| Subject: Alabama Supreme Court / Pit Bulls/Genetics 2002 |
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WAF
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Date Posted: 15:13:44 10/13/02 Sun
This is a link to an article on the Alabama Supreme Court case:http://www.ourdogs.co.uk/News/September2002/News060902/bsl.htm
The Supreme Court affirmed the Trial Court's ruling.
Two issues were raised, Huntsville claimed Pit Bulls are genetically dangerous and there was no right to adopt the Pit Bulls.
The Alabama state dangerous dog law was an issue, however with affidavits from Veterinarians supporting Hunstville's claim that all Pit Bulls are genetically dangerous, the state law was at serious question. WAF brought in genetic proof that no breed of dog is genetically dangerous.
Refer to Amicus Brief by WAF submitted to the Alabama Supreme Court.
First Draft/first 6 pages Amicus/
INTRODUCTION:
Now unto this Honorable Court comes Cynthia McCammon, CEO of the national Seattle based Washington Animal Foundation, hereinafter referred to as (WAF), to file a brief amicus curiae. The amicus curiae in this case is a non-profit organization that advocates for responsible dog ownership. WAF assists with legislation and education. In 2001 WAF assisted the state of Louisiana in revising their dangerous dog law. WAF assisted seven cities in passing "dangerous dog laws" including Walla Walla, Washington , WAF worked with State Senators and Representatives in California, Florida, Washington, Washington DC,New Hampshire, Oregon, Maryland, and in Europe, Denmark. In 2002 we drafted dangerous dog laws for the U.S. Government for use on military installations in place of breed specific legislation. WAF endorsed SB6635 in Washington, which prohibits declaring a dog dangerous by breed.
Our organization has a strong interest in this case, re: breed bias policy of City Appellant and the City of Huntsville's intense resistance to citizens availing themselves of the courts to question its illegal policies.
In Sentell v. New Orleans & Carrollton RR., 166 U.S. (1897) the United States Supreme Court found that dogs are subject to the full force of the police power and may be destroyed, or otherwise regulated in whatever manner the legislature deems reasonable for the protection of citizens. While most dogs are deemed harmless, the court approved the principle that that legislatures have broad police powers to control all dogs, in order for protection against the public nuisance posed by a dog that has been declared visious and endangers people and property with due process of the law.
STATEMENT OF THE CASE
In question are four young Pit Bulls that were ordered by the 23rd State Circuit Court if Madison County to be released and adopted to Sheila Tack, Kay Nagel and Loyce Fichser because the were not deemed to be dangerous. According to testimony on November 13, 2001 in the 23rd Circuit Court transcript Vol1: 5, Judge Battle cited the Alabama State Code 3.1.29 Section (e) as one of the reasons to allow the women to intervene. The four young Pit Bulls is question have not been trained to fight and from all the testimony in the 23rd Judicial Circuit court of Alabama transcript dated November 13, 2001 it is clear they show no signs of viciousness, and have received minimal, but adequate socialization from shelter employees. The transcript proves, R Vol. 1: 38-39 in response to questions asked by Kay Nagael to Dr. Jackson that the four young Pit Pulls have shown no signs of aggressive behavior, and have not reached full maturity. The lack of viciousness, in conjunction with the offer of good homes seeking their adoption, clearly proves these four young Pit Bulls have a useful purpose, and that the Circuit Court's rulings, of November 13,2001 and December 17, 2001 were correct. The lower Court ruled the release of the puppies to the intervenors. The City sought a stay. The City appealed to this Honorable Court and requested a stay, claiming the "dogs are vicious" this Honorable Court granted the City its stay based on that representation. On April 1, 2002 WAF filed a Petition seeking to file Amicus Curiae Brief. On april 10, 2002 this Court gainted WAF's petition for permission to file amicus curiae brief. On april 18, 2002 this Court granted WAF's petition for permission to file an amicus curiae brief. On april 16, 2002 WAF filed its brief.
