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University of Dayton Law Review

Winter, 1988

Special Section: Vicious-Dog Legislation--Controlling the'Pit Bull'


Sallyanne K. Sullivan

Copyright 1988 by the University of Dayton Law Review; Sallyanne K. Sullivan



Pit bulls--a breed that accounts for only two percent of the United States' dog population--have killed twenty people in four years, most frequently children and the elderly. [FN1] Dr. Randall Lockwood, Director of Higher Education Programs for the Humane Society of the United States, analogizes having a pit bull as a pet to "keeping a loaded gun around." [FN2] Reports of pit bull attacks have led to extensive concern and debate, [FN3] and have prompted municipalities and state legislature to take steps to protect individuals from this potentially deadly breed of dog. Some municipalities have chosen to completely ban the pit bull from within city limits, [FN4] despite claims by opponents that such *280 action is unconstitutional. [FN5] This comment considers a number of constitutional challenges to a breed-specific ban, and argues that a ban on pit bulls can survive such challenges.



Statutes banning pit bulls have been challenged on three constitutional bases: Substantive due process, equal protection, and vagueness. This analysis considers the grounds and the validity of each such challenge.

A. Substantive Due Process

The due-process clauses of the fifth and fourteenth amendments to the Constitution [FN6] require that the statute in question "bear a rational relation to a legitimate legislative goal or purpose," [FN7] unless the statute implicates a "fundamental right" entitled to constitutional protection, which would require a narrower fit between the goal and the statute. [FN8] *281 Since dog ownership is not a "fundamental right," courts have had no trouble in determining that bans on pit bulls are rationally related to the legitimate legislative goal of public safety. [FN9]

1. The State's Police Power

It is clear that dog ownership is not a fundamental right. [FN10] "No proposition is more firmly entrenched in the law than that dogs are subject to the police power of the state and that their regulation and control is a proper and necessary function of the state." [FN11] In the seminal case of Sentell v. New Orleans & Carrollton Railroad, [FN12] the United States Supreme Court, in considering a state's power to regulate dogs, declared:

Even if it were assumed that dogs are property in the fullest sense of the word, they would still be subject to the police power of the state and might be destroyed or otherwise dealt with as in the judgment of the legislature is necessary for the protection of its citizens. [FN13]

Indeed, the Court emphasized that a dog "holds its life at the will of the legislature"; [FN14] even an absolute ban on ownership would be permissible. [FN15]

Dogs are subject to an especially broad application of the police power because of their nature. In Thiele v. City & County of Denver, [FN16] the Colorado Supreme Court explained:

Through all the progress in its status, however, and though now accorded a full property status in our state, the original term of 'qualified property rights' in dogs still has a valid standing. The term qualified is *282 used because a dog as property is subject to a different application of the state's police power than most other kinds of personal property. This is due to the nature of dogs and the problems confronting society in how to establish a modus vivendi therewith. All property is held by its owners subject to the inherent police power of the state and cannot be used or held in such a way as to injure others or their property. [FN17]

The Colorado court agreed with the Sentell Court's evaluation that dogs have no intrinsic value, [FN18] noting that dogs "are not considered as being upon the same plane with horses, cattle, sheep, and other domesticated animals, but rather in the category of cats, monkeys, parrots, singing birds, and similar animals, kept for pleasure [sic], curiosity, or caprice." [FN19]

2. The Nature of the Pit Bull: A Clear Threat to Public Safety

That the pit bull is a clear threat to public safety can best be shown through an examination of the history, physical characteristics, and traits of the breed. The term "pit bull" is a generic term for a group of dogs whose ancestry can be traced to the bulldogs of the nineteenth century. [FN20] Historically, these animals were used in the "sport" of bull baiting. [FN21] After bull baiting was outlawed, owners of these fierce and indefatigable dogs chose to make use of their dogs' die-hard tendencies in organized dogfights. [FN22] Owners began to genetically mix their dogs to produce smaller, faster dogs such as the Bull and Terrier Dog, Pit Dog, and Staffordshire Bull Terrier. [FN23] When these dogs came to America, they were known as Pit Dogs, Pit Bull Terriers, American Bull Terriers, or Yankee Terriers. [FN24] In 1898, the United Kennel Club began registering American Pit Bull Terriers. [FN25] The American Kennel Club (AKC) did not recognize the American Pit Bull Terrier as a breed until 1935, [FN26] at which time, not wanting the dog's name to include the word "pit," it renamed the dog "Staffordshire Terrier," since so many of the dogs came from that coal-mining, dogfighting region of England. [FN27]

