Mid Atlantic Animal Law

Fiscal Bite & Breed Discrimination: Utilizing Scientific Advances & Economic Tools in Lobbying

By Ledy VanKavage and John Dunham

Panic policymaking is defined as the speedy creation of new laws and regulations or new duties for governmental and private institutions in a situation of sudden, unreasoning, and excessive fear and anger.[1] The majority of breed-discriminatory laws stem from just such a situation: A dog bite or attack, usually with high media visibility. According to Cass Sunstein, “[I]n the aftermath of a highly publicized event people are more fearful than they ought to be – the phenomenon of ‘availability bias.’ An available incident can lead to excessive fixation on worst-case scenarios.”[2] Since the 1980s, in reaction to these worst-case scenarios, dozens of municipalities or counties have adopted breed-discriminatory laws.[3]

There are three political preconditions that result in panic policymaking and influence the adoption of breed bans: “First, the supporters of the legislation adopt the traditional legal definition of animals as property. Second, the breed ban is a form of policymaking that is often more a symbolic reaction – a palliative rather than a cure – for an emotional fear or anxiety.[4]  It deals with the potential of catastrophic injuries and promises to provide reassurance of safety and security.[5] However, despite the symbolism of breed bans, they add a new element to animal law. They shift the costs of injury from the owner to the dog. Traditional cruelty laws result in fines or incarceration of owners. Breed bans cause the owner’s loss of the dog, but the dog or dog breed faces extermination. Finally, and central to this paper, the adoption of breed bans occurs in a relatively unusual political context. Unlike adoption of some palliatives for risk, breed bans appear in circumstances marked by great emotionalism and limited inquiry into the sources and probability of a risk and limited consideration of alternative policies.”[6]

Panic policymaking, however, is not inevitable. A knowledgeable advocate can marshal scientific evidence, economic-impact data, and negative practical outcomes that demonstrate why breed-discriminatory policies will fail to protect the public.

For example, implementation is of little concern during the formulation of panic policies.[7] Because of the speed of passage and lack of attention to calculation, planning, and assessment, officials often fail to consider how the policy will be implemented. They thus fail to forecast the resources of personnel and money necessary to enforce the policy.[8]

This is true not only of breed bans but of any breed-discriminatory law. Policymakers often forget about the burden of proof – i.e., that they have the burden of proving that a dog is of a certain heritage.[9] For criminal measures, the government must prove that the dog in question is of a certain heritage beyond a reasonable doubt. If there are civil penalties, the government has the burden of proving that the canine is of a certain heritage by a preponderance of the evidence. In the past, this might have been considered easily done merely by visual identification, but with the advent of scientific advances – namely, DNA testing – that is changing.

Because of these advances in genetic testing, the traditional legal categorization of animals as property can actually be used to their benefit. Under the Fourteenth Amendment to the United States Constitution, “no person shall be deprived of life, liberty, or property without due process of the law.”[10] Four basic characteristics of breed-discriminatory laws are relevant to a constitutional challenge:[11] (1) definition of the breed, (2) procedures for identifying and challenging the designation, (3) ownership restrictions imposed, and (4) penalties for violation of the laws.[12]

Breed-Discriminatory Law and the Science of Genetics

Scientific advances in canine DNA could be the beginning of the end for breed-discriminatory laws. DNA testing can be done by either a veterinarian who takes a blood sample of the dog or by a pet owner who buys a kit at PetSmart and sends the canine’s cheek swab to a lab. The results of these tests are often surprising.

A report by Dr. Victoria Voith and colleagues at Western University published in the Journal of Applied Animal Welfare Science indicates low agreement between the identification of breeds of dogs by adoption agencies and DNA identification. The dogs in this study were of unknown parentage and had been acquired from animal shelters. In only a quarter of these dogs was at least one of the breeds proposed by the animal shelters also detected as a predominant breed by DNA analysis. In 87.5% of the adopted dogs, breeds were identified by DNA that were not proposed by the animal shelters. A breed must have been detected at a minimum of 12.5% of a dog’s makeup to be reported in the DNA analysis.

