THE NEW BREED OF MUNICIPAL DOG CONTROL LAWS: ARE THEY CONSTITUTIONAL?

I . INTRODUCTION

Municipai legislators across the country recently have been confronted with the problem of serious attacks on people by pit bull dogs.' As a result, lawmakers in several cities and towns have enacted Iegislation requiring pit bull dog owners to obseive special regulations. Traditionally, the passage of canine control iaws has been considered a constitutionally legitimate exercise of a city's police power to protect the publíc's safety and welfare. The pit bull dog ordinances, however, raise constitutional questions concerning the dog owners' fourteenth amendment rights of due process and equai protection. Because the ordinances effectively classify one breed of dog as inherently dangerous, the pit bull dog laws represent a new development in municipal police power Iegislation. This Comment reviews the legislative responses to the recent pit bull dog attacks on people, analyzes the constitutionality of these responses, and suggests alternatives available to municípal lawmakers who are seeking to protect their constituents in a constitutíonal marmer.
II. Cvxl~Nr PRosI.EMs ANn I.Eclsl.ATiv~ RlřspoNsFs
In the past four years, elected o#Iicials in many parts of the country have confronted the problem of fatalities and severe maulings of peopIe by pit bull dogs.2 Reports of these attacks have prornpted an anti-pit bull dog hysteria in various communities.3 Many
l. For a disatszion concernisg the čeňnition of "pit buli dogs" xe iu~ra notes 70-74 and accornpanying cact.
2. Sa Hoffard, ?át Pit Bu1! Tcma~ Should It & Co~rolhd by Lam? Coatu~ AHnw~t Cor~oL, Mar.-Apr. 1984, at 8 (anti-pic buIl hysteria swceping the country); L~woy, Born To Kiu? Cin. Enquiiu Magazine, Jan. 8, I984, at 4 (Cincinnati, Ohio pit bull dog controvury); Tietjen, Nat T'anc It Coald Bc Yo~cs Bsa~ C~HE CHRoH., Apr. 14, 1984, at 6, 10 (Florida and Ohio Iegislation discussed).
3. Hoffard, supsa note 2, at 9 (MinneapoIis, Rivcrside, Cal., Hollywood, Fla., Cincinnati consider lawz governing ownership of pit bull dogs).
In ac leatt ~ states-Alaska, California, Florida, Kansas, Viinnaota and New Mexico-Iawmakers have considerrd adopting poiicia thac would control pit bull dogs. Sa N.Y. T"nna, June 18, I984, at A12, col. 1 (Ant~oiage, Ala. animal shdtas stop offaing pit buIl dogs for adoption); U.P.I. Wire Service, May 17, I984 (avac7abie Ckt. 1, 1984, on NEXlS, wire file) (Pscston, Kan. enactcd dog controls aftcr pit buII dog owna convicted of involuntary n~anslaughtcr bccause of fatal attacks by his dogs); A.P. Wire Scrvice, May I6, 1984 (aw~able Oa. I, I984, on NEXiS, Wire f:Ic) ~jaa~, N.M. banncd
. 1067
1068 CINCINNATI LAW REvIEW (Vol. 53
observers, including Humane Society off cials and veterinarians, believe that the recent pit bull problem stems from two related social trends: the increasing popuiarity of the breed as a status symbol,~ and che alarming growth in the illegal sport of dog f ghting.s
Responding to the attacks, four cities have enacted canine control laws requiring pit bull dog owners to take special precautions. In I980, the city commission of Hollvwood, Florida passed an ordinance that required t~e owners of pit bull dogs to complete special registration forms and prove the possession of ~25,000 of public liability insurance.ó This regulation applied to the owners of any American Pit Bull dog, Pit Bull Terrier dog or Staffordshire Terrier dog.' The Village of Tijeras, hTew Mexico barlned pit bull dogs in
ownaship of pit bull dogs); Cincinnati Enquirer, Nov. 3, 1983, at C2 (new law rcquircd pit bull dogs be pcnned and muzzied); U.P.I. Wire Service, Sept. l4, 1983 (ava~able Oct. l, 1984, on NEXIS, Wire file) (starucc prohibicing running at iarge passed in Cosralcs, N.M. following pic bull dog atcack); U.P.i. «'ire Service, Qct. 20, 1982 (avaúable Oct. I, 1984, on NEXIS, Wire file) (San Diego County passed ncw vicious dog laws after facal mauling by pít bulI dog); A.P. Wise Sesvice, Jan. 16, 1980 (avac7ablc Oct. l, 1984, on NEXIS, Wite fc7e) (Hollywood, F7a. appmved new pit bull dog ordinance).
4. Sa Fiqhti~ Dogs' Aucck R~ius Alcrm on Cacst, ~l.Y. Tima, Feb. 12, 1982, at A!, col. I (pit bull dogs highly popular as pets becausc ownership giva people "macho" fetling).
'Ibe mle of pit bvil dogs as a status symbol is shown in its extretne in disacuions of dog~fighting. Su, ~.g., Kroll, Tlu Sa~e Pit, GEo, ~iov. 1979, at 58; Maher, ?7ic Tsa~ad> of r!u Amaicca Pit BaIT, Cou~a~cavs MoNrHI.Y, Oa. 1983, at I53, 157 (hardencd dog ňghtas regard pic bull as ego e~ension that may pmve its loyalty and ga~mencu by continuing to fight whcn maimed or dying).
5. Sa, c.~., Boatfidd, CIifford & Rubright, T7m C~fin~on~ H~ mrd Cmi of F~ Do~s, NEw Marrions, Mar. ! 983, at 7, 9 (osganized dog fighcing spr~ading rapidly in Unitcd States dapite its Olcgaliry). Paaaltia for dog figisting are often hatsh: unda California law, for acample, a spectator can be saiccncod to one year in jat3 and an owner or traina can be fmcd 550,000. C.~.. Pr.~~L ConE S 597.5 (Wac 1983). Fedaal statutes also make dog fighting criminal. Sa 7 U.S.C. 5 2156 (1982) (fines up ta t5,000 and imprisormncnt of one year may be imposed upon conviaion for sponsoring animal fight, buying, ~~~fTg, ddivering or transporting animal used in fighting; or using postal rystan to promote animai fighting).
