On Monday, August 6, the ABA House of Delegates approved Resolution 100, which calls for laws regarding dangerous dogs to be “breed neutral.” The resolution states that “the American Bar Association urges all state, territorial, and local legislative bodies and government agencies to adopt breed-neutral dangerous dog/reckless owner laws that ensure due process protections for owners, encourage responsible pet ownership, and focus on the behavior of both dog owners and dogs, and to repeal any breed discriminatory or breed specific legislation." This Resolution brings up two distinct, but interesting questions. Are dogs and their owners denied due process through state and local laws that are not breed neutral? And if so, what impact does an ABA Resolution have in changing the laws that govern these owners and their pets?
First, the due process rights of pets and their owners. Though a recent case filed against Sea World in San Diego by animal-rights group PETA (People for the Ethical Treatment of Animals, Inc.) argued that five orca whales were being held in violation of the Thirteenth amendment’s prohibition against slavery, the United States District Court for the Southern District of California dismissed the case on the finding that non-human animals lacked standing to sue. Specifically, the court stated that “[t]he only reasonable interpretation of the Thirteenth Amendment's plain language is that it applies to persons, and not to non-persons such as orcas. Tilikum ex rel. People for the Ethical Treatment of Animals, Inc. v. Sea World Parks & Entm't, Inc., 842 F. Supp. 2d 1259, 1263 (S.D. Cal. 2012). Thus, as the harm alleged by PETA on behalf of the orcas could not be redressed by the Thirteenth Amendment, there was no standing to sue and the case was dismissed. Using the same reasoning, it follows that pets are not protected by the due process provisions of the Fifth and Fourteenth amendments, as the language indicates that the amendments apply to persons, not dogs.
The owners of the pets on the other hand, do have due process rights that may be violated. In cases where the issue of breed specific (or breed discriminatory) laws are challenged, arguments focus on (1) overly vague laws that do not give proper notice to the public, or leave too much discretion to enforcing officers, and (2) even when breeds are specifically defined, it is very difficult to determine the breed of dog simply based on appearance. In most cases, these void for vagueness challenges fail, but have been strong enough for courts where the legislation refers not only to specific breeds, but to also dogs with a pitbull-like appearance. See, e.g., Am. Dog Owners Ass'n, Inc. v. City of Des Moines, 469 N.W.2d 416, 418 (Iowa 1991). Substantive due process challenges to breed-specific legislation argue that the breed-based regulation or ban is not rationally related to a legitimate government interest in the protection and safety of the public. See, e.g., Garcia v. Vill. of Tijeras, 767 P.2d 355, 358 (N.M. Ct. App. 1988). In most cases, however, courts have not had trouble finding that the breed-specific legislation is rationally related to the legitimate government goal of protecting public safety
Many states are now attempting to avoid what is called “panic policymaking,” where states enact legislation specific to certain breeds of dogs, often in response to a tragic dog bite instance. Texas is among twelve states that have enacted statutes allowing a country or municipality to place additional requirements or restrictions on dangerous dogs, but only if those requirements or restrictions “are not specific to one breed or several breeds of dogs,” and instead focus on behavioral, or other non-breed specific criteria. Tex. Health & Safety Code Ann. § 822.047 (West 2010).
The resolution approved by the ABA House of Delegates, and its accompanying report urge states, territories, and local governments to consider such breed neutral legislation. Though the resolution does not have any enforcement powers, its report does recommend types of legislation that focus on the negligent behavior of dog owners, rather than the dogs themselves. For example, in St. Paul, Minnesota, after an owner has a dog removed from his or her care two or more times within 5 years due to dangerous behavior, they are no longer eligible for the dog license required to keep a dog in the city. St. Paul, Minn. Code of Ordinances § 200.02 (2009). While the reach of the ABA resolution may be limited, it can serve as a support for changing laws in states that still allow for breed-specific legislation, and provide examples of how best to draft more neutral laws that protect the public while providing clear guidelines for dog owners.
For more information about dangerous dog laws, try consulting these resources, available at the O’Quinn Law Library:
A lawyer's guide to dangerous dog issues (Joan Schaffner, ed., 2009) KF 390.5 D6L39 2009
David Farvre, Animal Law: Welfare, Interests, and Rights (2008) KF390.5.A5 F382 2008
Mary Randolph, Every Dog’s Legal Guide (2007) KF 390.5 D6R362007