Several news stories appeared the month before the Animal Welfare Forum that illustrate a dilemma often expressed during the meeting. On Nov 1, 1996, the Sarasota Herald Tribune carried a graphic account of a 10-year-old boy killed by a neighbor's Rottweilers,1 and on November 27, a press conference in Pound Ridge, New York credited Abby the Rottweiler with foiling a baby's kidnapping by biting the perpetrator as he tried to flee.2 It is a troubling paradox that the canine qualities we value so highly in many contexts are so horrifying in others.
In the Florida story, a neighbor was quoted as saying that these dogs
had gotten loose several times in the past and that people were uneasy
about them. "I wanted to report it to somebody, but I didn't know who to
report it to, and I thought they wouldn't do anything, anyway," he said.1
Here we have another paradox. It is easy to react to the statement with
disbelief, citing the availability of animal control services, but it points
to a broader need, not simply for access to such services but for genuine
outreach to areas of the community where calling law enforcement may not
be a familiar or socially accepted practice.
Defining the Problem
Are certain types or breeds of dogs like assault rifles, so inherently
dangerous that they should be banned altogether? A few people believe this,
and they say so to their lawmakers. Assault rifles are mechanical devices,
designed to perform in a certain way. Aren't dogs far more complex and
individualized -- and able to be modified?
Does it even make sense to try? In reading Vicki Hearne's Bandit:
Dossier of a Dangerous Dog,3
a remarkable account of the rehabilitation of a dog with a serious biting
history, one cannot help wondering if many dogs designated as dangerous
are not euthanatized unnecessarily. Yet in her preface to the 1994 edition
of Adam's Task,4 Hearne acknowledges
that"...if a very serious dog and a very serious handler are lucky enough
to walk into a serious world together, then there is, say, no biting problem.
[But] In a different world with a different handler, that's a different
dog...." The reality is that there are too few supremely gifted handlers;
such work is labor-intensive and costly, and local government, with its
limited resources and high volume of animal-related problems, is unlikely
to be interested in making exceptions. The question, though, is whether
current accepted methods of dealing with dog bites simplify matters too
much, gloss over the complexities of unacceptable behavior and thereby
limit their own effectiveness.
Dog Laws and Dog Owners
Government, by its very nature, thinks more in terms of groups or categories
than of individuals in their uniqueness. There is a tension between this
feature of government and the aspect of law that is concerned with the
exercise of individual rights. Those who dislike the idea of animals as
property may be reassured to realize that their right to the "use and enjoyment"
of the dogs they own is protected from improper government interference
by the Fifth Amendment to the US Constitution, which provides that no one
may be deprived of life, liberty, or property without due process of law.
This means that property rights are not absolute; they may be restricted for the good of the community, as we see with local ordinances that limit the number of dogs that may be kept or treat excessive barking as a nuisance. But these rights may not be restricted arbitrarily, or capriciously, or vaguely, or too broadly, because of the established principle that any intrusion on constitutional rights must be as narrowly tailored as possible to achieve its intended purpose. Therefore, legal challenges to breed-specific bans or to severe limits on the number of dogs that may be kept usually focus on vagueness in classification (i.e., the impossibility of scientifically defining which animals are to be banned or on the unreasonableness of declaring that a particular number of dogs constitutes a nuisance, irrespective of the qualities of the individual animals involved).5 Although in recent years a few of these bans and restrictions have been upheld, they have often been found unconstitutional.6
Such bans and limits are preemptive, attempting to prevent problems
with dogs before they develop. In contrast, 41 states have enacted dangerous
dog laws as mechanisms for uniform handling of incidents of canine aggression
that have already happened. Many counties and towns enact separate ordinances
of their own, and sometimes the state law contains a provision that it
does not preclude or preempt such local schemes. Consider the following
example, an excerpt from a letter of notification in a county that did
not have a leash law:
We have received four reports
of your animals attacking people when unprovoked. According to the
authority invested in me as _______ County
Health Director and defined in Public Health Law Section ______, I notify
you that your dog has been defined as dangerous as of this date....
This letter serves as notification to you that these animals must be confined to your property and only permitted to be unconfined when accompanied by a responsible adult and restrained on a leash.
If the dog is found to be unconfined, it will
be ordered confined for observation by the Animal Control Officers.
The owner will be responsible for costs of
confinement.
If you have any further questions, please feel free to contact me at_________."