Alabama Animal Fighting Code 3-1-29
"Any dog used to fight other dogs in violation of subsection (a) of this section, shall be confiscated as contraband by the sheriff or other law enforcement officers and shall not be returned to the owner, trainer or possessor said dog. The court shall award the animals to the humane society or other agency handling stray animals shall humanely dispatch or of any confiscated dog."
Sheila Tack, Kay Nagel, and Loyce Fischer filed the peoper notion to intervene. Cowanv. Tipton IF, R, D. 694 (ED Tenn 1941). The Judge did not abuse his discretion for allowiang intervention. In the transcript in R Vol, 4-15 ; it clarifies why the Judge allowed intervention from the three women. These dogs were found not to be vicisious only that there parents seized in a dog fighting case.
The city has taken issue with the term, PUPPY. These young dogs are still puppies, Dr. Ann Theissen DVM, who is an expert, best defines the definition of a puppy. She has been involved with scientific resarch involving growth development of these dogs.
1.Behavior components of a dog are not fully developed until 24 months or more.
2.Social maturity of 13 months or more.
3.Height 13 months Width up to 3 yers or more.
4.Testing for displastic hips 2 years or older.
'The four young Pit Bulls involved in this case are still
growing and have not fully matured. From the evidence presented and the offer the three women made the city of Huntsville (far more than required by Alabama Law).
1. Insurance bonds on all the dogs.
2. Spayed and neutered
3. Residing outside the city limits in a fenced spacious area
4. Under the care of a licensed veterinarian.
The Washington Animal Foundation finds these three women(Sheila Tack a registered, ER nurse whose hobby is raising and caring for animals, Kay Nagel, whose husband is a Lieutenant Colonel in the US Army and who owns a Pit Bull, and Loyce Fischer who rescues dogs and works for the Missiles and Rocket project in Huntsville, Alabama) to be extremely responsible and excellent candidates to adopt these dogs.
WAF reviewed all documentation on this case. The city of Huntsville cited Dr. Jackson several times. In reviewing her testimony WAF finds no proof she is an expert on genetics. In fact the WAF found her testimony concerning Dr. McCurdy, Mary Vereen and Jeff Abernathy that would raise serious questions about their knowledge on genetics and Pit Bulls. WAF also concluded from the testimony that these four Pit Bulls have received minimal, but adequate socialization from shelter employees.
The city of Huntsville, by its proclaimed policy has declared a dog dangerous by its breed. Eleven states, Florida, California, New York, Pennsylvania, Washington, New Jersey, Minnesota, Texas, Maine, Virginia and Oklahoma all have state laws that prohibits declaring a dog dangerous by breed, and the current legislation is learning toward this theory in other states. Breed specific legislation does nothing to stop illegal activities involving dogs or reduced dog bites. It has cost cities, like Cincinnati, millions of dollars in enforcement, law suits, and failed to address the real issue, which is a responsible ownership.
There is no scientific proof that Pit Bulls, or any other breed of dog is dangerous. The Foundation's collective experience and research has found the American Pit Bull Terrier is a "terrier" All terriers have animal prey drive, this does not make them dangerous or vicious. The breed has to be trained to fight. Although in some cases the Pit Bull is known to be a fighting dog. It was not bred for fighting. The breed comes from Europe and evolved from the 25lb Staffordshire Bull Terrier, it was originally bred for bull baiting. English and Irish immigrants imported the dogs. Unfortunately, it was discovered in the late 1800's that if trained, the dogs could be used in the inhumane sport of dog fighting. Due to federal laws passed in the 1970's prohibiting dog fighting fewer dogs are now trained for the illegal sport.