Enforcenunt of dog fighting laws, according to thc chief investigator for the Humane Sociery, is as difl'icvit as uacbng dmg rings. "Both the scate and f~ral authoriria simply have to gec serioc,u about this problem. They think dog fights happen once in a while on a weekend, in some far-off place. The txuth of the mattcr is they're going on evay weekend aIl ova the country." Kzolt, suptc note 4, at 76 (quocing Frantz Dantzler, chief investigacor for Humane Socicty).
6. Su Hou.Ywoon, Fu., CoDg S 6-25 (1980). Section 6-25, requiring registration of pit bull dogs and proof of IiabOiry insurancc, rras d~lamd unconstitutional, and thercby void, oWIovember 9, i982. Sa Holder v. Ciry of Hollywood, No. 8I-I3968-CR, acupt of procecdings at 8 (I7th Cir. Broward Cty., Ha.. ~Iov. 9, 1082) (avaOable Nov. 18, 1982, city attorney's offce).
7. Hou.rvooD, F~., CoDe S 6-25 (1980).
1984j DOG CONTROL LAWS 1069
a I984 ordinance, and allowed county animai control off cers to confiscate and destroy the dogs.8
In Cincinnati, Ohio the vicious dog regulation, as amended in 1984, defined vicious dogs to include aIl pit bull terriers and required that the dogs be confined indoors or in an enciosed, locked pen while on the owner's premises, and be leashed and muzzled when beyond the owner's property.9 The ordinance defined a pit bull terrier as any Staffordshire Bull Terrier or any mixed breed of dog containing Staffordshire Bull Terrier or American Staffordshire Terrier as identified by a veterinarian.'° The maximum penalty for violating the ordinance combined a ~1,000 ine and imprisonment for sixty days.Il Cincinnati lawmakers also banmed the sale of pit bull dogs within the city limits.l2 In 1984 the Village of Walbridge, Ohio modeled its new vicious dog ordinance after Cincinnati's regulations and further banned the ownership of "pit dogs" along with other dangerous animals, such as snakes, wild animals, and poisonous reptiles.l3
Although each city's law is difl'erent in form, aIl of the ordinances have an important similarity-restrictions are specifically placed only on the owners of pit bull dogs. Thus, one breed of dog has been singled out as inherently dangerous to society. The issue raised by these ordinances is whether they infringe upon pit bull dog owners' constitutional rights, especially the due process and equal protection provided by the fourteenth amendment.
III. CONSTTTUTIONALITY OF CANiNE CONTROL LAWS
A. The Fourleenth Amendm~erct and tht Statr's Police Pourer
Regulations designed to protect people and propeny from ~e destructiveness of dogs have existed since the time man first dbmesticated dogs.l~ Early American courts upheld the constitutionality of various canine control laws because they viewed do~s
8. A.P. Wire Service, May 16, 1984 (available Oct. l, 1984, ~ NEXIS, Win file). 9. CtNctrrN~rt, Omo, Mt~x. CoDF S 701-25 (1983). This ordinance has becn
challcnged in federal court on the grounds that it violata a dog ownu's fourteenth and first amcndment rights. Sa Lundy v. City of Cincinnati, No. C-1-84-1190 (S.D. Ohio fileci Aug. 22, I984).
10. C:NctNH~ri Mtrri. Cone S 701-25 (1983). li. Id S 701-99.
12. Id SS 701-45, -99-B.
13. Vn.trvcE oF W~rsRtncB, Omo, ORncH.~c~ 2-84 (jan. 9, 1984).
I4. Soe geaeralty Jackson, Liability fos Anim~ts in Roma~ Lcur An Xistori~al S~dCh, 37 C.~sRmcE L J. 122 ( 1978) (dog control laws datc back to domestication). ReguIacion of dogs under Roman law, for cxample, may date back as far as the middle of the third cencury
I070 CINCINlV.4TI LA Gi~ REvIEI~V (Vol. 53
as "irnperfect" or "qualified" property, a position adopted from the early English cornmon law.'5 Under this view strict regulations did not interfere with the owners' rights to due process because dogs were not considered property. This initial basis for upholding the constitutionality of canine control statutes is no longer vašid because dogs now have the legal status of valuable property.'6
Today, the wide range of dog regulations are considered constitutionally legítimate exercises of the state's police power." The right of states to exercise police power is not derived frorn any provision in the United States Constitution but traditionally is implied from state sovereignty.'8 Police power encompasses the protection of the
B.C.E. Id ac I29.
! 5. Sa, c.~ , Nicchia v. New York, 254 U.S. 228, 234 (l920); Sentell v. New Osleans & Carrollton R.R., I66 U.S. 698, 701 (1897); Thide v. Denva, 135 Colo. 442, 447, 312 P.2d 786, 789 (I957); Mayor of Hagcrstown v. Witmcr, 86 Md. 293, 300, 37 A. 965, %6 (I897); sa aLso M. LoRINc, Yot~x Doc ~Hn ~'t~ I.~w 3 (I983); 7 E. Mc~Q~, Mt:Ntcip~t. Co~oxr~'rtorcs S 24.284 (3d ed. l981); Comment, N~ of Psopaty in Dogs, 4 It~o L. Rw. !05 (1%7).
Property ríghts in dog ownership were recogni~ as early ag thc Code of Hamtnurabi, approximatdy 2I00 B.C.E. Su NEsv Doc ENcYcZot~t~ 21 (1970). Under English common law, dogs were treatcá differauiy than othcr doiuestic ani~als buause they were viewed a~ creaturts tnaintained for pleasure with no intrinsic ut8ity or food value. Sc~ Cowuncnt, supra, at 104. Bccause dogs were not viewed as being as valuabde as horia, cattIe or shtep, an owncr's property interest in his dog was considc~d less than complete, that is "qualiňed" or "imperfea." Sa Sentell v. New Orieata á CarroDton R.R., 166 U.S. 698, 700 (1897); Blair v. Forelsaad, I00 !vtau. I36, 140 (I8ó8).
