Maryland’s Pit Bull Owners: Guilty Until Proven Innocent
By: Julian Prager Date: 05/1/2012 Category: | Animal Legislation | Canine Issues |
“It is far better to prosecute actual nuisances and dangers than it is to penalize the universal possibility of a nuisance or danger." ~ The NAIA Pet Friendly Guide
On April 26, 2012, in a 4-3 decision, the Court of Appeals of Maryland took it upon itself to change the Common Law principles of liability by holding that a prima facie case is established when there is “sufficient proof that a dog involved in an attack is a pit bull or pit bull cross, and the owner or other person(s) who has a right to control the pit bull’s presence . . . . knows or has reason to know that the dog is a pit bull or cross-bred pit bull.”
This overrules the Common Law principle that required the foreseeability of harm to be a factor in determining liability for injury. They based this on their belief that the pit bull and pit bull mix is inherently dangerous due to “its aggressive and vicious nature and its capability to inflict serious and sometimes fatal injuries. . . .”
This conclusion followed from previous cases in which the Court had repeated the stereotypical view of pitbulls seen in the media as extremely aggressive dogs, with powerful jaws, high insensitivity to pain, an unwillingness to stop attacking, and an increased frequency of attacks on people compared to other breeds. It based its conclusions on other courts’ findings in civil and criminal cases, laws passed in other jurisdictions restricting pitbull ownership, statements by humane societies regarding their adoption policies, and a report by the American Veterinary Medical Association (AVMA) that “pit bull-type dogs were involved in almost a third of human . . . [fatalities] during the 12 year period from 1981 through 1992.” (a conclusion that the AVMA didn't reach in its own report).
The court admits there are problems with breed specific legislation and that opposition to such legislation has existed for many years. However, they distinguish between breed specific legislation which bans breeds and their ruling by stating that their “opinion in the present case does not ban pit bulls, but puts a greater responsibility for vicious dogs where pit bull advocates have long argued it should be - with the owners and others who have the power of control over such dogs. Our opinion imposes greater duties by reducing the standards necessary to hold owners and others liable for the attacks of their pit bulls.”
This is a mistaken opinion for a number of reasons.
Breed alone should not be a basis for discriminatory treatment.
They take the position that discrimination by breed is permissible as long as breeds are not banned. The individual behavior of the dog is not relevant to a determination of whether the dog is dangerous, only its breed matters. This is as logical as saying that drivers of sports cars tend to drive faster than drivers of other cars, and since driving fast causes accidents, sports car drivers are assumed to be responsible for any accidents they are involved in, regardless of the actual behavior of the driver of the car.
Although they cite the Centers for Disease Control (CDC), the court ignores the CDC's position opposing breed specific categorization. The CDC cited the difficulty in identifying dog breeds (especially true of mixed-breed dogs). The CDC also noted that as certain breeds are regulated, those who exploit dogs by making them aggressive would replace them with other, unregulated breeds.
 Reports on pit bull-type dogs often ignore their long history as docile family pets |
A review of scientific data, rather than media hysteria, would reveal that the variation in behavior within a breed is as great as that across breeds and depends on a variety of factors in addition to heredity. Not all “pit bulls” present the risk the court assumes. As the dissent notes: “It appears that the media has demonized pit bulls as gruesome fighting dogs and has not revealed the long history of pit bulls as family dogs with passive behaviors.” In its conclusion, the majority ignores the very report of the AVMA they cite regarding dog bites. The report raises issues with using breed specific liability to reduce bites and suggests that other factors, like training, socialization, size, sex, and reproductive status be considered. Even more telling, the report refers to “pit bull-type dogs,” further confounding the validity of the data with respect to pitbulls by implicitly acknowledging that they are including dogs of unknown or uncertain ancestry.
They do not adequately consider factual data regarding dog breeds and mixed breeds.
