Articles

Detailed Discussion of Local Breed-Specific Legislation

  • Anna Baumgras
  • Animal Legal & Historical Center
  • Publish Date: 2011
  • Place of Publication: Michigan State University College of Law

I. Introduction

Breed Specific Legislation (BSL) refers to laws that regulate the ownership of specific animal breeds, focusing on dog breeds that have been deemed vicious or dangerous.[i]  The goal of BSL is to protect the public from potentially dangerous dogs before an attack occurs or without having to make a determination on whether an individual dog is dangerous.  This article will provide an overview of BSL ordinances by discussing 1) common breed definitions, 2) patterns in the regulations, and 3) common exceptions to the regulations.  The article will also discuss the constitutionality of these ordinances, focusing on how they meet due process requirements. 

II. Breed Definitions

A. Pit Bulls

By far the most commonly regulated breeds are “pit bulls.”  As the Miami-Dade ordinance notes in a section on legislative intent, “the unique history, nature and characteristics of pit bull dogs have been determined to require . . . special regulations and provisions [to protect the public’s health, safety, and welfare].”[ii]  Because “pit bull” is not a dog breed, ordinances regulating pit bulls generally provide further clarity on the definition of “pit bull.”  Specific breeds commonly considered “pit bulls” include American Pit Bull Terriers, American Staffordshire Terriers, and Staffordshire Bull Terriers.  Often, the ordinance will also regulate mixed breeds that contain an element of those breeds, display physical traits of those breeds, has the appearance of those breeds, or exhibit distinguishing characteristics that substantially conform to the American Kennel Club (AKC) or United Kennel Club (UKC) standards of those breeds.[iii

B. Other Regulated Breeds

Occasionally, breeds other than pit bulls are regulated, including wolf-hybrids, Rottweilers, and Chow Chows.  With the exception of wolf-hybrids, these are recognized dog breeds; therefore, their definitions are usually straightforward and include dogs that have the appearance or characteristics of being the specified breed.  Wolf-hybrids are any domesticated dog breeds that have crossbred with wolves.[iv]  

III. Regulations

BSL ordinances tend to fall into one of two categories: 1) Prohibiting ownership of targeted breeds, except under certain circumstances or 2) Permitting ownership of targeted breeds if certain requirements are satisfied. This section discusses patters in these two types of ordinances.

A. Ownership of Regulated Breeds Prohibited

Under this type of ordinance, regulated breeds are not permitted within the city/county, except under specific circumstances.  These ordinances tend to be very broad in their prohibited activities, including owning, possessing, transporting, keeping, harboring, exercising control over, maintaining, selling, purchasing, obtaining, or acquiring the regulated breed.

Most ordinances have a grandfather clause that allows owners who had a dog before the ordinance was passed to keep the dog if they meet certain requirements.  Those requirements may include:

  1. keeping up-to-date with the rabies vaccine;
  2. paying the annual licensing fee;
  3. spaying or neutering the dog;
  4. proving the ability to pay for potential damages caused by the dog through insurance, surety bond, personal bond, or a personal statement;
  5. confinement while inside the owner’s home;
  6. confinement in a secure, locked structure or leashed and muzzled when outside the owner’s home;
  7. posting “Dangerous Dog” or “Beware of Dog” signs;
  8. registering color photos;
  9. destroying or removing litters born; and
  10. reporting the death, removal, or new address of the dog. 

Most jurisdictions also prohibit selling or transferring the animal to anyone except a family member.  Some jurisdictions also require the owner to be a certain age.

B. Ownership of Regulated Breeds Permitted, but Controlled

Under this type of ordinance, an owner may keep a regulated dog breed within the city/county regardless of when the owner acquired the individual dog, provided that the owner satisfies certain requirements.  Those requirements are similar to the grandfather clause requirements, and may include:

  1. registering the dog, including the owner’s name, address, and phone number, the dog’s genus and species, photographs of the dog, and the dog’s color, weight, and distinguishing physical characteristics;
  2. keeping up-to-date with the rabies vaccine;
  3. providing proof of spaying or neutering;
  4. inserting a microchip;
  5. providing proof of the owner’s ability to pay for potential damages; and
  6. confining, leashing, or muzzling the dog. 

