Breed-specific legislation

Background

Australia

Canada

Samples of legislation

Legal challenges, Ontario 2007-2009

"The evidence with respect to the dangerousness of pit bulls, although conflicting and inconclusive, is sufficient, in my opinion, to constitute a 'reasoned apprehension of harm'. In the face of conflicting evidence as to the feasibility of less restrictive means to protect the public, it was open to the legislature to decide to restrict the ownership of all pit bulls."

• It agreed with the lower court judge in finding that the "overbreadth" claim failed because the legislature had acted on a "reasonable apprehension of harm".
• It disagreed that the definition of pit bull in the Act was insufficiently precise and restored the original wording of "pit bull terrier" on the basis that, when read in the context of "a more comprehensive definition", the phrasing "a pit bull terrier" was sufficiently precise.
• It reversed the trial court and found that the government's ability to introduce a veterinarian's certificate certifying a dog was a pit bull would constitute proof only if the defendant failed to answer the claim: it was therefore a tactical burden, rather an evidentiary burden.

Republic of Ireland

United Kingdom

• Pit Bull Terrier
• Japanese Tosa
• Dogo Argentino
• Fila Brasileiro

Northern Ireland

United States of America

Samples of legislation

Legal challenges

Court cases challenging BSL have focused on constitutional concerns such as substantive due process, equal protection, and vagueness. Most BSL will survive the minimum scrutiny analysis allowed by the due process clauses of the Constitution's Fifth and Fourteenth Amendments because there is no fundamental right at issue. This analysis requires that the law being challenged must be rationally related to a legitimate government goal or purpose. Because state and local jurisdictions enjoy broad police powers, including protecting the public's safety and welfare, courts have not had trouble finding that BSL is rationally related to the goal of protecting the public from allegedly dangerous breeds.
This has caused big problems for many who use them as police, guide or other service dogs, as they are not always excluded, and in some cases are confiscated and put down.
Challenges based on equal protection arguments are similarly difficult to sustain. Here courts are looking at whether there is a rational purpose for treating pit bull breeds differently from other dog breeds. Dog owners have attacked the rational purpose requirement by arguing either that BSL is over-inclusive, because it bans all dogs of a breed when only certain individuals within the breed have proven to be vicious, or under-inclusive, because many types of dogs have injured people and the BSL fails to include those other breeds. However, again under minimum scrutiny review, BSL will survive as long as the government can establish that the BSL is rationally related to its purpose, even if the law is found to be over-inclusive or under-inclusive.
Claims that BSL is unconstitutionally vague have brought dog owners mixed success. Procedural due process requires that laws provide the public with sufficient notice of the activity or conduct being regulated or banned. Here owners of pit bulls or other banned breeds argue that the breed ban laws do not adequately define just what is a "pit bull" for purposes of the ban. Another argument is that the laws are too vague to help the dog-owning public or the BSL enforcement agency—such as animal control or police—to be able to identify whether a dog falls under the BSL if the dog was adopted with an unknown origin or is a mixed breed.

Federal courts

''Sentell v. New Orleans and Carrollton Railroad Company''

It is true that under the Fourteenth Amendment, no state can deprive a person of his life, liberty, or property without due process of law, but in determining what is due process of law, we are bound to consider the nature of the property, the necessity for its sacrifice, and the extent to which it has heretofore been regarded as within the police power. So far as property is inoffensive or harmless, it can only be condemned or destroyed by legal proceedings, with due notice to the owner; but, so far as it is dangerous to the safety or health of the community, due process of law may authorize its summary destruction....
Although dogs are ordinarily harmless, they preserve some of their hereditary wolfish instincts, which occasionally break forth in the destruction of sheep and other helpless animals. Others, too small to attack these animals, are simply vicious, noisy, and pestilent. As their depredations are often committed at night, it is usually impossible to identify the dog or to fix the liability upon the owner, who, moreover, is likely to be pecuniarily irresponsible . In short, the damages are usually such as are beyond the reach of judicial process, and legislation of a drastic nature is necessary to protect persons and property from destruction and annoyance. Such legislation is clearly within the police power of the state. It ordinarily takes the form of a license tax, and the identification of the dog by a collar and tag, upon which the name of the owner is sometimes required to be engraved, but other remedies are not uncommon.

''Vanater v. Village of South Point''

The Court concludes that the definitions of a Pit Bull Terrier in this Ordinance are not unconstitutionally vague. An ordinary person could easily refer to a dictionary, a dog buyer's guide or any dog book for guidance and instruction; also, the American Kennel Club and United Kennel Club have set forth standards for Staffordshire Bull Terriers and American Staffordshire Terriers to help determine whether a dog is described by any one of them. While it may be true that some definitions contain descriptions which lack "mathematical certainty," such precision and definiteness is not essential to constitutionality.

