PET STORE LAWSUIT IN SAN DIEGO 2013
Pet store owner David Salinas has filed his federal lawsuit in San Diego, CA against various animal activists and the City of San Diego, et al.
Constitutional law claims have been asserted, but of course
the activist animal rights, ignore all of that. Par for the course.
http://www.courthousenews.com/2013/11/27/63266.htm
Pet store owner David Salinas has filed his federal lawsuit in San Diego, CA against various animal activists and the City of San Diego, et al.
Constitutional law claims have been asserted, but of course
the activist animal rights, ignore all of that. Par for the course.
http://www.courthousenews.com/2013/11/27/63266.htm
NOTE: In the state of Florida, two attorneys used a "pitbull" logo for their attorney ad, as shown above... A competitor reported them to the FL Bar, and they were disciplined for using a "pitbull" logo and had to STOP using it, because the Florida Court said a pitbull is equated with a derogatory meaning, and if I recall correctly, the Judge really hated the spiked collar, and ruled that no attorney should use such a thing as a logo... (the simplified version of what the Court said.) Hard to believe, that was in 2006.
I remember talking to JP (the one on the left) and he was livid that his dog, a staffy bull, would be cast as a vicious criminal. It would have been very expensive to overturn the Bar's case because in Florida, the law is pretty much like Denver CO..... very much against the bulls. JP even attempted to argue that the commercial logo was an element of free speech but the Judge didn't like that argument. Maybe they should just let attorneys use any animals they want since nearly all sports engage some animal mascot, and surely attorneys pull some pretty harsh actions in cases. After all, TV today and Facebook have people killing each OTHER, hiring others to kill others, and bringing down criminal cases because they can't keep their mouths shut. Don't see much difference in any of it. In fact we think a pitbull picture is far less detrimental than trolling Facebook.
Civil Litigation and Bad Animal Laws
We have experience in novel cases, and with national cases involving different and unusual facts. Having completed our Federal Case in Colorado regarding the BSL (breed specific legislation) law of Aurora, CO, we have found that mostly the laws are politically driven. Recently some of the animal rights groups such as Best Friends (Utah) and ASPCA and HSUS tried to back the opponents of Miami's BSL law against generic pitbull type dogs. Despite many of such dogs being owned in Dade County, the law was not apparently changed.
NOTE: In Colorado, there is a state law and BSL cannot be used, therefore people assume that means that breeds cannot be banned. However, some smarty pants attorneys decided that cities can use Home Rule and do whatever they want, to get around the rules they don't like. In fact, Kory Nelson, the biggest proponent of Home Rule, went to San Francisco to try and talk them into starting Home Rule, to rid the city of bulls. Well, as we know, Nicholas Fabish was killed by his own dog that they claimed was a bull (it was so big, it looked like some cross bred large breed dog but not necessarily a bull) and then the other gal Diane Whipple was killed in 2001 by Bane/Hera, Presa canarios, or maybe just one of the dogs. The dogs were supposedly in a breeding program to make certain dogs into man stoppers. This is from Wiki:
>>>>>> The trial judge ordered a new trial on Knoller's second-degree murder count, ruling that implied malice requires a defendant to subjectively know that his or her conduct had a high probability of resulting in death.[17] State prosecutors appealed, seeking to reinstate the second-degree murder conviction. As of early 2004, both Knoller and Noel had served their terms for the manslaughter conviction and Knoller was out on bail while her conviction was under appeal. In May 2005, based on its understanding of implied malice to require defendant's subjective appreciation and conscious disregard of a likely risk of causing serious bodily injury to another, the Court of Appeal reversed the trial court's call for a new trial on the second-only degree murder count, and Knoller appealed to the California Supreme Court.[6][18]
On June 1, 2007, the California Supreme Court rejected the Court of Appeal's decision, ruling that the correct standard of implied malice was not simply an awareness of the risk of serious bodily harm, but requires proof that a defendant acted with conscious disregard of the danger to human life.[19]
The Court held that the trial court had set the bar too high, finding that implied malice would be possible only if the defendant knew his or her conduct had a high probability of resulting in death. In contrast, the Court found that the appellate court had set the bar too low, finding that implied malice would be possible if the defendant were aware her conduct risked causing serious bodily injury. The Court ordered the trial court to reconsider whether to allow the second degree murder conviction to stand, in following with the reasoning it set forth.[20][21]
The trial court in this case, the San Francisco Superior Court, reinstated the conviction for second-degree murder, and on September 22, 2008, the court sentenced Marjorie Knoller to serve 15 years to life for the death of Diane Whipple.[22][23] On August 23, 2010, the First District Court of Appeal in San Francisco ruled 3-0 that Marjorie Knoller acted with a conscious disregard for human life when her Presa Canario escaped and killed Diane Whipple in 2001. Knoller is serving a sentence of 15 years to life. She was initially paroled after serving four years on the manslaughter conviction.
http://claims-management.theclm.org/home/article/When-Mans-Best-Friend-Bites
Example of Case Law Using Breed as the Reason for the Rule
There does not appear to be any consensus about what a pit bull actually is. The American Kennel Club (AKC) recognizes the American Staffordshire Terrier and the Staffordshire Bull Terrier, but not the American Pit Bull Terrier. The United Kennel Club (UKC) recognizes the American Pit Bull Terrier and the Staffordshire Bull Terrier, but not the American Staffordshire Terrier. There is no AKC or UKC-standard breed called “pit bull” or “pit bull terrier.” Moreover, to qualify as a member of a recognized breed, the dog must be registered and have its pedigree certified.
Legislators have struggled with this issue when attempting to craft ordinances limiting ownership or possession of pit bulls. For example, Denver enacted an ordinance banning pit bulls, which were defined as American Pit Bull Terriers, American Staffordshire Terriers, Staffordshire Bull Terriers, “or any dog displaying the majority of physical traits of one of those breeds.”
The U.S. Court of Appeals for the 10th Circuit found this language unconstitutionally vague (Dias v. City and County of Denver, 2009). The Supreme Court of Iowa reached a similar result, rejecting as unconstitutionally vague an ordinance that defined pit bulls as “dogs generally known by ordinary persons” as pit bulls (Am. Dog Owners Ass’n, Inc. v. City of Des Moines, 1991).
Recent Developments
In April 2012, , Maryland’s highest appellate court held in Tracey v. Solesky, a 4-3 decision, that owners of pit bulls and cross-bred pit bulls and other persons who have the right to control the dog’s presence on the premises where any attack occurs are strictly liable for injuries caused by the dog. This opinion was subsequently revised to eliminate any references to “cross-bred pit bulls.”
For the strict liability standard to apply, the plaintiff must provide the trial court with sufficient proof that the dog involved in the attack is a pit bull and that the defendant had actual or constructive knowledge that the dog is a pit bull. The court offered no guidance as to what would constitute “sufficient proof” as to the type of dog or the level of knowledge. This seems rather silly since it is obviously based on breed when that is not requried. Further, the owner can end up filing bakruptcy anyway.
NOTE: we are familiar with this route in claiming "identification" of breed type X or Y or Z. The fact is, that not even an EXPERT on bullies can tell for sure, which dog is or is not a mixed bull, part bull, no bull, or all bull. Seriously, DNA is oftentimes wrong, since the gene pool used is taken from AKC which is very limited. Further, the APBT was purposely derived by mixing down terrier/bulldog, so despite the passage of time, the DNA can show dog lineage from ancestors of 100's of years ago. The DNA would not suffice scrutiny for court purposes. Then we have the "education" that the animal control officers get, which is by looking at dogs, pictures of dogs, and handling dogs.