Given the discrepancies between opinions of animal-shelter workers and identification by DNA analysis, the paper suggests re-evaluating the reliability of non-DNA breed identification and calls into question current public and private policies based on dog breeds, all of which are based on historical data dependent on visual breed identification.[13]

Given Voith’s findings, and the ease of obtaining DNA testing, objective canine DNA testing should be the preferred method of breed identification if a local government has enacted breed-discriminatory policies. Understandably, many government attorneys haven’t kept up with the science of DNA, but courts are increasingly allowing DNA evidence in breed-identification cases.

Courts usually use two tests in evaluating the admission of scientific evidence – either the Frye test or the Daubert test, depending on the jurisdiction.[14] Because of the general acceptance of canine DNA testing in the scientific community and its testability and reliability, it is inevitable that canine DNA will be admissible for breed identification in all 50 states.

The methods and techniques used to extract and analyze canine DNA are the same methods and techniques used to extract and analyze human DNA.[15] Currently, the Professional Breed Library database – which is derived from the Mars Wisdom Panel Professional™, formerly known as the Mars Wisdom Panel MX™ – comprises more than 200 American Kennel Club and United Kennel Club registered dog breeds.[16] The Mars identification kit is the most reliable test because it requires a blood sample taken by a licensed veterinarian.

The Mars Wisdom Panel Professional™ DNA test has already been used as evidence in some municipal-court breed identifications.

In a 2008 Kansas City, Kansas, case, a dog named Niko was seized under a breed-discriminatory ordinance and spent nine months at the city’s animal-control facility.[17] Niko’s owners demanded a DNA test. The test revealed that Niko had no predominant breed but was 12.5% American Staffordshire terrier and had trace amounts of Cavalier King Charles Spaniel and miniature schnauzer. Because the DNA test established that Niko was less than 13% “pit bull,” he was returned to his owners.

In 2009, an officer visually identified the dog Lucey as a “pit bull”[18] in Salina, Kansas, which has a breed-discriminatory law.[19] The dog’s owners challenged the officer’s visual identification. DNA testing revealed that Lucey was 25% Bernese Mountain dog, 12.5% Staffordshire bull terrier, 12.5% bull terrier, 12% boxer and 12.5% unknown. Lucey was a lucky dog – because she was determined to be predominately Bernese Mountain dog, the city dropped all criminal charges and civil penalties and she lived another day.

Temperament Testing

Although not as scientifically sound as DNA testing, the American Temperament Test is another successful tool in preventing the panic-driven policymaking that results in breed-discriminatory laws. The American Temperament Test Society (ATTS) has developed a test that measures different aspects of canine temperament such as stability, shyness, aggressiveness, and friendliness, as well as the dog’s instinct for protectiveness toward its handlers and/or self-preservation in the face of a threat. The ATTS describes its test on its Web site:

“The test simulates a casual walk through a park or neighborhood where everyday life situations are encountered. During this walk, the dog experiences visual, auditory and tactile stimuli. Neutral, friendly and threatening situations are encountered, calling into play the dog’s ability to distinguish between non-threatening situations and those calling for watchful and protective reactions.

“Dogs must be at least 18 months old to enter the test. The test takes about eight to 12 minutes to complete. The dog is on a loose six-foot (6’) lead. The handler is not allowed to talk to the dog, give commands, or give corrections.

“Failure on any part of the test is recognized when a dog shows:

·                    Unprovoked aggression

·                    Panic without recovery

·                    Strong avoidance”[20]

The test’s breed statistics show that the American pit-bull terrier and American Staffordshire terrier consistently scored above average for all breeds tested, year in and year out.[21] Decision-makers are often surprised to learn that American pit-bull terriers test better than golden retrievers on some occasions.[22] The information provided by the test can thus be an extremely persuasive tool in shaping good legislation.

