Chapter 10 Dangerous Dogs and Police Powers

• Library: Pet Law & Custody: Establishing a Worthy & Equitable Jurisprudence for the Evolving Family (ABA) (2017 Ed.)

Chapter 10 Dangerous Dogs and Police Powers

"People must have renounced, it seems to me, all natural intelligence to dare to advance that animals are but animated machines. . . . It appears to me, besides, that [such people] can never have observed with attention the character of animals, not to have distinguished among them the different voices of need, of suffering, of joy, of pain, of love, of anger, and of all their affections. It would be very strange that they should express so well what they could not feel."

—Voltaire

This chapter will provide yet another perspective as to how pets are viewed in American jurisprudence. If you were beginning to think from earlier chapters that dog personhood was imminent, this chapter is a reminder that the state's constitutional police powers still emanate from Sentell v. New Orleans Carrollton Railroad Co.¹ In this bygone era, when the rabies epidemic was alarming, not only did dogs have a lowly status, but also this lowly status could be even less than property—only quasi-property.² Unless a dog was dead or "subdued," the dog did not gain any property status.

TRAVEL RISKS

From the perspective of pets traveling between households, this chapter is a reminder that these arrangements pose risks, as we are now living in litigious times. If a garage door or pasture gate is left open and the family pet gets loose, there may be unpleasant consequences. Learning about dangerous dog procedures is important because if the other party in your pet custody dispute is careless and irresponsible, in a post-decree context, the ramifications of this individual's negligence may mean that your client endures the heartache of a dangerous dog proceeding³ or, worse yet, a resulting destruct order. Lawyers also need to know that where they live, certain breeds or breed look-a-likes may be the subject of urban legends.

IMPORTANT CASE LAW

Before getting into the nuts and bolts of a dangerous dog proceeding, there are a few cases in particular to be aware of. An important aspect of dangerous dog cases is whether the underlying statutes or ordinances pass constitutional muster. In Garcia v. Village of Tijeras,⁴ the threshold for a state's legitimate exercise of police powers was minimal when residents were afraid of loose Pit Bulls.

Another problem you will likely be presented with is how state laws and local ordinances will be reconciled. A good example of how this occurs is reflected in Hannan v. City of Minneapolis.⁵ There, the court looked at the conflicting state and local ordinances and applied four guiding principles: (1) the ordinance and the statute shall not contain express or implied terms that are irreconcilable, (2) the ordinance shall not permit what state law forbids, (3) the ordinance cannot forbid what the statute expressly permits, and (4) when no conflict exists between the ordinance and statute, the ordinance may contain additional or complementary terms to aid in furtherance of the statutory purpose.

After applying these principles, the Hannan court determined that the regulation of dangerous dogs by the applicable ordinance was not subject to the statutory preemptive doctrine because the ordinance was merely additional and complementary. More importantly, the court reminded the municipality that their regulations could not be breed specific.

Until Tracey v. .Solesky,⁶ the most famous case in the United States involving Pit Bulls was City of Toledo v. Tellings,⁷a case where the opinions of the appellate court and supreme court were at odds⁸ and the supreme court cited Sentell as a precedent.⁹ Before getting into the details of Tracey and other decisions impacting Pit Bulls, we turn once more back to the Sentell decision. To get a sense of the 1891 worldview, here are selected excerpts from the landmark Sentell decision:

• "The facts, however, were not properly before the court, and the opinion was put upon the ground that the state law was constitutional and valid as a police regulation to prevent the indiscriminate owning and breeding of worthless dogs."
• "Property in dogs is of an imperfect or qualified nature, and that they stand, as it were, between animals ferae naturae, in which, until killed or subdued, there is no property, and domestic animals, in which the right of property is perfect and complete. They are not considered as being upon the same plane with horses, cattle, sheep, and other domesticated animals, but rather in the category of cats, monkeys, parrots, singing birds, and similar animals, kept for pleasure, curiosity, or caprice."
• "They have no intrinsic value, by which we understand a value common to all dogs as such, and independent of the particular breed or individual. Unlike other domestic animals, they are useful neither as beasts of burden, for draught (except to a limited extent), nor for food. They are peculiar in the fact that they differ among themselves more widely than any other class of animals, and can hardly be said to have a characteristic common to the entire race."
• "All are more or less subject to attacks of hydrophobic madness."¹⁰
• "While the higher breeds rank among the noblest representatives of the animal kingdom, and are justly esteemed for their intelligence, sagacity, fidelity, watchfulness, affection, and, above all, for their natural companionship with man, others are afflicted with such serious infirmities of temper as to be little better than a public nuisance."