There are many problems in defining a “pit bull.” Their ruling ignores that fact that “pit bull” is not a breed, with well-defined characteristics, but a designation based solely on appearance. There is no legal definition of “pit bull” in Maryland and, therefore, no way that a person could or should have known that the dog they have is actually a “pit bull.”
The majority ignores the argument of the dissent that appearance is a deficient basis for breed identification. Studies have also revealed that animal control officers, trained and presumed knowledgeable in breed identification, misidentify some dogs known to be of a specific breed as a “pit bull.” As Victoria Voith, DVM, PhD, DACVB, concluded in her study of visual and DNA identification of dogs “The discrepancy between breed identifications based on opinion and DNA analysis, as well as concerns about reliability of data collected based on media reports, draws into question the validity and enforcement of public and private polices pertaining to dog breeds.” These types of erroneous identifications taint the validity of all breed-related dog bite data that formed one basis for the court’s conclusions.
Including mixed-breed dogs in the designation further extends their error. As the dissent notes, this is “an unenlightened and unworkable rule regarding mixed-breed dogs. How much ‘pit bull” must there be in a dog to bring it within the strict liability edict? How will that be determined? What rationale exists for any particular percentage of genetic code to trigger strict liability?”
The decision creates ambiguity for dog owners.
Appellate courts generally rely on the precedent established in prior cases, and overrule prior holdings where the decisions were faulty or contrary to established law. Such a fundamental change in the rules of liability is extremely rare. By making this ruling applicable to the present case, which is based on an incident that has already occurred, the court makes it impossible for anyone to know what liability rules will apply in the future. The decision creates uncertainty and a “catch 22” situation for all dog owners. At some time in the future, any breed could be declared dangerous and subject its owners to the same strict liability rule as was applied here. How are people to know what standard applies to their dog if the court can reverse Common Law rules and make new standards apply to injuries that occurred before the change?
Appellate courts are limited in their review.
The court also made their decision based on facts outside the record in the case, and on data and press reports that are clearly the subject of dispute. The role of appellate courts is to review the record of the courts below for error; they are to review the facts of the case and not to speculate about facts not in evidence. Although, as the court notes, they have the power to change Common Law, the question they do not address adequately is whether they should overturn the Common Law rule in this case. From the perspective of judicial restraint, a better decision would have been to uphold the prior standard unless the legislature changed the statute, a higher court overturned the rule, or the prior rulings were clearly contrary to established principles or changed circumstances. The current case does not meet any of those standards, especially where the decision is based on a 4-3 vote. The court should have deferred to precedent.
Resolving the Issue
As the majority noted, “where the General Assembly has announced a public policy, the Court will decline to enter the public policy debate. . . .” The court stated that no one presented any Maryland statutes covering this area and they know of none. Maryland apparently does not prohibit breed-specific legislation. The dissent states that the issues in “breed-specific regulation are not appropriate for judicial resolution, rather, those issues are best resolved by the Maryland General Assembly, as that branch of government is better equipped to address the various issues. . . .”
We agree. The dog owners of Maryland should rise up and besiege their legislators to correct this injustice by incorporating a prohibition in Maryland law on the use of a dog’s breed to regulate it in any manner. Breed discrimination has no place in American society. This is the opinion of virtually every mainstream animal organization in the country: The AKC, AVMA, The National Canine Research Council, and many more. It should also be noted the CDC does not support breed-specific legislation, though out of context use of their reports can make it seem otherwise.
NAIA also strongly opposes breed-specific legislation. Our position statement on the issue can be found here. For more on responsible pet ownership and reasonable pet legislation, please see our Pet Friendly Guide and Model Animal Control Law.
About The Author
NAIA’s Legal Analyst and Legislative Coordinator acts as an advisor on numerous legal and legislative issues, analyzing legislation, drafting amendments when necessary, helping draft model legislation and speaking at conferences. For his full profile, click [url="http://naiaonline.org/about-us/board-members/#Prager"]here[/url]
All Authors Of This Article: | Julian Prager |
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