Introduction
Breed-Specific Legislation (BSL) is the group of laws, which regulate the permissions to keep certain dog breeds. These laws are common worldwide and are typically associated with bans of breeds, which are perceived as overly aggressive. However, many scholars and animal advocates criticize current legislation, as little scientific evidence of its efficacy exists. This paper aims to examine the research on breed-specific laws in the US and legal challenges to the statutes to analyze the shortcomings of BSL and discuss possible alternatives.
History of BSL
While BSL has been introduced in the US in the 1980s, the historical roots of breed-based dog discrimination can be traced back to the late 19th century. Common misconceptions were often fueled by the press looking to sell sensational stories. The media actively supported a popular public belief that Spitz dogs were responsible for most of the cases of rabies in New York despite the lack of scientific evidence. The New York Times, in particular, went as far as suggesting that the whole breed should be exterminated (Schiavone 15). Similarly, bloodhounds were discriminated against based on their portrayals in literature, Dobermans were hated for being associated with Nazis, and even Newfoundlands and collies were considered “vicious” (Schiavone 19). While almost none of these dogs are represented in the current BSL, these cases illustrate how superstitions and media hype can affect public opinion.
The first bans and restrictions that lead to the formation of the current BSL were introduced in the 1980s and largely followed the patterns of earlier breed-based discriminative attitudes. Media portrayal of pit bulls as extremely aggressive dogs undoubtedly played a pivotal role in local authorities’ decisions to restrict ownership of the breed in Cincinnati, Denver, and Miami-Dade County (Schiavone 21, 23). These laws were based on the isolated cases reported by the media, and no scientific research was conducted to support the lawmaking process.
The current status of BSL varies depending on the state laws. Most states allow local authorities to decide whether they want to implement any breed-specific limitations. However, in many states, BSL is completely or partially banned (Schiavone 25). Even though there are no federal regulations regarding BSL, the US Army and Marines fully adopted the legislation on their bases (Schiavone 26). While experts heavily criticize these laws for being unconstitutional, the cases challenging BSL rarely achieve success in courts (Schiavone 26). The following part is dedicated to the analysis of constitutional challenges to the legislation and notable cases.
BSL in Courts
While the attempts to overrule BSL in court are not rare, most of them do not succeed. Toledo v. Tellings is one of the most notable cases in which substantive due process was used to challenge BSL. The police officers took three pit bulls from the owner, as the local law prohibited keeping more than one dog of this breed (Schiavone 27). Notably, these pit bulls had no history of aggressive behavior (Slater 994). The owner of the dogs challenged the constitutionality of the stature of the Municipal Code in court (Schiavone 28). While expert witnesses established that there was no objective evidence proving that pit bulls displayed aggression towards humans more often compared to other breeds, the court upheld the law (Schiavone 28). The court of appeals recognized that the statute was arbitrary and unconstitutional, as it was based on public opinions rather than on scientific research (Schiavone 28-29). Eventually, the Supreme Court of Ohio overruled this decision while failing to provide substantial evidence to support the constitutionality of BSL (Schiavone 29). Overall, this case perfectly illustrates the difficulties one can face when challenging BSL in court.
The owner of pit bulls also used procedural due process claim in Toledo v. Tellings. According to Slater, such claims can be based on “an individual’s deprivation of a significant life, liberty, or property interest without being provided the minimal requirements of notice and hearing” (996). Tellings stated that he was not notified and could not contest the definition of his dog as “vicious”, but the court ruled that, according to the stature, pit bulls were inherently aggressive (Slater 996). While the claim was rejected, it laid the groundwork for the development of vagueness-based challenges, which will be discussed in the next paragraphs.
Equal protection claim is another tactic used by plaintiffs seeking to repeal BSL statutes. Animal advocates state that the law is over-inclusive and under-inclusive at the same time. In other words, it discriminates against pit bulls showing no signs of aggression towards humans while ignoring instances of aggressive behavior in other breeds (Slater 995). Indeed, if the courts base their decisions on public safety concerns (for example, in Toledo v. Tellings), one would assume that all dog breeds should be evaluated equally since all dogs can exhibit aggressive behavior. However, in Venator v. Village of South Point, the court stated that “equal protection guarantees uniformity in the treatment of all pit bull owners, not uniformity in the treatment of all dog owners” (Slater 996). Similar to the procedural due process claim in Toledo v. Tellings, the court statement can be considered questionable because of the vagueness of the breed definition process. Overall, equal protection claims rarely lead to BSL statute repeals.
