The Maryland General Assembly’s Task Force appointed to address Tracey v. Solesky are working on a bill, and the General Assembly may have the opportunity to vote on the bill during an upcoming special session this month. The bill is expected to impose liability on all dog owners, regardless of breed, but revert to the common law for landlords, imposing liability only if the landlord knows of the dog’s vicious propensities.
UPDATE (8/6/12): The American Bar Association’s House of Delegates just issued Resolution 100, promoting breed neutral legislation and proposing the elimination of breed bans and breed specific legislation.
The Maryland Animal Law Center will be hosting a public meeting on the fallout of the Solesky decision and what impact it has on pet care industry companies, rescues and owners. The meeting is this Sunday, May 6 from 2:00 to 4:00 at Coventry School for Dogs in Columbia, Maryland. This is a great opportunity to get up to speed on what impact the Solesky decision may have.
Tune in tonight at 8:00 PM on Pit Bulletin Legal News Radio for an in-depth discussion of the Solesky decision, and what impact it is having on rescues and insurance companies. If you can’t make it tonight, the show will be archived so you can listen to it later.
Bright line rules have their place. Society often benefits from clear, objective and unambiguous rules, when those rules produce even-handed and predictable results and have very little risk of creating harsh or unjust results. Take speed limits, voting ages, and Miranda warnings as examples.
But sometimes life is not black and white. Bright line rules are inappropriate and dangerous tools any time the issues turn on a variety circumstances and there is a risk of sweeping up innocent activity or individuals. Then a balancing test, or case-by-case analysis, is much more appropriate.
Today, the Court of Appeals of Maryland opted for a bright line rule in exactly the kind of case where a bright line rule is inappropriate. In Tracey v. Solesky, the Court ruled:
Upon a plaintiff’s sufficient proof that a dog involved in an attack is a pit bull or a pit bull cross, and that the owner, or other person(s) who has the right to control the pit bull’s presence on the subject premises (including a landlord who has a right to prohibit such dogs on leased premises) knows, or has reason to know, that the dog is a pit bull or cross-bred pit bull, that person is liable for the damages caused to a plaintiff who is attacked by the dog on or from the owner’s or lessor’s premises. In that case a plaintiff has established a prima facie case of negligence. When an attack involves pit bulls, it is no longer necessary to prove that the particular pit bull or pit bulls are dangerous.
Such a bright line rule – pit bulls are per se dangerous – is misguided. Don’t get me wrong. I in no way condone what happened in this case. The dog was left in a small pen, escaped, and attacked and seriously injured a child. The owner put the dog back in the same pen, and the dog escaped yet again, and mauled another child, causing life threatening injuries.
The dog’s breed is not the main issue in this case. The much larger issue is the fact that the owner was completely irresponsible.
There was no reason for the Court to make new law in this case. The defendant could have tried to invoke the “one free bite” rule. But, at best, the “one free bite” rule would only help him escape civil liability for money damages as to the first child. He was certainly on notice of the dog’s propensity when the second child was attacked. Additionally, the “one free bite” rule would not impede a dangerous dog proceeding, and a well-crafted dangerous dog statute can provide restitution to victims without the hassle of a civil law suit.
Maine is implementing a new law that requires a wildlife-in-captivity permit for wolf hybrids, and spaying or neutering for any current owners of hybrids.
It is legal to own a hybrid in Virginia, but Virginia Code Section 3.2-6582 allows localities to set up permitting systems to regulate such things as how many hybrids a person can own, identification by tags or tattoos, and the keeping and handling of hybrids.
Today’s Washington Post article quotes Jim Doughty, who runs a refuge with wolf hybrids, as saying that this law unfairly targets hybrids, and that:
Any animal, no matter whether it’s a pure wolf or a Chihuahua or a pug or anything else, depends on the person and how they raise it. It’s the same thing with your kids. If you’re abusive toward your kids, they’re not going to be so good. If you work with them, they’ll be great.