Fiscal Bite: The High Cost of Breed Discrimination

Government officials need to understand that they are incurring significant costs when they enact breed-discriminatory laws. Even before costly DNA testing entered the picture – the cost varies from $125-$200 per dog – breed-discriminatory laws were found to be expensive, but city officials gave little thought to the implementation of these laws.

In 1997, Prince George’s County in Maryland enacted CB-104-1996, which banned pit-bull dogs. In 2002, CR-68-2002 created the Vicious Animal Legislation Task Force to evaluate the effectiveness of existing legislation and administrative regulations concerning vicious animals and to advise the county on improvements and amendments to current policies or laws. The task force found that the cost to the Animal Management Division for maintenance of pit bulls over a two-year period was approximately $560,000. The task force found the breed-discriminatory policy to be inefficient, costly, difficulty to enforce, subjective and questionable in results. It recommended repealing the breed-specific ban.[23]

Despite these findings, Prince George’s County has yet to repeal its breed ban. The county impounds more than 900 “pit bulls” per year. On average, more than 80 percent of the “pit bulls” impounded are maintained by the Animal Management Division throughout a lengthy hearing process and eventually euthanized merely because of their appearance.[24]

As the Prince George’s County experience attests, the rising costs of enforcing breed-discriminatory measures in these austere times should encourage officials to contemplate the fiscal impact of enacting such laws.

Unfortunately, when public policy is passed in a panicked and rushed manner, it is unlikely that data and information on the costs, benefits, consequences or even the effectiveness of the proposed policy will make it into the debate.  This is especially true when no government agency is tasked with maintaining comprehensive data on the issue.

Consider a city council trying to decide if parking meters should be removed from a street.  Even if residents and businesses were emotional about the issue, the council members would receive detailed information on the number of cars that park at each meter, how much money this raised, and how much sales tax revenue each firm on the block generated.  There would be a team of civil servants writing reports with detailed data, analysis and recommendations.   That same city council considering a breed ban – or frankly anything involving pets – would be faced with emotional mothers, animal welfare advocates, maybe a veterinarian, but absolutely no data on which to base their decision.

The reason behind these differences is simple.  Governments measure things that matter most to them.  Since dogs neither vote nor pay taxes, there is a dearth of data on them.  Few if any governmental bodies know even the number of dogs in their community, much less anything on the breeds of those dogs, nor their ownership patterns.  Since animal control is generally a small part of government’s budgets they may not even have good data on sheltering or enforcement costs.  This lack of viable, actionable information provides an open playing field for emotion driven, panic policymaking.

In order to address this disadvantage, it is essential that representatives of animal-welfare organizations be as prepared as possible with sound economic and fiscal argumentation.  This argumentation should be geared toward the jurisdiction in question.  In other words, bringing data from Los Angeles to a meeting in Memphis is not useful.  State level data is rarely useful in a local hearing.

Best Friends Animal Society took a major step forward in commissioning a study entitled “The Fiscal Impact of Breed Discriminatory Legislation in the United States.”[25]

The study estimates the number of canines in every community in the country based on federal government data. The model correlates a wide range of demographic and geographic variables, all of which are available at the community level, with known canine populations in 13 jurisdictions utilizing non-linear programming techniques.  In other words, the model minimizes the differences between actual and predicted canine populations in the control cities by estimating coefficients across a wide range of available data.

Using this model, the analysis was able to determine that the number of dogs in a specific town is a function of the total number of households, total population, physical land area, the structural type of housing, the gender and ethnic mix of the community, the poverty rate and the marriage rate.

Once the total number of dogs is estimated, the number of pit-bull-type dogs is calculated using national estimates of the number of dogs affected by the breed-discrimination legislation.[26]  Based on this model it is estimated that there are 72,114,000 dogs in the United States, with an estimated 5,010,934 pit-bull-type dogs.  Note that these are not genetic pit-bulls, but rather dogs which may be identified as pit-bulls simply due to their size and shape.