• Pit Bulls... possess the quality of gameness, which is not a totally clear concept, but which can be described as the propensity to catch and maul an attacked victim unrelentingly until death occurs, or as the continuing tenacity and tendency to attack repeatedly for the purpose of killing. It is clear that the unquantifiable, unpredictable aggressiveness and gameness of Pit Bulls make them uniquely dangerous.
• Pit Bulls have the following distinctive behavioral characteristics: a) grasping strength, b) climbing and hanging ability, c) weight pulling ability, d) a history of frenzy, which is the trait of unusual relentless ferocity or the extreme concentration on fighting and attacking, e) a history of catching, fighting, and killing instinct, f) the ability to be extremely destructive and aggressive, g) highly tolerant of pain, h) great biting strength, i) undying tenacity and courage and they are highly unpredictable.
• While these traits, tendencies or abilities are not unique to Pit Bulls exclusively, Pit Bulls will have these instincts and phenotypical characteristics; most significantly, such characteristics can be latent and may appear without warning or provocation.
• The breeding history of Pit Bulls makes it impossible to rule out a violent propensity for any one dog as gameness and aggressiveness can be hidden for years. Given the Pit Bull's genetical physical strengths and abilities, a Pit Bull always poses the possibility of danger; given the Pit Bull's breeding history as a fighting dog and the latency of its aggressiveness and gameness, the Pit Bull poses a danger distinct from other breeds of dogs which do not so uniformly share those traits.
• While Pit Bulls are not the only breed of dog which can be dangerous or vicious, it is reasonable to single out the breed to anticipate and avoid the dangerous aggressiveness which may be undetectable in a Pit Bull.

''American Dog Owners Ass'n, Inc. v. Dade County, Fla.''

Based upon the substantial evidence presented at trial, this court finds that Dade County Ordinance No. 89-022 provides sufficient guidance to dog owners, both in its explicit reference to pit bull dogs, and in its definitional section, to enable pit bull owners to determine whether their dogs fall within the proscriptions of the ordinance....Certainly there are some applications of the ordinance which pass constitutional muster. As long as the enactment is not impermissibly vague in all its applications, this court must uphold its constitutionality. Upon consideration of the evidence presented at trial, the pleadings, memoranda, exhibits and arguments of counsel and upon application of the controlling authority, this court finds that plaintiffs have failed to meet their burden of proof and that the Court is required to uphold the constitutionality of Dade County Ordinance No. 089-22.

''American Canine Federation, v. City of Aurora, CO''

State courts

Arkansas

Colorado

• the dog owners claimed the ordinance was fundamentally unfair and therefore violated their right to procedural due process by forcing them to meet the burden of proving their dog was not a pit bull; however, the higher court found the ordinance was not fundamentally unfair provided the city was required to prove that dogs were pit bulls by the civil standard of "preponderance of evidence" rather than the criminal standard of "beyond a reasonable doubt."
• the dog owners claimed the ordinance violated substantive due process by creating a legislative presumption that a pit bull owner knowingly and voluntarily possesses a pit bull, and because it allowed the use of non-scientific evidence to prove a dog is a pit bull; however, the higher court determined the ordinance preserves substantive due process by providing dog owners with a constitutionally adequate post-impoundment hearing, and reversed the trial court's imposition of a pre-impoundment hearing; in addition, the city was not required to prove a dog was a pit bull with mathematical certainty, and could use expert opinion and non-scientific evidence to prove its case in court.
• the dog owners felt the city ordinance treated all pit bulls and substantially similar dogs as inherently dangerous and was, therefore, unconstitutionally overbroad; however, the higher court ruled that outside the limited area of fundamental constitutional rights such as, for example, first amendment rights of speech or association, a statute may not be attacked as overbroad.
• the dog owners felt the term "pit bull" was imprecise and, thus, unconstitutionally vague because the average dog owner is not afforded fair warning of the act prohibited by the ordinance; however, the higher court found the standards for determining whether a dog is a pit bull are readily accessible to dog owners, and because most dog owners are capable of determining the breed or phenotype of their dog, the trial court properly determined that the ordinance provides adequate notice to dog owners and is not unconstitutionally vague.
• the dog owners argued that the ordinance violated the Equal Protection Clause by creating an irrational distinction between one who owns a dog with the physical characteristics of a pit bull and one who owns a dog lacking those characteristics; however, the higher court ruled that there was ample evidence to establish a rational relationship between the city's classification of certain dogs as pit bulls and the legitimate governmental purpose of protecting the health and safety of the city's residents and dogs, and thus the ordinance did not violate the dog owners' right to equal protection of the laws.
• the ordinance is an abuse of the city's police power and constitutes an unconstitutional taking of private property; however, the higher court noted that, in Colorado, dogs are accorded qualified property status and are, thus, subject to the proper exercise of police power for the protection of the public's health, safety, and welfare.