*283 Despite the fact that dogfighting is outlawed in all fifty states, [FN28] and classified as a felony in thirty-six, [FN29] illegal dogfighting involving pit bulls continues today. [FN30] The very reasons dogfighters choose pit bulls for this arena highlights the qualities of these dogs that make them unfit to live in residential communities. [FN31] First, the pit bull possesses capabilities beyond those of other dogs. Biting with a force of 1800 to 2000 pounds per square inch, twice the force of the average Doberman Pinscher or German Shepherd, [FN32] pit bulls possess jaws so specialized that the jaws lock onto the object bitten. [FN33] At a 1986 Tufts University School of Veterinary Medicine symposium entitled "Animal Aggression: Dog Bites and the Pit Bull Terrier," [FN34] Sheryl Blair, Special Programs Administrator at the Center for Animals at Tufts University, pointed out that pit bulls do pose a more serious problem than other types of dogs, because "[t]he injuries these dogs inflict are more serious than other breeds because they go for the deep musculature and don't release; they hold and shake." [FN35] Second, the pit bull has been selectively bred to fight without provocation and to continue to fight until it is near death. [FN36] The dogs' genetically-based insensitivity to pain [FN37] also helps to explain why it is often very difficult to beat them off of their victims. [FN38] Most frightening, pit bulls do not give any warning signals *284 before an attack, and they do not stop attacking even when their victim submits. In fact, pit bulls have been known to disembowel other dogs that have rolled over to indicate defeat. [FN39]

Defenders of the pit bull assert that the problem lies not with the breed, but with irresponsible owners. [FN40] Owners have been known to cruelly mistreat their animals so that they excel either as savage fighters, [FN41] as vicious sentinels over illegal or illegally-obtained goods, [FN42] or as lethal weapons in the perpetration of crimes. [FN43] Nevertheless, owners alone cannot be blamed for the vicious behaviors of this particular breed, since cases have also been reported where the family pet pit bull has suddenly turned on its owners. [FN44] Hence, the regulation of the pit bull cannot simply be left to the discretion of the individual because the breed's behavior is too unpredictable. [FN45] No pit bull can ever be completely trusted to remain a docile family pet. [FN46] As one judge put it,

American Pit Bull Terriers have been known to be friendly and docile at one moment, willing to sit on your lap and lick your face, and at the next moment to attack in a frenzied rage. . . . [S]uch berserk frenzies do not occur in other breeds of dog. [FN47]

There can be no question that a ban on the breed would bear a rational relation to the legitimate legislative goal of public safety. [FN48]

*285 B. Equal Protection

The second argument advanced against the banning of pit bull dogs is that such a ban violates the equal-protection clauses of the fifth and fourteenth amendments, [FN49] which require that legislative classifications be proper ones. So long as no suspect classification or fundamental interest is involved--and ownership of pit bulls is not such a classification or interest [FN50]--the court need only find that there is a rational relationship between the statute as drafted, and its ultimate purpose. [FN51] Under this minimum- rationality test, "classifications are set aside as violative of equal protection only if they are based solely on reasons totally unrelated to pursuit of the state's goals and only if no grounds can be conceived to justify them." [FN52] In other words, the minimum rationality standard requires the challenger to prove that the legislature acted in an arbitrary and irrational manner in passing the law. [FN53] Under an equal-protection analysis, the question is not whether a ban on pit bulls is rationally related to public safety, but whether discrimination between owners of pit bulls and owners of other dogs bears such a rational relation.

1. Equal-Protection Challenges to Animal-Control Laws

Courts considering regulation of animals have consistently upheld such laws against equal-protection challenges under a rational-relation test, finding no suspect classification or fundamental right implicated. Upheld regulations include bans on the ownership of lions, [FN54] pigs, [FN55] *286 goats, [FN56] ponies, [FN57] and bears. [FN58]

For example, in Kent v. Polk County Board of Supervisors, [FN59] the Iowa Supreme Court upheld a Polk City ordinance that prohibited individuals "from owning, sheltering, harboring, or keeping certain species of animals in Polk County, Iowa, with exceptions for those who can qualify for a permit." [FN60] The plaintiff claimed the ordinance violated the equal-protection clause because individuals who possessed a lion for research or education could obtain a permit, while an individual who simply wished to keep a lion as a pet could not. Unpersuaded by this argument, the court stated that "[b]ecause no fundamental right or suspect class was involved in Kent's challenge, the proper level of scrutiny is rational basis." [FN61] Thus, for Kent to prevail, the burden was on him to show that no conceivable set of facts existed to justify the legislative classification. In holding that "Kent failed to meet this heavy burden," the court stated:

