Rachel Blumenfeld [FNa1]
Copyright (c) 2010 Sports Lawyers Association; Rachel Blumenfeld (reprinted with permission).
||A. The History of Dogfighting............................
||B. The History of Public Nuisances.......................
||A. Why Dogfighting Qualifies as a Public Nuisance......
||1. Type of Injury..........................................
||2. Type of Conduct.........................................
||4. Proximate Causation....................................
||B. Current Methods Used To Regulate Dogfighting and Dangerous Dogs........................................................................................
||1. Breed-Specific Legislation............................
||3. Breeder and Seller Regulation.........................
||4. Prosecution of Dogfighters............................
||5. Criminal Liability for Owners.........................
||6. Community Education....................................
||C. How Nuisance Abatement Could Be Used To Control Dogfighting.........................................................................................
*2 I. Introduction
When one thinks of opponents of dogfighting, one may think of adamant animal rights activists and dismiss the cause as not being of immediate concern to humans. This, however, is not the case; dogfight-ing affects society in a variety of ways and has implications stretching far beyond the fighting pit. Dogfighting has close ties to illegal drugs, weapons, gangs, and other violent behavior. [FN1]
Dogfighting, along with the problems it brings, is not relegated to the lower class; its participants come from all backgrounds. [FN2]
Even children are found attending dogfights, which may lead to a child's desensitization to violence. [FN3]
One must also not forget that dogfighting is a gambling-based sport. [FN4]
Moreover, there is evidence that those who participate in dogfighting may be involved in crimes that are not related to the fights at all. [FN5]
Studies have found correlations between dogfighting, animal abuse, and spousal and child abuse. [FN6]
With all of these human-centered problems *3
closely connected to dogfighting, one must consider what can be done to prevent such a horrific sporting event.
In this Article, I will explore the history of dogfighting and its effects on today's society. I will then suggest a possible way to regulate and perhaps eliminate dogfighting. Part II.A will give a background of dogfighting and explore how dogs are trained to fight. Part II.B will discuss the evolution of the public nuisance cause of action. In Part III.A, I will examine why dogfighting is dangerous to society and why it may qualify as a public nuisance. In Part III.B, I will briefly analyze what methods are currently in use to regulate dogfighting and evaluate their efficacy. Part III.C will consider how nuisance abatement could work to control dogfighting. Lastly, in Part IV, I will offer closing thoughts on whether, and perhaps how, dogfighting should be managed under public nuisance law.
A. The History of Dogfighting
The breed of dogs most commonly used today in dogfights, pit bulls, were once nicknamed the “nursemaid's dog” due to their trustworthy temperament. [FN7]
This same trait has allowed the pit bull to *4
become a dedicated fighter: “Pit bulls are intensely loyal dogs and dogfighters exploit [this] characteristic to create violent animals.” [FN8]
Pit bulls evolved from the dogs used to bait bulls and bears in England, but since the proscription of animal baiting in the nineteenth century, people began fighting the dogs against each other. [FN9]
As dog fighting became more popular, people began to breed pit bulls into a lighter, more muscular, and agile dog. [FN10]
These dogs, once trusted babysitters, [FN11]
are now trained to fight through brutal methods. [FN12]
Abuse instigates aggression in the dogs through methods such as burning, hitting, and stabbing, as well as neglect of the dogs' basic needs. [FN13]
The dogs are often kept on a short chain throughout their lives. [FN14]
The dogs are sometimes fed small dogs or other animals to teach them to relish the taste of a fresh kill. [FN15]
Contact with humans is typically limited to time during training or during fights. [FN16]
Physical conditioning includes hanging a dog by its teeth from tires that are tied to trees (to strengthen their jaws) and forcing the dogs to run on treadmills (for endurance). [FN17]
Owners may even mutilate their dogs by cutting their vocal cords so that fights are not overheard. [FN18]
The actual dogfights take place in pits, which may be made merely of plywood. [FN19]
In modern years, dogfights have even taken place in playgrounds or on the street. [FN20]
Before the fight, dogs are sometimes bathed “to ensure that no poisoning or paralytic agents have been applied to the dogs' coats.” [FN21]
The dogs are then weighed to guarantee that they are the weight the owner has promised. [FN22]
After the weigh-in, the owners bring their dogs into the pit where the referee is standing. [FN23]
The dogs are then released onto each other, with the fight time averaging almost an hour. [FN24]
Fights end when one of the dogs either dies or gives up. [FN25]
Fights may also be broken up using “breaking sticks,” which are sticks inserted between a dog's back teeth to pry his jaws apart. [FN26]
Even those dogs who technically win the fight may die anywhere from hours up to days after the fight has ended. [FN27]
These dogs often die from “blood loss, shock, dehydration, exhaustion, or infection” as a result of puncture wounds, broken bones, and other painful consequences of fighting. [FN28]
Even if the dog survives on its own, it may still die at the hands of its owner. [FN29]
Dogs have been “shot by their owners; beaten to death with a two-by-four; or simply left in an alley to die.” [FN30]
Many dogs that do not die from fighting are simply abandoned on the streets: “[D]ogfights have resulted in thousands of mangled stray pit bulls, which are typically abandoned by owners when their fighting days are finished . . . .” [FN31]
Even those dogs that make it to shelters are often euthanized, *6
because after years of aggression training, they may not be fit for adoption. [FN32]
There are several methods currently used to help control dogfighting and the societal dangers posed by dogs that have been trained to fight. They include breed-specific legislation that bans ownership of the dogs, [FN33]
training of dogs, [FN34]
breeder regulation, [FN35]
criminal prosecution of dogfighters, [FN36]
owner liability when the dogs cause harm, [FN37]
and community education of the dangers of dogfighting. [FN38]
B. The History of Public Nuisances
“There is perhaps no more impenetrable jungle in the entire law than that which surrounds the word ‘nuisance.”’ [FN39]
While it is unclear what specific conduct counts as a nuisance, there is an accepted, albeit ambiguous, definition currently in use. “In the majority of jurisdictions, conduct does not become a public nuisance merely because it interferes with the use and enjoyment of land owned by a large number of persons. There must be some interference with a public right.” [FN40]
A nuisance may *7
qualify as a public nuisance if it directly affects one or more people, as long as the right with which it interferes is a public right. [FN41]
It is worth noting, however, that it is not the subsequent interference that is considered to be the nuisance, but rather the act that results in the interference. [FN42]
Public nuisances started as crimes in England in the thirteenth century, but by the sixteenth century there were criminal and tort versions of public nuisances. [FN43]
In the late eighteenth and early nineteenth centuries in the United States, the government used public nuisance law not only to pursue obstructions of public property, but also to target misuse of property in ways that offended public morals. [FN44]
These cases usually involved properties at which gambling, drinking, or prostitution took place. [FN45]
In the mid-twentieth century, after the New Deal, there were sufficient regulations of society such that there was no real need for public nuisance law to regulate behavior. [FN46]
As such, public nuisance was not included--nor even referred to--in 1939's Restatement (First) of Torts. [FN47]
In spite of this, in the 1970s, public nuisance was reborn during the writing of the Restatement (Second) of Torts. [FN48]
Legislatures enacted statutes that define public nuisances as activities that are “detrimental to the health, morals, peace or general welfare of its citizens. The suppression of public nuisances to protect the public health and morality has been described as one of the most important duties of government.” [FN49]
While the legislature enjoys broad discretion in declaring acts to be public nuisances, it is still restricted by the Constitution. [FN50]
[T]he power to regulate public nuisances is subject to the constitutional limitation against unreasonable, arbitrary or capricious governmental action. Similarly, the legislature cannot extend or enlarge its constitutional power over property under the guise of regulating nuisances. Moreover, with regard to the termination of pre-existing activities thereafter declared by the legislature to be public nuisances, due process requirements of notice and opportunity for hearing must be satisfied. [FN51]
Some of these newly implemented statutes gave very broad definitions of public nuisance, which permitted the government to challenge any action that fell within that definition; other statutes specified which behaviors were classified as public nuisances. [FN52]
Additionally, the legislature may also permit conduct that might otherwise be considered a public nuisance. [FN53]
In such cases, the conduct must be tailored to meet the legislature's specifications, and not extend past this authorization. [FN54]
Nevertheless, there was a push by environmentalists to expand public nuisance law to include a broader array of behaviors. [FN55]
Dean Prosser, one of the archetypes of tort law scholarship, wrote that a public nuisance is “always a crime . . . a species of catch-all low-grade criminal offense.” [FN56]
Environmentalists opposed this definition, as they wanted to use public nuisance law to challenge noncriminal activities. [FN57]
When the Restatement (Second) of Torts was finally written, as a compromise between the suggestions, it defined public nuisances ambiguously as “‘unreasonable interference[s]’ with a public right.” [FN58]
The law of public nuisance was not developed to expand the government's funds through fines, nor to give private plaintiffs a way to stop the conduct of others, nor as another way to punish defendants outside of criminal prosecution; [FN59]
rather, it was developed “as a basis for public officials to pursue criminal prosecutions or seek injunctive relief to abate harmful conduct.” [FN60]
The test that has arisen to determine whether an act is a public nuisance has four elements that must be considered: (1) the type of injury, [FN61]
(2) the type of conduct, [FN62]
(3) control, [FN63]
and (4) proximate causation. [FN64]
A. Why Dogfighting Qualifies as a Public Nuisance
The type of injury required for a public nuisance claim is an injury to a public right. [FN65]
“A public right is one common to all members of the general public. It is collective in nature and not like the individual right that everyone has not to be assaulted or defamed or defrauded or negligently injured.” [FN66]
In the case of dogfighting, it is hard to identify the public right that qualifies this as conduct that could be remedied by nuisance abatement. To do so, it is worth looking at the policy decisions behind classifying other conduct as public nuisances.