Despite many decades of handling dogs, the generic "pitbull" which is NOT a breed, is very difficult to discern into full blood APBT or Staffy, or etc. Some may appear to be more bully than others, but an expert of 35 years with APBTs will tell you, it is not possible to prove beyond a reasonable doubt, that dog X is in fact a "pitbull."
He may look like what you think is a bull, but he could be in fact, part lab, rott and Heinz57. Many dogs are killed because they "looked" like a bull. The bull temperament established long ago pretty much holds today that dog-dog aggression in bulls is not considered a 'fault' as to the breed itself. [Notice I did not say, dog-human aggression.] Also, some guardian type dogs may have an inherent prey drive toward smaller animals. Usually not considered a fault as to the breed of dog (in other words, when considering the propensities of some larger breeds, it would not be counted as a fault or a genetic defect) but for animal rights, everything is a fault-- a cat going after a bird is a fault, a dog going after a chicken, etc. Of course, we do not consider the natural enemies of animals in the wild to be a fault.
As stated above, the court claiming the Plaintiff must have sufficient proof could be more than likely, preponderance, or higher standard, but it is unlikely to be proven unless the owner swears under oath that it is, they have DNA records going back perhaps 4 generations, and the defendant also had ACTUAL knowledge--there is no such thing as constructive knowledge if, in fact, it is not possible to determine that such dog is or is NOT a bull just by looking at it for sure. It is all a guessing game and we don't believe guessing games should be how laws are applied.
The court’s ruling eliminated a long-standing common law requirement that, for strict liability to attach, injured persons must prove that the dog had vicious propensities and that the dog’s owner or the owner’s landlord knew of such propensities. The court explained, “because of its aggressive and vicious nature and its capability to inflict serious and sometimes fatal injuries, pit bulls … are inherently dangerous.” Ironically, on Aug. 25, 2012, just days after the court reaffirmed its opinion, a Rottweiler made headlines when it broke loose from a leash at a Maryland farmers’ market and attacked a bystander.
Looking at the court's words, "its aggressive/vicious nature" and "capacity to inflict serious" injuries, this equals inherently dangerous. We would agree that ANY medium to large dog with those propensities would qualify. However not every med-large dog is like that, and not every bull is like that. Would Judges feel better if the Mastiff, Malamute, Sibe, GSD, Jack Russell, killed a kid but it was NOT a bull, and that the bull which was NOT vicious never did a thing? We don't disagree that alleged generic "pitbulls" are claimed to have fatally taken out more humans than other breeds, however there is no actual proof that these dogs were actually bulls. In analyzing canine human fatal attacks, the common thread tended to be that such animals were rehomed, shelter or rescue animals.
IF bulls were represented disproportionately, one cannot conclude it was absolutely because they were actually bulls, but that the media SAID they were. We have analyzed bite reports in detail, and what the animal control officer writes down is not necessarily the truth. Usually they ask the victim's family what type of dog it is. We saw a picture of what appeared to be a Chow Chow dog, and the news reports said it was a pitbull? Naming other breeds of dogs does not carry the story apparently. We are well aware of the publicity generated by a person in Washington, who keeps "track" of any alleged mauling ONLY if it is believed to have been done by a bully dog, then there is the KC dog blog, which keeps tabs on ALL dog-human biting incidents. In many instances children are involved but not always.
Excerpt:
"However, apparently that wasn't enough for the authorities in Sikeston -- and yesterday, they began rounding up 'pit bulls' out of people's homes to take to the shelter. Most will likely be killed there. It doesn't matter that these dogs were family pets. It doesn't matter that owners did everything to comply with the law. It doesn't seem to matter that the dogs had no history of aggression or complaints about them. It only seems to matter that they look like pit bulls, and the city authorities want them dead. All of them." http://btoellner.typepad.com/kcdogblog/2012/12/sikeston-mo-begins-pit-bull-roundup-.html
The Tracey opinion generated significant controversy in Maryland, in part due to the significant repercussions for those who could potentially be held strictly liable under the new ruling. This turmoil prompted Maryland’s General Assembly to establish a task force and convene for a special session to consider proposals for legislation to ameliorate the impact of the court’s ruling.
A proposal to enact “breed-neutral” strict liability legislation was debated. Other proposals included legislation prohibiting any legal presumption that a dog is dangerous or potentially dangerous solely on the basis of its breed; requiring the use of a negligence standard without regard to breed in all civil dog-bite cases; and establishing that only persons who were responsible for negligently exercising control over a dog could potentially be held liable for injuries caused by the dog.
Legislators were unable to reach a consensus, and no formal action was taken on any of the proposed bills, but it is expected that Maryland’s General Assembly will revisit the issue in the 2013 session. In the meantime, a Maryland federal court will consider a constitutional challenge to the ruling, raised in a lawsuit filed by a pit-bull owning resident of an affordable housing co-op, Weigel v. State of Maryland and Armistead Homes Corporation.
Other Jurisdictions and “Dangerous” Dogs
Strict liability legislation, breed bans, and legislation targeting irresponsible breeding and other care-and-keeping issues are becoming increasingly common.
As of 2012, approximately 36 states and Washington, D.C. have enacted legislation that makes dog owners strictly liable for any injuries caused by their dogs. Some of these laws are breed-neutral and impose liability without regard to any history of causing injury. Other statutes apply only to dogs “at large” or to “vicious or dangerous” dogs. These are generally defined as those who, unprovoked, have attacked a human being or an animal or who have a known propensity to do so; dogs trained or kept for dogfighting; and pit bulls and pit bull mixes.
Breed bans also have been enacted in many jurisdictions. Miami-Dade County, Fla., enacted an ordinance in 1989 that prohibits owning or keeping American Pit Bull Terriers, American Staffordshire Terriers, Staffordshire Bull Terriers, or any other dog that substantially conforms to any of these breeds’ characteristics. Prince George’s County, Md., enacted a similar pit bull ordinance in 1996.
Enforcement of a breed ban is costly, and many have questioned whether such laws are effective at reducing the incidence of dog bites or attacks. In May 2012, Cincinnati, Ohio repealed a nine-year old breed ban due to cost concerns and questions about its effectiveness. Baltimore and other municipalities have repealed breed-specific laws due to similar concerns.
Breed bans have been challenged on constitutional grounds, and the results have been mixed. The difficulty of properly defining the term “pit bull” is but one of the many issues.
According to the American Veterinary Medical Association, “breed-specific ordinances imply that there is an objective method of determining the breed of a particular dog, when in fact there is none at this time. Owners of mixed-breed dogs or dogs not … registered with a national kennel club have no means of knowing whether their dog is one of the types identified or whether they are required to comply with a breed-specific ordinance.”
Breed-specific legislation is controversial for several reasons. The CDC, the Humane Society of the United States (HSUS), and the American Society for the Prevention of Cruelty to Animals (ASPCA) oppose breed-specific legislation, primarily on the grounds that such legislation is not an effective means of achieving the goal of reducing the incidence of dog bites. HSUS’ position is based in part on a study published in the Journal of the American Veterinary Medical Association, which concluded that breed identification is problematic, making enforcement of such laws difficult.