16. Sa, ~g , 'Ihiele v. Denver, 135 Colo. 442, 4f7, 3I2 P.2d 786, 789 (195~ (modcru trcnd to aaord dogs full ptopary status); Smith v. Costdto, 77 Idaho 205, 208, 290 P.2d 742, 743 (l955) (modern trvend to regard dogs as tamc domestic animals having vaIue); Duli'v. I.ouisvdle & N.R.R., 219 Ky. 238, 240. 292 S.W. 814, 815 (I927) (boch stacutes and juditial decizions rccognize owaers have full and complete ptopaty intae.tt in dogs); Hodga v. Causey, 77 Miss. 353, 356, 26 So. 945, 946 (I900); Rose v. Salem, 7i Or. 77, 82, 150 P. 276, 277 (1915); Coruc. G~. Sr~r. AHrc. S 22-350 (Wac I975); IHn. Cons Ar~rri. S IS-5-10-I (Burnz 1983); Ka~r. Sr~r. ArN. S 79-1301 (I977); KY. Rav. Sr~T. 5 258-245 (1981); i.~. Rs:v. Sr~r. Axw. S I4:67.2 (VYat 1974); Mt. Rw. Sr~T. ArrH. tit. 7, S 3404 (1979); MD. Amv. Coa~ arc. 56, S 196 (1983); ~I.Vi. Sr~T. A.·ir~. S 77-1-1 (1978); V~. Cont S 29-213.95 (Supp. 1984); s~ ~lro E. G~, THE l.~w ~rro YocrR Doc 19, 27 (1%9); M. LoxtNc, s~cpra note 15, at 2; cf. Comrncnt, suprc note 15, at !06 (statc scatutes muzt bc oonsulted to dctamine dog's scatns as propercy).
17- Sc~ c.g., Nicchia v. New York, 254 U.S. 228, 23I (1920) (license fea); SenteII v. Ncw C~tleans & Carroilton R.R., I66 U.S. 698, 701 (1897) (iegistrdtion); Thide v. Denvcr, I35 Colo. 442, 450, 312 P.2d 786, 791 (1957) (lcash law); Statc v. Tull, 40 Dei. I79, 189, 8 A2d 17, 21 (I939) [collar and tags); Mayor of I~agastown v. Witruer, 86 Md. 293, 304, 37 A. %5, 967 (1897) (rurming at large); Kinqv. ArIington County, I95 Va. 1084, 1087, 81 5.E.2d 587, 589 (vicious dog law) (I954); Jenkinz v. Waxahad~ie, 392 5.W.2d 482, 484 (Tex. Civ. App. 1%5) (sumtnarv desirc~ction).
18- Sa Munn v. Illinois, 94 U.S. 113, 125 (1876). The staces' police power is older than thc Conscitution. Sa Mayor of New Yoric v. Miln. 36 U.S. (l I Pct.) I02, 131-32 ( 1837). 
I984J DOG COI~rTROL LAWS 1071
health, safety and welfare of the public.l9 As a general n.ile, exercises of the police power by a state or city are presumed to be constitutionally vaIid.2°
While the poIice power is broad, it is not boundless, for the fourteenth amendment Iimits the power of the Iegislature to act with respect to private property.2~ In particular, pertinent sections of the fourteenth amendment provide that no state sh.all deprive any person of property without due process of law or deny any person equal protection of the laws.22 Due process involves both the substance of a Iaw as well as the procedure by which it is enforced.23 In examining the substance of a health and welfare regulation, courts apply a basic test of reasonableness:2~ a police power regulation will be upheld as reasonable if the lawmakers can show a rational connection between the requirements of the law and the promotion of the public safety.25 Qne aspect of procedural due process requires that a law provide citizens with adequate notice of what is prohibited:2ó an ordinance is unconstitutiona,i if it fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by statute.2' If an ordinance encourages arbitrary
!9. Ser, ~g., Stone v. Mississippi, 101 U.S. 5I4, 818 (1879) (no one deniez police power includcs aIl matters affecáng pubtic health or public moróls); Mayor of Ncw York v. Miln, 36 U.S. (11 Pet.) 102, 138 (1837) (poIicc pvwer induda duty of statc to advance safery of its people and to provide for their ~eneral wdfare); Brudc v. State, 228 Ind. 189, l98, 91 N.E.2d 349, 352 (l950) (police power involva pron~otion of orda, safety, health, morals and general welfare of sociery).
20. Su Nebbia v. Ncw York, 291 U.S. 502, 537 (I934) (courts cannot ovenáde trasonablc icgislative policáes to promote public weIfarc); Lindsiry v. Naturól Carbonic Gas Co., 220 U.S. 61, 78 (1911) (dassifications unda state's policc power tu~constitutmnal only if without any reasonable basiz and thereforc pu~ely arbiQary); Thide v. Dcnver, 135 Colo. 4~2, 454, 3I2 P.2d 786, 793 (1957); sa also 5 E. McC"~utu.tx, suprc note 15, S l9.05 (3d ed. 1980).
21. Jacobaon v. Massachusetts, 197 U.S. 11. 25 {1905) (police po,wa reguiations must always yidd to constitutionai rights); Waud v. Crawford, I60 Iowa 432, 434, 14I N.W. 1041 ( 1913) (police power i~ very btnad but not boundlas); Sene^sky v. Lawler, 307 Mich. 728, 737, 12 N.W.2d 387, 388 (1943) (trasonableness of poIice power exercise subject to judicial rcvicw).
22. U.S. Co~tsr. amend. XIV, S 1.
23. Sa gertoally J. Now.uc, R. Rarcrt~~ & J. Yourtc, Co~rrr:morut. I.~w 416-417 (2d ed. 1983) (hereinafter cited as Now~ucl.