While courts have often permitted criminal activities to be enjoined as public nuisances, [FN67]
if the criminal statute does not specifically declare the conduct a public nuisance, the court may require a showing that there *10
is “either statutory or common-law support for the claim that the activity is a public nuisance.” [FN68]
A public nuisance claim will find common law support where the conduct at issue “offend[s] public morals, interefere[s] with use by the public of a public place or endanger[s] or injure [s] the property, health, safety or comfort of a considerable number of persons.” [FN69]
In fact, the legislature having chosen to prohibit the specific conduct is evidence that the conduct is “prejudicial to the public interest and threatens the requisite ‘[i]njury to the public.”’ [FN70]
Under this theory, gambling parlors, strip clubs, pornographic film theaters, and prostitution houses have been deemed public nuisances. [FN71]
After conduct is shown to be offensive to morality, some jurisdictions require that the conduct take place in public. [FN72]
Other jurisdictions find public nuisances as long as the public is aware that the conduct is occurring. [FN73]
While legislatures have condemned dogfighting as animal abuse, [FN74]
this type of conduct should also qualify as a public nuisance. Pit bulls have earned unflattering nicknames such as “‘[w]alking horror shows' . . . and the ‘Ted Bundys of the canine world,”’ [FN75]
and while the names may not be deserved, [FN76]
dogfighting and pit bull abuse certainly have had some repercussions which explain such epithets. [FN77]
Additionally, attendance, including children, at dogfights can number into the hundreds. [FN78] This, in turn, may lead to a dangerous lack of sensitivity in children regarding violence towards animals as well as other people. [FN79]
*11 [I]n high crime inner cities . . . most children are routinely exposed to dogfighting . . . . The routine exposure . . . to unfettered animal abuse and neglect is a major contributing factor in their later manifestation of social deviance. . . . This early exposure to and participation in dog-fighting is of concern to law enforcement, not only as a child endangerment issue, but also because children that become desensitized to violence become criminalized and perpetuate that cycle of violence. [FN80]
As evidence of this risk, children as young as eight have been found to hold their own dogfights. [FN81]
Children's exposure to dogfighting may also impose upon them the notion that society accepts violence, and “[r]esearch proves that people who abuse animals are more likely to abuse people.” [FN82]
There are also more direct community problems with dogs that have either lost fights or escaped from their dogfighting owners. For example, law enforcement officials often get involved when fearful families find battered fighting dogs on their property. [FN83]
One person called the police when he heard a dog crying; the next day, as he cleaned his yard, he found “parts of two dog carcasses . . . scattered on the ground, and four dogs wander[ing] about.” [FN84]
These findings are not only terrifying for the community, but are also incredibly dangerous and unsanitary. [FN85]
There are additional effects that dogfighting has on the community. For instance, neighbors who hear or see dogfights occur may not call the police because they fear revenge by the people that run the dogfighting rings. [FN86]
Furthermore, responsible owners of pit bulls may be harassed by fighters who want to use their dogs in fights. [FN87]
Finally, dogfighting *12
“doesn't happen in a vacuum” [FN88]
--it has strong ties to gambling, drugs, gangs, guns, and prostitution, all of which greatly endanger the community where dogfights occur. [FN89]
Because public nuisance law has been used to abate prostitution and gambling, it is not far-fetched to use it to abate conduct that is connected with these offenses. Furthermore, the dangers associated with dogfighting meet the criterion for the type of injury a public nuisance must cause. Dogfighting may occur in public places, [FN90]
and even when it does not, the public is well-aware of its existence. [FN91]
Dogfighting endangers a considerable number of people, in that dogs who escape may attack civilians. [FN92]
Dogfighting also clearly offends public morals, as evidenced by the intense public reaction to football player Michael Vick's dogfighting indictment. [FN93]
Lastly, dogfighting interferes with the public's use of property as thousands of abandoned dogs frighten those who find them. [FN94]
Clearly, there is a public injury that results from dogfighting. A public injury is generally classified as an injury to the public's safety, morals, and sometimes its physical welfare. [FN95]
For this reason, dogfighting satisfies the first element of the public nuisance test.
The conduct that qualifies as a public nuisance has been called “quasi-criminal activity.” [FN96]
Yet, formally, public nuisance conduct is anything that may be classified as an “unreasonable interference.” [FN97]
The factors for determining unreasonableness would be whether the interference is significant; where there is a statute proscribing or prohibiting the conduct; and whether the harm is of a continuing, long-lasting nature and the defendant knows its conduct has a “significant effect” on this ongoing harm. Generally speaking, courts have encountered four categories of conduct in common law public nuisance claims: (i) unlawful, intentional acts . . . . Assuming interference with a public right, the conduct in [this] scenario would fall within the bounds of public nuisance theory. [FN98]
As seen in Part III.A.1 above, the injury to the public from dogfighting is quite significant, as it negatively affects a considerable amount of people in various ways. Additionally, there are statutes that proscribe dogfighting in every state. [FN99]
Dogfighting qualifies as long-lasting because it is considered by fighters to be a culture. [FN100]
Although the defendants may not agree that they are causing an injury to the animals or to the public, it is clear that gambling, animal abuse, and other crimes occur as a direct result of dogfighting. [FN101]
Finally, dogfighting is an unlawful, intentional act. [FN102]
Because it interferes with public safety, morality, and the right to public property, dogfighting meets all of the criteria of conduct to be labeled a public nuisance.
After the type of injury and type of conduct attributable to public nuisances are found, the court must be able to find that the defendant has control over the “instrumentality” of the nuisance; [FN103]
this is so that the remedy of nuisance abatement, as applied to the defendant, is effective. [FN104]
Where property is involved, liability typically falls on the property owner, not the actual creator of the nuisance, because it is the landowner *14
who has the power and responsibility to stop the nuisance. [FN105]
Therefore, when using nuisance abatement for dogfighting, an appropriate defendant would be the owners of the property where dogfights occur because the owners have the ability to prevent others from staging dogfights on their property.
When dogfights occur on public property, however, who is the appropriate defendant? Can the owner of the dog be held liable? What about the organizers of the fight, if different from the owners of the dogs? States have tried to bring public nuisance claims against product manufacturers, [FN106]
but these cases have failed because providing the cause of the injury does not supply the amount of control needed to assert legal liability. [FN107]
These cases turned on the fact that the product manufacturers no longer had control over the instrumentalities once they were in someone else's possession. [FN108]
In dogfighting, unlike in gun manufacturing cases, fighters likely have control over their dogs from training through the fight. Further, they determine what happens to the dog after the fight--whether it is kept, killed, or left to fend for itself on public streets. [FN109]
Therefore, it seems unlikely that the owner could use a lack of control defense when their dangerous dog is wandering the streets and threatening the public. The gun manufacturer decisions turn on the fact that once the gun is sold, it is under the control of another party; [FN110]
however, in dogfighting cases, the dogs' owners are not putting the dog in control of a third party, they are releasing the dog out into the public.
There is a “general rule that when a defendant is blameless for the subsequent misuse of its product, it bears no legal responsibility for a nuisance subsequently created by those who have purchased the product.” [FN111]
With dogfighting, however, the owner is not blameless for subsequent misuse. Rather the owner is blameworthy for previous misuse--his own--which led to the subsequent nuisance; therefore, he cannot avoid legal responsibility. Additionally, in cases where the nuisance is dogfighting's close connection to other crimes or the *15
corruption of children's morals, the control on the part of the owner cannot be legitimately questioned.
4. Proximate Causation
The final element of a public nuisance claim is proximate causation. [FN112]
In public nuisance cases, proximate causation is shown the same way it is in standard negligence cases. [FN113]
Thus, the conduct that is the basis of the public nuisance claim must have been “foreseeable and satisf[y] the doctrine of remoteness.” [FN114]
Foreseeability is an easy element to prove in dogfighting--in an activity where illegal drugs, guns, and gangs are found, it would be hard to deny an injury to the public. Even fighters who deny the horror of the sport [FN115]
would have a hard time showing lack of foreseeability in court, as foreseeability is judged based on a reasonable person standard. [FN116]
It can hardly be argued that a reasonable person, with knowledge of the workings of a dogfight, would not predict any injury as a result of the fight and its circumstances.