I disagree with Doughty. Although I am an avid critic of breed specific legislation, I see wolves and wolf hybrids in a very different light from pit bulls and other dog breeds. No good comes of spreading the rumor that dogs and wolves are one in the same. For many reasons – including for safety, and from a behavior and training perspective – the public needs to be made aware of the fact that dogs are not wolves – and wolves are not dogs.
The difference between wolves and dogs comes across very clearly in John Bradshaw’s excellent book Dog Sense. The following video clip from BBC’s Secret Life of Dogs shows nature winning out over nurture when scientists try to raise wolf cubs like puppies (starting at 2:53 in this clip):
What is your experience with hybrids? Are you for or against a permit system for the ownership of hybrids like Maine has just passed?
In keeping with Dog Bite Prevention Week, many interesting statistics have popped up in the media.
The U.S. Postal Service has released statistics for the number of dog bites to postal workers in 2010, broken out by city. Houston took the top spot with 62 attacks. Denver, with its long-standing pit bull ban, took the #8 spot, with 31 bites. The fact that Denver would rank so high despite its firm adherence to breed specific legislation is hardly a surprise to those who really understand dog bites. Research by the National Canine Research Council shows that dog bites do not occur due to breed. Rather, the most relevant factors are whether the dog is a “resident” dog (versus a primarily indoor “family” dog), whether the dog is intact, and whether the owner is responsible or properly supervised the dog.
First, Saginaw will add a leash law and prohibit tethering in most circumstances. Owners would be required to keep dogs on leash. Dogs could not be chained or tethered outside of the dogs’ “kennel, pen or fenced yard,” unless someone has physical control of a leash. An inanimate object such as a tree, post or building will not cut it. The requirement of physical control indicates that shock collars will not count in Saginaw. This is a great step – with the caveat that the law should be clarified to state that a dog cannot be chained or tethered even if the dog is on the owner’s property.
Second, all dogs would need to be securely confined indoors or in adequately lighted and ventilated kennels. If a dog is confined indoors, the dog would not be able to exit on the dog’s own volition. Presumably, that means no more doggie doors in Saginaw. And, thankfully, no more dogs left outside unattended.
Third, Saginaw residents would be limited to three dogs per household. This three-dog limit would not apply to animal care and control organizations, rescues, registered foster homes, and certain service dog and hunting dog breeders. Commercial breeders and brokers would be required to register with the City Clerk and obtain a business license.
Officials in Saginaw did not stop at overhauling Section 94.04. They are proposing a second ordinance targeting “dangerous dogs.” Unfortunately, this ordinance completely misses the mark and has virtually nothing to do with owner responsibility.
This ordinance will require the owners of “dangerous dogs” to register the dogs, and adhere to leash and confinement standards. The owners will also have to pay a $20 registration fee and obtain and display signs indicating the presence of a dangerous dog on their property. Failure to comply with the ordinance would result in civil fines.
The heart of problem is the proposed definition of a “dangerous dog” as any dog:
with a propensity, tendency, or disposition to attack, to cause injury or to otherwise endanger the safety of” people or companion animals; or
that attacks, attempts to attack or that, by its actions, gives indication that it is liable to attack a human being or other domestic animal one or more times without provocation; or
of a breed that appears consistently in the top five (5) of the breeds on credible, analytical listings of “Most Dangerous Dogs” as verified and supplemented by local data and records for Saginaw County, including mixes.
The simple truth is that focusing on breed will not decrease the number of dog bites. According to a comprehensive 2009 study by the National Canine Research Council, the three predominant factors with dog bites are whether the dog:
is a resident dog (kept primarily outdoors, used for guarding, protection, fighting or breeding, rather than a pet/family dog);
is intact; and
has a reckless, irresponsible owner.