Second, the owners are not offered an opportunity for a hearing as provided by the constitutional principle of due process. In a community where there is no leash law and custom tolerates free-roaming canines, an individualized confinement requirement is a substantial limitation on an owner's rights. Those at risk for losing the free use and enjoyment of their dogs are entitled to a full and fair hearing on the matter. The courts have been scrupulous in reasserting due process requirements in dangerous dog cases when they have not been observed at the local level.7
On the other hand, it has proven very difficult to challenge the wording
of dangerous dog laws on grounds of vagueness in areas other than breed-specific
bans. A recent appellate case centered on the phrase, "approach in a
vicious or threatening manner, in an apparent attitude of attack,"
which is one criterion for a finding of potential dangerousness in a number
of statutes. Appellants introduced current findings on common misinterpretations
of canine behavioral signals8 and
argued that the definitions portion of the statute should include a list
of behavioral correlates against which a "vicious or threatening manner"
and "apparent attitude of attack" could be measured. Nevertheless,
the statute was not found to be impermissibly vague.9
A Role for Behaviorists
It is safe to say that most dangerous dog laws indicate little awareness
of advances that have taken place in our understanding of canine behavior
in the past few decades. Only the most rudimentary distinctions are made
(e.g., between unprovoked and provoked attacks or between aggressive acts
occurring on and off the owner's property). The behaviors that cause a
dog to be classified as dangerous or vicious are outlined with surprising
brevity, often in broad, sweeping phrases that are obviously problematic.
In Montana, for example, a vicious dog is defined as one that bites
or attempts to bite any human being without provocation or that harasses,
chases, bites, or attempts to bite any other animal.10
There is no explanation of what constitutes an attempted bite, nor is there
room in this scheme for the normal exploratory behavior of young canines.
In Colorado, one way that a dog may be designated as dangerous is to demonstrate
"tendencies which would cause a reasonable person to believe that the
dog may inflict injury upon or cause the death of any person or domestic
animal"; however, these tendencies are not specified.11
On the other hand, a few ordinances are disturbingly specific. In Omaha, Neb the term "dangerous" may be applied to "any dog or other animal that snaps, bites, or manifests a disposition to snap or bite."12 The ordinance provides that the court may order dangerous animals destroyed, presumably even animals in the "snapping" category, and it further states that if a dangerous animal is found at large, the city shall be under no duty to attempt to confine or capture it rather than kill it, nor shall the city be under a duty to notify the owner prior to killing it.
Thus, dangerous dog laws may, if taken literally, pose many problems with interpretation and enforcement. The input of behaviorists clearly would be helpful in drafting or amending these pieces of legislation in the future.
The opinion of behaviorists was useful to the US District Court in Alaska in a 1994 dog bite liability case13 as it struggled with the defense that prior biting incidents were the result of "natural instincts, not dangerous tendencies" (i.e., that they were within the range of normal canine behavior). Yet the court concluded: "It is the act of the animal and not the state of mind of the animal from which the effects of a dangerous propensity must be determined.... If Anchor did have a dangerous propensity, then it is immaterial whether this propensity was driven by anger, playfulness, affection or curiosity." Does this mean that the aforementioned Pound Ridge, New York hero dog should now be designated as dangerous?
The stimulus may be immaterial if one is looking solely at the physical effects of an incident, but identifying the triggers for a dog's actions is highly relevant for a determination of its temperament and whether the offending behavior can be corrected. Conspicuously absent from almost all dangerous dog laws is any consideration of how a dog may be rehabilitated and the label of "dangerous" removed. A great deal of attention is given to how the dog must be confined and controlled, but no attention is focused on how its behavior may be evaluated, modified, and certified as corrected. In California, the law14 provides that the dangerous label may be removed after 36 months if there are no additional incidents, or sooner if there is a mitigating factor such as training; however, it does not make specific provisions for how this second alternative will work.
To achieve their objectives, dangerous dog laws should be reworked to
reflect the current state of knowledge about canine behavior so that it
will be possible to assess the real importance of transgressions and act
accordingly. They must reflect the fact that a dog's behavior is not static
and periodic reassessment is needed to be fair to everyone involved.
Other Legal Remedies
Unfortunate incidents involving direct action against dogs by the police
or animal control have resulted in a number of noteworthy lawsuits under
the civil rights law15 that implements
the application of the Bill of Rights to the states under the Fourteenth
Amendment. This law forbids any deprivation of constitutional rights by
persons "acting under color of state law" (i.e., with governmental
authority). In 1995, the US District Court for the Western District of
Michigan applied this law, finding that shelter workers engaged in a public-private
conspiracy to deprive plaintiffs of their Fourth Amendment rights when
they sold impounded dogs to a laboratory before the expiration of the statutory
holding period.16
A 1987 Georgia case17 illustrates the pitfalls into which local governments can fall when conducting searches and seizures involving animals, even when a search warrant has been obtained. Cobb County Animal Control, the veterinarian with whom it contracted for services, and the county attorney were all sued under the civil rights law15 after a raid an a pet shop exceeded the scope of the authorized search and a number of animals, mostly purebred dogs, were seized. The individual defendants were sued for defamation because of comments made to the press about allegedly inhumane conditions in the shop at the time the animals were removed. The animals were taken to the local shelter "to be made well" and when the pet store refused to pay the impoundment fees they were adopted out. The court found that the store had been deprived of its property in violation of the Fourteenth Amendment; at one stage, an award was granted for loss of business reputation as well as actual worth of the animals, but, later, this was reversed.