The doctrine of remoteness is slightly more challenging to overcome in dogfighting cases. Under the remoteness analysis, “acts of third parties are intervening events that may cut off proximate cause.” [FN117]
Does this mean that dogfighters are not liable under public nuisance theory for drug sales that occur on the sidelines, but in which they do not participate? Perhaps--liability may not apply when one merely “furnish[es] a condition upon which a tortfeasor acts.” [FN118]
Nevertheless, the plaintiff may still be held liable because he has “increase[d] an unreasonable risk of harm.” [FN119]
This requirement is satisfied when the public nuisance injury is the increased number of dangerous dogs roaming the street, because there is no intervening act between the owner abusing, then releasing the dog, and the dog threatening civilians. When the nuisance is the *16
desensitization to violence, and the other crimes tied into dogfighting, the doctrine of remoteness is difficult to overcome. In a gun manufacturing case, the court found that “there is no proximate cause if the tortfeasor could have created the nuisance without the conduct of the manufacturer.” [FN120]
For dogfighters to be held liable despite this rule, the plaintiff would have to show that those selling drugs would not have done so outside of the fights. This may be possible to do, especially when animal-specific drugs are involved, as they often are at dogfights. [FN121]
It may be somewhat harder to show that guns, gangs, and other kinds of violent crimes would not occur were it not for the dogfight, unless the guns were used solely as security measures at the fight. Therefore, the crimes most closely tied to the fight are the ones that would most easily satisfy the proximate causation requirement of a public nuisance claim.
Less proximate results of dogfighting, such as desensitizing and perhaps criminalizing young audiences, may not meet the requirement of proximate causation without strong evidence to show that without being exposed to dogfighting, the child would not have become a nuisance on his own. Therefore, public nuisance claims of this sort would work best when there is evidence of child endangerment or of children holding their own dogfights, as these claims cannot be separated from the fights children have seen. [FN122]
Additionally, the direct injuries to the public--especially to those who live in the neighborhood that find the dogs' bodies, are harassed by fighters, and overhear dogs howling in pain--would meet the requirement of proximate causation. [FN123]
Generally, it appears as though a wide array of the injuries to the public caused by dogfighting would pass the proximate causation element of a public nuisance claim. There are at least several injuries that satisfy all four elements of public nuisance claims, and therefore, it seems that public nuisance claims could be used to combat dogfighting.
*17 B. Current Methods Used To Regulate Dogfighting and Dangerous Dogs
1. Breed-Specific Legislation
Several cities, such as Denver and Cincinnati, as well as counties such as Miami-Dade in Florida, have initiated what is known as Breed-Specific Legislation, or “breed bans.” [FN124]
These laws have been challenged on the grounds of vagueness, equal protection, and due process. [FN125]
[T]here may, indeed, be some dogs which, because of registration, known parentage or close conformance in appearance to commonly accepted standards representative of “Pit Bull,” would be “commonly understood” to be “Pit Bulls.” The evidence . . . indicated, however, that some dogs might appear to be “Pit Bulls” yet belong to a breed “commonly understood” not to be “Pit Bulls,” and that some dogs, “commonly understood” by the owner or dog registry to be a breed “known as Pit Bull” might not appear to be “Pit Bulls,” and so escape the notice and enforcement efforts of the . . . dog officers. [FN126]
This leads to due process problems in enforcing breed bans, because owners may not have sufficient notice that their dog qualifies under the ban's requirements. [FN127]
Regardless of the lack of sufficient notice of which dogs qualify under breed-specific legislation, the dangerousness of dogs is not necessarily breed-specific. Irresponsible ownership is strongly tied to dogs' temperaments, which are affected by lack of training, socialization, and supervision of the dog. [FN128]
Also indicative of a dog's future temperament are its genetics [FN129]
and whether or not the dog is spayed or *18
neutered, because a dog left intact may submit to hormonal impulses. [FN130]
Furthermore, many pit bull owners argue that their dogs are not vicious, [FN131]
and some have even brought suit, claiming that breed-specific legislation violates equal protection. [FN132]
In these cases, however, courts have found that equal protection “does not guarantee that all dog owners will be treated alike.” [FN133]
Pit bull owners may also challenge these laws by claiming that they are overbroad or overinclusive. [FN134]
These claims would raise the issue of whether banning all (and perhaps only), pit bulls is effective. Evidence has shown that if pit bulls are outlawed, then other strong breeds, such as Rottweilers, grow in popularity. [FN135]
Additionally, owners of pit bulls who choose to fight them may continue to own pit bulls despite the legislation, while responsible owners with less-dangerous dogs are the ones whose dogs are relinquished. [FN136]
As a result, instead of having fewer dangerous dogs, the dangerous dogs will remain and will be in the hands of irresponsible owners. [FN137]
Possibly as a result of this, “in the years after breed-bans *19
were first enacted, data shows that the number of dog bites have actually increased.” [FN138]
Because bans exclude dogs that may not be dangerous, do not include dogs that may be dangerous without being a pit bull (such as the Presa Canarios that mauled Diane Whipple to death in 2001), [FN139]
and have not been shown to be statistically effective, a better method of regulating dogfighting and dangerous dogs must be found.
One of the methods that is currently being used to regulate dogfighting and dangerous dogs is dog training. [FN140]
With training, dogs are far less likely to bite. [FN141]
Training can also be used to help rehabilitate dogs that have been abused and trained to fight, thereby reducing the risk of these dogs being dangerous. [FN142]
Even homeowners insurance companies have recognized the benefits of training dogs, and companies such as State Farm have enacted dog training and education programs, a result of which has been a decreased filing of dog bite claims. [FN143]
Nevertheless, as with breed-specific regulations, those owners who want *20
to fight their dogs will likely resist efforts to encourage training, [FN144]
especially because lack of socialization is such a key element in creating a fighting dog. [FN145]
3. Breeder and Seller Regulation
Humans have an incredible amount of control over the development of dog breeds by selecting which dogs they breed based on which traits they want to perpetuate. [FN146]
This can lead to the breeding of dangerous dogs, [FN147]
especially when breeders “inbreed dogs to promote ‘pure’ lines, but in doing so . . . encourage defective traits.” [FN148]
Often, breeders who breed to promote aggressive qualities do so to provide dogs to dogfighters. [FN149]
Contrary to the pit bull's initially kind disposition, [FN150]
they are currently bred for the traits of aggression and strength. [FN151]
“As the dogfighting industry continues to flourish, irresponsible breeders continue to breed bigger, stronger, and more aggressive dogs to supply the cruel sport.” [FN152]
The increase of more aggressive pit bulls coupled with the decrease of mentally-sound pit bulls jeopardizes not only the public's safety, but also the future of the breed. [FN153]
These problems could potentially be remedied through regulation of breeders to “help ensure that only sound temperaments will be selected for continuation.” [FN154]
One suggestion is to screen people before allowing *21
them to breed dogs. [FN155]
Others suggest the participation of the American Kennel Club to help regulate breeders. [FN156]
Another idea, from the Humane Society of the United States, is to enact laws restricting the sale of dogs. [FN157]
Additionally, the problem continues that those who will break laws to fight dogs will also break laws that may be implemented regarding breeding, owning, selling, and registering dogs. Therefore, this method of regulation will not be entirely effective. [FN158]
4. Prosecution of Dogfighters
Dogfighting is not only illegal in all states, but as of 2005, it is classified as a felony in every state but Idaho and Wyoming. [FN159]
Nevertheless, in some jurisdictions, the prosecution of dogfighters is lacking. [FN160]
Criminal prosecution may not be a satisfactory answer to dogfighting for other reasons as well, including the high burden of proof on the prosecutor. [FN161]
Dogfighting is difficult to prosecute because the dogs are rarely registered or taken to vets, [FN162]
so there is not an easy way to tell who owns the dogs and who is merely a spectator at the fight; therefore, there may only be evidence with which to charge animal cruelty, a crime which carries lesser penalties. [FN163]
It is possible to prosecute spectators, but some courts allow this only if the statute specifically calls for the prosecution of spectators. [FN164]
Only when the charge of being a spectator at a dogfight carries as much weight as owning the dog will prosecution help to eradicate the problem of dogfighting. [FN165]
Tellingly, “[a]ccording to the Humane Society of the United States, states with stiffer penalties for dogfight spectators see significantly less such crime.” [FN166]
Still, when prosecutions for any of these charges succeed, “defendants generally face light punishment that fails to deter their behavior.” [FN167]
In fact, dogfighters may consider fines as part of their “business expenses.” [FN168]
Therefore, all charges related to dogfighting must be strictly enforced to have any hope of deterring fighters.