Notice that breed is not one of these factors. With its recent overhaul of the Americans with Disabilities Act (ADA), the Department of Justice (DOJ) agrees that the focus should be on the individual dog and not breed. The ADA already condones the refusal to provide access to a service dog if an individual dog shows specific signs of aggression. But the DOJ unequivocally refuses to bow to jurisdictions with breed bans. This is leading to a nasty battle in Denver, where officials are refusing to exempt service dogs in Denver’s breed ban. At least Saginaw was not so stubborn, exempting service dogs from its dangerous dog ordinance.
Although Virginia’s dangerous dog statute isn’t perfect, it does focus on individual dogs and specific aggressive behavior. To be classified as a dangerous dog, Virginia requires an actual bite. Last year, the General Assembly considered expanding the dangerous dog designation to dogs who “attempt to bite.” Fortunately this bill died quickly in committee. Additionally, Virginia refuses to bow to breed stereotypes, with the following language right in the dangerous dog statute:
No canine or canine crossbreed shall be found to be a dangerous dog or vicious dog solely because it is a particular breed, nor is the ownership of a particular breed of canine or canine crossbreed prohibited.
With Saginaw’s proposed leash, confinement and supervision requirements and a limit on the number of dogs a household can have, Saginaw will accomplish a great deal to increase owner responsibility and decrease the number of resident dogs. If Saginaw wants more effective laws, research shows that focus on the spay/neuter issue rather than breed will go further to reduce the number of dog bites.
Laws requiring leashes and spay/neuter programs are not the only way to get at owner responsibility. Education is also necessary. The more we learn about animal behavior, the better. At last Friday’s Mid-Atlantic Animal Law Symposium in Baltimore, Maryland, one participate raised the issue of humane education in schools. If we could emphasize just three areas, we could do a great deal to better the bond between dogs and owners, and thereby decrease the number of dog bites:
Never leave dogs unsupervised with children. So many dog bites are to children. Simple supervision, teaching a child not to approach a dog unless the child asks the owner for permission, and showing the child how to pet the dog appropriate would go far to decrease the number of dog bites. Dogs & Storks has wonderful information about how to prepare the family dog for a new baby, and lots of other helpful information regarding dogs and children.
The Saginaw City Council will introduce its proposed ordinances on April 18, and the ordinances are slated to be enacted May 9 and become effective May 19. If Saginaw’s real purpose is to increase owner responsibility and decrease the number of dog bites, I encourage the Council to adopt the ordinance expanding Section 94.04, but ditch its dangerous dog ordinance.
Arlington County’s sign ordinance defines “sign” as “[a]ny word, numeral, figure, design, … [or] display … used to direct, identify, or inform the public while viewing the same from outdoors.” The ordinance requires a permit before a business can display a sign, and limited Wag More Dogs to three signs totaling no more than 60 square feet. The $4000 mural is 16 feet by 60 feet – 960 square feet.
The County declared the mural a prohibited sign, and gave Wag More Dogs three options: (1) pay a non-refundable $1,782 fee for a special exception permit which may be granted or denied; (2) paint something else unrelated to the business like flowers over the dogs and bones; or (3) paint “Welcome to Shirlington Park’s Community Canine Area in four-foot high letters above the mural to create an informational sign that would not need a permit. Retaining the mural would result in civil fines and possibly even criminal prosecution.
Wag More Dogs decided to fight back, and filed suit in federal court, bringing a First Amendment challenge against Arlington County’s sign ordinance. The County responded with a motion to dismiss, which Judge Brinkema heard last month. Earlier this month, Judge Brinkema issued a 33-page Memorandum Opinion.
Judge Brinkema’s first line of business was to decide whether the federal court had subject matter jurisdiction over the dispute. The County argued that Wag More Dogs lacked standing to challenge the sign ordinance because its mural was so clearly in violation of the ordinance. I didn’t really follow this or why the County even tried to make this argument. Judge Brinkema easily found that Wag More Dogs had standing, which takes three things: (1) injury in fact – losing the mural and suffering civil fines and criminal prosecution is about as straightforward as injury gets; (2) causation – the ordinance itself spells out the penalties constituting the “injuries in fact”; and (3) redressability – striking down the ordinance would redress Wag More Dogs’ issues with the statute.
