Dog law, pit bulls, and "breed-specific presumptions": When must a dog who bites be destroyed?

|The Volokh Conspiracy |

In this Oct. 10, 2013, photo, prospective adopters pet a pit bull as Tia Maria Torres, star of Animal Planet's "Pit Bulls and Parolees," films an episode of the show's fifth season in New Orleans. Tinker Bell, too, has been paroled. (AP Photo/Gerald Herbert)

Every dog, it is sometimes said, is allowed one bite by the law. This usually refers to the dog owner's tort liability: When a dog bit someone, the dog's owner was generally liable if he "knew about the dog's vicious propensities"—until the first bite, the owner could (usually) argue that he didn't know about those propensities, but that first bite would (usually) put him on notice. That's something of an oversimplification, but it was a common-law rule, though some states have changed it by statute (for instance, making dog owners strictly liable when their dog bit someone, at least in certain circumstances and when the dog was not unreasonably provoked).

There is of course also another question: when may the government order a dog destroyed under a "vicious dog statute"? In some states, there is generally a "one-bite rule" as well, under which the first bite doesn't lead to the dog being destroyed but the second bite might (though again with some twists). But some states have a more discretionary rule, such as West Virginia's § 19-20-20:

Upon satisfactory proof before a circuit court or magistrate that [a] dog is vicious, dangerous, or in the habit of biting or attacking other persons or other dogs or animals, the judge may authorize the humane officer to cause such dog to be killed.

And one question that arises is whether judges may adopt "breed-specific presumptions" that some dogs, such as pit bulls, are more likely to be vicious, and that one bite by a dog of that breed would generally be enough to justify destroying it. Last month (in State v. Blatt, which was just noted a few days ago on the Westlaw Bulletin), the West Virginia Supreme Court held that such breed-specific presumptions, if they are to exist, are for the legislature and not for courts to develop. First, the court noted that there was "evidence of only one instance in which Tinkerbell [the dog in this case] has bitten any human: the bite giving rise to this case." Therefore, the "or in the habit of biting" clause is not applicable, because "a 'habit' requir[es] repeated behavior."

As to the separate provision that the dog may be killed if it is "vicious" or "dangerous," even absent a "habit of biting or attacking," here is what the court reasoned:

The inquiry into whether breed-specific presumptions are appropriate or justifiable has been the subject of numerous court cases and scholarly publications. Those opposing such presumptions argue that any dog, regardless of its breed, "can become dangerous under the right set of circumstances[; thus,] banning particular breeds will not achieve the result that communities desire—to reduce the number of dog bites and the injuries sustained from such bites." Others question whether "there [is] a rational relationship between public safety and subjecting dogs … to unusual restrictions based on their appearance [instead of] their behavior."

Those in favor of pit-bull-specific presumptions rely on what are "allegedly immutable pit bull characteristics," tied to the breed's "genetic constitution," or the fact that pit bulls were bred as fighting dogs. Similar positions have been taken with regard to other breeds, including German Shepherds and Rotweillers.

In view of the disagreement surrounding breed-specific presumptions, it is clear to us that the viciousness or dangerousness of any breed within the meaning of W. Va. Code § 19-20-20 is not a simple factual matter of which a magistrate or circuit court can take judicial notice.

Given the conflicting positions with regard to breed-specific presumptions and the public policy underlying such presumptions, it is apparent to us that the Legislature is far better equipped than the judiciary to consider the adoption of a breed-specific presumption applicable to W. Va. Code § 19-20-20. The Legislature is capable of scrutinizing the plethora of scientific and statistical evidence associated with the propensities for viciousness or dangerousness in any individual breed.

With regard to pit bull breeds specifically, the Legislature is also better able to delineate the particulars of a breed-specific presumption, such as what dog breeds or breed mixes qualify as pit bulls[11] and how those dogs should be identified to be subject to the presumption. Thus, we conclude that the circuit court clearly erred by adopting a presumption that pit bull breeds are vicious, dangerous, aggressive, a public health hazard, and unpredictable in nature within the meaning of W. Va. Code § 19-20-20.

And the court concluded that, without the breed-specific presumption, this particular incident did not sufficiently show Tinkerbell's dangerousness or viciousness:

Other jurisdictions have recognized that the dangerousness or viciousness of an animal in tort actions can be established from the incident giving rise to the cause of action, even where that incident occurs during play….

[W]e do not believe that the evidence establishes satisfactory proof that Tinkerbell's behavior constituted an "unprovoked attack" that was "intended to dominate or master" the injured child. See Merriam-Webster's Collegiate Dictionary 24 (11th ed. 2005) (defining "aggression"). We believe it just as likely, if not more so, that the child was accidently bitten during what both the dog and child perceived as the course of play.

Mr. Blatt testified that Tinkerbell loves to fetch and chase balls, and the only witness to the incident who testified, N.B., stated that L.L. took the ball from the dog, that L.L. held the ball as if to throw it, and that the dog "accidently" bit L.L. in an attempt to get the ball. None of the witnesses at either hearing testified that they observed any aggressive behavior on Tinkerbell's part before or after the bite. Moreover, both Mr. Blatt and N.B. testified that Tinkerbell ran into the Blatts' home directly after L.L. was bitten. Thus, because the facts do not adequately support the circuit court's conclusion that Tinkerbell is vicious or aggressive, the court's conclusion is in error.