• the State failed to provide any new evidence to undermine the original 1990 trial court's decision regarding the differences between pit bulls and other dogs.
• the City had provided new evidence to provide additional support for the original 1990 trial court's decision.
• the 2000 CDC study on fatal dog bite attacks was irrelevant to the narrow issues identified in the 1990 trial court's decision
• the State of Colorado had failed to meet its burden of proof to establish beyond a reasonable doubt that no rational basis for Denver's pit bull ban existed

  Florida

Kansas

Kentucky

1. that the ordinance is inconsistent with KRS Chapter 258 and specifically with the definition of "vicious dog" contained in KRS 258.095;
2. that it impermissibly allows the forfeiture of property without compensation;
3. that it denies dog owners procedural due process; and
4. that it impedes the right of nonresident owners of pit bull terriers to travel through Bracken County.

1. the breed-specific ordinance supplemented, rather than replaced or superseded, the definition of a "vicious dog" in the state statute;
2. the banning of pit bull terriers was permissible under the police power, and that property seized under the police power was not subject to compensation;
3. dog owners had the right of appeal to the Circuit Court under the ordinance, so the right of due process was preserved; and
4. the ordinance did not discriminate against non-resident pit bull owners, and that the appellants had not provided any evidence that traveling with a pet "occupies a position fundamental to the concept of a federal union."

   Massachusetts

the Lynn Pit Bull ban ordinance depends for enforcement on the subjective understanding of dog officers of the appearance of an ill-defined "breed," leaves dog owners to guess at what conduct or dog "look" is prohibited, and requires "proof" of a dog's "type" which, unless the dog is registered, may be impossible to furnish. Such a law gives unleashed discretion to the dog officers charged with its enforcement, and clearly relies on their subjective speculation whether a dog's physical characteristics make it what is "commonly understood" to be a "Pit Bull."

New Mexico

1. The defendants claimed the ordinance violated their due process rights because it was vague in how it defined "pit bull"; however, the ordinance was not vague because vagueness applies in the sense of "to whom does the law apply." The law was therefore not vague since the defendants knew the ordinance applied to them.
2. The defendants claimed the ordinance was not rationally related to the purpose of preventing pit bull attacks because environment and training are more important than genetics in determining how a dog acts; however, the court held there was substantial, credible evidence of breed-specific issues that the Village's actions were warranted.
3. The defendants claimed that the ordinance violated equal protection rights because it singled out the owners of pit bulls; however, the court ruled that there was substantial, credible evidence that pit bulls posed a special threat to the people of Tijeras and that there were no grounds to overturn the ordinance.
4. The defendants claimed the ordinance denied them procedural due process against the loss of property; however, the court ruled that the court hearings specified by the ordinance were sufficient due process to ensure the owners had "the opportunity to be heard and present evidence would occur at a meaningful time, that is, prior to the destruction of the dog."
5. The defendants claimed the ordinance would deprive them of property without compensation; however, the court ruled that well-established precedent did not require compensation for property seized under a city's police powers.

   New York

Ohio

"Since we conclude that there is no evidence that pit bulls are inherently dangerous or vicious, then the city ordinance limitation on ownership is also arbitrary, unreasonable and discriminatory."