So far, so good for Wag More Dogs. But unfortunately, this is where Wag More Dogs’ luck runs out.
Judge Brinkema’s opinion goes on to analyze Wag More Dogs’ constitutional challenges, which came in three layers: (1) the ordinance violates Wag More Dogs’ right to free speech and artistic expression; (2) the ordinance is overbroad and vague; and (3) the County’s alternatives restrain speech or unconstitutionally compel speech.
Looking first at the free speech argument, Judge Brinkema had to determine what level of scrutiny would apply to the sign ordinance. Quintessential political or artistic speech earns the highest form of scrutiny – strict scrutiny. But Judge Brinkema concluded what was at issue is a content neutral ordinance aimed at commercial speech, warranting only intermediate scrutiny.
The intermediate scrutiny test requires the sign ordinance to serve a “substantial” government interest, in a manner that is “in proportion” to that interest and no more restrictive than necessary to achieve it. The purposes of the sign ordinance are traffic safety and avoiding visual clutter, which courts have not hesitated to conclude are “substantial” government interests. Judge Brinkema also found that the sign ordinance was in proportion with its interest, because it merely restricted the size and number of signs without banning commercial speech.
Next, Judge Brinkema analyzed Wag More Dogs’ argument that the ordinance was overbroad and vague. Wag More Dogs made both a “facial challenge” and an “as applied” challenge. For the facial challenge based on vagueness, Wag More Dogs would need to show that no set of circumstances exists under which the law would be valid. Judge Brinkema had no problem finding that the ordinance, and its definition of “sign” as something that “directs, identifies or informs,” was not vague because it used words of common usage, with plain and ordinary meanings easily understood by the average person.
For the “as applied” challenge, Wag More dogs pointed to an email from County Zoning Administrator Artman saying that “the mural cannot show anything that has any relationship with your business,” such as “dogs, bones, paw prints, pets, people walking their dogs, etc.” Judge Brinkema was not troubled by this “any relationship” test, saying that Wag More Dogs failed to allege the County even really uses that test, and that even if it did, a reasonable person could easily understand and apply the test.
Lastly, Judge Brinkema analyzed the County’s proffered alternatives of applying for a special exception permit, painting over the mural or adding language to it. Judge Brinkema handily dismissed these arguments. She found that the County’s special exception permit scheme needed only adequate standards and a fair opportunity for judicial review, which were built into the County’s Comprehensive Sign Plan. Regarding painting over the mural, or adding language to make the mural an informational sign, Judge Brinkema noted that these was only options, and could not be considered unconstitutionally compelled speech.
In the end, Judge Brinkema granted the County’s motion to dismiss, ending the case at a very early stage. We’ll see if the Institute for Justice continues the fight with an appeal.
As unfair as it may seem, the truth is that it takes a lot to strike down an ordinance. You can see how difficult it was, even when the right to free speech was at issue. At least Wag More Dogs had the benefit of intermediate scrutiny for its constitutional challenge, and Judge Brinkema still did not hesitate to uphold the sign ordinance. Imagine if free speech were not an issue. With statutes like breed specific legislation, there is no heightened scrutiny, with courts applying a “rational basis” test. You will hear me moan about this when I start blogging about breed specific legislation – I promise, it’s coming!
While there may be some basis behind Arlington’s sign ordinance, the ordinance produces inconsistencies that are hard to deal with. For instance, if Wag More Dogs were beside a flower shop, theoretically the flower shop could put up the Wag More Dogs mural, and Wag More Dogs could paint flowers on its wall. As another example, graffiti like what has been tagged on the walls of The Muddy Mutt next door is not off-limits. I don’t know about you, but I’d much rather look at the Wag More Dogs mural.
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