The American Pit Bull Terrier is rated as one of the top 5 breeds in this country. It is shown exclusively in the American and United Kennel Clubs in the Conformation and obedience ring. According to the American Temperament Test Society (POBox 4093, St Louis, and MO 63136 Phone 314-869-6103, in the 24 years of testing over 185breeds of dog, the Pit Bull rates at 83.1%. This is higher than the national average for all other breeds of dog. This means the Pit Bull has the best over all temperament. The ATTS tests dogs everywhere in the country, and is recognized by the AKC and UKC. The Pit Bull is used for Search and Rescue and Therapy. Our Foundation uses them along with other breeds for bite prevention and responsible ownership classes in the Washington School Districts. Two US Presidents owned Pit Bulls and countless famous people own them. In our country more families own the Pit Bull than any other dog breed in existence.
Dr. Cornelia Wagner DVM an expert on genetics from the University of Wisconsin States:
"Aggressive behavior in dogs is a species-specific trait which is firmly established genetically, because it has been highly influenced by natural selection during evolution as well as by artificial selection through man. However, the fact itself that the aggression level of members of certain breeds may be increased (or decreased) through artificial selection does not prove that aggressiveness itself is a highly hereditary trait. In most cases, dogs that are selected for higher levels of aggression are raised in a very aggression-stimulating environment, which then in turn imposes the wrong impression of a genetically based hyper-aggression. (Stur,2000) Zur Frageder besounderen Gefahrlichkeit von Hunden auf Grund der Zugehorhrigkeit zu bestimmten Rassen. http://www.hund-und-lter.de/arbeitspapiere/arbeitspapiere-uebersicht.html. In these situations environmental factors are ignored and blame for aggressiveness is placed on the genetic make-up of the dog. Blaming the genetic make-up of the dog is wrong.
(Fedderson-Peterson, D.U.(2001) Zur Biologie des aggression des Hundes, Disch Tierarzil, Wschr 108 (3),94-101, environmental and learning effects are always stronger than genetic influence. Although certain dog breeds such as the Rottweiler and American Pit Bull Terrier have the reputartion of having stronger jaws than other breeds, valuable scientific studies showing significant differences in jaw strength among breeds does not exist. In summary, the classification of dog breeds with respect to their relative danger to humans makes no sense, as both the complex antecedent conditions in which aggressive behavior occurs, and its ramifying consequences in the individual dog ecological and social environment are not considered.
There is no scientific proof that genetics cause a breed of dog to be aggressive, vicious or dangerous. Irresponsible owners are to blame for the behavior of dogs that are aggressive, vicious or dangerous. To have these four Pit Bulls destroyed would be an injustice and genocide to a specific breed of dog. The Washington Animal Foundation finds the American Pit Bull Terrier not to be a dangerous dog.
ARGUMENT
City, appelent in their brief seeks to respond to Appelee's sstatement of facts. Their claim is that the statement of facts by the Appelees is incorrect. The city in their brief is attempting to confuse the honorable court between the 28 allegedly trained fighting dogs already put to death, and the puppies born in captivity. These four puppies have had no training for fighting. The city seeks through osmosis of genetics of the young Pit Bulls still in its possession are dangerous. The Appellant offers no credible evidence that these four remaining puppies are dangerous or vicious.
THE RULING BY THE TRIAL COURT ON THE ISSUE VELNON OF DANGEROUSNESS OF THE PUPPIES IS IN FACT AN ORE TENUS RULING.
Appellant is wrong in their claim that the ore tenus rule does not apply to this case. The Circuit courts ruling, that the four puppies were not dangerous or vicious, is an ore tenus and is established absent abuse of discretion or plain error. Consequently, the issue of question of whether the four puppies are dangerous has been determined by the court in its ore temus ruling and should stand. If these puppies are not dangerous/vicious they may not be killed for being vicious. The court correctly ruled that Alabama Code section 3-1-29(e) is not applicable to the four dogs in question. The Circuit Court's ruling on that factual issue is also ore temus. Alternatively, 3-1-8 does not apply, as the have not been abandoned, they were ostensibly taken and retained under section 3-1-29 of the Alabama Code.. Because the puppies have been determined not to be vicious, and that they have a useful purposes, having not been trained for fighting, Section 3-1-29 did not apply. this fact was established by the hearing in that issue on November 13 2001 as the court's stated in it's order og december 17, 2001. If as the court ruled section3-1-29 is not applicable to these puppies, then they must be treated like any other impounded animal pursuant to 3-2-22, which mandates sale to the public of animals taken.
