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REGULATING DANGEROUS DOGS TO BAN OR NOT TO BAN? John D. Joye, Esq. Senior Assistant City Attorney City of Charlotte – City Attorney’s Office International Municipal Lawyers Association 2008 Annual Conference Headlines • Pit Bulls maul, kill boy in father’s back yard Charlotte Observer • Father’s Pit Bulls maul Charlotte Boy to death Los Angeles Times • NC Boy killed by Father’s Pit Bulls AP • 4 Pitbulls kill Boy, 8 Sunday Mirror, London, England • Boy, 8, killed by dad’s dogs Sunday Mercury, Birmingham, England Can cities regulate dogs? YES Dogs = Property No Fundamental Right • Sentell v. New Orleans 1897 • Nicchia v. New York 1920 • Altman v. High Point 2003 • New York City Friends of Ferrets v. City of New York 1995 How will you regulate? To Ban? Not to Ban? Breed Specific Legislation Dog Specific Legislation “BSL” “Non – BSL” Breed Specific Ban Does your state allow it? • Ohio does it. • 11 states forbid it. • • • • • • • • • • • California Colorado Florida Maine Minnesota New Jersey New York Oklahoma Pennsylvania Texas Virginia HSUS Statement on Dangerous Dogs and Breed-Specific Legislation The Humane Society of the United States offers the following position regarding breed-specific policies. The HSUS opposes legislation aimed at eradicating or strictly regulating dogs based solely on their breed for a number of reasons. Breed Specific Legislation (BSL) is a common first approach that many communities take. Thankfully, once research is conducted most community leaders correctly realize that BSL won't solve the problems they face with dangerous dogs. There are over 4.5 million dog bites each year. This is an estimate as there is no central reporting agency for dog bites, thus breed and other information is not captured. Out of the millions of bites, about 10-20 are fatal each year. While certainly tragic, it represents a very small number statistically and should not be considered as a basis for sweeping legislative action…. Full statement available at www.hsus.org/pets/issues_affecting_o ur_pets/dangerous_dogs.html BSL: Issues & Pitfalls Equal Protection – Over-breadth – Under-inclusive Takings – Fair & just compensation Due Process – Substantive – Procedural • Vagueness No Fundamental Right Rational Relation Test EQUAL PROTECTION “[I]f the classification has some reasonable basis, it does not offend the Constitution simply because the classification is not made with mathematical nicety or because the practice results in some inequality.” Dandridge v. Williams, (1970) “The legislature may select one phase of one field and apply a remedy there, neglecting others.” Williamson v. Lee Optical of Oklahoma, Inc., (1955) TAKINGS “Even were it assumed that dogs are property in the fullest sense of the word, they would still be subject to the police power of the state, and might be destroyed or otherwise dealt with…” Sentell v. New Orleans & C. R. Co., (1897) • Limited Geographic Area DUE PROCESS VAGUENESS PROCEDURAL • Name • Notice & Hearing • Physical Characteristics • Meaningful – prior to destruction • Hybrids • Neutral fact-finder Hard Questions / Hard Issues • Which breeds to ban • Moving target • How do you define • Promote the breed • Ban vs. restrain • Enforcement resources • Partial Ban + restrain • Appeals / process • Humane Concerns Fatalities v. Bites ANNUAL DOG BITES • 4.7 Million • 800,000 victims seek medical attention – Half are children • 386,000 require ER treatment • Kids 5-9 highest rate of injury D.B.R . FATALITY • Apprx. 18 per year • 2007 had apprx. 33 • Dog-Bite-Related Fatalities -United States, 1995-1996 • Breeds of dogs involved in fatal human attacks in the United States between 1979 and 1998 • www.cdc.gov Dog Specific “Totality of Circumstances” Dangerous means any animal whose behavior, temperament, size, or any combination thereof, when considered under the totality of the circumstances, including the nature of the surrounding area, constitutes a reasonable risk of injuring a human or animal or damaging personal or real property. Charlotte City Code §3-3 www.municode .com Controls to Consider Mechanisms Toolbox • Reporting • Restraints • Seizure • Insurance • Process • Fertility • Aggression training • Destruction • Multiple dogs Animal Care & Control Resources • Staffing • Volunteers • Budget • Adoption • Dogs per year • Rendering Resources Q&A