5. Criminal Liability for Owners
As mentioned above, ownership is difficult for prosecutors to prove when charging dogfighters; however, owner liability when abused dogs--or dogs trained to fight--bite someone is somewhat easier to enforce. Often, the victim of the dog bite brings suit against the owner of the dog to receive damages, [FN169]
but there are cases in which dog owners have been held criminally liable for the damage inflicted by their dogs. [FN170]
While some states have ratified laws that specifically call for owner liability, other states have permitted the dog's past behavior to suffice as evidence to sustain criminal liability. [FN171]
Some states, such as Florida, have enacted dangerous-dog registration, wherein the owner assumes substantially higher criminal liability if his or her dog attacks someone after being declared a dangerous dog. [FN172]
Nevertheless, criminal charges carry with them the burden of proving elements beyond a reasonable doubt. This may be difficult to prove with fighting dogs that have hurt someone because the owners of the dog are difficult to identify. [FN173]
While these concepts of criminal liability may be successful in limited instances, an answer to dogfighting is needed that can be used more regularly to achieve more widespread deterrence.
6. Community Education
Similar to encouraging owners to train their dogs to achieve safety is the idea of community education programs. These programs could teach the public about how to properly treat pets as well as strange dogs and emphasize proper socialization and training. [FN174]
“These programs can also educate potential owners about the role of gender and reproductive status in aggression, thereby allowing them to make educated choices about the pets that are right for their household.” [FN175]
Emphasizing bite prevention will also allow legislators to determine more accurately the causes of dog bites, focusing solely on victim behavior and irresponsible ownership. [FN176]
This information would allow legislators to protect people more effectively than with breed-specific legislation, although it depends heavily on community participation, which may not be easy to attain. Again, the problem arises that those who own fighting dogs will not *24
likely participate in or benefit from such programs. Therefore, a method of regulation that targets these resistant owners is necessary to successfully combat dogfighting and the problems that go along with it.
C. How Nuisance Abatement Could Be Used To Control Dogfighting
Public nuisance cases arose to protect the public's well-being when it was determined that jail terms and fines were insufficient to eliminate offensive conduct. [FN177]
Because damages are also not an effective remedy for an injury to the public, the only proper remedy is an injunction. [FN178]
“An order abating a public nuisance may not only prevent owners and occupants from using their homes for prohibited purposes, but also may prevent the use of the home for any purpose.” [FN179]
These orders of abatement may have permanent effects. [FN180]
Public nuisance cases arise from complaints from the public to the attorney general's office, along with the attorney general's assessment as to whether a public nuisance exists. [FN181]
The attorney general's office has the authority to take properties at which public nuisances occur without compensating the defendant because of “the right of public necessity.” [FN182]
This is a highly effective remedy for conduct such as dogfighting, because while it is true that some fights occur in public areas, [FN183]
the majority of fighting--and even training for fights that occur in public--takes place in privately owned homes or on private property. [FN184]
“In rural areas, [dogfights] are often staged in barns or outdoor pits. In urban areas, fights are staged in garages, basements, warehouses and abandoned buildings.” [FN185]
Whereas prosecution for dogfighting may not *25
deter fighters, [FN186]
the risk of losing one's home carries much more weight, especially when one's family also suffers the consequences; a family home can hardly be considered a “business expense.” [FN187]
Additionally, because public nuisance cases are civil, they carry a lower burden of proof than criminal cases. [FN188]
With conduct such as dogfighting, which is incredibly secretive in every aspect and where ownership of the dog is easy for the defendant to challenge, a lower burden of proof equates to more victories for the plaintiff. [FN189]
In civil public nuisance cases, the plaintiff may also use the defendant's refusal to testify as an “adverse inference,” whereas in criminal cases, silence would be protected by the Fifth Amendment. [FN190]
Finally, in public nuisance cases, the plaintiff would also be able to use the defendant's “past criminal conduct or reputation . . . to establish the present existence of a nuisance.” [FN191]
All of this leads to greater ease for the attorney general in public nuisance cases against dogfighters, leading to results that are likely to be more devastating, and thus more effective deterrents against dogfighting. It seems clear that with a lower burden of proof, greater availability of evidence, and a more injurious remedy, nuisance abatement is the best solution to curb the dogfighting problem in America.
Dogfighting is more than a violent form of abuse towards dogs--it has implications across society, ranging from increasing violent tendencies in children who are exposed to it to increased attacks by fighting dogs who are left to die on public streets. [FN192]
It is a widespread problem that pervades American culture, with an estimated 40,000 *26
dogfighters across the country. [FN193]
Dogfighting has even leaked into American popular culture, with images of pit bulls and fights arising in rap music, music videos, urban clothing, and toys. [FN194]
Nevertheless, dogfighting is not exclusively a lower-class sport; highly educated, middle- to upper-class citizens may participate in it. [FN195]
What can be done with such a troublesome sport that causes so much damage to animals, people, and neighborhoods? Several remedies have been suggested by dog trainers, humane societies, and legislatures, but none have been able to adequately solve the problem. Whether it is difficulties in proving elements of the crime for prosecutors, or that those who fight dogs will probably choose not to listen to civil ordinances barring pit bulls or requiring training, there is a flaw in every plan. So what suggestions are left?
Nuisance abatement, a popular civil remedy for prostitution, drugs, and gambling may be the best weapon for the challenge of reducing dogfighting. With nuisance abatement, the attorney general's office may bring a civil case against someone who is breaking a criminal law or causing an injury to a public right, carrying with it the remedy of seizure of the property where the nuisance is occurring. The attorney general may also obtain an injunction against the defendant performing the action in question.
Since nuisance abatement has a lower standard of proof than criminal prosecutions and does not leave the choice whether to conform with an ordinance in the hands of the dogfighter, this remedy is much more appropriate for the problem. Perhaps public nuisance law is an “impenetrable jungle,” as Dean Prosser suggested, [FN196]
but that does not mean that its shade cannot protect the public from the devastating effects of dogfighting.
[FNa1]. © 2010 Rachel Blumenfeld. Rachel Blumenfeld is a graduate of the Villanova School of Law. She is a sole practitioner licensed in both Colorado and Wyoming. She is currently pursuing an MFA in nonfiction writing and literature from Bennington College.
[FN1]. See Jamey Medlin, Pit Bull Bans and the Human Factors Affecting Canine Behavior, 56 DePaul L. Rev. 1285, 1304 (2007) (citing Rebecca Simmons, Dog Eat Dog: The Bloodthirsty Underworld of Dogfighting, http:// www.hsus.org/acf/fighting/dogfight/dog_eat_dog_the_bloodthirsty_underworld_of_ dogfighting.html (last visited Sept. 23, 2009) (describing other dangerous behaviors prevalent within the dogfighting community)).
[FN2]. See id. at 1301 (citing Fight Animal Cruelty: Dog Fighting: Pit Bulls, http://www.aspca.org/site/PageServer?pagename=cruelty_pitbull (last visited Mar. 10, 2010)).
[FN3]. See id. (citing Dogfighting Fact Sheet, http://www.hsus.org/hsus_ field/animal_fighting_the_final_round/dogfighting_fact_sheet (last visited Mar. 10, 2010); Hanna Gibson, Dog Fighting Detailed Discussion, http:// www.animallaw.info/articles/ddusdogfighting.htm#taskforce (last visited Mar. 10, 2010); The Reality of Dogfighting, http:// www.pitbullsontheweb.com/petbull/articles/brownstein.html (last visited Nov. 3, 2009); Steve Brownstein, See Spot. See Spot Killed, http:// www.pitbullsontheweb.com/petbull/sadreality4.html (last visited Sept. 23, 2009)) (noting children's either numb or amused reactions to dogfights)).
[FN4]. See Cris Barrish, Blood Sport, News J. (Wilmington, Del.), Aug. 5, 2007, at A1 (quoting Humane Society of the United States as estimating purses up to $100,000 at dogfights with additional gambling on side).
[FN5]. See id. (telling of one person convicted of dogfighting who was merely given probation and a fine, and who, while on probation, robbed a bank).