• The court of appeals found R.C. 955.11 and 955.22 and Toledo Municipal Code 505.14 unconstitutional with respect to procedural due process, substantive due process, and equal protection, and under the void-for-vagueness doctrine. We disagree.
• First, the court of appeals declared that the laws violated procedural due process pursuant to State v. Cowan, 103 Ohio St.3d 144, 2004-Ohio-4777, 814 N.E.2d 846. In Cowan, a Portage County deputy dog warden determined two dogs to be vicious following a complaint that the dogs had attacked a woman. Id. at ¶ 1. The dogs were determined to be vicious because of the alleged attack, not because they were pit bulls. We held that when a dog is determined to be "vicious" under R.C. 955.11, procedural due process requires that the owner have notice and an opportunity to be heard before the owner is charged with a crime. Id. at ¶ 13.
• In Cowan, the dogs were determined to be vicious under the first two subsections of R.C. 955.11 because they had caused injury to a person. Thus, the case concerned the dog warden's unilateral classification of the dogs as vicious. However, in this case, the "vicious dogs" at issue are those classified as pit bulls under the third subsection of R.C. 955.11. Unlike the situation in Cowan, the General Assembly has classified pit bulls generally as vicious; there is no concern about unilateral administrative decision-making on a case-by-case basis. The clear statutory language alerts all owners of pit bulls that failure to abide by the laws related to vicious dogs and pit bulls is a crime. Therefore, the laws do not violate the rights of pit bull owners to procedural due process.
• Second, R.C. 955.11 and 955.22 and Toledo Municipal Code 505.14 are not unconstitutional for violating substantive due process or equal protection rights. Laws limiting rights, other than fundamental rights, are constitutional with respect to substantive due process and equal protection if the laws are rationally related to a legitimate goal of government. See State v. Thompkins, 75 Ohio St.3d 558, 560–561, 664 N.E.2d 926. As we discussed previously when evaluating whether the statutes and ordinance in question are valid exercises of state and city police power, R.C. 955.11 and 955.22 January Term, 2007 and Toledo Municipal Code 505.14 are rationally related to a legitimate government interest.
• Finally, the court of appeals erred in holding that R.C. 955.11 and 955.22 and Toledo Municipal Code 505.14 are void for vagueness. This court has previously held that the term "pit bull" is not unconstitutionally void for vagueness. In State v. Anderson, we stated: "In sum, we believe that the physical and behavioral traits of pit bulls together with the commonly available knowledge of dog breeds typically acquired by potential dog owners or otherwise possessed by veterinarians or breeders are sufficient to inform a dog owner as to whether he owns a dog commonly known as a pit bull dog." 57 Ohio St.3d 168, 173, 566 N.E.2d 1224.
• In conclusion, the state and the city of Toledo possess the constitutional authority to exercise police powers that are rationally related to a legitimate interest in public health, safety, morals, or general welfare. Here, evidence proves that pit bulls cause more damage than other dogs when they attack, cause more fatalities in Ohio than other dogs, and cause Toledo police officers to fire their weapons more often than people or other breeds of dogs cause them to fire their weapons. We hold that the state of Ohio and the city of Toledo have a legitimate interest in protecting citizens from the dangers associated with pit bulls, and that R.C. 955.11 and 955.22 and Toledo Municipal Code 505.14 are rationally related to that interest and are constitutional.

Texas

Under article XI, section 5 of the Texas Constitution, home-rule cities have broad discretionary powers provided that no ordinance "shall contain any provision inconsistent with the Constitution of the State, or of the general laws enacted by the Legislature of this State...." Thus, the mere fact that the legislature has enacted a law addressing a subject does not mean that the subject matter is completely preempted....Although there is a small area of overlap in the provisions of the narrow statute and the broader ordinance, we hold that it is not fatal.

Texas Health and Safety Code

Sec. 822.047. LOCAL REGULATION OF DANGEROUS DOGS. A county or municipality may place additional requirements or restrictions on dangerous dogs if the requirements or restrictions:

are not specific to one breed or several breeds of dogs; and

are more stringent than restrictions provided by this subchapter.



Added by Acts 1991, 72nd Leg., ch. 916, Sec. 1, eff. September 1, 1991.

Washington

ogs do not stand on the same plane as horses, cattle, sheep, and other domesticated animals...On the general question, it is the almost universal current of authority that dogs are a subject of the police power of the state, and their keeping subject to any kind of license or regulation, even to absolute prohibition...since dogs are a subject of the police power, we see no reason why the legislature may not make distinctions between breeds, sizes and the localities in which they may be kept. The object of the statute is protection. The purpose is to prevent injuries to persons and property by dogs. Any distinction founded upon reasons at least, is therefore valid..."

Wisconsin

• The dog owners claimed that the definition of "pit bull" in the ordinance was too vague in its description of a "pit bull"; however, the Court of Appeals found that the ordinance's reference to the breed descriptions of the American Kennel Club and United Kennel Club were enough to allow someone to know whether they owned a "pit bull" or not
• The dog owners claimed the pit bull ban ordinance was overbroad because it treated "all pit bulls as if they are inherently dangerous, and more prone to cause harm than other dogs as a matter of law"; however, the higher court found that the prohibition against "overbroad" ordinances protected only fundamental rights such as the freedom of speech, and that there was no fundamental right to own a particular breed of dog.
• The dog owners claimed the pit bull ban violated their right to equal protection since pit bulls were singled out for prohibition, for which there was "no scientific or empirical basis" and that dangerousness is a function of "environment, training, and upbringing." The Court of Appeals found that the evidence of the unique danger posed by pit bull-type dogs was sufficient that the dog owners could not prove beyond a reasonable doubt that the discrimination was unfounded, as required by previous court precedent.

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