The ban on private ownership of "dangerous animals" is rationally related to the board's duty to promote the public safety and welfare. Moreover, the [County Board of Supervisor's] distinction between holding these animals as pets and holding them for other purposes is rationally related to the legitimate goal of public safety. The board could reasonably determine the benefit to society gained from limited exceptions for research, education, and reproduction of endangered species outweighs the threat to public safety. Similarly, the board could determine the same societal benefit cannot be derived from individual pet ownership, and therefore, such ownership does not outweigh the potential threat to public safety. [FN62]

In another case involving a pet lion, City of Warren v. Testa, [FN63] an Ohio common pleas court found a city to be justified in prohibiting the *287 keeping of a pet lion within city limits. Though the defendant was able to produce witnesses who said they liked and admired the animal, and one who even said he had hugged and played with the lion, the court would not allow the owner to keep his pet. [FN64] The court reasoned that

city property, residential or otherwise, and particularly a residential home . . . is not a proper, safe, or legal place to own, keep, or harbor a lion; that a lion, domesticated or not, is a potentially dangerous animal, capable of doing harm, if loose, and even if attended; that a lion is capable of doing harm to its owner or handler. No one can guarantee or predict the behavior of this animal, in the opinion of the Court; and I do so find from the evidence. [FN65]

The defendant also claimed that the ordinance was unconstitutional because it "banished" rather that "regulated." [FN66] Rejecting that argument, the court point out that

[a]lthough almost every exercise of the police power will necessarily either interfere with the enjoyment of liberty or the acquisition, possession and production of property . . . an exercise of the police power having such an effect will be valid if it bears a real and substantial relation to the public health, safety, morals or general welfare of the public and if it is not unreasonable or arbitrary. [FN67]

The Testa court was persuaded that the city had the authority and responsibility to prohibit keeping the lion under any circumstances, despite the hardship an outright ban would work on the defendant, who consistently maintained that his pet was harmless and tame. Thus, although the defendant believed that his pet would never hurt him, the court decided that the possibility of someone's being injured outweighed the defendant's right to keep the animal. [FN68]

The keeping of pit bull dogs should be viewed as analogous to the keeping of wild animals such as lions [FN69] and bears, [FN70] and the state's power to regulate pit bulls should be similarly expansive. Not unlike the lion, the pit bull is an unpredictable and "potentially dangerous animal, capable of doing harm, if loose, and even if attended . . . capable of doing harm to its owner or handler." [FN71]

*288 Not only violent animals like lions and pit bulls are subject to proscription on ownership. For example, in Borough of Lincoln Park v. Cullari, [FN72] the defendant argued that an ordinance prohibiting a person from keeping more than a certain number of pigs unconstitutionally violated the equal-protection clause because the number selected was an arbitrary one. [FN73] A New Jersey appellate court disagreed, holding that the ordinance did not offend equal protection because the limitation on the number of pigs was "reasonably calculated to achieve the stated purpose." [FN74] The court explained, "The right of private property must yield to the common good, and when interfered with or restrained the assumed injury to the individual is presumed to be offset by the benefit accruing to him as one of the public at large." [FN75]

In a similar fashion, the rights of owners of pit bulls should yield to the greater goal of protecting the public from vicious attacks.

2. Banning the Pit Bull: Equal-Protection Arguments

Whether or not classifications of dog owners based upon ownership of pit bulls will stand up under constitutional attack depends upon whether the classifications are reasonable. One way in which their reasonableness is examined is on the basis of "underinclusiveness" and "overinclusiveness."

a. Underinclusiveness

Opponents assert that it is unconstitutional to treat differently the owners of one breed of dogs when many kinds of dogs have injured people. [FN76] This line of reasoning suggests that a ban on pit bulls should be deemed unconstitutional because it is "underinclusive."

Underinclusive laws fail to fully accomplish the drafter's goals because not all potential subjects of the legislation are included in the legislative category. [FN77] For example, pit-bull owners argue that other kinds of dogs are just as likely to be involved in vicious attacks; [FN78] thus, *289 since the purpose of the law is to prevent vicious attacks, these other dogs should be included in the ban as well.

