Hounded, Cowed, & Badgered

CA cases on animal notice probation conditions

Given how politically disempowered convicted criminals are in this country, it is not surprising that legislatures and courts have begun regulating the keeping of animals by convicted felons. This follows a long line of restrictions, including owning or using a firearm, voting, and, more recently, living in certain areas and being free from suspicionless searches. Earlier this year, Illinois passed a law criminalizing the keeping of animals who aren't fixed, microchipped, or well-behaved, by people convicted of certain crimes. See 725 ILCS 5/12-35. We've questioned the rationality of the crimes covered in the law.

Two recent cases from a panel of the California Court of Appeals, Fourth District, reveal the sorts of arguments that will be raised to challenge the imposition of restrictions on companion animals for individuals convicted of crimes other than animal cruelty. See People v. Mosqueda, No. E038728 (Cal. App. Ct.  11/14/06) (pdf, html cache); People v. Quintero, No. E039290 (Cal. App. Ct. 9/27/2006) (pdf, html cache) (hat tips: The Volokh Conspiracy, Criminal Appeal). In both cases, the defendant was ordered to keep his probation officer advised of "place of residence, cohabitants and pets" and specifically to give 24 hour notice of any changes in those areas. In Mosqueda, the court, while pronouncing the sentence, stated "I don't like certain pets" and then limited that restriction to pit bulls and rotweillers. Each court tested this condition against precedent assessing the relationship of the probation condition to the offense for which the defendant was convicted, the legality of the conduct regulated by the prohibition, and the relationship between the condition and future criminality.

The conclusion of each of the courts at to the validity of a condition relating to all companion animals was the same. Each found the offense (possession of meth in Quintero, vehicle theft in Mosqueda) was not related to the ownership of animals.  Each found that keeping companion animals is itself not criminal, with Quintero noting authority that it is an "important part of our way of life." And each found that there was no relationship between owning a companion animal and future criminality. Quintero, in particular, closely analyzes the state's interest in officer safety, by noting several problems with the condition, namely that it covers "unquestionably harmless animals"; requires a defendant to anticipate changes beyond his or her control; and is not related to the purported interest insofar as that notice itself would not help officer safety.

In Mosqueda, however, the court found that the condition was valid as modified to refer only to pit bulls and rotweillers. Without acknowledging the court's previous holdings in the (admittedly depublished) opinion in Quintero as to the unreasonableness of the notice requirement, or making findings as to the dangerousness of the breeds, the court held that the condition, as modified, was related to future criminality.

In each case,a judge wrote a separate opinion (dissenting in Quintero, and partially dissenting in Mosqueda), arguing that that the condition need not be set out as specifically as the majority in each case held, and that the notice requirement is related to officer safety in that it can prevent unfair surprise.

There is a lot to criticize here. Despite our support of animals and criminal defendants alike, it seems like the strict scrutiny approach adopted goes far beyond what California law requires. We would imagine that, unless a constitutional right was at stake, the question of whether a condition was "reasonably related" to future criminality would be subject to a relatively deferential test, one that allowed for conditions to be related, but not necessarily narrowly tailored, to the state's interest. That a defendant's keeping an animal could thwart attempts to supervise him or her is the sort of minimal linkage necessary to be "reasonably related," especially given that the condition (as the dissent notes) requires only notice.

If a court, however, finds that a condition related to all animals is prohibited, there is zero basis for upholding a breed-specific condition, as the court did in Mosqueda. Defendants seeking to challenge such conditions would do well to consult the recent Ohio Supreme Appellate Court case invalidating Toledo's ban on pit bulls. In that case, the court expressly rejected the claim that pit bulls are more inherently dangerous than other animals and also the related argument that the ban should be upheld given the social conditions in which most pits are raised. The Mosqueda court's complete lack of fact finding as to why such breeds pose a particular danger is indicative of both deep-seated fears of certain dogs and the sad fact that often in animal cases, anything goes.

Update (12/3/06): When it rains, it pours. The same panel has just released an opinion on the same issue which follows Quintero's reasoning. See People v. Lopez, No. E039251 (Cal. App. Ct.  11/30/06) (pdf, html cache)

Toldeo pit bull law struck down

An Ohio appellate court recently held unconstitutional provisions in state and local law which automatically treat pit bulls as "vicious dogs." Toledo v. Tellings, 2006-Ohio-975 (pdf). The lower court in the case had heard expert testimony from sixteen witnesses and found that pit bulls were not inherently more dangerous than other animals [i.e., dogs --ed.] but nonetheless held it was rational to single the animals out, given that they are kept by drug dealers and dog fighters and present a threat when "in urban settings with crowded living conditions and a large number of children." The appeals court agreed that pit bulls are not more inherently dangerous than other breeds, explicitly renouncing precedent and one influential law review article as outdated or wrong. The opinion makes a strong stand for stare decisis yielding to scientific development:

As scientific information advances and becomes available, courts have a duty to reconsider issues and make decisions which are supported by the actual evidence presented, instead of relying on "common knowledge" and opinion generated by newspaper sensationalism and hearsay, rather than accurate, scientific evidence.