According to the study, if the United States were to enact a breed-discriminatory law, it would cost $459,138,163 to enforce annually.[27] To cite a single community, the fiscal cost of a breed-discriminatory law in the District of Columbia would be $965,990 annually.[28]   The costs include those related to animal control and enforcement, kenneling and veterinary care, euthanasia and carcass disposal, litigation from residents appealing or contesting the law, and DNA testing. Other costs not included in this estimate may vary depending on current resources available to a specific community’s animal control program.  They may include additional shelter veterinarians, increased enforcement staffing, and capital improvements associated with increased shelter space needed.

Indeed, since the fiscal-impact calculator came into use, 37 cities or counties have decided against breed-discriminatory laws, while only 10 have opted for breed discrimination.[29]

Effective Legislative Alternatives to Panic Policymaking

Demonstrating the high cost of breed-discriminatory laws is a persuasive tool in preventing panic policymaking, but identifying effective legislative alternatives is equally essential.

The experience of Illinois during the past decade provides a helpful example. The state’s General Assembly debated a flurry of breed-discriminatory bills because of several dog attacks, including two that received particularly prominent media attention. In 2001, 7-year-old Ryan Armstrong was mauled by a stray dog in Chicago. Armstrong had gotten off his bike to pet some puppies and was confronted by a fully grown unsterilized male Rottweiler. When Armstrong attempted to pet the Rottweiler, the dog bit him, nearly severing his thumb from his hand. Ryan also was bit on his chest and arm before friends were able to chase the dog away.[30] In 2003, Anna Cieslewicz, a 48-year-old pediatric nurse, was attacked and killed by two unsterilized male dogs in the Dan Ryan Woods in Chicago.[31]

Because of these highly publicized attacks, bills restricting a variety of dog breeds were introduced. Unlike in many cases, however, the momentum for panic policymaking was successfully derailed through intensive animal-welfare lobbying efforts, which included hiring a contract lobbyist. Instead of breed-discriminatory laws, three comprehensive generic public-safety measures were eventually passed.

The first was the Ryan Armstrong Act[32], which increases penalties for people who owned dogs that had been declared dangerous or vicious and let them injure someone. It also mandates the sterilization of any dog found to be dangerous or vicious by temperament. Significantly, the Ryan Armstrong Act actually prohibits municipalities or political subdivisions from passing any ordinance or regulation that was specific to breed. Animal-welfare lobbyists used scientific studies and the information gathered by the Vicious Animal Legislation Task Force of Prince George’s County to show legislators that breed-discriminatory laws were ineffective and costly.

In 2005, the Illinois General Assembly passed the Anna Cieslewicz Act[33], which provided funding for a pet-population-control fund through public-safety fines, differential-licensing fees, a tax check-off, donations, and license-plate revenues. The fund allows recognized feral-cat caretakers or dog and cat owners who are on Social Security disability benefits or food stamps to get their animals sterilized and vaccinated for only $15. Instead of focusing on breed, the Legislature concentrated on reducing the stray-animal population and dogs running at large.

The fear of breed bans in the Land of Lincoln continued to percolate, even permeating the school system. In 2006, students from Brentano Math and Science Academy in Chicago were the winners of a “best resolution” contest. They authored H.R. 1026, which states that dog-control problems are created by people and are not limited to a breed or mix. The resolution says that singling out breeds of dogs as vicious or banning them only shifts the responsibility from the dog owner, where it belongs, to the breed of dog, and does not solve community dog problems. It was resolved that municipalities, as effective strategies for keeping communities safe, should be encouraged to address animal attacks by enforcing laws that promote responsible and humane treatment of dogs and all other animals; teaching communities about responsible dog ownership; creating awareness; and punishing illegal dog fighting.[34] These middle-school children did the research, and their resolution favored sound public-safety policy, not panic policy.