Finally, we determine that the facts do not support the circuit court's conclusion that Tinkerbell is dangerous. Any dog may certainly be considered "dangerous" in that all dogs are "able or likely to inflict injury or harm." … The fact that biting is part of a dog's nature should be a surprise to no one; as nine-year-old witness N.B. aptly noted, dogs have no hands, and so they must use their mouths to take hold of things. Because biting involves sharp teeth and pressure, an object or person on the receiving end of a bite may be harmed.

Surely, the Legislature, in enacting W. Va. Code § 19-20-20, did not intend to deem every dog as dangerous for engaging in behavior that is a part of its inherent nature: biting…. While this incident clearly illustrates that Tinkerbell—or any dog—can cause harm, we do not believe that the facts in the record establish the likelihood that Tinkerbell poses such a risk of future harm to the public that the risk would warrant her destruction.

Justice Loughry dissented in relevant part, arguing that the trial judge reasonably decided that Tinkerbell was indeed dangerous enough to be destroyed, and that the supreme court shouldn't reverse that decision; here's an excerpt:

Once again, the majority grants clemency to a dog that the lower court found to be vicious and dangerous. As I explained in Robinson v. City of Bluefield (2014), "not all dogs are like the beloved Lassie." I have very fond memories of my childhood companion and faithful dog, "Bozo," and understand that pets often become members of one's family. Such feelings and emotions, however, should not prevent the members of this Court from considering the facts of this case in an objective fashion rather than under the penumbra of sentiments attached to their own pets….

Unlike the majority, my love of animals does not blind me to the lamentable reality that some dogs are dangerous, vicious, and inflict serious injuries—and even death—upon innocent victims. Sadly, case law is replete with incidents of vicious and/or deadly dog attacks. [Examples omitted.]

As in Robinson, the majority once again disregards or diminishes the severity of the injuries inflicted in the current matter—this time by "Tinkerbell," a dog that bit an eight-year-old child in the face in an unprovoked attack…. [T]he injured child's father … stated that his son's "[u]pper lip was ripped, and his bottom lip was . . . ripped even worse" and that his daughter "came in screaming because of what happened. She was terrified." The child's mother testified that she took their young son to the emergency room where "[t]hey had to hold him down and put needles in his face to sew it up. It was very traumatic." …

The majority … excuses the dog in question because it had no history of bites prior to the victim in this case[, a]pparently hinting at a "one free bite rule" ….

And the dissent seems to be sympathetic to a breed-specific presumption:

Our memorandum decision issued in Hardwick v. Town of Ceredo, No. 11-0148, 2013 WL 149628, *1 (W.Va. Jan. 14, 2013), and upon which the circuit court relied, in part, presented a particularly sticky wicket for the majority. In Hardwick, we upheld the constitutionality of a municipal ordinance banning ownership of pit bull terriers. In doing so, we "adopt[ed] and incorporat[ed] the circuit court's well-reasoned findings and conclusions[,]" which included the following:

Defendant's dogs are of the breed that is typically referred to generically as pit bull dogs which are aggressive by nature, have been known as attack animals with strong massive heads and jaws, and have been found to represent a public health hazard. The majority of jurisdictions have accepted the proposition that dogs of this type have a propensity to be aggressive and attack without provocation and it is well established that such dogs have gotten a lot of notoriety of being dangerous to public health and safety.

Having adopted and incorporated the circuit court's "well-reasoned findings and conclusions" as our own, the majority is simply wrong to suggest that the circuit court was making baseless conclusions regarding pit bulls. Moreover, the circuit court is correct in its statement that other courts have reached similar conclusions. See Burnett ex rel. Burnett v. Clarke, No. 309373, 2013 WL 1010062, at *9 (Mich. Ct. App. Marh. 14, 2013) (Gleicher, J., dissenting and quoting Hearn v. City of Overland Park, 772 P.2d 758, 658 (Kan.1989)) ("[P]it bull dogs represent a unique public health hazard not presented by other breeds or mixes of dogs. Pit bull dogs possess both the capacity for extraordinarily savage behavior and physical capabilities in excess of those possessed by many other breeds of dogs. Moreover, this capacity for uniquely vicious attacks is coupled with an unpredictable nature."); Bess v. Bracken Cnty. Fiscal Court, 210 S.W.3d 177, 182 (Ky. 2006) ("[T]he determination by the Bracken County Fiscal Court that pit bull terriers have 'inherently vicious and dangerous propensities' was certainly not unreasonable, given the evidence to support that finding."); Garcia v. Village of Tijeras, 767 P.2d 355, 359 (N.M. Ct. App. 1988) (noting "evidence establishing that the American Pit Bull Terrier breed possesses inherent characteristics of aggression, strength, viciousness and unpredictability not found in any other breeds of dog…. They have exceptionally strong bites, possibly twice the strength of bites of other dogs."); Cleveland v. Johnson, 130 Ohio Misc.2d 17, 24 (Ohio Mun. 2005) ("Given the inherently dangerous nature of pit bulls and the proper and reasonable exercise of Cleveland's police powers in adopting the ordinances at issue, the defendant has not been denied his right of due process… [A] pit bull dog is clearly vicious by its nature. It would be unreasonable and against the public interest to first conduct individual hearings on the viciousness of pit bulls after an injury has been inflicted.").

The majority has its own view of the precedents, arguing that those precedents generally support the validity of local ordinances that treat certain breeds differently, rather than themselves adopting a judge-made breed-specific rule. In any event, this struck me as an interesting case to many readers, whether they are interested in law, dogs, or both.