[FN6]. See Heather D. Winters, Updating Ohio's Animal Cruelty Statute: How Human Interests Are Advanced, 29 Cap. U. L. Rev. 857, 881-83 (2001); Frank R. Ascione & Phil Arkow, Preface to Child Abuse, Domestic Violence, and Animal Abuse: Linking the Circles of Compassion for Prevention and Intervention, at xv (Frank R. Ascione & Phil Arkow eds., 1999); Phil Arkow, The Evolution of Animal Welfare as a Human Welfare Concern, in Child Abuse, Domestic Violence, and Animal Abuse: Linking the Circles of Compassion for Prevention and Intervention, supra, at 19, 21; Lynn Loar, “I'll Only Help You if You Have Two Legs” or, Why Human Service Professionals Should Pay Attention to Cases Involving Cruelty to Animals, in Child Abuse, Domestic Violence, and Animal Abuse: Linking the Circles of Compassion for Prevention and Intervention, supra, at 120, 123; Barbara W. Boat, Abuse of Children and Abuse of Animals: Using the Links To Inform Child Assessment and Protection, in Child Abuse, Domestic Violence, and Animal Abuse: Linking the Circles of Compassion for Prevention and Intervention, supra, at 83, 84 (citing E. Deviney, J. Dickert & R. Lockwood, The Care of Pets Within Child Abusing Families, 4 Int'l J. for Study Animal Probs. 321, 321-29 (1983)); William S. Cohen, A Congressional View of the Cycle of Violence, in Child Abuse, Domestic Violence, and Animal Abuse: Linking the Circles of Compassion for Prevention and Intervention, supra, at 335, 336; Ruth Larson, Animal Cruelty May Be a Warning, Often Precedes Harm to Humans, Wash. Times, June 23, 1998, at A7 (finding strong overlap between animal abuse and abuse towards humans).
[FN7]. See Fight Animal Cruelty, supra note 2 (giving evolutionary history of pit bulls). In fact, a group called the American Temperament Test Society, Inc., evaluates different breeds of dogs to determine the average temperament of each breed. See About ATTS, http://www.atts.org/about.html (last visited Mar. 22, 2009). The test evaluates the dogs' reactions to neutral strangers, friendly strangers, hidden noise (such as shaking a bucket filled with rocks), gunshots, umbrellas, plastic footing, wire footing, nonthreatening weirdly dressed strangers, threatening weirdly dressed strangers, and aggressive weirdly dressed strangers. See TT Test Description, http:// www.atts.org/testdesc.html (last visited Mar. 22, 2009). The judges look for signs of poor temperament in each of these categories, including unprovoked aggression, panic without recovery and strong avoidance of the stimuli. Id. The American Pit Bull Terrier, of whom 665 were tested in 2008, scored an 85.3%. See ATTS Breed Statistics 1, http://www.atts.org/stats1.html (last visited Mar. 22, 2009). The closely related American Staffordshire Terrier, of whom 570 were tested in 2008, scored an 83.9%. Id. The other closely related breed, the Staffordshire Bull Terrier, of whom only 92 were tested, scored 88%. See ATTS Breed Statistics 7, http://www.atts.org/stats7.html (last visited Mar. 22, 2010). The second-most popular family dog in 2008, the Yorkshire Terrier, scored a somewhat lower 82.1%. See Dog Registration Statistics, http://www.akc.org/reg/dogreg_stats.cfm (last visited Sept. 23, 2009); ATTS Breed Statistics 8, http://www.atts.org/stats8.html (last visited Mar. 23, 2010); Dog Registration Statistics, http://www.akc.org/reg/dogreg_ stats.cfm (last visited Sept. 23, 2009). “Despite legislation singling out pit bulls as human aggressive, a study cited by The Prince George's County, Maryland Vicious Animal Legislation Task Force found that between 1988 and 1993, pit bulls typically ranked no higher than fifth among breeds most responsible for severe bites.” Safia Gray Hussain, Attacking the Dog-Bite Epidemic: Why Breed-Specific Legislation Won't Solve the Dangerous-Dog Dilemma, 74 Fordham L. Rev. 2847, 2869 (2006).
[FN8]. Simmons, supra note 1; see also Medlin, supra note 1, at 1298 (“The pit bull's once-revered characteristics of loyalty and tenacity have been manipulated by those looking for a dog to ruthlessly defend their homes or make them rich by fighting to the death in dogfighting matches.”).
[FN9]. See Fight Animal Cruelty, supra note 2 (explaining former animal baiting).
[FN10]. See id. (noting evolution of pit bulls' physical form).
[FN11]. See id. (stating phrase “nursemaid's dog” derived from reliability and calmness with children).
[FN12]. See Medlin, supra note 1, at 1299-1300 (describing various inhumane methods used to train fighting dogs).
[FN13]. See id. at 1300 (noting the abuse that pit bulls suffer and the frequent lack of food, water, and shelter).
[FN14]. See id. “Chained dogs are often very territorial because their space is limited and clearly defined. A chained dog is likely to feel particularly threatened if a human comes close to this defined space. In fact, chained dogs are more likely to bite than unchained dogs.” Id. at 1308 (citing Why Chaining Is Crucial, http://www.unchainyourdog.org/Facts.htm (last visited Feb. 2, 2010)).
[FN15]. See id. at 1300. “These ‘bait’ animals are often stolen pets or animals obtained through ‘free to good home’ advertisements.” Dogfighting Fact Sheet, supra note 3.
[FN16]. See Medlin, supra note 1, at 1300.
[FN17]. See Simmons, supra note 1 (describing the physical conditioning dogs go through including the use of tires to strengthen jaws and treadmills to increase endurance). Other equipment frequently found in dogfighting busts includes the crudely named “rape stand,” which restrains aggressive female dogs to force breeding, “break sticks,” which are used to pry open dogs' mouths during fights, and illegal drugs given to the dogs to increase their athletic performance. See Michelle Tsai, Michael Vick's “Rape Stand” and Other Equipment Used in Dog Fights, Slate, July 20, 2007, http://www.slate.com/ id/2170734/nav/fix/.
[FN18]. See Erin N. Jackson, Dead Dog Running: The Cruelty of Greyhound Racing and the Bases for Its Abolition in Massachusetts, 7 Animal L. 175, 205 (2001).
[FN19]. See Dogfighting Fact Sheet, supra note 3 (explaining basics of dogfighting).
[FN20]. See Fight Animal Cruelty, supra note 2 (giving examples of where dogfights occur).
[FN21]. Jackson, supra note 18, at 194 (quoting Hargrove v. State, 321 S.E.2d 104, 106 (Ga. 1984)).
[FN23]. Id. (citing Ash v. State, 718 S.W.2d 930, 931 (Ark. 1986)) (explaining how dogfights are carried out).
[FN24]. Dogfighting Fact Sheet, supra note 3. Fights may, however, range from minutes to over two hours. See Jackson, supra note 18, at 194.
[FN25]. See Dogfighting Fact Sheet, supra note 3. A dog that jumps out of the ring is automatically considered the loser of the fight. Jackson, supra note 18, at 194.
[FN26]. See Jackson, supra note 18, at 194 (defining and explaining the usage of “breaking sticks”).
[FN27]. See Dogfighting Fact Sheet, supra note 3.
[FN29]. See Jackson, supra note 18, at 203.
[FN31]. Id. In fact, as of August 1999, there were an estimated 17,000 pit bulls abandoned in Los Angeles County, California, as a result of dogfighting. Id. “New York, Chicago, Boston, Phoenix and Honolulu each saw 3,000 to 7,500 pits turned in during .” Fight Animal Cruelty, supra note 2. In 1999, more than 4000 pit bulls were found as strays within the city limits of Philadelphia, Pennsylvania. Medlin, supra note 1, at 1306 (citing Karen Delise, Fatal Dog Attacks: The Stories Behind the Statistics 86 (2002)).
[FN32]. See Fight Animal Cruelty, supra note 2. “In some states, the dogs are required to be held at an animal shelter until the [owner's] court date, forcing shelters to euthanize healthy animals to make room for fighting dogs that will be euthanized at a later date.” Simmons, supra note 1.
[FN33]. For more information about breed-specific legislation, see infra notes 124-139 and accompanying text.
[FN34]. For more information on training pit bulls as a method to help regulate dogfighting, see infra notes 140-145 and accompanying text.
[FN35]. For more information about breeder regulation, see infra notes 146-158 and accompanying text.
[FN36]. For more information about the prosecution of dogfighters, see infra notes 159-168 and accompanying text.
[FN37]. For more information about owner liability, see infra notes 170-173 and accompanying text.
[FN38]. For more information about community education, see infra notes 174-176 and accompanying text.
[FN39]. Victor E. Schwartz & Phil Goldberg, The Law of Public Nuisance: Maintaining Rational Boundaries on a Rational Tort, 45 Washburn L.J. 541, 542 (2006) (quoting W. Page Keeton et al., Prosser and Keeton on the Law of Torts 616 (5th ed. 1984)).
Part of the problem is that public nuisance theory often is defined by what it is not, rather than what it is. This “I know it when I see it” test leaves a significant amount of wiggle room in the margins, as well as an opportunity for some courts ... to move the tort far afield from the tort's intended use.
Id. at 561.
[FN40]. L. Mark Walker & Dale E. Cottingham, An Abridged Primer on the Law of Public Nuisances, 30 Tulsa L.J. 355, 357-58 (1994) (citing Restatement (Second) of Torts §821C (1977)).
[FN41]. Id. at 357.
[FN42]. See id. at 365 (differentiating between conduct that causes injury and injury resulting from a public nuisances).
[FN43]. See id. at 356 (providing a brief history of the development of public nuisance law).