Most scholars believe that the challenges to BSL based on the vagueness of the law have the most chances to succeed. Schaffner notes that “the statute violates the constitution when it leaves the reader of ordinary intelligence confused about the breadth of coverage” (29). The court of appeals in Toledo v. Tellings found the BSL statute to be vague, as it lacked the exact definition of the breed (Schaffner 29). While this decision was overturned later in the Supreme Court, the case raised a critical breed identification issue. Courts in Des Moines and Lynn have similarly found the law to be subjective and vague due to the imperfections of the breed identification process (Schiavone 32). Indeed, the fact that breed classification is not entirely objective and is subject to change challenges the very principles of BSL.
The research shows that neither the owners of the dogs nor the professionals can reliably determine the breed of the dog using only visual identification. In Voith’s study, 923 canine experts watched videos of 20 mix-breed dogs (Schiavone 39). More than half of the experts failed to correctly identify the breed of 14 dogs (Schiavone 39). Overall, the predominant breed was correctly recognized by most experts only in four dogs (Schiavone 40). This study proves that visual identification can not be used as a reliable method to determine the breed of a dog. The Centers for Disease Control and Prevention (CDC) have not been collecting breed statistics for dog attacks since 1998 because of this fact (Kogan et al.). DNA testing could prove to be a viable alternative; nevertheless, it was not used in any of the aforementioned cases. However, even assuming the breeds were identified correctly, the evidence of elevated aggression levels among specific breeds remains vague.
Research on BSL Efficacy
One of the main issues of BSL is the lack of scientific research supporting the rationale behind the statutes. All major studies in the last two decades show that it is impossible to prove the fact that some breeds are significantly more aggressive than others. Following the implementation of BSL in the US, many countries introduced similar laws; however, some of them have lifted the restrictions since then, as the researchers have not found any proof of their efficacy (Schiavone 34). The following paragraphs provide a summary of the research on BSL in different countries.
The overwhelming majority of international studies on BSL suggest that such laws are ineffective. In the Irish study, researchers found no difference in the number of dog bites inflicted by legislated and non-legislated breeds (Creedon and Súilleabháin). However, they found that the legislation had a serious negative impact on risk perceptions, as the respondents reported increased anxiety when they saw a dog from the legislated breeds group (Creedon and Súilleabháin). Hence, the researchers found that the law was not only ineffective but also harmed public health.
Major Spanish study has also failed to find any relation between the frequency of dog attacks and the bans of specific breeds. The data collected has shown that the incidence of dog bites has not changed after the introduction of breed-specific laws in Spain (Schiavone 36). Moreover, according to the researchers, “the dangerous breeds were involved in only 2.4% of biting incidents before the enactment of the legislation, and the breeds themselves represented only about 4.2% of the canine population.” (Schiavone 36). Similar to the Irish study, the researchers noted that BSL created a misperception of certain dog breeds as “safe” and “unsafe” among the general public, leading to either increased anxiety or a false sense of security (Schiavone 36). Overall, study results reinforce the validity of the equal protection claims discussed earlier in the paper.
One of the few studies supporting BSL was published in 2012 in Manitoba, Canada. The researchers studied the statistical information on dog bites before and after the implementation of BSL. They collected the data for a large city, Winnipeg, where BSL was implemented, and a small town, Brandon, where it was not (Schiavone 45). While the adjusted number of hospitalizations with dog bites in Winnipeg was lower, Schiavone argues that the data should have never been compared in the first place (45). European researchers have previously discovered that the occurrence of dog bites in densely populated areas is significantly lower overall (Schiavone 45). Moreover, the data for Brandon was collected between 1984 and 2006, while for Winnipeg, it was collected only between 1990 (when BSL was passed) and 2006 (Schiavone 45). The problem is that the statistics show that the occurrence of dog bites in areas with and without BSL in Canada has generally been decreasing since the 1990s (Schiavone 45). Hence, the relevance of the comparison between Winnipeg and Brandon data sets is questionable.