24. For a d;iscussion of the reasonabieness standard see sicpsa noce 20.
25. Sa Keiiey v. Joitnson, 425 U.S. 238, 247 (1976) (polioe power re~iation invaiid only when there is no rational conn~tion between ngulation and promotion of safety); Williatnson v. Lee Optical Co., 348 U.S. 483, 488 (1955) (duz procas requ~ires measurc to addras evd in rótionai way); Nebbia v. New York, 291 U.S. 502, 537 (1934) (laws with reasonable rdation to proper legislagve purposc, neitha arbitr~y nor d~isaůninatory, satisfy due process trquiranents).
26. Sa go~esa!!y Now~x, s~cpra note 23, at 555.
27. Papachristou v. jacksonvillc, 405 L'.S. 156, 162 (19i2) (quotin~ L'nited States
1072 CI.~VCINNATI LA t~V REVIEW (Vol. ~3
and erratic law enforcement,28 or if it places unlimited discretion in the hands of the police, the law will be unconstitutionally vague and violative of due process.29
Equal protection guarantees that classifications imposed by law will not be used to burden arbitrarily a group of people.3° Regulations that do not classify individuals based on suspect categories and do not affect fundamental rights receive minimal scrutiny under the equal protection clause.3' Specifically, all that is required is that there be a rational basis for the particular classification used and a reasonabie relationship between the classification and the pmpose of the law.3z Classiňcations may be violative of the equal protection ciause if they are underinclusive or overly inůusive.33
B . , Judicial and Legůlative Recognition o. f the Polůe Pou~e~ to Regulate Dogs
In 1897, in Sentell n. Nezv Orleans č~ Carrollton R. R. , the United States Supreme Court decided whether state and city canine control measures deprived a dog owner of his fourteenth amendment right to due process.3'~ The Louisana appeals court had denied a New Orleans dog owner's right to recover for the. death of his valuable dog because the owner had not complied with state and city dog registration laws.35 The Louisana state law reco~zed dogs as property only when the animals were registered on the assessrnent rolls; the New Orleans city law required the owner to purchase a license tag for his dog.3ó The Court upheld the decision of the state court finding that both enactments were within the police
v. Han-isz, 347 U.S. 612, 6l7 (1954)). 28. Id
29. Id at l fi8.
30. Su gcnrrally Now~c, supra notc 23, at 586. 3i. Id ac 591.
32. Id; sa McGov~an v. Maryland, 366 U.S. 420, 425 (1%1) (consdtutional safeguards offcnded iF dassification ~ests wholly on grounds in~elevant to state's objective); Sage Stotts Co. v. Kansas, 323 U.S. 32, 35 (1944) (legísiativc powa to ~~sify dcpends on rational basis); Atchison, Topeka & Santa Fe R.R. v. Vosburg, 238 U.S. 56, 59 (1915) (dassificatioas must bc reasonable and relaced to objcaivc of lcgislation).
Extrtme judicial deferencc generally is given to state legislation. Howeva, if legislative dassificacions affect fundamental rights or are based upon suspect categories, then the courts w~l apply intermediate or strict sautiny. Su genesall> Now~tc, supsa note 23, ac 591 (Supreme Court t~ses three difiereat standards of review for alual protection questions.)
33. Sa ~nally Now~x, supsa note 23, at 588-90.
34. Sentell v. New Orieans & Carscllton R.R., I6ó U.S. 698. 700 (1897). 35. Id.
36. Id at 706.
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1074 CINCINNATI 1~4W RET~IEW (Vol. 53
Iimitations,'~' and flghting.'~8 Procedures for violations of dog regulations usualiy prescribe impoundment of the dog, notice to the owner, release of the dog upon payznent of fines or destruction of the dog if it is not claimed.~9
In addition to the wide variety of regulations that require a dog owner to take specific preca.utions and to control his pet's activities, states have codified an owner's liability for damages caused by his dog.5° Under early common law every dog was entitled to "one free bite. "s' Under modern statutes an owner is held strictly liabIe for his dog's actions-liability is imposed without regard for the owner's knowledge of his dog's viciousness.s2
IV. CoNsTi~TioN~ oF Prr BvLi. Doc LAws
The pit bull dog ordinances enacted in Florida, New Mexico, and Ohio are similar in many ways to other canine control me~asures.
47. Sa, c.g., Milla v. Ciry of Arcadia, 121 Cal. App. 660, 662-63, 9 P.2d 587, 588 (Dist. Ct. App. 1932); State v. Becicerc, l37 N J.L. 562, 564, 61 A.2d 2I3, 214 (1948); State v. MueIIa, 220 Wis. 435, 443, 265 N.W. i03, I07 (I936). But sa Smith v. Steineauf, 140 Kan. 407, 412, 36 P.2d 995, 998 (1934) (unrcasonable to restrict ownership without showing nuisa.nce).
48. Su, e.g., C,~.. PtXx~t. CoD~ S 597.5 (Wat i983); Coatrr. G~. STA~. A~rc. S 53-247 (Wac 1960); F~. Sr~r. AHrr. 5 828.I22 (Wat Supp. 1984); O~uo Rgv. CoDE Ar~ri. S 959.15 (Page Supp. 1983).
Dog fighcing is ~egai in aII scata. Scr íGroii, ir~psa notc 4, at 76. Tha~e i~ a nationai trcnd to upgrade the aime of dog ňghting to a fdony. Sa U.P.I. Wire Savice, June 20, 1984 (available Oct. 1, 1984, on NEXIS, Wire ae) (riusousi twcaty-first natc to make dog fighting felony).
49. Sa, c.g., Cotzu. G~x. ST~r. ANH. S 22-333 {West 1975); Iu.. ANH. ST~r. ch. 8, S 360 (Snůtb-Hurd I975); ír~. Cot~ A~rx. S 15-5-9-i4 (Btunz I983).
