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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Virginia Legislative Round Up for 2012 Session

It’s that time of year again! Several bills have already made it on this year’s slate, and a couple more may be added before the session is over. This year’s legislative session looks very promising for companion animals – with one glaring exception.

HB 95 (Bear Hound Training): We start with the one glaring exception. As things stand, hunters can train dogs to hunt bear from a half hour before sunrise until four and a half hours after sunset. This bill would allow this training to occur at night. Last year, the House passed this bill, but the Senate stopped the bill in its tracks.

HB 158 (Devocalization of Companion Animals): This bill makes devocalization a Class One Misdemeanor (punishable by up to 12 months in jail and a fine) unless the operation is necessary to relieve illness, disease, injury or pain. This is another carry over from last year, when this bill ended up getting stuck in the House Committee for Courts of Justice.

HB 363 (Companion Animals in Protective Orders): Once again, this bill ties into a bill from 2011. Last year’s bill would have granted courts explicit authority to include companion animals in domestic violence protective orders. It was resolved by adding language prohibiting acts of abuse or offenses that result in injury to person or “property.” Needless to say, confusion has arisen with this language, and this bill attempts to clarify that a protective order petitioner can be awarded control, custody and care of a companion animal.

For an overview of last year’s legislative session, take a look at this post.  And on to new topics for this year’s session:

HB 537/SB 305 (Dangerous Dog Registry): This bill proposes to place primary responsibility for registering dangerous dogs with animal control officers instead of the State Veterinarian’s office. It would also lengthen the amount of time to obtain the certificate of registration from ten days to 45 days. The certification fee would increase from $50 to $150, but the registration fee that went to the State Vet would be eliminated.

HB 650 (Notice of Euthanasia for Companion Animals): This bill requires city and county pounds to maintain a registry of organizations willing to accept healthy and non-vicious companion animals scheduled to be euthanized, and requires the pounds to give 24 hours’ notice to the organizations prior to euthanizing. This bill also requires pounds to make available annual statistics of impounded animals.

HB 695 (Prohibiting Fox and Coyote Penning): The Humane Society of the United States (HSUS) has taken this crucial issue head on this year. This bill would make fox and coyote penning a Class One Misdemeanor. If you don’t know about this cruel “sport,” think dog fighting, but using foxes and coyote as bait animals. Read more about it on HSUS’s website.  And, Virginians, you can send a message directly to your legislators on this HSUS site.

HB 888 (Anti-Tethering Ordinances): Virginia is a strong proponent of “Dillon’s Rule,” which dictates that counties, cities and other localities have only those powers that the state has explicitly granted them. This is reflected in Virginia Code Section 3.2-6543, which lays out for localities the types of ordinances they may enact that impact companion animals. Leash laws are explicitly included, but that section does not directly address tethering. Some Virginia localities, such as Alexandria, haven’t let that stop them. But this bill would wisely make it clear that localities can regulate tethering.

Watch for three more bills that are in the works for this year’s legislative session: (1) establishing February 28 as Spay Day; (2) addressing TNR (trap, neuter and return of feral cats); and (3) prohibiting ownership of exotic animals. I’ll post more information on these as they become available.

If you live in Virginia, please reach out to your local legislators on these bills.  And consider joining HSUS and the Virginia Federation of Humane Societies for Humane Lobby Day in Richmond on January 26, 2012!


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Missed Opportunities: Virginia’s Defeated Devocalization Bill

This last legislative session, Virginia proposed HB 2195, which would have prohibited devocalization of a dog or cat unless medically necessary. Unfortunately, the bill never made it out of the House Committee for Courts of Justice.

As I said in a post outlining how the Virginia General Assembly did in 2011, this was a missed opportunity.  Virginia could have joined the ranks of a small handful of states prohibiting devocalization. In 2010, Massachusetts passed Logan’s Law, becoming the first state to ban devocalization. Logan was a show dog devocalized by his breeder, then discarded when he stopped winning shows. Logan’s adopter, together with organizations like the Humane Society Veterinary Medical Association (HSVMA) and the Coalition to Protect and Rescue Pets, successfully convinced the Massachusetts legislators to prohibit the procedure.

Devocalization is a very invasive and risky procedure which severs the dog’s vocal cords.  Devocalization has the potential for lasting and serious physical, psychological and behavioral side effects. Often, scar tissue from the surgery will inhibit exercise and breathing, and can interfere with emergency intubation procedures. Excessive barking can be treated any number of ways, including training your dog or cat, ensuring he or she gets proper exercise and making positive changes in his or her environment. Even if used presumably as a last resort to combat excessive barking, it is an unnatural and inhumane procedure. Law enforcement also oppose debarking for safety reasons, because officers would no longer have a verbal warning of the presence of a dog. For more information on the procedure, take a look at HSMVA’s excellent fact sheet.

The American Veterinary Medical Association reports that as of October 2010, only four states prohibit devocalization in some fashion. Massachusetts and New Jersey ban devocalization unless a licensed veterinarian deems the procedure to be medically necessary (for instance, to treat the presence of cancer). Pennsylvania prohibits devocalization unless performed by a licensed veterinarian using anesthesia. Ohio prohibits devocalization of any dog deemed dangerous.

Virginia did not miss out only on the chance to ban a cruel practice.  Virginia may have also missed the opportunity to obtain federal funding. Last month, Representative Ruppersberger from Maryland introduced HR 1725, which would authorize the Secretary of Agriculture to make grants of up to $1,000,000 per state for the prevention of cruelty to animals to states that have enacted laws prohibiting devocalization of dogs and cats for convenience. HR 1725 is currently in the House Committee on Agriculture.

Let’s hope that Congress puts its money where its mouth is on animal welfare by passing HR 1725, and that states, including Virginia, respond by banning devocalization.


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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.