Jumping to the 21st-century decision of Tracey v. Solesky¹¹ out of Maryland, the court determined that Pit Bulls were inherently dangerous and landlords, aware of their presence, would be strictly liable for damages caused.

In County of Pasco v. Riehl,¹² a case about the constitutionality of a dangerous dog statute, the court utilized the often cited U.S. Supreme Court decision in Mathews v. Eldridge¹³ for the proposition that procedural due process requires that a person have the opportunity to be heard at a meaningful time and in a meaningful manner. A family dog named Sheba was labeled dangerous but there was no forum to advance the owner's procedural due process rights. Sheba bit a teenager during a game of pool after the boy had struck the dog several times with a pool stick. Her owner argued that Sheba had been provoked. The appellate court concluded that without an opportunity for a dangerous dog hearing, the statute was unconstitutional on its face, as due process was lacking.

A decision that reflects just how much discretion administrative agencies have over the future of a family pet, still only in property status, was well illustrated in Pelzel v. St. Paul Office of License, Inspections and Environmental Protection.¹⁴ Upholding the dangerous dog designation of a Labrador Retriever, the court reminded us that appellate review is limited to (1) whether the agency who made the determination had jurisdiction; (2) whether the proceedings were fair and regular; (3) whether the decision was unreasonable, oppressive, arbitrary, fraudulent, or without evidentiary support; and (4) whether the decision was based upon an incorrect theory of the law. The court declared that it was modifying the common law. The most important aspect of this case for animal law practitioners is that because the court framed the agency as having only quasi-judicial powers, no de novo review was available. This decision is also useful because it reminds practitioners of the importance of finding out if the municipality has an open file policy when it comes to dangerous dog proceedings. If there is an open file policy, the advocate has more opportunity to prepare.

When looking at the emerging case law regarding dangerous dogs, it is interesting to observe how artful lawyers can be with their efforts to find proof of a legal theory. No one could accuse Washington lawyer Adam Karp of not being resourceful. In Coballes v. Spokane County,¹⁵ a case involving a dangerous dog law, Karp prevailed when the court finally recognized what it characterized as a "statutory appeal in substance," as further discussed below. The lesson here is that even for an experienced animal lawyer conversant with appellant rules, it is challenging to understand and apply them, as well as to imagine how new ideas can be pushed forward.

Coballes is somewhat entertaining, as the analysis takes lawyers back to law school days as Karp offered up six different approaches to justify appellate review: (1) statutory judicial review, (2) constitutional writ of certiorari, (3) statutory writ of review, (4) statutory right of appeal, (5) constitutional writ of review, and (6) an ex parte motion for writ of review, assignment of judge, and waiving bond. The court gave the plaintiff the right to appeal, having decided that he had come up with a statute appeal in substance; this determination gave the plaintiff a broader scope of review than would have been available under a writ.

To get a sense of the spectrum of opinions in dangerous dog cases on the subject of due process, it is worthwhile to read both the court of appeals decision and supreme court decision in Sawh v. City of Lino Lakes.¹⁶ In the Minnesota court of appeals decision, the court worked through the three Mathews v. Eldridge¹⁷ due process factors. In doing so, the appellate court recognized that the family pet is distinguishable from other types of property and that companion animals have a special place in their owners' lives. In applying the Mathews factors, the court also said that procedural due process requires the opportunity to be heard at a meaningful time and in a meaningful manner before a dangerous dog declaration is made.

In a unanimous opinion, the Minnesota Supreme Court in contrast dialed back the clock to Sentell,¹⁸ but instead of calling a dog "quasi-property," per the Sentell dead nor subdued criteria, the Minnesota Supreme Court called the Labrador "tangible property." The court side-stepped the critical question impacting the city council's...