50. Sa, c.g. Axtz. REv. Sr~T. Anx. SS 24-378, -521 (I983); C~t.. Civ. Cong S 3342 (Wezc i970); Cor~rr. Grx. ST~r. Ar~. S 22-357 (Wesc I975); F~. Sr~T. Ar~. 55 767.01, .04 (Wat I964); Iu.. Arrrt. Sr~r. ch. 8, 5 366 {Snůth-Hurd 1975); Irm. Cont Ar~. S 15-S-12-1 (Burnz 1983); Mt. REv. S~T. Artrs. tit. 7, S 3651 (1979); M~s. Ar~u. I.~ws ch. 140, 5 155 (Michiellaw Co-op. 1981); Ofno Rzv. CoDg .4Nrr. 5 955.28 {Page 1968).
51. Rtssr~r~r oF Tox~s 5 509 g ( 1938).
At corntnon law animal owna Iiab~iry waa prcdimted on the ~on of the animat: a posscuor of a w1d animal wa,t strictly liahle for damaga cauxd, wlule kecpas of domesric animals, including dogs, were not liable unlas thry had knowledge-scienter-of the animal'z viáousne~. Id 55 507, So9 f. Scienter related to an animal owner's liab0iry is an anáent legal prmápJe statcd in the BibIe- Sa 21 Emd~rs 28~31.
52. Sa, c.g., Fra. Sr~T. A~. S 767.01 (tNest 1964) ("Owna~ of dogs ~all be liable for aay damage done by their dogs to ~ or other dom~ric animals or live~toc~c, or to persons. "); íu.- A~. ST~T. di. 8, 5 366 {Sn~ith-Hurd I957) {"If a dog . . . without provocation, attac3cs or injura any pason . . . the owna of such dog . . . is Iiable ~ damages."); O~no Rw. Cong Ariri. S 955.28 (Pagc i976) ("iáe ovvuer or kecper shall be liable for any damagt causod by a dog unless the injurtd person was nrspassing or was teasing, tormenting or abusing the dog on the o~vner's properry. "); sa olso Hatlen, Liaóility of Dog Omners, 12 Omo Srerg L J. (1951); Notc, Dog Omncs's LiabiLity: Statrrtory E~ccts, 1960 DZxf L J. 14ó; 10 L'. Cm. L. REv. l I5 (I936~.
DOG CONTR OL LA L1 ~,S i 0 i ~
The Hollywood ordinance, for example, requires owners to register their dogs,53 and the Cincinmati ordinance prohibits running at large.s~ The Florida and Ohio ordinances contain sections that require owners to control "vicious dogs"; these sections are clearly legitimate police power enactments.ss It is the provisions in the ordinances that require only pit bull dog owners to take certain precautions that raise constitutional questions.
By singling out one breed of dog for more stringent control, the new pit bull dog laws raise two constitutional problems: fust, because many breeds of dog can cause harm to people, an ordinance that classifies only one breed as vicious appears to be underinclusive and, therefore, v;olative of the dog .owner's equal protection rights.só Second, because it is impossible to identify a breed of a dog with the certainty required to impose eriminal sanctions on the dog's owner, it appears that the ordinances are unconstitutionaIly vague, and therefore violative of procedural due.process.s' Another potential consůtutional problem raised by the ordinances, but easily disposed of, is whether the ordinances violate substantive due process.iB
A. Subst~aretive Due Pracess
tNith respect to the substantive due process requirernent, and the ~ application of the reasonableness test, the crisis atmosphere present when the recent pit bull dog laws were enacted appears to support the reasonableness of singling out one breed of dog as a legislative respvnse to a public problem. The perception that pit bull dogs are dangerous is based upon the increasing number of reported attacks
53. Sa Fiou.nvoon, Ftrv., ConE S 6-25 (I980).
54. Sa Cmcu~rauri, Ofuo, Mtrrt. Con~ S ~01-25 {1983).
55. Sa řiou.nwoon, Firv., Conf SS 6-26 (owner liabM'ny); 6-27 (vicious dog prohibited from ninning at large) (I980); Ct~tczrtrt~rz, Otoo, Mtn~. Conp SS 701-25(a), (b) (restraint required) For a discussion of vicious dog laws su st<prc notes 50-52 and accompanying tar.
56. For a discussion of the requirtments of thc cqual protection dause su suprc notes 34-33 and actompanying text.
57. For a discuzsion of the way the ordinanca define pit bull dogs see su^sc notes 7, I0, I3 and acconcpanyin8 text.
The question of brad-specific ordinances was not bcforc thc United Stata Suprcmc Court in Scntdl v. Ncw Orleans & Carrollton RR., 166 U.S. 698 (1897), the seminal decision regarding dog control laws. I,n Sentell, the Courc upheld a statc and municipal law that requircd dog owners to register their breecls. Id at 706. Thc rationalc of Sc~tcll extends only to those ordinances that apply to all brccds, a limitation that has been unimportant unt0 the new pit bull dog Iaws because canine control laws only applied to all dogs. In dicta, the Court stated that it is "pr~caily impossible by statute to distinguish between the difiercnt breeds, or bctween the vaIuable and the worthleis." Id. at ?O1.
58. For a discussion of due process sec s~psa notes 23-29 and accompanying tcxt.
i 076 CINCINNATf LA W REVIEW jVol. 53
on people, 59 the physical characteristics of the dog, 6° and the historical use of the dogs as f ghters.ól While it may be argued that the media attention focused on pit bull dogs created the perception of danger, the response by the Iegislators to the perceived threat of danger was not dearly unreasonable and, therefore, probably not violative of substantive due process.
B. Equal Prottction
Under an analysis of the ordinances in view of the fourteenth amendment equal protection clause, the pit bull dog laws appear to be unconstitutional because the classification of one breed as inherently more dangerous than others is arbitrary and underinclu
59. The city commissioners of HoDywood, Florida, passcd an ordinance aizaed at controlling pít bull dogs after two scrious maulings, one ínvolving an dderly woman, thc other involving a cl~d. Scc Hoffard, srcpra notc 2, at 9. The Ciry Councii of Cincinnati
, Ohio, amended its vidous dog laws spetiftcauy to include pit bull dogs following a fatal attack on a child. Sa Levoy, rs~pra note 2, at S.