NOTE: HSUS has rountinely called for the killing of pitbull types of dogs, including Michael Vick's dogs; HSUS has gone nationwide, and simply seized hundreds of animals from SWAT team raids and wiped all of the dogs out completely, in Louisiana, they did they by relying on the HSUS law they wrote, that a suspected "dog fighting" dog is in fact contraband and can be killed ASAP. No need to get a trial. HSUS has actually done many many of these raids and outright gotten many dogs wiped out, even puppies.
Another concern articulated by HSUS was that breed-specific legislation has the effect of creating demand for a new “killer” dog. Decades ago, the Doberman Pinscher was widely regarded as the most dangerous breed. Currently, pit bulls and Rottweilers draw the most attention. HSUS also expressed concern that breed-specific legislation does not address the issues of abuse, aggression training, and irresponsible dog ownership, factors that contribute to a dog’s tendency to bite.
NOTE: HSUS is NOT AN EXPERT ON PETS, or Breeding, or animal husbandry. HSUS is animal rights, and this is slowly but surely becoming known by pet and animal owners. See http://www.humanewatch.org.
A growing trend is mandatory insurance for dog owners. In 2012, the city council of Schenectady, N.Y., voted to require that persons who are convicted of two “dog at large” offenses or one “dangerous dog” offense must purchase liability insurance to pay for the medical expenses of anyone bitten by the animal. The initial proposal would have required that every dog owner carry $50,000 in liability insurance.
Insurance Issues
Homeowners’ and renters’ insurance generally will cover dog bite liability. The insurance industry has responded to the rising cost of dog-bite claims by incorporating breed-specific prohibitions or exclusions in such policies. Pit bulls, as well as Doberman Pinschers, Rottweilers, German Shepherds, Chows, Wolf Hybrids, Akitas, Presa Canarios, and other breeds have been the subject of exclusions.
Other measures taken by insurers to limit or manage the risk include requiring dog owners to sign liability waivers for dog bites; requiring that dogs be kept muzzled, chained, or caged; charging higher premiums for insuring certain breeds; or requiring owners to take their dog to behavior modification classes.
However, some states have reacted by adopting legislation prohibiting such provisions. Michigan and Pennsylvania have laws that prohibit insurers from cancelling or denying coverage to the owners of particular dog breeds. New York’s legislature is considering a bill prohibiting homeowners’ liability insurers from refusing to issue or to renew policies, or cancelling or charging an increased premium, based solely upon harboring or owning any dog of a specific breed or mixture of breeds.
These issues are far from being settled, but it’s important to understand the ever-changing issues and legislation at hand, especially when it concerns the bond between man and his best friend.
BSL and the ACF History of Colorado's Outright Ban on Generic Pitbull types of Canines
You have the authors permission to forward BREED SPECIFIC LEGISLATION BASED ON FACT OR FALLACY or use it for publication. The document is protected under ACF copyrights at this time can not be edited for publishing purposes.
Glen Bui
ACF
BREED SPECIFIC LEGISLATION—
BASED ON FACT --OR FALLACY ???
By Carolyn Chan
Breed specific legislation (BSL) is any law that seeks to eliminate or single out a particular breed of canine, usually premised upon a fictitious belief that such breed is somehow "dangerous."
On its face, singling out a dog breed may appear to address what some believe are safety issues with "certain" canines. However, both scientifically and socially, when one examines the issues squarely on a factual basis, it becomes apparent that this type of discrimination is not based upon facts, nor accurate data.
In addition, it becomes more obvious that this type of disparate treatment will not only be extremely expensive to implement and enforce, but also that its purpose will not be accomplished due to the faulty premises upon which it is based.
Why is this so? Most BSL is enacted in response to a highly publicized, and often sensationalized canine altercation in which a human is either hurt or killed. Since fatal attacks by canines are actually rare, when and if they happen, it is news fodder and it SELLS. Sensationalism is prevalent and a huge industry in the media world.
When enacting a law in response to such sensationalized stories, lawmakers do NOT take steps to ensure the stories are factual. Therefore, stories about a "pitbull" may really be about a "mastiff/lab" mix, or a "shepherd/boxer" mix, or any number of mixed breed dogs. Since there are at least 25-35 dog breeds that may resemble a "pitbull", it is extremely common for any canine bearing ANY resemblance to a terrier to be labeled a "pitbull."
There have been studies conducted in the past that are heavily relied upon by those who want to push for BSL. The fact is, those studies (there are only several) are not complete scientific studies, they were not done with complete variables, the evidence used was not adjusted for variables not taken into account, and the extrapolation from such studies is flawed due to the failure of not having set the foundation correctly to start with. Valid scientific studies take into account nearly every conceivable variable that might affect the outcome. Carefully controlled studies are done precisely and under carefully controlled circumstances—as opposed to "guessing", "speculation", and "we are not sure, but...."
Unfortunately, the SCIENCE of canine genetics has been thrown to the wayside, and has been reduced instead, to a few paltry "studies" relied upon by lawmakers, where such studies are not reliable, nor proven. This is even admitted by the people who did these studies, because they had incomplete data. Incomplete and inaccurate data does NOT lend itself to producing valid scientific results.
The result? You have laws which are based upon fallacy.
When lawmakers seize upon "singling" out breeds, they usually tend to select those breeds which are either large, or protection line types, or which tend to get the bad rap in the media. The "choosing" of such breeds is basically done on guesswork, speculation, and perhaps even upon propaganda pushed by extreme animal rights groups such as PETA.
Let us assume for a moment, that two breeds of canines have been singled out because lawmakers think they are "dangerous." Now, is that because they have read stories in the newspapers? Seen the news on television? Heard about stories on the radio? Knew someone who was mauled to death? Owned one of the breeds and was injured? Worked in canine handling and experienced these very breeds first hand? It would be my educated guess that the first two reasons listed are the answer. Most lawmakers know little and nothing about canine genetics. But they know that the public may be upset when something "happens" in their community involving a dog.
This then brings us to the issue of HOW do such things get taken care of?
In many cases, it appears that animal control seems to suddenly pipe up that certain breeds are being "euthanized", because no one "wants" them.
Then, extreme animal rights groups pop up with their position statements that such dogs are better off "exterminated" completely, or even worse, that all homeless pets should be killed rather than saved. One must remember that extreme animal activists have heavy followings of donators, and many of these are people who are already involved with animals (such as shelter volunteers, rescue people, and activists who promote "spay and neuter" as a mantra........)
To further convolute the issue, supporters of BSL like to bring in the topic of pet "overpopulation" and how it is allegedly caused by "breeders."
So now we have lawmakers looking at a few studies, which are flawed both scientifically and statistically, coupled with sensationalized media stories naming specific canine "breeds", and then heaped upon that, we have assertions by shelters and extreme activists that "overpopulation" is a problem caused by breeders. It should be noted that the overpopulation issue is purposely set up to detract from the "dangerous" aspect, because once that is done, many people forget about "dangerous" (which is false) and remember overpopulation. It’s called convenient detraction to me.
SO-----if one puts that all together, what we come up with is known as "BSL".
We now have a plan to "eliminate" canine breeds, perceived as "dangerous" by the media, and ostensibly whose members are taking up too much shelter space.
Does anyone else see a problem with this thinking?
First of all, wouldn’t it be logical to consult with canine geneticists and behaviorists on the so called issue of "danger" in selected breeds? Apparently not in today’s world, because despite the opinions of the AVMA and leading canine authorities (who do NOT support BSL)—lawmakers have now basically IGNORED the science aspect completely.