[FN44]. Schwartz & Goldberg, supra note 39, at 545 (citing Donald G. Gifford, Public Nuisance as a Mass Products Liability Tort, 71 U. Cin. L. Rev. 741, 800-01 (2003)).
[FN45]. Id. (citing Gifford, supra note 44, at 801).
[FN46]. Id. at 546 (citing Gifford, supra note 44, at 805-06) (explaining reason for the fading out of public nuisance law in American jurisprudence).
[FN47]. Id. (citing Gifford, supra note 44, at 806).
[FN48]. See id. at 547 (“An attempt to create a modern era for public nuisance theory in the United States was engineered with the drafting of the Restatement (Second) of Torts.... Dean William Prosser, and later Dean John Wade, sought to codify the 900-year history.”); cf. Mary B. Spector, Crossing the Threshold: Examining the Abatement of Public Nuisances Within the Home, 31 Conn. L. Rev. 547, 561 (1999) (tracing the use of public nuisance law in the late twentieth century to the explosion in the use of civil forfeiture laws as a result of the commencement of the War on Drugs in the 1970s).
[FN49]. Walker & Cottingham, supra note 40, at 360; see also 58 Am. Jur. 2d Nuisances §51 (2009).
[FN50]. See Walker & Cottingham, supra note 40, at 361.
[FN52]. See Schwartz & Goldberg, supra note 39, at 546 (citing Gifford, supra note 44, at 804).
[FN53]. See Walker & Cottingham, supra note 40, at 371 (elaborating on legislature's powers).
[FN54]. See id. at 373 (citing 66 C.J.S. Nuisance §17 (1950)) (explaining limitation of legislative authority defense for public nuisances cases).
[FN55]. See Schwartz & Goldberg, supra note 39, at 547 (quoting Denise E. Antolini, Modernizing Public Nuisance: Solving the Paradox of the Special Injury Rule, 28 Ecology L.Q. 755, 838 (2001)).
[FN56]. Id. (quoting William L. Prosser, Private Action for Public Nuisance, 52 Va. L. Rev. 997, 997, 999 (1966)).
[FN57]. Id. (citing Antolini, supra note 55, at 838).
[FN58]. Id. at 547-48 (quoting Restatement (Second) of Torts §821B cmt. e (1979)). The Restatement (Second) took the time to note that if challenged actions do “not come within one of the traditional categories of the common law crime of public nuisance or is not prohibited by a legislative act, the court is acting without an established and recognized standard.” Id. at 548 (quoting Restatement (Second) of Torts §821B cmt. e).
[FN59]. Id. at 543.
[FN60]. Id. at 543 n.3 (quoting Gifford, supra note 44, at 745-46). “[Public nuisance']s essence is to allow governments to use the tort system to stop quasi-criminal conduct that, while not [necessarily] illegal, is unreasonable given the circumstances and could cause injury to someone exercising a common, societal right.” Id. at 541.
[FN61]. For further discussion of this element of public nuisances, see infra notes 65-94 and accompanying text.
[FN62]. For further discussion of this element of public nuisances, see infra notes 96-102 and accompanying text.
[FN63]. For further discussion of this element of public nuisances, see infra notes 104-111 and accompanying text.
[FN64]. See Schwartz & Goldberg, supra note 39, at 562-70 (explaining elements of public nuisances). For further discussion of the final element of public nuisances, see infra notes 113-123 and accompanying text.
[FN65]. Schwartz & Goldberg, supra note 39, at 562 (quoting Hydro-Mfg., Inc. v. Kayser-Roth Corp., 640 A.2d 950, 958 (R.I. 1994)).
[FN66]. Id. (quoting Restatement (Second) of Torts §821B cmt. g (1979)).
[FN67]. See Karen L. McDonald, Creating a Private Cause of Action Against Animal Abuse Research, 134 U. Pa. L. Rev. 399, 412 (1986) (proposing that animal abuse in laboratory research be enjoined through nuisance abatement).
[FN69]. Id. at 413 (quoting Copart Indus. v. Consol. Edison Co., 362 N.E.2d 968, 971 (N.Y.), reh'g denied, 369 N.E.2d 1198 (N.Y. 1977) (citation omitted)); see also supra text accompanying notes 44-45 (discussing conduct against public morals).
[FN70]. McDonald, supra note 67, at 413 (quoting Pa. SPCA v. Bravo Enters., 237 A.2d 342, 348 (Pa. 1968)).
[FN71]. See id. at 414 (noting conduct that courts have held to be public nuisances). This conduct is considered to be “offensive to a community's moral sensibilities.” Id. (quoting People ex rel. Busch v. Projection Room Theater, 550 P.2d 600, 605 (Cal. 1976)).
[FN72]. See id. at 415.
[FN73]. See id. at 416 (noting that there are cases where public access was not a requirement for conduct to be considered a public nuisance).
[FN74]. See, e.g., 18 U.S.C. §§48-49 (2006).
[FN75]. See Medlin, supra note 1, at 1289.
[FN76]. See supra notes 7-8 and accompanying text for discussion on pit bulls' temperaments.
[FN77]. See supra notes 11-18, 31-32 and accompanying text for discussion of how abuse affects pit bulls' temperaments.
[FN78]. See Medlin, supra note 1, at 1301.
[FN79]. See Gibson, supra note 3 (discussing effects of dogfighting on children). “Young children are sometimes present at the events, which can promote insensitivity to animal suffering, enthusiasm for violence and a lack of respect for the law.” Dogfighting Fact Sheet, supra note 3.
[FN80]. See Gibson, supra note 3.
[FN81]. See id.
[FN82]. Simmons, supra note 1 (quoting Laura Maloney, Executive Director of Louisiana SPCA).
[FN83]. See Adam Gibbs, Illegal Dog Fighting Rings Difficult To Catch, Daily Kent Stater, Feb. 18, 2003 (“[The police] received a call in June, 2002, from a terrified elderly couple who said a pit bull was on their front porch .... The dog was no doubt a loser in a dogfight ... and the owner expressed his anger by setting her on fire.”); see also Eileen Loh-Harrist, Fight Clubs, Gambit Weekly (New Orleans, La.), July 10, 2001, available at http:// www.bestofneworleans.com/dispatch/2001-07-10/cover_story.html (describing a couple finding a pit bull in their back yard that had survived being beaten with a baseball bat after a fight).
[FN84]. Barrish, supra note 4.
[FN85]. For more information on the dangerousness of dogs who have been abused, see supra notes 12-18 and accompanying text. “The presence of these dogs in a community increases the risk of attacks not only on other animals but also on people.” Dogfighting Fact Sheet, supra note 3.
[FN86]. See Barrish, supra note 4 (noting neighbors' refusal to call police on dogfighters).
[FN87]. See id. (telling of woman who repeatedly had to rebuff offers to fight her pet as she walked him through neighborhood).
[FN88]. Simmons, supra note 1 (quoting John Goodwin, Deputy Manager of Animal Fighting Issues for the Humane Society of the United States).
[FN90]. See Fight Animal Cruelty, supra note 2 (noting that dogfights may take place on street corners or playgrounds).
[FN91]. See Barrish, supra note 4 (noting that neighbors overhear dogs howling).
[FN92]. See, e.g., Rob McMillan, Dog Pack Escapes Yard, Mauls Fontana Kids (Feb. 2, 2010), http://abclocal.go.com/kabc/story?section=news/local/inland_ empire&id=7252812. One can get an idea of how frequently civilians are attacked by escaped dogs by doing a simple Google search.
[FN93]. Joey Battista, N.F.L. Faces Protest and Pressure over Vick, N.Y. Times, July 21, 2007, at 4 (noting reactions by Senator John Kerry, ASPCA, and animal rights protestors).
[FN94]. See supra note 31 and accompanying text for estimates of how many strays are found in public areas as a result of dogfighting and pit bull abuse.
[FN95]. See, e.g., State v. Kan. City Firefighters Local No. 42, 672 S.W.2d 99, 114 (Mo. Ct. App. 1984).
[FN96]. Schwartz & Goldberg, supra note 39, at 564 (citing Keeton et al., supra note 39, at 618). “Public nuisance is ‘a species of catch-all criminal offense.”’ Id. at 564 n.150 (quoting Keeton et al., supra note 39, at 618). See also supra note 60 and accompanying text for more discussion of public nuisances as “quasi-criminal.”
[FN97]. Schwartz & Goldberg, supra note 39, at 564 (citing Restatement (Second) of Torts §821B(1)). See supra note 39 and accompanying text for history of this definition.
[FN98]. Schwartz & Goldberg, supra note 39, at 564-65.
[FN99]. For more data regarding dogfighting laws by jurisdiction, see State Dogfighting Statutes, http://www.animallaw.info/articles/art_img/state_ dogfighting_statutes.doc (last visited Feb. 2, 2010).