A law does not fail to be constitutional, however, simply because it is underinclusive. Such a law does not become any less rational because other dogs could also be banned. [FN79] "It is no requirement of equal protection that all evils of the same genus be eradicated or none at all." [FN80] The legislature may choose to address one phase of the problem at a time. [FN81] In 1986, an ordinance specifically regulating the keeping of pit bulls survived an equal- protection challenge brought by pit-bull owners. In Starkey v. Township of Chester, [FN82] a United States district court judge in the Eastern District of Pennsylvania found that a township could reasonably determine that it was necessary to impose special restrictions on the keeping of pit bull dogs and held that it did "not have to regulate every dangerous animal at the same time in the same way to pass constitutional muster." [FN83]

Thus, although drafters of vicious-dog legislation hope to eliminate the possibility of all severe attacks, their law would not fail because it could not completely accomplish that objective. All that is required is that some conceivable set of facts exists at the time of the law's enactment to justify the categorization of pit bulls as posing a threat to the public. [FN84] With all the evidence of pit bulls, in particular, being involved in severe and even fatal attacks, [FN85] it is evident that the classification bears a rational relationship to the legitimate goal of protecting the public.

b. Overinclusiveness

Pit bull advocates also contend that a total ban on pit bulls would be "overinclusive" in sense that the classification chosen encompasses owners of more dogs than is necessary to accomplish the goal of protecting the public. [FN86] Some owners insist that their pit bulls are gentle and loyal pets who would never harm anyone, and that it would be *290 unfair to outlaw dogs that have never shown vicious tendencies. [FN87] This view ignores the evidence that pit bulls may suddenly turn on their owners. [FN88] Even breeders concede that one cannot tell what a pit bull might do because its hereditary strains cannot be perfectly ascertained. [FN89]

Although opponents of a total ban on pit bulls argue that it is "unfair" to take someone's dog away before the dog has done anything wrong, such a law is not inherently unconstitutional. [FN90] Constitutionality is not determined by a "fairness" standard. [FN91] Legislatures are permitted to act to protect the public from the debilitating or possibly fatal [FN92] attacks by pit bulls, even if it means taking steps that sweep more broadly than that which would be sufficient to accomplish this important goal. [FN93] Arguably, some families own docile pit bulls who have never threatened anybody; possibly their violent instincts have been effectively diluted over succeeding generations. [FN94] The undeniable fact remains, however, that a disproportionate number of pit bulls have been involved in very serious attacks. [FN95] Clearly, a ban on ownership of pit bulls, whether underinclusive or overinclusive, bears a rational relation *291 to the legitimate legislative goal of public safety.

C. Vagueness

Opponents protest that a law banning pit bulls is unconstitutionally vague because it does not clearly indicate what is being banned. They argue that the term "pit bull" is imprecise and includes a wide variety of dogs. [FN96] To overcome a vagueness challenge, the state must show that the law clearly notifies an ordinary individual that an activity is prohibited. [FN97] Using reference manuals and expert witnesses, courts have generally upheld such laws against vagueness challenges. Since a law banning pit bulls does not inhibit the exercise of any constitutionally-protected right, the more-stringent vagueness test applicable to "fundamental rights" situations is inapplicable and such laws are judged under a rational-relation standard. [FN98]

In City of Lima v. McFadden, [FN99] an Ohio appellate court stated that an ordinance banning pit bulls was neither vague nor indefinite, but rather, "pertain[ed] to a particular breed of dog with characteristics generally conforming to the characteristics set forth in . . . [specific] references." [FN100] The court explained that "[w]hether any particular animal falls within this classification is an issue of fact to be determined by the evidence presented." [FN101] Similarly, in Garcia v. Village of Tijeras, [FN102] the New Mexico Court of Appeals court also upheld a ban on pit bulls against a void- for-vagueness challenge, finding that the "breed [could be] recognized by its physical characteristics." [FN103]

In a paper presented at the October 1986 annual meeting of the Washington State Association of Municipal Attorneys, [FN104] Michael E. *292 Weight, Assistant City Attorney for the City of Everett, Washington, explained how the vagueness challenge can be overcome:

The average person can identify a collie or German shepherd. For those persons who have had contact with pit bulls, their identification is equally as simple. A definition of the breed that anticipates visual identification of those dogs we know as the American Pit Bull Terrier, the American Staffordshire Terrier and the Staffordshire Bull Terrier gives sufficient notice to the average person. [FN105]

One court has struck down a pit-bull law on vagueness grounds. In Holder v. City of Hollywood, [FN106] a Florida trial court found such a law unconstitutionally vague because owners had no way of knowing whether their dog was addressed by the statute. [FN107] The "Everett Ordinance," [FN108] advocated by Mr. Weight, attempts to overcome such a deficiency by placing the burden of proof as to notice on the prosecution. [FN109] The dog owner must know that his or her dog is a pit bull to be found guilty of violating the ordinance. [FN110] The prosecution is able to prove such knowledge because the city has instituted a formal procedure to give notice to pit bull owners. [FN111] As long as means of identifying pit bulls are made available to citizens, laws banning these dogs should not be found to be unconstitutionally vague.