In California, it was not until this year that the legislature decided to forego its "non-specific" breed law. The non-specific breed law is and was based upon scientific evidence that no canine breed is inherently dangerous, and that therefore, no specific breed of canine was allowed to be considered as such.
Perhaps only after a highly sensationalized canine incident, lawmakers decide to revisit the specific breed issue. Somehow, the lawmakers believe that the former law should be changed so that ALL California counties could enact laws against named "dangerous" breed dogs, EVEN THOUGH NO DOG BREED IS TO BE CONSIDERED DANGEROUS.
The alleged intent of the new law specifically states that elimination of uncontrolled and irresponsible breeding is its "target."
Why? Because theoretically, according to lawmakers, this breeding is creating a public safety "risk" through production of "defective" animals (as currently stated in Chapter 7, Section 122330, Health and Safety Code of California.)
Note that only the alleged breeding of specific breeds is the TARGET of such legislation. Whether such owners may be the actual cause of canine problems due to their inappropriate treatment of animals is completely disregarded.
So if we are to believe that the actual so-called problem is the PEOPLE who may create "defective" canines, we should be controlling the PEOPLE who are supposedly to blame. Since it is a known fact that animal abuse (starving, torturing, chaining, never socializing, fighting, etc) will create a very unpredictable and possibly aggressive canine, it is very clear to me that the owner’s treatment of the animal can be paramount to the dog’s disposition. In other words, the owner may create a monster by inappropriate treatment of the dog, rather than having "bred" a defective dog.
Before one can make the huge leap from no specific breed of canine is inherently "dangerous" (which is the scientific truth, and proven )---- to choosing breeds to "eliminate or reduce" because they "ARE" dangerous, one needs to have accurate, factual, proven data. Information that has a reliable foundation, using scientific principles, and not based upon guesstimates, conjecture, or newspaper stories. BSL has no scientific basis--- unless you count media stories as genuine scientific evidence.
Spaying and neutering "every dog" in society is clearly not the answer, yet in Los Angeles, that is exactly what has been proposed since SB861 (aka BSL) started this year!!
The proposal must be the second most asinine proposal in terms of eliminating unsafe canines—second only to BSL which is based upon nothing but fallacy.
It is a shame, but dog owners today must prove their mettle in a court of law due to media hype, uninformed lawmakers, and radical animal groups focused on eliminating not only specific canine breeds, but domestic pet ownership itself.
In July 2003 the American Canine Foundation hired Ohio attorney Sol Zyndorf to challenge Ohio’s O.R.C. 955:11- 955:22 breed specific laws. On March 3, 2006, the Sixth Appellate District Court of Appeals in Lucas County, Ohio, issued a published decision finding that the breed specific law in question was UNCONSTITUTIONAL, on three separate counts, and the court entered Judgement for the pitbull owner!!!
This major VICTORY at the Appeals level shows that with hard work, a good team of experts, and keen counsel, dogs will get their day in court and prevail!
Carolyn Chan
Attorney at Law
DENVER FACT OR FALLACY Summary of Action of Kory Nelson of Denver, Infamous Hater of Pitbulls
Information taken from past facts/actions in early 2000's
Denver Colorado Legislative Update Denver's City Attorney Kory Nelson has been contacting cities across the United States and providing them information on Denver's breed ban on American Pit Bull Terriers. This data is not accurate and below are facts Mr Nelson is failing to reveal.
1. Mr Nelson lost his arguments that Denver's breed ban was constitutional in the Colorado 2004 legislative session when he tried to stop HB1279 from passing to be signed by the Governor. Mr Nelson presented documents Denver had used in the past, all manipulated data provided by radical animal rights organizations. The Senators and Legislators of Colorado did not find Mr Nelsons arguments credible and voted to end breed specific legislation in Colorado by voting yes to HB1279 which prohibits banning specific breeds of dogs in Colorado at the local and state level.
2. In 2004 Mr Nelson lost a legal battle in the Denver Municipal Court July 7, 2004 ( Margolius v Denver ) Mr Margolius was charged with violating Denver's breed ban. ACF challenged Denver's breed ban and at trial all of Denver's animal control officers were disqualified because they could not prove beyond a reasonable doubt they could identify what is known as the American Pit Bull Terrier. Mr Margolius's case was dismissed.
3. In 2004 Denver sued Colorado arguing they had a right to home rule over their breed ban. The state of Colorado asked ACF to intervene to provide expert testimony and research proving Pit Bull Terriers and others breeds are not genetically vicious or dangerous and do not inflict more severe injury than other breeds. The court hearing the case denied ACF's intervention without giving any reason. Then Colorado resident Marci Grebing filed a motion for intervention and the court denied that motion also giving no reason. A trial was heard on April 7 2005 regarding Denver's right to home rule, no constitutional arguments were raised, the trial lasted less than one day, Denver's expert Dr Borchelt had testified in a previous case ( Tellings v Toledo ) that he had done no research on American Pit Bull Terriers. In reviewing the evidence used at the Denver trial it was found to be erroneous and outdated. The judge reached his decision within minutes of the end of the trial . The court made no effort to consider current scientific data, accurate fatal dog attack data and hear from some of the countries leading experts on canine behavior and genetics.
4. Marci Grebing filed an appeal over the denial of intervention in Colorado v Denver, Mr Nelson filed a motion to dismiss Ms Grebings appeal, Ms Grebing responded addressing Mr Nelson's credibility to the court. The court of appeals denied Mr Nelsons motion and the case is moving forward. Ms Grebing is asking for a new trial where Denver dog owners and Colorado residents can be represented correctly.
5. Mr Nelson has been calling cities up providing them with misleading data telling them Denver's breed ban withstood a court challenge. This is not true and last year in the Margolius case Denver's breed ban did not stand up to court litigation. Mr Nelson's data was found not credible by the Colorado Legislature in 2004. Mr Nelsons motions in the Colorado Court of Appeals regarding the Denver v Colorado lawsuit were also found not credible.
6. Mr Nelsons behavior and that of animal rights agenda, of which Mr Nelson is promoting when he supports Denver's breed ban is one of the leading causes of the violence directed at American Pit Bull Terriers and their owners. The manipulation and intentional false data , the media hype, the sensational stories and all the lobbying for breed bans has resulted in death threats, domestic violence, the killing of family pets and the loss to the right to own property while at the same time criminalizing United States citizens. Refer to ACF Report ( REGULATION AND CONTROL OF DANGEROUS DOGS ) AMERICAN CANINE FOUNDTION 2005
Revisiting Colorado's Dog Fancier's case Which Created Outlawing of Pitbulls
"A group of animal organizations led by the Colorado Dog Fanciers did their best, filing suit against the city. But in 1992, the Colorado Supreme Court upheld a lower court ruling that Denver had a rational basis for outlawing pit bulls. The decision focused on the city's argument that the characteristics bred into the animals by dog fighters — characteristics such as strength, tenacity and a certain unpredictability in their signs of aggression — meant that pit bull attacks had the potential to be "more severe and more likely to result in fatalities."This ruling encouraged other municipalities to enact laws of their own regulating or prohibiting the possession of certain breeds, almost always in the wake of a headline-grabbing dog mauling. A website that maintains a state-by-state directory of such laws lists 415 cities and counties that today have some type of prohibition aimed at a specific breed of dog. But while a wide variety of breeds are involved in dog attacks, the vast majority of these laws — which range from requiring owners to carry insurance to mandates that dogs attend obedience training — target pit bulls."