Given the lack of evidence that pit bulls are inherently dangerous, the court rejected the law making pit bulls automatically "vicious dogs" as lacking a rational basis. It further did not adopt the "urban setting" rationale of the trial court, noting that dogs of any breed may create problems in such a a setting but that "these problems are attributable to the actions of the owners." So goes the "guilt by association" rationale. The court also found the statute unconstitutionally vague. (More on category problems here.)

An article in the Toledo Blade quotes an official from the American Canine Foundation as saying "This is the first time ever in the United States that a published opinion has ruled that breed-specific legislation is unconstitutional." We are no experts but a quick read through an excellent 2004 article  (pdf) by Devin Burstein on breed discrimination laws reveals no successful challenges which ended up being published, and only one unreported one. This opinion, provided it is not reversed on appeal, should provide a clear, well-reasoned precedent for other plaintiffs challenging pit bull laws.

MO pit bull legislation introduced

Lilybleu has a letter to lawmakers on HB 1686, which restricts the number of pit bulls a person can own, sets a hefty $500 permit, and requires the muzzling of such dogs in public. The letter says all the right things, that the problem largely lies with irresponsible humans, that many animal welfare organizations oppose such bans, and, suprisingly to us, that Fred Astaire kept a pit bull. One particularly bad thing about the bill: breeders are excluded from the law. One good thing, considering the overall bad thrust of the legislation: it requires pit bulls to be spayed or neutered. Although laws focusing solely on breed will penalize responsible people, spaying and neutering pit bulls should have an effect on both attacks, as neutered males attack less,and reduce the high numbers of pit bulls who die every year in our shelters (as Karen Dawn argues (scroll down) (hat tip: Animal Law blog). But scrap the muzzles and the rest of it!

Pit bulls and categories

Malcolm Gladwell has a piece in The New Yorker on categories, specifically how the law uses them and how effective they are (hat tip:  Dawnwatch).  Gladwell cites as one example breed-specific discrimination, such as Ottawa's ban on pit bulls, or dogs with "substantially similar" characteristics.  Gladwell looks at a study on animal temperament, in which pit-bull-type dogs scored well, and concludes that the categorization of pit bull as as dangerous dogs is problematic:

The goal of pit-bull bans, obviously, isn’t to prohibit dogs that look like pit bulls. The pit-bull appearance is a proxy for the pit-bull temperament—for some trait that these dogs share. But “pit bullness” turns out to be elusive as well. The supposedly troublesome characteristics of the pit-bull type—its gameness, its determination, its insensitivity to pain—are chiefly directed toward other dogs. Pit bulls were not bred to fight humans. On the contrary: a dog that went after spectators, or its handler, or the trainer, or any of the other people involved in making a dogfighting dog a good dogfighter was usually put down. (The rule in the pit-bull world was “Man-eaters die.”)

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A mean pit bull is a dog that has been turned mean, by selective breeding, by being cross-bred with a bigger, human-aggressive breed like German shepherds or Rottweilers, or by being conditioned in such a way that it begins to express hostility to human beings. A pit bull is dangerous to people, then, not to the extent that it expresses its essential pit bullness but to the extent that it deviates from it. A pit-bull ban is a generalization about a generalization about a trait that is not, in fact, general. That’s a category problem.

The article suggests that attacks by dangerous dogs are more a problem of socialization than of genetics.  It's another category problem of its own, but there are those humans who spay or neuter their animal and socialize them and then there are others who will ask humans who keep a pit bull "You fight him?"  It doesn't seem just for the law to treat those humans the same way, as blanket bans do.

SF pit bull law in effect

San Francisco is now enforcing a law (scroll down to 051607) requiring all pit bulls in the city and county to be spayed or neutered.  The enforcement of the bill was in limbo after an attempt to overturn a state law enabling local governments to pass breed-specific spay and neuter fell short.  Because the legislation was motivated as much by concerns over the high number of pit bulls in shelters as fear of attacks, it also contains restrictions on breeders, the people primarily responsible for the many animals in shelters today.  The law implements a permit system, including a reporting requirement on the number of animals born and transferred.  Another nice thing about the law involves enforcement.  It allows regulators to ensure that permits are being used by perusing the newspaper when it requires the "posting of permit numbers on any offer of sale, trade or adoption." 

Breed-specific laws proposed in Detroit and Louisville

The trend of toughening laws related to the ownership of certain breeds of animals continues.  A proposal in Louisville would require seven foot high fences for owners of certain dogs.  Detroit is considering a Denver-style death penalty for pit bulls. 

Mistrial for using word "pit bull"

The Daily Telegram (Adrian, MI) reports that a trial judge declared a mistrial in a dog bite case when a witness used the word "pit bull" despite a successful defense motion to exclude the description, due to its prejudicial effect.  The article is just a snippet, but it is the first instance we can think of when a dog's "aggressive" breed was recognized as giving it more protection.