The Problem with Breedism

Photo by: Melanie Clayton

American Staffordshire Terrier.  Chow Chow.  German Shepherd.  Doberman Pinscher.  Staffordshire Bull Terrier.  Bulldog.  Akita.  Boxer.   Chinese Shar-Pei.  Mastiff.   Great Dane.   Rottweiler.  Siberian Husky.  Pit Bull. 

These are only some of the breeds affected by Breed Specific Legislation (BSL) throughout the United States.  Defined as a statute or regulation directed toward one or more specific breeds, BSL is an ugly term that strikes fear in the hearts and minds of dog owners and lovers worldwide.  The main objective behind most BSL is to prevent dog attacks.  Over the past few decades, many counties and states have enacted legislation targeted at specific breeds in an effort to meet this objective.  The public response has varied, but those opposed have been significantly more vocal.  “Deed not breed!” and “Ban stupid people, not dogs!” are a few slogans of this highly-motivated group whose voices are slowly being heard.  In February, Ohio Governor Kasich signed a bill into law that removed the term “pit bull” from the state’s definition of “vicious dog.”  Under current Ohio law, dog owners are now held accountable for the actions of their dogs regardless of breed.  In May, United Airlines lifted its ban on nine breeds, including pit bulls and pit bull mixes.  These are merely two examples of nationwide lifted bans and repealed legislation in response to public outcry.

While many individuals are realizing BSL is an ineffective knee-jerk response attributed in large part to the media, some continue to advocate for the necessity of such laws.  Recently, the biggest blow to specific breeds came not from a legislature, but a court.  In April 2012, the Maryland Court of Appeals issued a decision that alters common law and imposes strict liability on owners of pit bulls and pit bull mixes in Tracey v. Solesky.   This decision even imposes liability on landlords.  Prior to this decision, liability was applied regardless of breed when the owner or landlord of the premises knew of the dog’s dangerous nature and was in a position to anticipate and prevent harm.

The facts of Tracey v. Solesky are heartbreaking.  A young boy was attacked by Clifford, a pit bull terrier, and suffered serious injuries.  Parents of the boy sued Clifford’s owners and their landlord.  The owners filed for bankruptcy and were discharged of their debts, leaving only the landlord liable.  There was no indication that Clifford had any background that would provide the landlord with the requisite knowledge under common law, hence the decision that establishes a new breed-specific rule.  This 4-3 decision was not black and white; the judges clearly struggled with not only altering common law, but also targeting a specific breed.

Judge Greene’s dissenting opinion, joined by Judge Harrell and Judge Barbera, is well-articulated, well-researched, and simply spot-on.  Not only does Judge Greene respond to statistics and misconceptions of the breed as articulated in the majority opinion, he also challenges whether the court had standing to alter common law on this particular issue.  “The issues raised involving breed specific regulation are not appropriate for judicial resolution; rather, those issues are best resolved by the Maryland General Assembly, as that branch of government is better equipped to address the various issues associated with regulation of pit bulls and mixed breed pit bulls,” states Judge Greene.

I had the privilege of speaking with Patti Strand regarding the Maryland decision.  An internationally recognized animal issues expert, Strand has served on several animal welfare and animal control advisory boards in addition to state and federal committees and task force bodies.  She co-founded the National Animal Interest Alliance (NAIA) and continues to serve as its national director.

“Although NAIA supports holding dog owners responsible for the damage and injuries their dogs cause regardless of breed or mix, the Maryland court erred in ignoring plain evidence that there is no way to identify with certainty that a dog is a pit bull or part pit bull and in basing its discriminatory decision on incorrect stereotypical beliefs about pit bulls,” said Strand.  “The rules of judicial restraint give deference to precedent.  Although precedent can be overturned, in a close case that retroactively changes the definition of liability, greater care should have been paid to the logic in prior decisions and the decisions of the legislature.”

The difficulty in identifying a dog as a pit bull or pit bull mix, as well as incorrect stereotypical beliefs addressed in Judge Greene’s dissent.  Judge Greene correctly notes that more than twenty breeds are commonly mistaken for pit bulls, and the majority gives little to no guidance on how to determine if a dog would be classified as a pit bull or a pit bull mix under this new rule of law.  The majority opinion seems to adopt the idea that if it looks like a pit bull, it is a pit bull—at least where liability is concerned.  The majority opinion also turns a blind eye to the long history of pit bulls as “family dogs with passive behaviors,” as Judge Greene states.  Pit bulls were originally bred as fighting dogs.  They frequently are dog aggressive, but never were they bred to be or intended to be aggressive toward people.  Their passive nature and love of people makes them great family pets and not-so-great guard dogs.  The majority failed to consider all the positive characteristics of the breed.

According to the National Canine Research Council, the majority opinion also ignores Maryland’s record concerning dog attacks.  “Nothing in the available record in Maryland supports the designation of ‘pit bull’ dogs as ‘inherently dangerous.’  What the record in Maryland does show is that communities increase community safety when they hold all owners of dogs, regardless of breed or type, to the same standards of humane care, custody, and control.”  This sentiment is echoed by several groups, including the Animal Farm Foundation who issued a statement that reads in part:  “We will only resolve such a controversy finally and equitably when we hold all dog owners to the same standard of humane care, custody and control of their dogs.  We must be firm in our resolve to treat all dogs as individuals.  We must insist that our laws and our communities afford all dogs equal treatment and opportunity.”

The Tracey v. Solesky decision has generated attention, mostly from those who stand opposed to the court’s targeting specific breeds.  Maryland lawmakers quickly filed bills to overturn the court ruling during the Maryland General Assembly’s special session.  While the bills were not acted upon, a second special session may be called this summer.  Additionally, the Maryland legislature recently launched a joint task force to study the court’s decision and has hopes of a resolution in the near future.

It cannot be argued that pit bulls never attack humans, but some common sense is needed when considering breed specific legislation.  All dogs, regardless of breed, are animals.  All dogs, regardless of breed, have the ability to bite.  Studies cited in both the majority and dissenting opinions attribute a number of fatal attacks to pit bulls and pit bull mixes (which, as already mentioned, actually encompass quite a few breeds and mixes).  These studies also attribute fatal attacks to Labrador Retrievers and a Yorkshire Terrier, yet I see little to no BSL affecting these extremely popular breeds.  When a non-bully breed dog attacks, it is attributed to a single, individual dog.  When a bully breed dog attacks, the entire breed suffers.  Breed specific legislation is ineffective, discriminatory, and unscientific.  Judge Greene states it best in the dissent, “Succumbing to the allure of bad facts leads inevitably to the development of bad law.”


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About Tommi E. Powell, Former Senior Staff Writer (8 Articles)
Tommi graduated from Campbell Law School in 2013 and received a Bachelor of Arts in English from the University of North Carolina at Chapel Hill in 2004 and a Master of Arts in English with a multicultural concentration from East Carolina University in 2006. Prior to attending law school, Tommi worked for the American Kennel Club, where an interest in animal law developed. She worked as an extern for the Water and Land Section of the Environmental Division of the North Carolina Department of Justice.
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