http://www.westword.com/2009-09-24/news/for-two-decades-pit-bulls-have-been-public-enemy-1-in-denver-but-maybe-it-s-time-for-a-recount/full/
Animal, Pet & Dog Law, Criminal Defense > California > Chico
and all Nor Cal Counties
Carolyn J. Chan530-359-8810
2485 Notre Dame Blvd.
Chico, CA 95928
22 years of experience
Animal, Appeals, Criminal Defense Bankruptcy and Business
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I remember talking to JP (the one on the left) and he was livid that his dog, a staffy bull, would be cast as a vicious criminal. It would have been very expensive to overturn the Bar's case because in Florida, the law is pretty much like Denver CO..... very much against the bulls. JP even attempted to argue that the commercial logo was an element of free speech but the Judge didn't like that argument. Maybe they should just let attorneys use any animals they want since nearly all sports engage some animal mascot, and surely attorneys pull some pretty harsh actions in cases. After all, TV today and Facebook have people killing each OTHER, hiring others to kill others, and bringing down criminal cases because they can't keep their mouths shut. Don't see much difference in any of it. In fact we think a pitbull picture is far less detrimental than trolling Facebook.
Civil Litigation and Bad Animal Laws
We have experience in novel cases, and with national cases involving different and unusual facts. Having completed our Federal Case in Colorado regarding the BSL (breed specific legislation) law of Aurora, CO, we have found that mostly the laws are politically driven. Recently some of the animal rights groups such as Best Friends (Utah) and ASPCA and HSUS tried to back the opponents of Miami's BSL law against generic pitbull type dogs. Despite many of such dogs being owned in Dade County, the law was not apparently changed.
NOTE: In Colorado, there is a state law and BSL cannot be used, therefore people assume that means that breeds cannot be banned. However, some smarty pants attorneys decided that cities can use Home Rule and do whatever they want, to get around the rules they don't like. In fact, Kory Nelson, the biggest proponent of Home Rule, went to San Francisco to try and talk them into starting Home Rule, to rid the city of bulls. Well, as we know, Nicholas Fabish was killed by his own dog that they claimed was a bull (it was so big, it looked like some cross bred large breed dog but not necessarily a bull) and then the other gal Diane Whipple was killed in 2001 by Bane/Hera, Presa canarios, or maybe just one of the dogs. The dogs were supposedly in a breeding program to make certain dogs into man stoppers. This is from Wiki:
>>>>>> The trial judge ordered a new trial on Knoller's second-degree murder count, ruling that implied malice requires a defendant to subjectively know that his or her conduct had a high probability of resulting in death.[17] State prosecutors appealed, seeking to reinstate the second-degree murder conviction. As of early 2004, both Knoller and Noel had served their terms for the manslaughter conviction and Knoller was out on bail while her conviction was under appeal. In May 2005, based on its understanding of implied malice to require defendant's subjective appreciation and conscious disregard of a likely risk of causing serious bodily injury to another, the Court of Appeal reversed the trial court's call for a new trial on the second-only degree murder count, and Knoller appealed to the California Supreme Court.[6][18]
On June 1, 2007, the California Supreme Court rejected the Court of Appeal's decision, ruling that the correct standard of implied malice was not simply an awareness of the risk of serious bodily harm, but requires proof that a defendant acted with conscious disregard of the danger to human life.[19]
The Court held that the trial court had set the bar too high, finding that implied malice would be possible only if the defendant knew his or her conduct had a high probability of resulting in death. In contrast, the Court found that the appellate court had set the bar too low, finding that implied malice would be possible if the defendant were aware her conduct risked causing serious bodily injury. The Court ordered the trial court to reconsider whether to allow the second degree murder conviction to stand, in following with the reasoning it set forth.[20][21]
The trial court in this case, the San Francisco Superior Court, reinstated the conviction for second-degree murder, and on September 22, 2008, the court sentenced Marjorie Knoller to serve 15 years to life for the death of Diane Whipple.[22][23] On August 23, 2010, the First District Court of Appeal in San Francisco ruled 3-0 that Marjorie Knoller acted with a conscious disregard for human life when her Presa Canario escaped and killed Diane Whipple in 2001. Knoller is serving a sentence of 15 years to life. She was initially paroled after serving four years on the manslaughter conviction.
http://claims-management.theclm.org/home/article/When-Mans-Best-Friend-Bites
Example of Case Law Using Breed as the Reason for the Rule
There does not appear to be any consensus about what a pit bull actually is. The American Kennel Club (AKC) recognizes the American Staffordshire Terrier and the Staffordshire Bull Terrier, but not the American Pit Bull Terrier. The United Kennel Club (UKC) recognizes the American Pit Bull Terrier and the Staffordshire Bull Terrier, but not the American Staffordshire Terrier. There is no AKC or UKC-standard breed called “pit bull” or “pit bull terrier.” Moreover, to qualify as a member of a recognized breed, the dog must be registered and have its pedigree certified.
Legislators have struggled with this issue when attempting to craft ordinances limiting ownership or possession of pit bulls. For example, Denver enacted an ordinance banning pit bulls, which were defined as American Pit Bull Terriers, American Staffordshire Terriers, Staffordshire Bull Terriers, “or any dog displaying the majority of physical traits of one of those breeds.”
The U.S. Court of Appeals for the 10th Circuit found this language unconstitutionally vague (Dias v. City and County of Denver, 2009). The Supreme Court of Iowa reached a similar result, rejecting as unconstitutionally vague an ordinance that defined pit bulls as “dogs generally known by ordinary persons” as pit bulls (Am. Dog Owners Ass’n, Inc. v. City of Des Moines, 1991).
Recent Developments
In April 2012, , Maryland’s highest appellate court held in Tracey v. Solesky, a 4-3 decision, that owners of pit bulls and cross-bred pit bulls and other persons who have the right to control the dog’s presence on the premises where any attack occurs are strictly liable for injuries caused by the dog. This opinion was subsequently revised to eliminate any references to “cross-bred pit bulls.”
For the strict liability standard to apply, the plaintiff must provide the trial court with sufficient proof that the dog involved in the attack is a pit bull and that the defendant had actual or constructive knowledge that the dog is a pit bull. The court offered no guidance as to what would constitute “sufficient proof” as to the type of dog or the level of knowledge. This seems rather silly since it is obviously based on breed when that is not requried. Further, the owner can end up filing bakruptcy anyway.
NOTE: we are familiar with this route in claiming "identification" of breed type X or Y or Z. The fact is, that not even an EXPERT on bullies can tell for sure, which dog is or is not a mixed bull, part bull, no bull, or all bull. Seriously, DNA is oftentimes wrong, since the gene pool used is taken from AKC which is very limited. Further, the APBT was purposely derived by mixing down terrier/bulldog, so despite the passage of time, the DNA can show dog lineage from ancestors of 100's of years ago. The DNA would not suffice scrutiny for court purposes. Then we have the "education" that the animal control officers get, which is by looking at dogs, pictures of dogs, and handling dogs.
Despite many decades of handling dogs, the generic "pitbull" which is NOT a breed, is very difficult to discern into full blood APBT or Staffy, or etc. Some may appear to be more bully than others, but an expert of 35 years with APBTs will tell you, it is not possible to prove beyond a reasonable doubt, that dog X is in fact a "pitbull."