The mere fact that determining whether a dog is a pit bull requires factual analysis does not mean that a law banning pit bulls is unconstitutionally vague. [FN112] "The degree of vagueness that the Constitution tolerates--as well as the relative importance of fair notice and fair enforcement--depends in part on the nature of the enactment." [FN113] Thus, it is imperative that a statute banning pit bulls sufficiently describe the breed, so that citizens know what is being prohibited. [FN114] Trained investigators, who can determine by sight whether or not a *293 given dog is a pit bull, [FN115] should be consulted in drafting definition sections and enforcing bans. If a legislature or town council, with the help of capable advisors, enacts legislation banning pit bulls, courts should be willing to give a reasonable construction to such statutes so that the laws are not found to be unconstitutionally vague. [FN116]

Even more importantly, a person who acknowledges owning a pit bull cannot attack a breed-specific statute for vagueness at all. "A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others." [FN117] quoted at gar 5 Thus, a statute providing for notice before seizure or other penalty should eliminate most complaints that the law should not be enforced because of vagueness.



Two recent developments indicate growing support for upholding breed-specific bans. In New Mexico, a municipal pit-bull ban challenged on virtually every conceivable due-process and equal-protection basis was upheld; across the country, in New York City, Mayor Edward I. Koch proposed a tough, yet constitutionally-sensitive pit-bull ban.

In Garcia v. Village of Tijeras, [FN118] the New Mexico Court of Appeals affirmed the district court judge's decision upholding a municipal pit- bull ban against due process, equal protection, and vagueness challenges. [FN119] Adopted after a tragic accident in which a pit bull attacked and severely injured a young child, the Tijeras ordinance specifically provides:

It is unlawful to own or possess in the Village any dog of the breed known as American Pit Bull Terrier. Any such dog may be impounded by the Mayor or Animal Control Officer to be destroyed as provided herein. It shall be held until a determination is made by a court of competent jurisdiction that the animal is an American Pit Bull Terrier and shall accordingly order that the dog be destroyed. [FN120]

*294 The New Mexico Court of Appeals, in a persuasive and well-reasoned opinion, highlighted carefully the presumptions of constitutionality that favor the drafter under a rational-relation analysis. [FN121] More significantly, determining that the pit bull has an identifiable "phenotype," or "typical physical appearance," the court held that owners of dogs either admitted to be pit bulls or recognized by the court as such have unquestionably violated the statute--and thus have no claim of vagueness. [FN122]

Also illuminating is New York City Mayor Koch's 1987 proposal of "local legislation requiring the registration of pit bulls already owned and a ban on the possession or sale of any pit bulls in the city." [FN123] The Mayor declared that, under the proposed law, the Department of Health would assist owners in determining whether their dogs are pit bulls. [FN124] The legislation would provides that

"[a]ny owner violating the provisions of the law will be subject to a civil penalty of not more than $500 per violation for each day that any violations continue. Anybody who knowingly violates the law will be guilty of a misdemeanor and subject to a fine of not more than $5,000 or imprisonment for one year, or both." [FN125]

This proposal should overcome the constitutional challenges discussed in this article. The proposal provides a workable method for a citizen to determine whether or not his or her animal falls within the proscribed category, so that he or she knows what is being prohibited; thus, the law is not unconstitutionally vague. [FN126] Furthermore, the proposal distinguishes between a civil penalty and a criminal sentence, so that if a citizen is unaware that his or her dog is a pit bull, he or she is only civilly liable. [FN127] This is important, as the constitutional test for vagueness is less stringent when a civil rather than a criminal law is involved. [FN128]



States and municipalities must better appreciate the full breadth of the police power in situations involving the regulation of dangerous animals. Carefully-drafted laws that clearly define the type of animal being prohibited can survive constitutional challenges. Furthermore, a statute can sufficiently describe the term "pit bull" to defeat a void-for-vagueness challenge. Moreover, so long as a community can show that the ban on pit bulls bears a rational relationship to the safety of its citizens, the law will survive an equal-protection challenge as well.

Even legislators who, for some reason, do not support a ban on ownership of pit bulls must ensure that licensing and regulating statutes are strict enough to provide for the prohibition of any dog that poses a serious threat to the public. [FN129] Lawmakers and law enforcement officials have a duty to see that people need no longer live in fear of "man's best friend." [FN130]