Fatal attacks on people by pit bull dogs have been reported ac~oss the county. Se~ A.P. Wire Seivicc, Sept. 8, 1984, (ava0able Oa. l, 1984 on NEXiS, Wire ble) (Knoxville, Tcnn. pit bull fatally attacked 23-month-old boy); U.P.I. Wire Servicc, July 19, I984 (available on Oa. 1, 1984, on NEXIS, Wire file) {Preston, í~an., dog owner convicted of involuntary nsanslaughta for deatb ~ by his two pit bull dogs); U.P.I. Wire Savice, Apr. 25, 1984 (avat3able Oct i, 1984, on řTEXIS, Wire file) (Austin, Tex., 6-year old killed by pit buil and St. Bernard); U.P.I. Wire Scr~~ice, Oa. 20, I983 (available Oa. 1, I984, on NEXIS, Wire fi1e) (Chicago, Ill. ono-year-old mauled to death by pit bull terrier); Cinůnnati Post, Sept. 9, i983, A1 (boy fataDy matsicd by pit bun dog); U.P.I. Wire Savice, Juiy 20, I983 (ava~able Oa. l, I984, on NF.XIS, Wire filc) (Athens, Ga. gíri hZied by pit bvll dog); U.P.I. Wire Service, Jvly 8, 1983 (ava~7able Ocx. 1, 1984, on NEXIS, Wire fi7e) (Phoenix, Ariz. dogs, induding nvo pit bull dogs, attaůced and inil~d Wire Service, June 9, 1983 (ava0able Oct. l, 1984, on NEXIS, W"ut fůe) (San Diego, Cai. pit bull dog owner sentenccd to five years probation and ot~dt~ed to pay dunag~ to family of victim fatally mauled by lrb two pit buú terrien); A.P. Wire Servicc, Aug. 26, 1981 (ava~ablc Oa. 1, i984, on NEXIS, Wire fiIe) (Brown~ie, Ta. boy died from pit buil dog bite); U.P.i. Wire Sawi~, Feb. 19, 1981 (maHabie Oa. l, 1984, o~n NEXIS, Wire f~e) [Maton, Ga. owner charged with invoiuntary manslaughter of I1-year old boy kiiled by two pit bull dogs); A.P. Wire Service, Sept. 25, 1979 (availablc C~ct. l, 1984, on NEXIS, Wirt fiIe) (Phoenix, Ariz. dogs, inůuding two pit bull dogs, attacked and lcilled chtld).
60. Pit buii dogs are known for their great sa~ength and for their ws~linnnas to fight to the death. Maher, sicpra note 4, at 157. The pit bull dog haa dístinctive physical c~araaeristia. It has ex~emely powerful jaws, an in~usitivity to pain, and aa aggrtssivazess toward otha dogs. Case, Tiu Pit 8r~11 Adoptimi Qucadry, Co~.tMtrxm Ax~r. Corsr~oL, Mar.-Apr. I984, at ll.
61. The pit bull dog is a aossbreed of a tertia, Icnown for its quic.lcness and aggr~siveness, and a bulldog. Mahla, svpra note 4, at 158. Connneatators tr~cc the brud's history to thc middle aga ia England wl~ren bull baiting waz a sport. A tcthered bull would be matcized against a padc of dogs, usually bulldogs or mastiffs. iáe dogs tried to bite the buli and drag its nose to thc ground; the buiI defended itself by trying to gore the dogs. tNhen the Engiish outlawed bull baiting in i835, the pitting of onc dog against anothcr became popular. Id.
I984j DOG CONTROL LAWS 1077
sive. While a deadly assault is tragic, it is unduly oppressive to ciassify pit bull dogs as uniquely dangerous. Many breeds are capable of and responsible for fatal attacks on people. A 1982 report found that sixteen different breeds were responsible for seventy-three fatal attacks on people.ó2 Pit bull dogs were responsible for six fatalities, the same number as Great Danes.ó3 Statistics on dog bites also demonstrate that pit bull dogs are not uniquely dangerous. In the first ten months of 1983, the Cincinnati ~iealth Department investigated 478 dog bites, involving thirty different breeds.ó~ 1'his investigation found that pit bull dogs were responsible for only about seven percent of the injuries to people.ó5
Statistics on fatalities and injuries caused by dogs cannot be used to document the dangerousness of one breed as compared to another because it is impossible to know how many dogs of a certain breed are in the general canine population at any given time.6ó It is possible
, however, to quantify the ratio of injuries caused by one breed to the total number of reported injuries. These statistics do not support the conclusion that pit bull dogs pose a greater threat to the community than any other breed. Therefore, regardless of the media attention focused on pit bull dog attacks, it appears that it is arbitrary to classify only one breed as inherently vicious.~ Requiring pit bull dog owners to take speciai precautions therefore appears to be violative of the equal protection ciaase of the fourteenth amendment. s'
62. Pickney & Kcnnedy, Trau~r~atic D~Itr from Dog Aaoc~s in tlu Unit~d St~ta, 69 PEa~~nucs, Fcb., I982, at 193-94. The report identified the foilowing as tssponsible for human fataIitia during the study period from May, 1975 to Apnl, 1980: Gertnan Shcpard ( 16); Husky (9); St. Bernatd (8); Bull Terria (6); Gteat Dane (6); M~amutc (S); Golden Recricva {3); Boxer (2); Dachsbund (2); Doberman Pinscha {2); ColIie (2); Rottweiier (1); Basen~ {1); Chow-Chow (1); Labrador Retricver (I); Yorkshire Tersier (1); mixcd and unlmown breeds ( 1 S). Id at 194.
63. Id. at 194.
64. CtNcn~trcwrt H~.rH D~~~r, 1983 Sr~risrtcs oN Doc BrrEs IHv~sric~zra sr ~n~f D~~~cr (Jan. 1-Oct. 6, 1983) (unpubiished data available frcm City of Cincinnaci Health Dtparsrnent).