He may look like what you think is a bull, but he could be in fact, part lab, rott and Heinz57. Many dogs are killed because they "looked" like a bull. The bull temperament established long ago pretty much holds today that dog-dog aggression in bulls is not considered a 'fault' as to the breed itself. [Notice I did not say, dog-human aggression.] Also, some guardian type dogs may have an inherent prey drive toward smaller animals. Usually not considered a fault as to the breed of dog (in other words, when considering the propensities of some larger breeds, it would not be counted as a fault or a genetic defect) but for animal rights, everything is a fault-- a cat going after a bird is a fault, a dog going after a chicken, etc. Of course, we do not consider the natural enemies of animals in the wild to be a fault.
As stated above, the court claiming the Plaintiff must have sufficient proof could be more than likely, preponderance, or higher standard, but it is unlikely to be proven unless the owner swears under oath that it is, they have DNA records going back perhaps 4 generations, and the defendant also had ACTUAL knowledge--there is no such thing as constructive knowledge if, in fact, it is not possible to determine that such dog is or is NOT a bull just by looking at it for sure. It is all a guessing game and we don't believe guessing games should be how laws are applied.
The court’s ruling eliminated a long-standing common law requirement that, for strict liability to attach, injured persons must prove that the dog had vicious propensities and that the dog’s owner or the owner’s landlord knew of such propensities. The court explained, “because of its aggressive and vicious nature and its capability to inflict serious and sometimes fatal injuries, pit bulls … are inherently dangerous.” Ironically, on Aug. 25, 2012, just days after the court reaffirmed its opinion, a Rottweiler made headlines when it broke loose from a leash at a Maryland farmers’ market and attacked a bystander.
Looking at the court's words, "its aggressive/vicious nature" and "capacity to inflict serious" injuries, this equals inherently dangerous. We would agree that ANY medium to large dog with those propensities would qualify. However not every med-large dog is like that, and not every bull is like that. Would Judges feel better if the Mastiff, Malamute, Sibe, GSD, Jack Russell, killed a kid but it was NOT a bull, and that the bull which was NOT vicious never did a thing? We don't disagree that alleged generic "pitbulls" are claimed to have fatally taken out more humans than other breeds, however there is no actual proof that these dogs were actually bulls. In analyzing canine human fatal attacks, the common thread tended to be that such animals were rehomed, shelter or rescue animals.
IF bulls were represented disproportionately, one cannot conclude it was absolutely because they were actually bulls, but that the media SAID they were. We have analyzed bite reports in detail, and what the animal control officer writes down is not necessarily the truth. Usually they ask the victim's family what type of dog it is. We saw a picture of what appeared to be a Chow Chow dog, and the news reports said it was a pitbull? Naming other breeds of dogs does not carry the story apparently. We are well aware of the publicity generated by a person in Washington, who keeps "track" of any alleged mauling ONLY if it is believed to have been done by a bully dog, then there is the KC dog blog, which keeps tabs on ALL dog-human biting incidents. In many instances children are involved but not always.
Excerpt:
"However, apparently that wasn't enough for the authorities in Sikeston -- and yesterday, they began rounding up 'pit bulls' out of people's homes to take to the shelter. Most will likely be killed there. It doesn't matter that these dogs were family pets. It doesn't matter that owners did everything to comply with the law. It doesn't seem to matter that the dogs had no history of aggression or complaints about them. It only seems to matter that they look like pit bulls, and the city authorities want them dead. All of them." http://btoellner.typepad.com/kcdogblog/2012/12/sikeston-mo-begins-pit-bull-roundup-.html
The Tracey opinion generated significant controversy in Maryland, in part due to the significant repercussions for those who could potentially be held strictly liable under the new ruling. This turmoil prompted Maryland’s General Assembly to establish a task force and convene for a special session to consider proposals for legislation to ameliorate the impact of the court’s ruling.
A proposal to enact “breed-neutral” strict liability legislation was debated. Other proposals included legislation prohibiting any legal presumption that a dog is dangerous or potentially dangerous solely on the basis of its breed; requiring the use of a negligence standard without regard to breed in all civil dog-bite cases; and establishing that only persons who were responsible for negligently exercising control over a dog could potentially be held liable for injuries caused by the dog.
Legislators were unable to reach a consensus, and no formal action was taken on any of the proposed bills, but it is expected that Maryland’s General Assembly will revisit the issue in the 2013 session. In the meantime, a Maryland federal court will consider a constitutional challenge to the ruling, raised in a lawsuit filed by a pit-bull owning resident of an affordable housing co-op, Weigel v. State of Maryland and Armistead Homes Corporation.
Other Jurisdictions and “Dangerous” Dogs
Strict liability legislation, breed bans, and legislation targeting irresponsible breeding and other care-and-keeping issues are becoming increasingly common.
As of 2012, approximately 36 states and Washington, D.C. have enacted legislation that makes dog owners strictly liable for any injuries caused by their dogs. Some of these laws are breed-neutral and impose liability without regard to any history of causing injury. Other statutes apply only to dogs “at large” or to “vicious or dangerous” dogs. These are generally defined as those who, unprovoked, have attacked a human being or an animal or who have a known propensity to do so; dogs trained or kept for dogfighting; and pit bulls and pit bull mixes.
Breed bans also have been enacted in many jurisdictions. Miami-Dade County, Fla., enacted an ordinance in 1989 that prohibits owning or keeping American Pit Bull Terriers, American Staffordshire Terriers, Staffordshire Bull Terriers, or any other dog that substantially conforms to any of these breeds’ characteristics. Prince George’s County, Md., enacted a similar pit bull ordinance in 1996.
Enforcement of a breed ban is costly, and many have questioned whether such laws are effective at reducing the incidence of dog bites or attacks. In May 2012, Cincinnati, Ohio repealed a nine-year old breed ban due to cost concerns and questions about its effectiveness. Baltimore and other municipalities have repealed breed-specific laws due to similar concerns.
Breed bans have been challenged on constitutional grounds, and the results have been mixed. The difficulty of properly defining the term “pit bull” is but one of the many issues.
According to the American Veterinary Medical Association, “breed-specific ordinances imply that there is an objective method of determining the breed of a particular dog, when in fact there is none at this time. Owners of mixed-breed dogs or dogs not … registered with a national kennel club have no means of knowing whether their dog is one of the types identified or whether they are required to comply with a breed-specific ordinance.”
Breed-specific legislation is controversial for several reasons. The CDC, the Humane Society of the United States (HSUS), and the American Society for the Prevention of Cruelty to Animals (ASPCA) oppose breed-specific legislation, primarily on the grounds that such legislation is not an effective means of achieving the goal of reducing the incidence of dog bites. HSUS’ position is based in part on a study published in the Journal of the American Veterinary Medical Association, which concluded that breed identification is problematic, making enforcement of such laws difficult.
NOTE: HSUS has rountinely called for the killing of pitbull types of dogs, including Michael Vick's dogs; HSUS has gone nationwide, and simply seized hundreds of animals from SWAT team raids and wiped all of the dogs out completely, in Louisiana, they did they by relying on the HSUS law they wrote, that a suspected "dog fighting" dog is in fact contraband and can be killed ASAP. No need to get a trial. HSUS has actually done many many of these raids and outright gotten many dogs wiped out, even puppies.