The researchers in the US studied dog bite-related fatalities to determine the factors that contribute to the incidents. According to Schiavone, “in 37.5% of the incidents, there was evidence of owner mismanagement and in 21.1% there was evidence of prior abuse or severe neglect of the dog” (41). The vast majority of the dogs lived in isolation rather than with families (Schiavone 41). Other recent studies confirm that developmental and environmental issues have more influence on dogs’ behavioral patterns than their breed (Schiavone 41). Overall, most researchers agree that rather than implementing breed-specific measures, legislators should focus on developing comprehensive breed-neutral laws considering the complexity of the issue.
BSL Alternatives
Following large-scale national studies, many countries have repealed BSL and introduced new breed-neutral laws. In the US, BSL is preempted at the state level in 21 states (“What Is Breed-Specific Legislation?”). In some cities, BSL has been replaced with the new, breed-neutral legislation (Slater 998). Cleveland Councilman, Matt Zone, noted that “these revisions shift the focus from the type of dog to its behavior and neglectful actions of its owner” (Slater 999). Animal advocates play a pivotal role in repealing BSL statutes at the local level. For instance, in Iowa, Stephanie Filer convinced the policymakers in several municipalities to replace BSL with breed-neutral legislation (Slater 1001-1002). The fact that besides being ineffective, BSL is also a burden to the taxpayers can often help the legislation opponents to persuade the local authorities to repeal the law (Slater 999). However, it might often prove difficult to change the laws at the city level, as the legislators are often reluctant to change the policies that have been active for decades. Therefore, campaigning for the statewide preemption of BSL is arguably the best strategy for animal advocacy groups.
It is important to consider the alternative measures which can take the place of BSL. Studies show that isolation, abuse, and mismanagement all contribute to aggressive behavior in dogs (Schiavone 66). Moreover, in most cases of bite-related fatalities, researchers have found that the combination of these factors was present (Schiavone 66). Hence, legislators should consider increasing fines for animal abuse and prohibiting the full isolation of the dogs (Schiavone 66). As the studies show that non-neutered dogs tend to be more aggressive, policymakers could introduce non-mandatory laws, encouraging citizens to spay and neuter their dogs (Schiavone 67). Overall, the policies should focus on the prevention of the incidents rather than on outright bans.
Conclusion
The proponents of BSL believe that the current legislation contributes to public safety and should be left in place, while the opponents of the law deem it unconstitutional and claim that it is ineffective. The scientific research on dog behavior proves that the assumption that certain breeds are more violent than others is not based on any evidence. Moreover, the vast majority of the studies show that the implementation of breed-specific laws in different countries did not lead to a reduction in bite-related injuries. Hence, most experts believe that the current legislation should be repealed in favor of breed-neutral laws. The researchers have established that the owners of the dogs are nearly always directly or indirectly responsible for the dogs’ aggression. Hence, legislators should aim to develop policies that will prevent animal abuse and mismanagement. Unlike BSL, these measures could address public safety concerns effectively.
Works Cited
“What Is Breed-Specific Legislation?” American Society for the Prevention of Cruelty to Animals, 2020.
Creedon, Nanci, and Páraic Ó Súilleabháin “Dog Bite Injuries to Humans and the Use of Breed-Specific Legislation: A Comparison of Bites from Legislated and Non-Legislated Dog Breeds.” Irish Veterinary Journal, vol. 70, 2017.
Kogan, Lori R. et al. “Small Animal Veterinarians’ Perceptions, Experiences, and Views of Common Dog Breeds, Dog Aggression, and Breed-Specific Laws in the United States.” International Journal of Environmental Research and Public Health, vol. 16, no. 21, 2019.
Schaffner, Joan. A Lawyer’s Guide to Dangerous Dog Issues. American Bar Association, 2009.
Schiavone, Ann. “Barking Up the Wrong Tree: Regulating Fear, Not Risk.” Animal Law Review, vol. 22, no. 1, 2015, pp. 9-78.
Slater, Olivia. “Does Every Dog Really Have Its Day?: A Closer Look at the Inequity of Iowa’s Breed-Specific Legislation.” Drake Law Review, vol. 66, 2018, pp. 975-1005.