Other states have also avoided panic policymaking by pursuing sensible solutions to the problem of dangerous dogs. In Virginia, the death of a Spotsylvania woman sparked such outrage over Virginia’s inadequate dangerous-dog law that a new dangerous-dog law[35] that included a Dangerous Dog Registry[36] was passed. According to Michelle Welch, an attorney with the Office of Attorney General, the registry was something that many in animal control had wanted for a long time because there was no way of tracking a dog that had been declared dangerous from locality to locality.[37]

Canine Profiling in Operation: No Record of Success

Unfortunately, there is a dearth of studies on the topic of the effectiveness of canine-profiling laws. There are only two published studies on the topic and none in the United States. However, to date, there are no studies showing that breed-discriminatory laws protect the public.

The United Kingdom banned “pit bulls” in 1991. The Klaassen study examined the U.K.’s Dangerous Dog Act and concluded that the ban had no effect on stopping dog attacks.[38] The study examined incidents seen at one urban accident and emergency department before the implementation of the act and again two years later.

A more recent study compared dog bites reported to the public-health department of Aragon, Spain, for the five-year period before the implementation of the city’s Dangerous Dog Act in 1999 and the five-year period after.[39] The allegedly dangerous breeds accounted for 2.4 percent of the dog bites before the breed-discriminatory law was introduced and 3.5 percent of the dog bites after the law was implemented. The authors state that the “results suggest that BSL was fundamentally flawed … [and] not effective in protecting people from dog bites in a significant manner.”[40]

These published studies from across the pond are reflected by a recent newspaper article discussing the effect of the Denver, Colorado, pit-bull ban.[41] Twenty years after the ban was enacted, the director of Denver Animal Control admits that he is unable to say with any certainty whether it has made Denver any safer. Labrador retrievers – the most popular dog breed – are the most likely dog to bite in Denver.

A Problem-Oriented Policing Approach

A creative lobbyist’s job is not just to document failure but to come up with alternatives that have proven records of success.

Herman Goldstein, a law professor at the University of Wisconsin, wrote the book on problem-oriented policing.[42] In his 1979 article “Improving Policing: A Problem-Oriented Approach,”[43] Goldstein articulated the key principles that formed “the core of the changes that are required in the way we think about the police job”:

·                    Grouping incidents

·                    Focus on substantive problems

·                    Concern with effectiveness

·                    Systemic inquiry and analysis

·                    Tailor-made responses

·                    Evaluation of results

The same principles apply to animal control, and a problem-oriented approach yields good results.

The city of Calgary, Alberta, has taken just such a tack. Instead of discriminating against breeds of dogs, Calgary protects the public from all aggressive dogs, regardless of breed. Using the problem-oriented model, the city’s animal-control wardens focus on public education and stiff fines. ^[44] According to the Calgary Herald, aggressive dog attacks are at the lowest level they’ve been in 25 years despite a steady population growth.[45]

Problem-oriented animal control effectively targets reckless owners. Like reckless drivers, reckless owners are often recidivists: You take away one dog, and they simply get another. In 2007, St. Paul, Minnesota, passed an ordinance that addressed such reckless dog owners.[46] St. Paul pet owners cited more than once for abusing or neglecting an animal can’t legally own another pet under the ordinance. Dog bites are down in St. Paul.[47] Similarly, Tacoma, Washington, created an ordinance regulating “problem pet owners.”[48] A person who commits three or more animal-control violations in a 24- month period can be declared a problem pet owner and forced to surrender all of their animals.

Lobbyists can impress on legislators that there are effective animal-control programs out there that actually can be fiscally sound. Calgary’s program actually makes money, something that unfortunately can’t be said for most animal-control programs in the States.

Hopefully, by hiring lobbyists who understand the political climate and providing them with economic and scientific tools, animal-welfare advocates will help sound the death knell of panic policymaking.