The owner may also have to report the death of the dog, the removal of the dog from the city/county, the birth of offspring, an attack on a person or animal, or the dog running at large.[v

C. Exceptions to the Regulations

Most ordinances have a list of exceptions that describe circumstances where the regulations are relaxed or inapplicable.  The exceptions for both types of ordinances are generally the same.  Frequently they include events that require a dog to enter the city/county temporarily, for example dog shows, transportation through the city/county, hunting, or veterinary care.  Animal shelters and law enforcement dogs may also be exempt. 

D. Penalties for Violations

Most BSL ordinances permit an animal officer to seize and impound any dog that is in violation of the ordinance.  Many ordinances allow an official to decide whether to euthanize or remove the dog from the city/county.  Owners cited for violating BSL ordinances are subject to fines and/or jail, often with each day of violation constituting a separate offense.  Owners are also often liable for any expenses incurred with impounding the dog, including shelter, food, and veterinary care. 

IV. Constitutionality

Under the 14th Amendment, states cannot “deprive any person of life, liberty, or property, without due process of law.”[vi]  Since the legal system treats animals as personal property, a BSL ordinance that permits impounding or destroying a dog triggers due process scrutiny.  There are two forms of due process: substantive due process, which concerns the substance of the law, and procedural due process, which concerns the administration of the law.

A. Substantive Due Process

Successfully challenging a BSL ordinance under a substantive due process claim is difficult.   Under a substantive due process claim, courts review laws with varying levels of scrutiny, depending on the right being impinged upon and the class of people being regulated.  Only laws that impinge upon fundamental rights or involve suspect classes receive strict scrutiny, the highest level of scrutiny.  Because owning a dog is not a fundamental right and dog breeds are not a suspect class, BSL ordinances are subject to only minimal scrutiny.  Under this level of scrutiny, the government’s action of regulating certain dog breeds must be rationally related to its interest in protecting the public.  Additionally, under police powers, governments have broad authority to enact laws intended to protect the public health, safety, and welfare.  Accordingly, laws enacted under that police power are presumed constitutional.  

B. Procedural Due Process

Procedural due process requires 1) notice of the proscribed behavior and 2) an opportunity for those people implicated to be heard.  Therefore, to withstand a procedural due process challenge, a BSL ordinance must describe any prohibited conduct, including identifying regulated breeds, and provide an opportunity for people owning those breeds to have a hearing before deprivation through impoundment or euthanasia.   

i.      Notice of Proscribed Behavior

Courts have held that notice requires the ordinance to be sufficiently definite so that a person of ordinary intelligence can reasonably tell what conduct is prohibited, but that the language need not be precise.  A common constitutional challenge against a BSL ordinance is that it is void for vagueness.  Challengers may argue the term “pit bull” is vague since “pit bull” is not breed, and therefore a dog owner of ordinary intelligence cannot tell whether his/her dog is prohibited.  Courts are divided in their decisions.   Some courts have held that the term “pit bull” is commonly used to refer to certain breeds and that dog owners tend to know their dog’s breed, even sometimes seeking out specific breeds.[vii]  Other courts have held that merely identifying dogs by a type is not sufficient.[viii]  An ordinance that further defines “pit bull” by specific breeds (i.e. American Pit Bull Terrier) will likely be constitutional.  Another possible vagueness challenge arises when “mixed breeds” are prohibited, since mixed breeds can be difficult to identify without a pedigree.      