[FN100]. See Gibson, supra note 3 (citing Craig J. Forsythe & Rhonda D. Evans, Dogmen: The Rationalization of Deviance, Society and Animals, 6 Soc'y & Animals: J. Hum.-Animal Stud. 203-11 (1998), available at http:// www.scribd.com/doc/18528184/Dogmen-Deviance) (describing how fighters feel about their culture being misunderstood by outsiders).
[FN101]. See id. (citing Dogfighting: Supporters, Opponents Go into the Pit, Morning Advocate, June 25, 1982, at C8; Loh-Harrist, supra note 83).
[FN102]. See State Dogfighting Statutes, supra note 99 (listing criminal penalties for dogfighting by state).
[FN103]. See Schwartz & Goldberg, supra note 39, at 567.
[FN105]. See id. (citing Detroit Bd. of Educ. v. Celotex Corp., 493 N.W. 513, 521-22 n.8 (Mich. Ct. App. 1992)).
[FN106]. See id. at 568.
[FN107]. See id. (explaining why public nuisances cases against product manufacturers have failed).
[FN108]. See id.
[FN109]. See supra notes 27-32 and accompanying text for discussion of what becomes of fighting dogs after the fight ends.
[FN110]. See Schwartz & Goldberg, supra note 39, at 568.
[FN111]. City of Chicago v. Beretta U.S.A. Corp., 821 N.E.2d 1099, 1129 (Ill. 2005).
[FN112]. See Schwartz & Goldberg, supra note 39, at 569.
[FN113]. Id. (explaining how to prove proximate causation element).
[FN115]. See Gibson, supra note 3 (citing Dogfighting: Supporters, Opponents Go into the Pit, supra note 101) (“Despite overwhelming evidence to the contrary, some dogmen insist that ‘[i]t's not the blood and gore that people have been led to believe.”’ (quoting Dogfighting: Supporters, Opponents Go into the Pit, Morning Advocate, June 25, 1982, at C8)).
[FN116]. See Schwartz & Goldberg, supra note 39, at 569.
[FN117]. Id. “An intervening force will only act to cut off proximate cause if it is characterized as superseding .... [C]ourts are quick to find negligence of a third party foreseeable and hence not superseding.” Id. at 569 n.181 (quoting John L. Diamond, Cases and Materials on Torts 256 (2001)).
[FN118]. Id. at 569.
[FN119]. Id. (quoting Keeton et al., supra note 39, at 305).
[FN120]. Id. (citing City of Chicago v. Beretta U.S.A. Corp., 821 N.E.2d 1099, 1127 (Ill. 2005)).
[FN121]. See Gibson, supra note 3 for a comprehensive list of drugs found at dogfights and explanations of their uses. The list includes: Solu-Delta-Cortef, Dexamethazone, Epinephrine, pain killers, antibiotics, Lassix, hormones, steroids, Furosemide, Nitrofurazone, and Prednisone. Id.
[FN122]. See supra note 79 and accompanying text for discussion of children holding dogfights.
[FN123]. See supra notes 82-85 and accompanying text for discussion of how dogfighting injures neighborhoods.
[FN124]. See Medlin, supra note 1, at 1310-14. For a full listing of cities and counties with breed bans, and specific information on their bans, see United States BSL Locations, http://www.understand-a-bull.com/BSL/Locations/USLocations.htm (last visited Sept. 23, 2009). Several states (California, Colorado, Florida, Illinois, Maine, Minnesota, New Jersey, New York, Oklahoma, Pennsylvania, Texas, and Virginia) currently prohibit local municipalities from enforcing breed-specific legislation. See id. However, these states still may have state-wide or county-wide bans, such as in Florida's case. See Medlin, supra note 1, at 1312.
[FN125]. See Karyn Grey, Breed-Specific Legislation Revisited: Canine Racism or the Answer to Florida's Dog Control Problems?, 27 Nova L. Rev. 415, 429-33 (2003).
[FN126]. Am. Dog Owners Ass'n v. Lynn, 533 N.E.2d 642, 646 (Mass. 1989).
[FN127]. See Grey, supra note 125, at 429-43 (discussing problems with breed-specific legislation).
[FN128]. See Medlin, supra note 1, at 1286 (noting causes of poor behavior in dogs).
[FN129]. For further discussion of dog breeds' temperaments, see supra note 7 and accompanying text.
[FN130]. See generally Medlin, supra note 1, at 1308-09 (discussing behavioral implications of spaying and neutering). “In fact, 95% of dogs involved in attacks since 1999 were unaltered.” Id. at 1308.
[FN131]. See Grey, supra note 125, at 441.
[FN132]. See id. at 432 (giving overview of an equal protection challenge to breed-specific legislation). The basis for the owners' claims was that these laws “irrationally differentiate[d] between owners of pit bulls and owners of other ... dogs.” Id. (quoting State v. Peters, 534 So. 2d 760, 763 (Fla. 3d Dist. Ct. App. 1988)).
[FN133]. Id. (quoting Peters, 534 So. 2d at 763).
[FN134]. See id. at 434-35 (citing Sallyanne K. Sullivan, Banning the Pit Bull: Why Breed-Specific Legislation Is Constitutional, 13 U. Dayton L. Rev. 279, 289 (1988) (“[A] total ban on a specific breed includes ‘more dogs than is necessary to accomplish the goal of protecting the public’.... [Such] regulations ... treat [pit bulls] all as inherently dangerous.”)).
[FN135]. Id. at 440 (arguing that regulating the behavior of dog owners would be more effective than banning breeds). “In a study of breeds of dogs that caused human deaths, researchers found that as pit bull-related deaths decreased in the 1990s, deaths caused by Rottweilers increased.” Id.
[FN136]. See Facts for BSL Letters, http://www.understand-a-bull.com/BSL/FACTS.htm (last visited Mar. 10, 2010) (offering facts about efficacy of breed-specific legislation). See also Grey, supra note 125, at 426, which notes the Humane Society of the United States' position on breed-specific legislation--“breed specific ordinances will unfairly penalize responsible dog owners, and it is these responsible dog owners, whose dogs do not pose a threat, who will make an effort to comply with any new ordinances.”
[D]ogfighters are generally not law-abiding citizens; instead, those who comply with breed bans are responsible owners who have registered, socialized, and trained their dogs. Therefore, the dogs being confiscated and destroyed are the well-behaved ones, while the aggressive and unstable pit bulls continue to be bred under the control of these criminal owners.
Medlin, supra note 1, at 1304 (citing Breed Specific Legislation, http:// www.pitbullsontheweb.com/petbull/legislation.html (last visited Nov. 3, 2009)).
[FN137]. Medlin, supra note 1, at 1312.
[FN138]. Grey, supra note 125, at 442.
[FN139]. Since Whipple's death, breeders have received more calls than ever asking for “killer canines.” See Jim Herron Zamora & Mark Martin, Presa Demand Grows for All Wrong Reasons: Dogs Wanted for Killing, Fighting, S.F. Chron., Feb. 7, 2001, at A-17.
[FN140]. See Grey, supra note 125, at 443 (citing Mary Shanklin, Insurance Bite: A Vicious Breed of Dog Could Cost You Your Coverage, Orlando Sentinel, Jan. 7, 2001, at J1) (discussing insurance companies' programs to increase dog training in hopes of decreasing dog bite claims).
[FN142]. See id. (citing Timothy Foote, That Is Not a Bad Dog--That's a Splendid Dog, Smithsonian, Apr. 1992, at 60, 63-66) (discussing training of previously abused dogs).
[FN143]. See id. at 444 (citing Shanklin, supra note 140) (noting the potential efficacy of insurance company-instituted dog training programs).
The Insurance Information Institute said the responsibility for a dog becoming either a menace or a well-behaved pet rests with the owner and offers these tips to help keeps dogs from biting:
- Have a dog spayed or neutered. Studies show dogs are three times more likely to bite if they are not fixed.
- Socialize your dog so the dog will know how to act with people and animals.
- Discourage children from disturbing a dog that is eating or sleeping.
- Play non-aggressive games with your dog such as “fetch.” Playing aggressive games like “tug of war” can encourage aggressive behavior.
- Avoid exposing your dog to situations in which you are unsure of the dog's response.
- Never approach a strange dog, and avoid eye contact with a dog that appears threatening.
Id. at 443 n.201 (quoting Wayne T. Price, Choose--Beloved Pet or Homeowners Insurance?, Fla. Today, May 13, 2002, at 1).
[FN144]. See supra notes 60-61 and accompanying text for further discussion of fighting dog owners' resistance to regulations.
[FN145]. See supra notes 14-16 and accompanying text for further discussion of lack of socialization as a way to train fighting dogs.
[FN146]. Medlin, supra note 1, at 1304 (“Humans mold breeds of dogs by selecting the different behaviors and physical traits they desire. Humans continue to control the behavior and physical traits of their dogs in this way.”).
