Companion Animal Law Blog

Bringing together those whose lives and livelihoods revolve around companion animals


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More on Tracey v. Solesky and Maryland dog bite cases

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.

In the meantime, the law remains as it was prior to the Tracey v. Solesky ruling.  Delegate Heather Mizeur sent a request to the Maryland Attorney General regarding the status of the law while Ms. Tracey’s motion to reconsider is pending in the Maryland Court of Appeals.  The Attorney General responded that Tracey v. Solesky is stayed and does not take effect until the Court takes up the motion to reconsider.

Other jurisdictions are following Maryland closely, including right here in northern Virginia.  For a more detailed look at the ruling and its impact for Virginia, don’t miss my article in NOVADog Magazine’s summer edition.  You can also learn more by watching the current episode of The Pet Show with Dr. Katy, which features several interviews, including one with Libby Sherrill, the creator of the documentary Beyond the Myth.

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.


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Public Meeting on the Solesky Decision this Sunday

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.


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Follow up on the Solesky Ruling

Concerned about the recent Solesky decision in Maryland, and what impact it will 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.

The Humane Society of the United States has also compiled information especially for pit bull and pit bull mix owners who live and rent in Maryland.

If you are looking for an animal law attorney in Maryland, you can reach out to the Maryland State Bar Animal Law Section for help.


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Sometimes Bright Line Rules Just Aren’t the Answer: The Problem with Tracey v. Solesky

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.

The most frustrating part of this ruling is that there are many pit bull and pit bull mix owners who are highly responsible and who will get swept up in this bright line rule. Likewise, the ruling will not affect the highly irresponsible owners of dogs who are not pit bulls or pit bull mixes. Dare I even mention the issue of how a court is to determine whether a dog is a pit bull or pit bull mix.

Courts and legislators should focus on owner responsibility, not breed. Fortunately, Virginia’s dangerous dog statute makes it clear that breed alone is not a reason to declare a dog to be dangerous. I hope Virginia keeps its focus on owner responsibility and does not choose to follow the path of neighboring Maryland in this regard.


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How To Handle Hybrids?

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?


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An Ounce of Prevention is Worth a Pound of Cure: Dog Bite Prevention Week

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.

The Insurance Journal also released statistics for the number of and costs related to dog bite insurance claims. State Farm’s data shows that California tops the list for the most dog bite claims, at 369, while Florida has the highest costs per claim, with an average claim of $38,356. I cannot resist a big shout out to State Farm, which continues its tradition of refusing to deny coverage based on breed. The one exception even State Farm cannot escape – the state of Ohio, which classifies bully breeds as automatically “vicious.” So where does Ohio fall in the list of dog bite claims? Number 3, with 215 claims, right behind California and Illinois. So much for the efficacy of breed specific legislation.

One group most at risk of dog bites is children. Psychology Today has a great article explaining why children are so at risk, which is due to insufficient supervision by adults, and children’s notoriously bad skills at reading body language. In an effort to address this, and just in time for Dog Bite Prevention Week, Dr. Sophia Yin has provided a poster that you can download from her website on recognizing a fearful dog’s body language.

For other tips on how to prevent dog bites, visit the American Veterinary Medical Association’s site and the Center for Disease Control and Prevention’s siteYou can also find more great information and downloads on Doggone Safe’s site.


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Missing the Mark: Saginaw’s Misguided Dangerous Dog Ordinance

Officials in Saginaw, Michigan have been working on ordinances purportedly aimed at dog owner responsibility.  This could be a welcome change.  The current version of Saginaw’s “Animals, Birds and Bees” ordinance, Section 94.04, falls within Saginaw’s “public nuisance” laws, and fails to address even the most basic issues, such as a leash law.  One proposed ordinance is squarely aimed at owner responsibility, adding long overdue measures to Section 94.04.

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:

  1. with a propensity, tendency, or disposition to attack, to cause injury or to otherwise endanger the safety of” people or companion animals; or
  2. 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
  3. 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.

Saginaw has inexplicably chosen to focus on breeds and dogs it believes may attack, rather than on individual dogs with demonstrably aggressive behavior.  The current list of “most dangerous dog” breeds in Saginaw include:  pit bull, Rottweiler, German Shepherd, Bull Mastiff (Presna Canario) and Alaskan Malamute.  Saginaw will purportedly look to “credible,
analytical listings” to update their list annually.  Saginaw apparently forgot to look at statistics in the UK showing the three most aggressive dog breeds as Dachshunds, Chihuahuas and Jack Russell Terriers!

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:

  1. is a resident dog (kept primarily outdoors, used for guarding, protection, fighting or breeding, rather than a pet/family dog);
  2. is intact; and
  3. 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:

  1. Learn how to read dogs’ body language.  The ASPCA’s website page on canine body language has a quick reference guide for starters.
  2. 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.
  3. Socialize, socialize, socialize.  Dr. Ian Dunbar has championed the importance of puppy socialization, and how socialization allows a puppy to become a well-adjusted adult dog.  Here’s a great video with Dr. Dunbar on the topic of dog bites and the tie to fear and lack of socialization.

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.