A very disturbing line of cases involves the shooting of dogs by police in the line of duty, often during the course of an entry for the purpose of search and seizure. Sometimes these cases have failed because they have not been pled correctly, but a 1993 Texas case18 that went to the US Supreme Court yielded a landmark decision about the requirements for stating a civil rights claim successfully. This case involved a mother and son who were stopped by police and informed that their home had been the subject of a drug raid and that their 2 dogs had been killed. When they arrived home, they found their Doberman Pinscher shot dead in the driveway and their Miniature Schnauzer dead in the master bedroom. Drugs were not found during the raid.
In a noteworthy 1989 case,19
Manitowoc County, Wis officers were granted a search warrant to locate
4 stolen pressure cookers and 4 ounces of marijuana. While one served the
warrant, the others, moving through the house to secure it, encountered
the family dog, a German Shepherd Dog. "After the house was 'secured'
the dog was dead, the children and adults were screaming, and the officers
found no pressure cookers or marijuana." One officer claimed that he
shot the dog in self-defense, but forensic evidence introduced by a veterinarian
indicated otherwise. On appeal, the court did not reverse the jury and
trial judge's finding that the officer acted unreasonably. This and other
cases raise the issue of failure to train police properly in the execution
of search warrants when a dog is present, and it is to be expected that
similar costly suits will be brought under the civil rights law15
in the future.
Conclusions
Despite the many criticisms of existing statutes and ordinances affecting
dogs, the answer does not lie in eliminating such laws, but in reworking
them. We can look to other areas of the law for innovative approaches to
the problems discussed at this Animal Welfare Forum. Keeping of highly
aggressive dogs perhaps should be classified as an ultra hazardous activity,
comparable to blasting or manufacture of chemicals, for which permits and
inspections are required. Just as someone who wishes to drive a commercial
vehicle must obtain a different type of license than someone who operates
a passenger car, perhaps the keepers of such animals should be required
to obtain a special license to be earned only after testing and certification.
It is tempting to respond to problems such as dog bites with sweeping statutes
and ordinances that cover the largest possible number of cases. Yet this
broad approach sacrifices the precision and clarity needed to analyze individual
incidents and work out solutions that are fair to the public and dog owners
alike. The input of behaviorists in drafting and implementing dog-related
legislation could make a big difference.
The phenomenon of costly civil rights suits against police and animal control agencies is a growing one. The Fourth Amendment guarantee against unreasonable searches and seizures should logically extend to constraints on harming animals encountered during the search. Again, some training in animal behavior could enable police to avoid deadly force unless absolutely necessary.
References
l. Anonymous. Boy is killed by dogs. Sarasota Herald-Tribune 1996;Nov 1:B-l.
2. Anonymous. Police praise dog as hero in failed kidnapping of tot. The News and Observer 1996;Nov 29;A-19.
3. Hearne V. Bandit: dossier of a dangerous dog. New York: Harper Collins, 1992
4. Hearne V. Adam's task: calling animals by name. New York: Harper Perennial, 1994;xi.
5. Ramm v. City of Seattle, 66 Wash. App. 15, 830 P.2d 395 (1992); Colorado Dog Fanciers, Inc. v. City and County of Denver, 820 P.2d 644 (1991).
6. Hearn v. City of Overland Park, 244 Kan. 638, 772 P.2d 758, cert. denied, 493 US 976, 110 S. Ct. 500, 107 L Ed. 2d 503 (1989) (ordinance upheld); American Dog Owners Ass'n, Inc. v. City of Lynn, 304 Mass. 73, 533 N.E.2d 642 (1989) (designation of pit bull held unconstitutionally vague).
7. Phillips v. Director of the Dept. of Animal Regulation, 183 Cal. App. 372, 228 Cal. Rptr. 101 (1986).
8. Moss SP, Wright JC. The effects of dog ownership
on judgments of dog bite likelihood. Anthrozoos 1987;1(2):95-99.
9. Caswell County v. Hanks, 120 NC App. 489 (1995).
11. Colo. Rev. Stat. 18-9-204.5.
12. Omaha Municipal Code, Sections 6-105, 6-112.
13. Sinclair v Okata, 874 E Supp 1051(1994).
14. Calif, Civ. Code 761,31644.
l6. Snyder v. Seidelman, U.S. Dist. LEXIS 19302 (1995).
17. Military Circle Pet Center No 94 Inc. v. Cobb County, Ga., 665 ESupp. 909 (N.D.Ga. 1987), aff. in part, rev'd. in part 877 E2d 973 (1989), on remand 734 ESupp. 502 (1990).
18. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit. 954 E2d 1054 (1992), rev'd. 113 S.Ct. 1160 (1993).
19. Erwin v. County of Manitowoc, 872 E2d 1292 (1989).