65. Id. Simt7ar percentages were reported for Riverside, California where pic bulls auounted for las than 6 ~o of 667 reported bites. Sa Hoffard, s~cpsa notc 2, at 8.
66. Hoffard, sapra notc 2, at 8. "Thc problem (with ztarisria) is that we don't know the makeup of the dog population. . . . Wc do icnow that the Gcsman Shepherd is by far the most popular brced. It: ranking on the most frcquent attacking breeds may be psoporcionate to its population. Without accurate baseIine data, meaningful analysis of a givm brced's tendenry to bite is impossiible." Id (quoting Rivetside, Cai. Hurnanc Socicry official).
67. Thc pit bull dog lawz raise an additional equal protection question when the ordinances define vitious dogs to include all pit bull dogs. Thae ordinanca apptar to be weriy indusive because, it may be argucd, not all pit bull dogs are indeed vicious. Sa Case, saprc note 60, ac 1 l, 28 (most pit bulls good with people); ~iEw Doc Evc~rc.t.osEnt~,,
1078 CINCINNATI LA I~V REtrIEi'V (Vol. 53
C . Procedural Due Process
In addition to violating the dog owners' fourteenth amendment rights to equal protection, it appears that the pit bull ordinances are unconstitutionally vague, and therefore violative of procedural due process. Because the ordinances are structured to apply only to certain breeds, the iaws imply that there is some method of determining a dog's breed. In fact, however, no objective standard or test for identifying a dog's breed exists. ~ Under the procedurai aspect of the due process clause of the fourteenth amendment such a determination is necessary for citizens, who must have notice of the reach of the law, and for the police, who must se~lecůvely enforce the law.69
If a dog is registered, the owner has no di~culty knowing whether he must comply with an ordinance applicable to a particu~iar breed.'0 The term "pit bull," however, identifles no specif c breed of dog recognized by either the American Kennel Glub or the United Kennel Club, the two largest American registries.'1 Therefore, it
supra note 15, at 657 (Staffordshire Terrie,ts affecáonate, safe, doa'le). This linc of rcasoning would be easily dismissed, however, by the genc.~al rationale of the seminal canine controi c,a~c, Sentell v. New Orieans & CarroIlton R.R., i66 U.S. 698 (1897). In Sa~tcll the cousc ac~nowledged that caninc contivl laws affca dogs that are "harmless" but stazed that the broad reach of the law was neassary to aaomplish protection of pubIic safery. Id. at 705. Thus, the argument that Faws conuoIIing pit buIl dogs a~ unfair in their affea upon harsnless membess of thc br~ed woutd appear to be easily rtfuted.
68. For a discussion of thc di~cultia in identifying a dog's brscd see ir fra nota 70-74 and 83 and accompanying text.
69. For a discnssion of the proctdurai due proeess requiremait that the law pruvide noáce to ~zens and 1aw enfot~cement ol~ais see s~cpra notes 27-29 and ascompanying text. 70. Registration is a pro~s wheseby the owna of ~e dam registerz the iitter with
the regisay, prior to the time of whetping. Both the stud aad the brood l~tch must be rcgistercd animals. The registry atablishes a chain of aa~ny for one generaáon similar to establ~hing a chain of átle for nal propcrty. Ser E. G~, srcpsa note 16, at ~6-53.
Conformaúon standards exist for ail cegistered bmeás. These ztandards are used by judges in the show ring. However, ncpats on fighting dogs and observers hold that show standards prwide littIe assistance in idmtifying dogs involved in the current pmbletn: "jTJhe conformation of the Anaerican Pit Bull Terrier differs greatiy among confiscated animals or in the photogrdphs of `underground' fightmg pnblímtions." Boatfield, Clifford & Rubright, .rapra noac 5, at 7. For a diseuuion of the diff culty in idcntifying pit bull dogs sec aiso Hoffard, sapsa note 2, at !0 (idcntification of pit bulls complicated becausc tbcy may not wme from rcgistered stock; evcn if registered, dogs may not conform to standards of breed; many dogs are deli'berately aoss-brzd for various purposes).
71. Clifford, Obsesaa:ions on Fighri~g ~ngs, 183 J. Ar,c. VEr. Mga. A. 654 (1983). Thc American Kennel Club (AKC) is a nonprofit httndrtd-year-old organization comprised of more than threc hundrtd mcmber dubs. It is a cooperative association of dog dubs, cach represented in AKC affairs by a delegate. Individual dog owneis belong to the specialty dub of their breed, or to the all-breed show-giving ůubs. The specialty clubs are responsible for deiming thc standards of their btecd. Sa NEw Doc Er~circt.op~t~, supra note i5, at 353.
l 984J DOG CONTROL LA WS l 479
is di~cult to determine exactly which registered breeds a pit bull dog ordinance encompasses. The American Kennei Club, for example, registers three breeds that are mixtures of bulldog and terrier: the Améi~ican Staffordshire Terrier, the Staffordshire Bull Terrier, and the Bull Terrier.'2 The LTnited Kennel Ciub registers the American Pit Bull Terrier.'3 Even if an ordinance named all of these breeds, however, the enfórcement and notice problems created by the pit bull dog laws would not be resoIved because the vast majority of dogs are unregistered.''~
In 1982, the Everglades Pit Bull Dog Glub challenged Florida's pit bull law on the grounds that it was vague, arbitrary, and unfair in violation of due process.'5 The Broward County Court found for the challengers and struck down the ordinance as an unconstitutional infringement of pit buil dog owners' fourteenth amendment rights.'6 The court found it was impossible to identify the breed of an unregistered dog." Because the ordinance only applied to the owners of an American Pit Bull, Pit Bull Terrier or Staffordshire Terrier the court found notice problems for citizens and enforcement problems for the police.'8 Owners of mixed breed or unregistered dogs had no means of lalowing whether their dog was one of the types listed and whether they were required to comply with the statute.'9 Additionally, the police had no means for determining a dog's breed and no standard for deciding whether an owner
The Unitcd Kennel Club (UKC), organized in 1898 as a private registry service, is the sccond oldat and second largat regis~y of purc-bred dogz in the United Stata. The American Pit Bull Terrier was the first brced ngistercd by tht UKC. The UKC registerz 16 original breeds. Su id. at 431.