Another concern articulated by HSUS was that breed-specific legislation has the effect of creating demand for a new “killer” dog. Decades ago, the Doberman Pinscher was widely regarded as the most dangerous breed. Currently, pit bulls and Rottweilers draw the most attention. HSUS also expressed concern that breed-specific legislation does not address the issues of abuse, aggression training, and irresponsible dog ownership, factors that contribute to a dog’s tendency to bite.
NOTE: HSUS is NOT AN EXPERT ON PETS, or Breeding, or animal husbandry. HSUS is animal rights, and this is slowly but surely becoming known by pet and animal owners. See http://www.humanewatch.org.
A growing trend is mandatory insurance for dog owners. In 2012, the city council of Schenectady, N.Y., voted to require that persons who are convicted of two “dog at large” offenses or one “dangerous dog” offense must purchase liability insurance to pay for the medical expenses of anyone bitten by the animal. The initial proposal would have required that every dog owner carry $50,000 in liability insurance.
Insurance Issues
Homeowners’ and renters’ insurance generally will cover dog bite liability. The insurance industry has responded to the rising cost of dog-bite claims by incorporating breed-specific prohibitions or exclusions in such policies. Pit bulls, as well as Doberman Pinschers, Rottweilers, German Shepherds, Chows, Wolf Hybrids, Akitas, Presa Canarios, and other breeds have been the subject of exclusions.
Other measures taken by insurers to limit or manage the risk include requiring dog owners to sign liability waivers for dog bites; requiring that dogs be kept muzzled, chained, or caged; charging higher premiums for insuring certain breeds; or requiring owners to take their dog to behavior modification classes.
However, some states have reacted by adopting legislation prohibiting such provisions. Michigan and Pennsylvania have laws that prohibit insurers from cancelling or denying coverage to the owners of particular dog breeds. New York’s legislature is considering a bill prohibiting homeowners’ liability insurers from refusing to issue or to renew policies, or cancelling or charging an increased premium, based solely upon harboring or owning any dog of a specific breed or mixture of breeds.
These issues are far from being settled, but it’s important to understand the ever-changing issues and legislation at hand, especially when it concerns the bond between man and his best friend.
BSL and the ACF History of Colorado's Outright Ban on Generic Pitbull types of Canines
You have the authors permission to forward BREED SPECIFIC LEGISLATION BASED ON FACT OR FALLACY or use it for publication. The document is protected under ACF copyrights at this time can not be edited for publishing purposes.
Glen Bui
ACF
BREED SPECIFIC LEGISLATION—
BASED ON FACT --OR FALLACY ???
By Carolyn Chan
Breed specific legislation (BSL) is any law that seeks to eliminate or single out a particular breed of canine, usually premised upon a fictitious belief that such breed is somehow "dangerous."
On its face, singling out a dog breed may appear to address what some believe are safety issues with "certain" canines. However, both scientifically and socially, when one examines the issues squarely on a factual basis, it becomes apparent that this type of discrimination is not based upon facts, nor accurate data.
In addition, it becomes more obvious that this type of disparate treatment will not only be extremely expensive to implement and enforce, but also that its purpose will not be accomplished due to the faulty premises upon which it is based.
Why is this so? Most BSL is enacted in response to a highly publicized, and often sensationalized canine altercation in which a human is either hurt or killed. Since fatal attacks by canines are actually rare, when and if they happen, it is news fodder and it SELLS. Sensationalism is prevalent and a huge industry in the media world.
When enacting a law in response to such sensationalized stories, lawmakers do NOT take steps to ensure the stories are factual. Therefore, stories about a "pitbull" may really be about a "mastiff/lab" mix, or a "shepherd/boxer" mix, or any number of mixed breed dogs. Since there are at least 25-35 dog breeds that may resemble a "pitbull", it is extremely common for any canine bearing ANY resemblance to a terrier to be labeled a "pitbull."
There have been studies conducted in the past that are heavily relied upon by those who want to push for BSL. The fact is, those studies (there are only several) are not complete scientific studies, they were not done with complete variables, the evidence used was not adjusted for variables not taken into account, and the extrapolation from such studies is flawed due to the failure of not having set the foundation correctly to start with. Valid scientific studies take into account nearly every conceivable variable that might affect the outcome. Carefully controlled studies are done precisely and under carefully controlled circumstances—as opposed to "guessing", "speculation", and "we are not sure, but...."
Unfortunately, the SCIENCE of canine genetics has been thrown to the wayside, and has been reduced instead, to a few paltry "studies" relied upon by lawmakers, where such studies are not reliable, nor proven. This is even admitted by the people who did these studies, because they had incomplete data. Incomplete and inaccurate data does NOT lend itself to producing valid scientific results.
The result? You have laws which are based upon fallacy.
When lawmakers seize upon "singling" out breeds, they usually tend to select those breeds which are either large, or protection line types, or which tend to get the bad rap in the media. The "choosing" of such breeds is basically done on guesswork, speculation, and perhaps even upon propaganda pushed by extreme animal rights groups such as PETA.
Let us assume for a moment, that two breeds of canines have been singled out because lawmakers think they are "dangerous." Now, is that because they have read stories in the newspapers? Seen the news on television? Heard about stories on the radio? Knew someone who was mauled to death? Owned one of the breeds and was injured? Worked in canine handling and experienced these very breeds first hand? It would be my educated guess that the first two reasons listed are the answer. Most lawmakers know little and nothing about canine genetics. But they know that the public may be upset when something "happens" in their community involving a dog.
This then brings us to the issue of HOW do such things get taken care of?
In many cases, it appears that animal control seems to suddenly pipe up that certain breeds are being "euthanized", because no one "wants" them.
Then, extreme animal rights groups pop up with their position statements that such dogs are better off "exterminated" completely, or even worse, that all homeless pets should be killed rather than saved. One must remember that extreme animal activists have heavy followings of donators, and many of these are people who are already involved with animals (such as shelter volunteers, rescue people, and activists who promote "spay and neuter" as a mantra........)
To further convolute the issue, supporters of BSL like to bring in the topic of pet "overpopulation" and how it is allegedly caused by "breeders."
So now we have lawmakers looking at a few studies, which are flawed both scientifically and statistically, coupled with sensationalized media stories naming specific canine "breeds", and then heaped upon that, we have assertions by shelters and extreme activists that "overpopulation" is a problem caused by breeders. It should be noted that the overpopulation issue is purposely set up to detract from the "dangerous" aspect, because once that is done, many people forget about "dangerous" (which is false) and remember overpopulation. It’s called convenient detraction to me.
SO-----if one puts that all together, what we come up with is known as "BSL".
We now have a plan to "eliminate" canine breeds, perceived as "dangerous" by the media, and ostensibly whose members are taking up too much shelter space.
Does anyone else see a problem with this thinking?
First of all, wouldn’t it be logical to consult with canine geneticists and behaviorists on the so called issue of "danger" in selected breeds? Apparently not in today’s world, because despite the opinions of the AVMA and leading canine authorities (who do NOT support BSL)—lawmakers have now basically IGNORED the science aspect completely.
In California, it was not until this year that the legislature decided to forego its "non-specific" breed law. The non-specific breed law is and was based upon scientific evidence that no canine breed is inherently dangerous, and that therefore, no specific breed of canine was allowed to be considered as such.
Perhaps only after a highly sensationalized canine incident, lawmakers decide to revisit the specific breed issue. Somehow, the lawmakers believe that the former law should be changed so that ALL California counties could enact laws against named "dangerous" breed dogs, EVEN THOUGH NO DOG BREED IS TO BE CONSIDERED DANGEROUS.