ii.      Opportunity to be Heard

The purpose of requiring a hearing is to give the implicated parties a chance to respond to the law.  Courts have held that a post-impoundment hearing is constitutionally sufficient, and therefore, a pre-impoundment hearing is not necessary.[ix]  Often, a BSL ordinance will at least allow an owner to petition for a hearing to dispute the classification of his/her dog as a regulated breed.  Some jurisdictions have a judge oversee the hearing and decide the dog’s breed in municipal court[x]; other jurisdictions have a city/county official or a panel oversee the hearing and make the decision. [xi]  The latter processes are usually subject to judicial review.[xii]  If, after the hearing, the animal is classified as a regulated breed, the deciding authority may order its destruction or may permit the owner to remove the dog from the city.  Often, an owner is not entitled to a hearing if the dog was impounded as the result of an attack or bite.  If the owner does not request a hearing within the specified period, the dog will generally be destroyed. 

V. Conclusion

As might be expected, BSL ordinances are a controversial topic. Anytime a state attempts to deprive its citizens of property, there will be complaints.  Furthermore, people tend to value their pets as part of the family, rather than just property.  With this added sentiment, BSL ordinances will continue to be a contentious topic as proponents and opponents debate the constitutionality and effectiveness of these laws.  In terms of constitutionality, as long as the ordinance provides clear breed definitions, clear descriptions of regulated conduct and any exceptions to the regulations, and an opportunity for a hearing, courts will generally uphold the ordinance. 

 


[i] See, e.g., Larchmont, NY., Code of the Village of Larchmont §§ 97-19 (1998)
 
A. It is hereby found and determined that the regulation and control of pit bull terriers is a matter of grave concern and that these dogs pose a serious danger to the public health, safety and welfare.

B. In recent years vicious and unpredictable pit bull terriers have, without provocation, attacked and seriously injured and killed individuals across the country, with children or the elderly being the most frequent victims. 

C. In one four-year period, pit bull terriers were responsible for 20 of the nation's 28 deaths from attacks by dogs, although accounting for only an estimated 1% of the nation's dog population.

D. The number and severity of such attacks have been generally attributable to the selective breeding of such animals as fighting dogs, which has tended to promote and exacerbate certain inherent aggressive and vicious propensities combined with their owners' failure to properly confine and control them.
 
 [ii] Miami-Dade County, Fla., Code § 5-17 (1989).
 
 [iii] For example, the North Little Rock, Arkansas ordinance states: pit bull dogs are any of the following:
 
(1)   American Pit Bull Terrier.
(2)   Staffordshire Bull Terrier, unless they meet [certain requirements].
(3)   American Staffordshire Terrier, unless they meet [certain requirements].
(4)   American Bull Dog.
(5)   Any dog whose sire or dam is a dog of a breed which is defined as a banned breed of dog under this section.
(6)   Any dog whose owner registers, defines, admits or otherwise identifies the dog as being of a banned breed.
(7)   Any dog conforming or substantially conforming to the breed of American Pit Bull Terrier, American Staffordshire Terrier, Staffordshire Bull Terrier or American Bull Dog as defined by the United Kennel Club or American Kennel Club.
(8)   Any dog which is of the breed commonly referred to as "'pit bull' and commonly recognizable and identifiable as such.” § 10-46 (2006)(a).
 
  [iv] For example, Covington, Kentucky defines wolf-hybrid as: any domesticated dog that has in its known genetic history and/or formal pedigree crossbreeding with the wolf species to include, but not be limited to, animals referred to as wolf-hybrids or wolf-mix breeds or the breed known as Tundra Shepherd.  § 90.01 (1999).
 
 [v] For example, the Covington, Kentucky ordinance states: Vicious dog to be properly confined or leashed. The owner or harborer of a vicious dog shall:
 
(1) When the dog is indoors secure all means of egress so that the dog may not exit;
 
(2) Leash and muzzle. No person shall permit a vicious dog to go outside of its kennel, pen, or the owner's residence unless such animal is securely restrained with a leash or lead no longer than three  feet in length and the leash or lead is physically controlled by a person 18 years of age or older who is in physical control of the leash. Such animals may not be leashed to inanimate objects such as trees, posts, buildings, etc. In addition, all such animals on a leash or lead outside of the animal's kennel, pen, or the owner's residence must be muzzled by a muzzling device sufficient to prevent the animal from biting persons or other animals. 
 