[FN147]. See id. (citing Adam J. Fumarola, With Best Friends Like Us Who Needs Enemies? The Phenomenon of the Puppy Mill, the Failure of Legal Regimes To Manage It, and the Positive Prospects of Animal Rights, 6 Buff. Envtl. L.J. 253, 262 (1999)) (noting dangers of irresponsible dog breeding).
[FN148]. Grey, supra note 125, at 445.
[FN149]. See Medlin, supra note 1, at 1304-05 (citing Julie Richard, Dangerous Breeds?, Best Friends, Sept.-Oct. 2004, at 12, 15).
[FN150]. See supra notes 7-8 and accompanying text for further discussion of the pit bull's personality.
[FN151]. Medlin, supra note 1, at 1305.
[FN152]. Id. (citing Randall Lockwood & Kate Rindy, Are “Pit Bulls” Different? An Analysis of the Pit Bull Terrier Controversy, Anthrozoos, Jan. 1987, at 2, 4).
[FN154]. Id. at 1317 (citing Randall Lockwood, The Ethology and Epidemiology of Canine Aggression, in The Domestic Dog: Its Evolution, Behavior, and Interactions with People 137 (James Serpell ed., 1995)).
[FN155]. Id.; see id. at 1317 n.341 (“For example, Stanislaus County, California charges $28 per year to license an altered dog, while it charges $100 per year to license an intact dog. Stanislaus Cal., County Code §7.50.010 (2005). The county also prohibits a person from breeding his or her dog without a permit. Id. §7.54.030.”). These programs are similar to sterilization programs. See Medlin, supra note 1, at 1316, for more discussion of licensing fees for sterilized versus intact dogs.
[FN156]. See Grey, supra note 125, at 446 (“The AKC should educate breeders and cooperate with authorities to identify and report people who engage in detrimental breeding practices.”). The problem with this suggestion, however, is that the American Kennel Club does not recognize the pit bull terrier as a breed, so until it does that, it cannot regulate breeders of pit bulls. See Pit Bulls of Oregon, Pit Bull Breed History, http:// www.pitbulloforegon.com/breed_history.html (last visited Nov. 10, 2009).
[FN157]. Medlin, supra note 1, at 1317 (citing Richard, supra note 149, at 39) (noting Humane Society's West Regional Office Director Eric Sakach's suggestion). Eric Sakach proposes that (1)selling or adopting dogs to minors be made illegal, and (2)“those on probation or parole for violent or drug-related crimes be forbidden from owning or living with a dog.” Id. (citing Richard, supra note 149, at 39).
[FN158]. As an example of those who will disregard such laws, Delaware's Lamar Stewart was convicted of cocaine trafficking as well as criminal impersonation, and pled guilty to dogfighting, cruelty, and conspiracy. One term of his probation was to not own animals for five years. Within a year of being placed on probation, Stewart was found to own another pit bull, and to commit other violent crimes, such as robbing a bank. Barrish, supra note 4.
[FN159]. See Gibson, supra note 3 (detailing dogfighting laws). Dogfighting is a misdemeanor in Idaho, a “high misdemeanor” in Wyoming, and is also a felony in the District of Columbia, Puerto Rico, and the Virgin Islands. Id. See also supra note 97 and accompanying text for information about dogfighting statutes in every state.
[FN160]. See Barrish, supra note 4 (“[In Delaware, t]he reality is that violators usually get probation and a fine or plead to a lesser charge, such as cruelty to animals....”). There seems to be a consensus that prosecuting dogfighters is a waste of law-enforcement resources. But cf. Gibson, supra note 3 (suggesting that dogfighting arrests may lead to arrests for other related offenses occurring on site).
[FN161]. See Gibson, supra note 3 (discussing evidentiary requirements of dogfighting prosecutions and what evidence may be used in these prosecutions).
[FN162]. See Loh-Harrist, supra note 83 (noting dogfighters overwhelmingly treat wounds and illnesses themselves).
[FN163]. See Gibson, supra note 3 (noting variations in the two charges).
[FN164]. See id. (citing State v. Caillet, 518 So. 2d 1062 (La. App. 1 Cir. 1987)) (noting difficulties of prosecuting spectators of dogfights).
[FN165]. See Editorial, Close Oregon's Dogfighting Loophole, Oregonian, Jan. 16, 2008, available at 2008 WLNR 1221226 (“[P]olice who raid a dogfight have an extremely difficult time figuring out who should be charged with felony violations and who should be charged with misdemeanors. That's the case because every violator at the bust claims to be there as a spectator.”).
[FN167]. Medlin, supra note 1, at 1303 (citing Humane Soc'y of the U.S., The HSUS on Animal Fighting: The Final Round (2001), available at http:// files.hsus.org/web-files/PDF/Animal_Fighting_Broch_Eng.pdf).
[FN168]. Id. at 1303 n.199 (citing Humane Soc'y of the U.S., supra note 167).
[FN169]. However, dog owners are typically only liable to a person attacked by their dog if the owner was negligent or if the owner knew of the dog's vicious tendencies. 3B C.J.S. Animals §330 (2009).
[FN170]. See Criminal Penalties for a Dog Bite, http:// www.dogbitelaw.com/PAGES/crim.html (last visited Nov. 10, 2009) (listing cases where owners are held criminally liable for dog bites and attacks).
[FN171]. See Hussain, supra note 7, at 2877-78 (noting that charges range from “letting a vicious dog run loose to murder”).
[FN172]. See id. at 2877 (citing Fla. Stat. Ann. §§775.082(3)(d), 775.082(4)(a-b), 775.083(1)(c-e) (West 2005)) (noting that before being declared a dangerous dog, an attack is a misdemeanor; after being declared a dangerous dog, attack is a felony).
[FN173]. See supra notes 86-89 and accompanying text for further discussion of the difficulty of identifying a dog's owners.
[FN174]. See Medlin, supra note 1, at 1317-18 (exploring possible topics of a community education program).
[FN175]. Id. at 1318.
[FN176]. See id. (citing Task Force on Canine Aggression and Human-Canine Interaction, Am. Veterinary Med. Ass'n, A Community Approach to Dog Bite Prevention, 218 J. Am. Veterinary Med. Ass'n 1732, 1735 (2001)) (noting correlation between dog bite prevention education, research, and effective legislation).
[FN177]. See Spector, supra note 48, at 551 (giving history of public nuisance cases).
[FN178]. See Robert Abrams & Val Washington, The Misunderstood Law of Public Nuisance: A Comparison with Private Nuisance Twenty Years After Boomer, 54 Alb. L. Rev. 359, 379 (1990) (citing Keeton et al., supra note 39, §90, at 643) (identifying proper remedy for public nuisances). If, however, the statute allows for a different remedy, that may be appropriate as well. Id. (citing Keeton et al., supra note 39, §90, at 643).
[FN179]. Spector, supra note 48, at 547-48.
[FN180]. See id. at 548 (describing how orders of abatement work). This may be permissible, despite property protections under the Constitution. See id. (citing Bennis v. Michigan, 516 U.S. 442 (1996)).
[FN181]. Abrams & Washington, supra note 178, at 384 (identifying how public nuisances cases arise). There is a debate as to whether “an aggregate of private nuisances [may] constitute a public nuisance.” See id.
[FN182]. Spector, supra note 48, at 556-57.
[FN183]. See supra note 20 and accompanying text for information about dogfights occurring in public.
[FN184]. See Gibson, supra note 3.
[FN186]. See supra notes 167-168 and accompanying text for information about fines and jail not deterring fighters.
[FN187]. Medlin, supra note 1, at 1303 n.199 (citing Humane Soc'y of the U.S., supra note 167).
[FN188]. See Spector, supra note 48, at 564. Normally, the burden of proof is a preponderance of the evidence, but in some states the plaintiff must meet the clear and convincing standard to prove a public nuisance. Id.
[FN189]. See supra notes 161-166 and accompanying text for discussion of difficulty of prosecuting dogfighters.
[FN190]. Spector, supra note 48, at 564 (comparing Griffin v. United States, 380 U.S. 609, 615 (1965) with Whitaker v. Prince George's County, 514 A.2d 4 (Md. 1986)).
[FN191]. Id. (citing State v. Anthony, 647 N.E.2d 1368 (Ohio 1995); People v. Griffin, 633 N.E.2d 773 (Ill. App. Ct. 1993)).
[FN192]. See Jackson, supra note 18, at 203; Fight Animal Cruelty, supra note 2; Medlin, supra note 1, at 1306.
[FN193]. See Gibson, supra note 3 (citing the Humane Society of the United States). This number may be an underestimate, as there were over 1000 dogfights reported in Chicago alone during 2003. See id.
[FN194]. See id. (citing Loh-Harrist, supra note 83 (exploring dogfighting images in popular culture)).
[FN195]. See supra note 2 and accompanying text for discussion of who participates in dogfighting.
[FN196]. Schwartz & Goldberg, supra note 39 (quoting Keeton et al., supra note 39, at 616).