The alleged intent of the new law specifically states that elimination of uncontrolled and irresponsible breeding is its "target."
Why? Because theoretically, according to lawmakers, this breeding is creating a public safety "risk" through production of "defective" animals (as currently stated in Chapter 7, Section 122330, Health and Safety Code of California.)
Note that only the alleged breeding of specific breeds is the TARGET of such legislation. Whether such owners may be the actual cause of canine problems due to their inappropriate treatment of animals is completely disregarded.
So if we are to believe that the actual so-called problem is the PEOPLE who may create "defective" canines, we should be controlling the PEOPLE who are supposedly to blame. Since it is a known fact that animal abuse (starving, torturing, chaining, never socializing, fighting, etc) will create a very unpredictable and possibly aggressive canine, it is very clear to me that the owner’s treatment of the animal can be paramount to the dog’s disposition. In other words, the owner may create a monster by inappropriate treatment of the dog, rather than having "bred" a defective dog.
Before one can make the huge leap from no specific breed of canine is inherently "dangerous" (which is the scientific truth, and proven )---- to choosing breeds to "eliminate or reduce" because they "ARE" dangerous, one needs to have accurate, factual, proven data. Information that has a reliable foundation, using scientific principles, and not based upon guesstimates, conjecture, or newspaper stories. BSL has no scientific basis--- unless you count media stories as genuine scientific evidence.
Spaying and neutering "every dog" in society is clearly not the answer, yet in Los Angeles, that is exactly what has been proposed since SB861 (aka BSL) started this year!!
The proposal must be the second most asinine proposal in terms of eliminating unsafe canines—second only to BSL which is based upon nothing but fallacy.
It is a shame, but dog owners today must prove their mettle in a court of law due to media hype, uninformed lawmakers, and radical animal groups focused on eliminating not only specific canine breeds, but domestic pet ownership itself.
In July 2003 the American Canine Foundation hired Ohio attorney Sol Zyndorf to challenge Ohio’s O.R.C. 955:11- 955:22 breed specific laws. On March 3, 2006, the Sixth Appellate District Court of Appeals in Lucas County, Ohio, issued a published decision finding that the breed specific law in question was UNCONSTITUTIONAL, on three separate counts, and the court entered Judgement for the pitbull owner!!!
This major VICTORY at the Appeals level shows that with hard work, a good team of experts, and keen counsel, dogs will get their day in court and prevail!
Carolyn Chan
Attorney at Law
DENVER FACT OR FALLACY Summary of Action of Kory Nelson of Denver, Infamous Hater of Pitbulls
Information taken from past facts/actions in early 2000's
Denver Colorado Legislative Update Denver's City Attorney Kory Nelson has been contacting cities across the United States and providing them information on Denver's breed ban on American Pit Bull Terriers. This data is not accurate and below are facts Mr Nelson is failing to reveal.
1. Mr Nelson lost his arguments that Denver's breed ban was constitutional in the Colorado 2004 legislative session when he tried to stop HB1279 from passing to be signed by the Governor. Mr Nelson presented documents Denver had used in the past, all manipulated data provided by radical animal rights organizations. The Senators and Legislators of Colorado did not find Mr Nelsons arguments credible and voted to end breed specific legislation in Colorado by voting yes to HB1279 which prohibits banning specific breeds of dogs in Colorado at the local and state level.
2. In 2004 Mr Nelson lost a legal battle in the Denver Municipal Court July 7, 2004 ( Margolius v Denver ) Mr Margolius was charged with violating Denver's breed ban. ACF challenged Denver's breed ban and at trial all of Denver's animal control officers were disqualified because they could not prove beyond a reasonable doubt they could identify what is known as the American Pit Bull Terrier. Mr Margolius's case was dismissed.
3. In 2004 Denver sued Colorado arguing they had a right to home rule over their breed ban. The state of Colorado asked ACF to intervene to provide expert testimony and research proving Pit Bull Terriers and others breeds are not genetically vicious or dangerous and do not inflict more severe injury than other breeds. The court hearing the case denied ACF's intervention without giving any reason. Then Colorado resident Marci Grebing filed a motion for intervention and the court denied that motion also giving no reason. A trial was heard on April 7 2005 regarding Denver's right to home rule, no constitutional arguments were raised, the trial lasted less than one day, Denver's expert Dr Borchelt had testified in a previous case ( Tellings v Toledo ) that he had done no research on American Pit Bull Terriers. In reviewing the evidence used at the Denver trial it was found to be erroneous and outdated. The judge reached his decision within minutes of the end of the trial . The court made no effort to consider current scientific data, accurate fatal dog attack data and hear from some of the countries leading experts on canine behavior and genetics.
4. Marci Grebing filed an appeal over the denial of intervention in Colorado v Denver, Mr Nelson filed a motion to dismiss Ms Grebings appeal, Ms Grebing responded addressing Mr Nelson's credibility to the court. The court of appeals denied Mr Nelsons motion and the case is moving forward. Ms Grebing is asking for a new trial where Denver dog owners and Colorado residents can be represented correctly.
5. Mr Nelson has been calling cities up providing them with misleading data telling them Denver's breed ban withstood a court challenge. This is not true and last year in the Margolius case Denver's breed ban did not stand up to court litigation. Mr Nelson's data was found not credible by the Colorado Legislature in 2004. Mr Nelsons motions in the Colorado Court of Appeals regarding the Denver v Colorado lawsuit were also found not credible.
6. Mr Nelsons behavior and that of animal rights agenda, of which Mr Nelson is promoting when he supports Denver's breed ban is one of the leading causes of the violence directed at American Pit Bull Terriers and their owners. The manipulation and intentional false data , the media hype, the sensational stories and all the lobbying for breed bans has resulted in death threats, domestic violence, the killing of family pets and the loss to the right to own property while at the same time criminalizing United States citizens. Refer to ACF Report ( REGULATION AND CONTROL OF DANGEROUS DOGS ) AMERICAN CANINE FOUNDTION 2005
Revisiting Colorado's Dog Fancier's case Which Created Outlawing of Pitbulls
"A group of animal organizations led by the Colorado Dog Fanciers did their best, filing suit against the city. But in 1992, the Colorado Supreme Court upheld a lower court ruling that Denver had a rational basis for outlawing pit bulls. The decision focused on the city's argument that the characteristics bred into the animals by dog fighters — characteristics such as strength, tenacity and a certain unpredictability in their signs of aggression — meant that pit bull attacks had the potential to be "more severe and more likely to result in fatalities."This ruling encouraged other municipalities to enact laws of their own regulating or prohibiting the possession of certain breeds, almost always in the wake of a headline-grabbing dog mauling. A website that maintains a state-by-state directory of such laws lists 415 cities and counties that today have some type of prohibition aimed at a specific breed of dog. But while a wide variety of breeds are involved in dog attacks, the vast majority of these laws — which range from requiring owners to carry insurance to mandates that dogs attend obedience training — target pit bulls."
http://www.westword.com/2009-09-24/news/for-two-decades-pit-bulls-have-been-public-enemy-1-in-denver-but-maybe-it-s-time-for-a-recount/full/
Animal, Pet & Dog Law, Criminal Defense > California > Chico
and all Nor Cal Counties
Carolyn J. Chan530-359-8810
2485 Notre Dame Blvd.
Chico, CA 95928
22 years of experience
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