72. Clifford, supsa note 71, at 654. 73. Id
74. It is atisnatod thcrc is one dog for evay 7.7 pcopIe in the United Statez. Interview with HaIoId Bata, Hamilton Counry, Ohio, Sociery for the Prtvention of Crudty to Animals, in Cincinnati, Ohio (Sept. 24, 1984). Bascd on an esrimated popttlation of 226 mt~lion people, the totai nurnber of dogs in the United States therefore is projected at 28,250,000. The Amesican Kennd Club repotts it registered 1,850,248 dogs in 1983. Tůcphonc inverview with Ms. A. Cond~, Amerir~n Kennei Ciub (Nov. I6, 1984). Wh~e the pcrccntagc of registered dogi in the gencraI population is unknown, che statistics on rcgistration and projearons on the size of the canine populaůon dearly s~pport the common· scnse pesception that thc vast majority of dogs arc unregistercd.
75. Holder v. City of Hollywood, 81·13968-CR, cxcerpt of procKdings, at 8 (I7th Cir. Broward Cty., řia., Nov. 9, 1982) (available Nov. 18, 1982, áty aaotney's office). 76. Id According to the court, the ordinauce failed to desa-ibe sufficientiy what dogs should be regístered. Id
77. Id at 5. The court questioned how an owner of a "Hcinz variety 67" dog would tcnow if thry inust go to ciry hall. Id .
78. Id. at 6. 79. Id at ~.
1080 CINCINNATI LA tt' REL'IEi~V jVol. 53
was in compliance or in violation of the law.s° The court believed thís situation wouId lead to arbitrary, unequal a.nd unfair enforcernent of the law, a situation clearly in violation of due process.8'
'1'he ordiňance enacted in Ciňcinnati, Ohio, attempted to overcome the notice and enforcement problems created by unregistered and mixed-breed dogs. The ordinance applied to any mixed-breed dog that a veterinarian identified as being partially of the American Staffordshire Terrier or Staffordshire Bull Terrier breed.8z Ohio veterinarians claimed, however, that they could not identify a dog's breed using any test known to science; any evaluation can only be based on subjective visual "speculation," and, aocording to the Ohio Veterinary Medical Association, giving an opinion not based on scientific fact is "totally inappropriate" for a veterinary physician. ~ Thus, despite its best attempt to overcome the identification problem, the Cincinnati ordinance still leaves pet owners and Iaw eniorcement off cers without a workable, ob,jective standard that provides the certainty necessary for the imposition of criminal liability.
V. RECOMMENDATIOI~iS AND CONCLUSION
While breed-specific ordi.nances are invalid poIice power exercises because they unconstitutionally infringe upon the due process and equal protection rights of dog owners, municipal lawmakers ca.n respond effectively to citizen pressure for action following a pit bull incident. First, lawmakers can enact strict vicious dog laws that penalize the owners of all dogs causing harm, regardless of the dog's breed. These iaws can impose strict liability, regardless of the owner's previous notice of the dog's viciousness.~ Second, lawmakers can promote more eff'ective enforcement of all existing canine control laws, especially those prohibiting unleashed dogs in půblic areas. Third, elected officials can support the efforts of I~umane Society of~cials and others trying to enforce the laws against dog f ghting. The widespread increase in dog ňghting is a major cause of the current pit bull dog problem. ~ As long as owning a vicious dog is economically profitable, as it can be for even back-alley dog fighters,
80. Id at 10. 81. Id at 6.
82. Cmcn~x~n, Ortto, Mtn~. CoDE S 701·25 (2xc) {1983).
83. I,etter frvm Gene P. Ki.ng to Alden E. Stilson, Jr. (Apr. 20, 1984) {opinion of Ohio Veterinarian Medical Association regarding Cincinnatí, Ohio Icgisiation requiring veterinarian identificadon of dogs alleged to be of pit btul variery).
84. For a dis~on of dog owna liab~ity, see supra notes SO-52 and accotnpanyíng text. 85. For a disc~ssion of the incrcase ín dog fighting and its rolc in thc currcnt pit bull dog problem, see s~pra notes 4-5 aad accompanying text.
1 gg4J DOG CONTROL LA WS 1081
banning one breed will not resolve the problem of injuries to people. People who profit from abusing animals can easily replace one breed of dog for another.
Laws that hnpose strict liability on the owner of a vicious dog, that require aIl pet owners to reasonably restrict their animal's activities, and that severely penalize those involved in dog fighting, have been widely upheld as constitutional exercises of police power.8ó In addition to being constitutionally valid, laws of this type approach the protection of the public welfare and safety with the degree of precision that characterizes effective Iegislation. 1'hese recomrnendations recognize the current problem with pit bull dogs accurately as a problem of vicious dogs, not a vicious breed.
Finally, these recommendations aiso recognize the cun ent pmblern of vicious dogs at its source: the individual dog's owner. Dogs are the products of their past and present masters. IVIan has domesticated dogs to the point where they serve as companions, workers, and even objects of beauty. Dogs will protect man, see for him, hunt for him, play for him, even, fight to the death for him. One breed is not in.herentiy good or evil, vicious or docile, harmful or helpful. Individual dogs can be selectively in-bred and trained to be aggressive, and, currently, it appears many pit bull dogs are being abused in this way. Attempts to legisiate the breed out of existence, however, fail to understand that a vicious pit bull dog is not the only threat to a community. People determine whether dogs will be useful inha.bitants of a community or nuisances. It is the people who breed and foster viciousness in dogs whom Iegislators also rnust control.
LYrrN M~x~
86. For a disc~ssion of thc oonstitutionality of canine controI laws in genual, see supr~a nota 34-52 and accompanying tczt.