcement resources Humane Concerns

Fatalities v. Bites ANNUAL DOG BITES 4.7 Million 800,000 victims seek medical attention – Half are children 386,000 require ER treatment Kids 5-9 highest rate of injury D.B.R. FATALITY Apprx. 18 per year 2007 had apprx. 33 Dog-Bite-Related Fatalities -- United States, Breeds of dogs involved in fatal human attacks in the United States between 1979 and

Dog Specific “Totality of Circumstances” Dangerous means any animal whose behavior, temperament, size, or any combination thereof, when considered under the totality of the circumstances, including the nature of the surrounding area, constitutes a reasonable risk of injuring a human or animal or damaging personal or real property. Charlotte City Code §3-3

Controls to Consider Mechanisms Reporting Seizure Process Aggression training Multiple dogs Toolbox Restraints Insurance Fertility Destruction

Animal Care & Control Resources Staffing Budget Dogs per year Volunteers Adoption Rendering

Resources

Q & A