(3) Confinement. All vicious dogs shall be securely confined indoors or in a securely enclosed and locked pen or kennel, except when leashed and muzzled, as provided [elsewhere]. Such pen, kennel, or structure must have secure sides and a secure top attached to its sides. A fenced-in yard by itself is insufficient to meet this standard. All structures used to confine such animals must be locked with a key or combination lock when such animals are within the structure. Such structure must have a secure bottom or floor attached to the sides of the pen, or the sides of the pen must be embedded in the ground to a depth of no less than two feet and be a minimum of seven feet above the ground to the top of the structure. All structures erected to house such animals must comply with all zoning and building regulations, and all such structures must be adequately lighted, ventilated, and be of appropriate size to allow the animal confined therein to move around, and must be kept in a clean and sanitary condition. The house or shelter for said animal shall be totally enclosed within the confinement structure. When being transported, the animal must be muzzled or caged.  § 90.10(B) (1999).
 
 [vi] U.S. Const. amend XIV § 1.
 
 [vii] See Colorado Dog Fanciers v. City and Count of Denver, 820 P.2d 644 (Colo. 1991).
 
 [viii] See American Dog Owners Ass’n, Inc. v. Lynn, 404 Mass. 73, 533 N.E.2d 642 (1989).
 
 [ix] Colorado Dog Fanciers v. City and County of Denver, 820 P.2d 644, (Colo. 1991).
 
 [x] For example, the Springfield, Missouri ordinance states:
 
When the city manager or his authorized representative has impounded any pit bull dog pursuant to this section, and the owner of such dog disputes the classification of such dog as a pit bull, the owner of such dog may file a written petition with the city manager or his authorized representative for an administrative hearing concerning such classification no later than seven days after impoundment. Such petition shall include the name and address, including mailing address, of the petitioner. The city manager or his authorized representative will then issue a notice of hearing date by mailing a copy to the petitioner's address no later than ten days prior to the date of the hearing. Where no written request from the owner for a hearing is received by the city manager or his authorized representative within seven days of impoundment, the pit bull shall be destroyed.  The administrative hearing, if any, will be held before the city municipal court. Any facts which the petitioners wish to be considered shall be submitted at the hearing. Municipal court shall make a final determination whether the dog is a pit bull as defined in section 18-96. Such final determination shall be considered a final order of the city manager or his authorized representative subject to review under RSMo ch. 536.  § 18-98(7)(f) (2011).
 
 [xi] For example, the Pawtucket, Rhode Island ordinance states:
 
(1)  When the Animal Control Officer has impounded any pit bull dog pursuant to this section, and the owner or keeper of such dog disputes the classification of such dog as a pit bull, the owner or keeper of such dog may appeal the decision by filing a written petition with the Animal Control Officer for a hearing concerning such classification no later than seven days after impoundment. Such petition shall include the name and address, including mailing address, of the petitioner. The Animal Control Officer will then issue a notice of hearing date by mailing a copy to the petitioner's address no later than 10 days prior to the date of the hearing. Where the Animal Control Officer receives no written request from the owner or keeper for a hearing within seven days of impoundment, the pit bull shall be destroyed.
 
(2)  The hearing, if any, will be held before the panel regarding dogs created by RIGL § 4-13.1-11. Any facts which the petitioner wishes to be considered shall be submitted under oath or affirmation either in writing or orally at the hearing. The panel shall make a final determination whether the dog is a pit bull as defined in Subsection B(2) of this section. Such final determination shall be considered a final order of the City Council, subject to review under the state rules of civil procedure.  § 116-37.1(F)(1),(2) (2003).
 
  [xii] South Jordan, Utah takes a unique approach by allowing an owner to request a hearing in front of the police chief, and then appeal to the city council if the police chief decides to either remove or destroy the dog.  § 6.12.100 (D) (1997).

 

Top of Page