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.
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.
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 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.
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.
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.
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.
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.
The legal answer: probably, and you had best check state and local laws very carefully. The realistic answer: even if you can let your dog off leash, ask yourself very candidly whether you should.
Here in Virginia, there is no statewide leash law or prohibition of dogs running at large. But Virginia Code Section 3.2-6503 requires all owners to provide their companion animals with adequate space. For a tethered dog, the definition of “adequate space” found in Section 3.2-6500 requires the tether to be at least three times the length of the animal, measured from the tip of the dog’s nose to the base of its tail, unless the dog is being walked on leash or is attached to a lead line.
Virginia Code Section 3.2-6538 allows localities to prohibit dogs from running at large, and Section 3.2-6539 allows localities to pass leash laws. Localities typically prohibit dogs from running at large. Local leash laws vary greatly – so much so that this will be the topic of another blog post.
For now, one good example of how a Virginia locality has chosen to handle leash laws is found in Alexandria. Alexandria’s City Code Section 5-7-32 prohibits dogs running at large. Section 5-7-33 prohibits dog owners from allowing their dogs to run at large, and allows the City Manager to charge the owner fees to cover the cost of capturing a dog at large.
Section 5-7-33.1 clarifies that dogs are not to run at large even in public parks, unless the park is designated as an off-leash dog exercise area. To learn more about Alexandria’s dog parks and the applicable rules and regulations, take a look at this Dog Owner’s Guide to Enjoying the Parks of Alexandria. Be warned — not all “off-leash” dog parks are fully enclosed.
Section 5-7-35 requires dogs to be under “physical restraint” when off of the owner’s property. “Physical restraint” requires “a leash, lead or other means of physical restraint which leash, lead or other means of physical restraint is not harmful or injurious to the dog and which is held by a responsible person capable of physically restraining the dog.” [Check out this post if you are curious about whether an electronic collar qualifies as “physical restraint.”] The only exceptions to this physical restraint requirement are on private property with the permission of the property owner, or in a designated dog exercise area.
Even if you could let your dog run off leash, you should realistically ask yourself whether you should. Leash laws exist for very good reasons, not the least of which is safety – yours, your dog’s and others’. Even if your dog is friendly, your dog may come across a fearful, reactive or aggressive dog. It is unfair to put the owner and the dog in such a position. Telling the owner not to worry because your dog is friendly won’t change anything. If your dog gets into a confrontation and the other dog initiates aggressive behavior, if your dog bites the other dog or an intervening person, you will be the one facing dangerous dog proceedings.
UPDATE (3/14/11): The Super Pet Expo has had to make some floor plan revisions. Bean Kinney’s booth will be #721 — right across from our original location.
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