In the case of Zuniga v. San Matero Department of Health Services 218 Cal. App. 3d 1521,267 Cal. Rptr. 755 (Cal. App. 1 Dist. 1990), the city of San Mateo's counsel uned the identical argument for a "dangerousness" finding. In the courts rejection of the city's theory of "inherent nature" or congenitally "dangerous animals", the court stated @id.,page 762 "[1]t is some how ironic the respondent [city] who controlled all but one of the above factors having some impact on the maturing puppies' nature now seeks to declare them dangerous. A more realistic assumption is that in order to discount its own contribution to the lack of socialization and training of the caged puppies, respondent of necessity, must advance the theoretical argument that these puppies were congenitally "dangerous animals". a position for which no competent evidence was offered or received."
In the present case, there is absolutely no competent evidence that these Young Pit Bulls are vicious. The evidence offered in Dr. Jackson's testimont demonstrates she has no expertise on genetics. The record shows her factual history and credentials are inadequate (see R. vol. 1, 53; 9-11). She repeatedly admitted her own and the city bias against ALL Pit Bull Terriers in her subjective determination the the Pit Bull is a "bad breed". (See R. Vol. 1, 44: 10-21, 49:16-25,50: 1-12, 51:1-16). Her admissions proved sher own bias and that of the City. The Veterinary Medical Association has stated, that for a veterinarian physician to testify giving an opinion not based on scientific facts is "totally inappropriate". The Association's position did not prevent Dr. Jackson fromespousing her opinion as scientific fact. Dr. Jackson's testimony proves the city has an agenda that all Pit Bull Terriers acquired by the city would be put to death irrespective of viciousness. The policy of not adopting out any "Pit Bulls", and killing all of that perceived breed was confirmed when the court itself asked the question "any other than the pit bulls" Jackson: "The pit bulls are the only ones that we have a firm policy about not adopting out" Unfortunately, that means that no Pit Bulls are allowed to live if taken up by the city. Targeting a breed is illegal and the city's admitted policy is a violation of Alabama State Law section 3-2-22. This violation results from the clear statement that these dogs are never offered for sale. Without representation they are systematically killed. These innocent Pit Bulls are routinely eithanized irrespective of a viciousness determination simply as a result of a genetically biased policy.
The city of Huntsville has adopted an illegal practice without any authority. It never offers any of these animals a chance of adoption and a good home. Would be owners are arbitrarily discriminated against with out any hering or any simulance of due process. The city has accomplished this without authority of law.
While police power is broad it is not boundless, for the fourteenth amendment of the United States Consitution limits the power of the legislature to act with respect to private property. In particular, pertinent sections of the fourteenth amendment provide that no state shall deprive any person of property with out due process of law,or deny any person equal protection of the law. If an ordinance encourages arbinance encourages arbitrary and erratic law enforcement, or if it places unlimited discretion in the hands of the police, the law will be unconstitutionally vague and violative due process. (Papachrista v. Jacksonville, 405 U.S. 156, 168 (1972). In this case the City argues that it simply has the power, without any statutory authority, to pick a breed for termination. It then denies the public the statutory right to buy an animal, a Pit Bull Dog, simply by the cities subjective classification of its breed. While there may be liability if a dog bites someone without provocation, Code of Ala. 1975 3-6-1 et, seq, Under Alabama State dangerous dog law a dog had to bite to be considered dangerous, even a biting dog is allowed due process and the owner is entitled to mitigation 3-6-3.
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