I.  INTRODUCTION 

Municipal legislators across the country recently have been confronted with the problem of serious attacks on people by pit bull dogs. (1)  As a result, lawmakers in several cities and towns have enacted legislation requiring pit bull dog owners to observe special regulations.  Traditionally, the passage of canine control laws has been considered a constitutionally legitimate exercise of a city's police power to protect the public's safety and welfare.  The pit bull dog ordinances, however, raise constitutional questions concerning the dog owners' fourteenth amendment rights of due process and equal-protection.

Because the ordinances effectively classify one breed of dog as inherently dangerous, the pit bull dog laws represent a new development in municipal police power legislation.  This Comment reviews the legislative responses to the recent pit bull dog attacks on people, analyzes the constitutionality of these responses, and suggests alternatives available to municipal lawmakers who are seeking to protect their constituents in a constitutional manner.
 

In the past four years, elected officials in many parts of the country have confronted the problem of fatalities and severe maulings of people by pit bull dogs. (2)  Reports of these attacks have prompted an anti-pit bull hysteria in various communities. (3) Many observers, including Humane Society officials and veterinarians, believe that the recent pit bull problem stems from two related social trends:  the increasing popularity of the breed as a status symbol, (4) and the alarming growth in the illegal sport of dog fighting.(5)

Responding to the attacks, four cities have enacted canine control laws requiring pit bull dog owners to take special precautions.  In 1980, the city commission of Hollywood, Florida passed an ordinance that required the owners of pit bull dogs to complete special registration forms and prove the possession of $25,000 of public liability insurance. (6) This regulation applied to the owners of any American Pit Bull dog, Pit Bull Terrier dog or Staffordshire Terrier dog. (7)  The Village of Tijeras, New Mexico banned pit bull dogs in a 1984 ordinance, and allowed county animal control officers to confiscate and destroy the dogs. (8)

In Cincinnati, Ohio the vicious dog regulation, as amended in 1984, defined vicious dogs to include all pit bull terriers and required that the dogs be confined indoors or in an enclosed, locked pen while on the owner's premises, and leashed and muzzled when beyond the owner's property. (9) The ordinance defined a pit bull terrier as any Staffordshire Bull Terrier or any mixed breed of dog containing Staffordshire Bull Terrier or American Staffordshire Terrier as identified by a veterinarian. (10)  The maximum penalty for violating the ordinance combined a $1,000 fine and imprisonment for sixty days. (11) Cincinnati lawmakers also banned the sale of pit bull dogs within the city limits. (12)  In 1984, the Village of Walbridge, Ohio modeled its new vicious dog ordinance after Cincinnati's regulations and further banned the ownership of "pit dogs" along with other dangerous animals, such as snakes, wild animals, and poisonous reptiles. (13)

Although each city's law is different in form, all of the ordinances have an important similarity - restrictions are specifically placed only on the owners of pit bull dogs.  Thus, one breed of dog has been singled out as inherently dangerous to society. The issue raised by these ordinances is whether they infringe upon pit bull dog owners' constitutional rights, especially the due process and equal protection provided by the fourteenth amendment.

A. The Fourteenth Amendment and the State's Police Power

Regulations designed to protect people and property from the destructiveness of dogs have existed since the time man first domesticated dogs. (14)  Early American courts upheld the constitutionality of various canine control laws because they viewed dogs as "imperfect" or "qualified" property, a position adopted from the early English common law. (15)  Under this view strict regulations did not interfere with the owners' rights to due process because dogs were not considered property. This initial basis for upholding the constitutionality of canine control statutes is no longer valid because dogs now have the legal status of valuable property. (16)

Today, the wide range of dog regulations are considered constitutionally legitimate exercises of the state's police power. (17)  The right of states to exercise police power is not derived from any provision in the United States Constitution but traditionally is implied from state sovereignty. (18)  Police power encompasses the protection of the health, safety, and welfare of the public. (19)  As a general rule,  exercises of the police power by a state or city are presumed to be constitutionally valid. (20)

While the police power is broad, it is not boundless, for the fourteenth amendment limits the power of the legislature to act with respect to private property. (21) In particular, pertinent sections of the fourteenth amendment provide that no state shall deprive any person of property without due process of law or deny any person equal protection of the laws. (22)  Due process involves both the substance of a law as well as the procedure by which it is enforced. (23)  In examining the substance of a health and welfare regulation, courts apply a basic test of reasonableness: (24) A police power regulation will be upheld as reasonable if the lawmakers can  show a rational connection between the requirements of the law and the promotion of the public safety. (25)  One aspect of procedural due process requires that a law provide citizens with adequate notice of what is prohibited: (26)  an ordinance is unconstitutional if it fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by statute. (27)   If an ordinance encourages arbitrary and erratic law enforcement(28) or if it places unlimited discretion in the hands of the police, the law will be unconstitutionally vague and violative of due process. (29)

Equal protection guarantees that classifications imposed by law will not be used to burden arbitrarily a group of people. (30)  Regulations that do not classify individuals based on suspect categories and do not affect fundamental rights receive minimal scrutiny under the equal protection clause. (31)  Specifically, all that is required is that there be a rational basis for the particular classification used and a reasonable relationship between the classification and the purpose of the law. (32) Classifications may be violative of the equal protection clause if they are underinclusive or overly inclusive. (33)
 

B.  Judicial and Legislative Recognition of the Police Power to Regulate Dogs

In 1897, in Sentell v. New Orleans & Carrollton R.R., the United States Supreme Court decided whether state and city canine control measures deprived a dog owner of his fourteenth amendment right to due process.  (34)  The Louisana appeals court had denied a New Orleans dog owner's right to recover for the death of his valuable dog because the owner had not complied with state and city dog registration laws. (35) The Louisiana state law recognized dogs as property only when the animals were registered on the assessment rolls; the New Orleans city law required the owner to purchase a license tag for his dog. (36)  The Court upheld the decision of the state court finding that both enactments were within the police power. (37)  The Court specifically 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. (38)  While conceding that most dogs are harmless, the Court approved the principle that legislatures have broad police powers to control all dogs to protect against the public nuisance posed by a vicious dog that endangers people and property. (39)

Courts have upheld a wide variety of canine control ordinances based on the Sentell principle that the state's police power to control dogs is virtually unlimited. (40) Modern canine control laws take various forms and cover numerous areas including licensing and registration, (41) running at large, (42) disease control, (43) kennels and breeding, (44) sanitation, (45) summary destruction, (46) ownership limitations, (47) and fighting. (48)  Procedures for violations of dog regulations usually proscribe impoundment of the dog, notice to the owner, release of the dog upon payment of fines or destruction of the dog if it is not claimed. (49)

In addition to the wide variety of regulations that require a dog owner to take specific precautions and to control his pet's activities, states have codified an owner's liability for damages caused by his dog. (50)  Under early common law every dog was entitled to "one free bite." (51)  Under modern statutes an owner is held strictly liable for his dog's actions - liability is imposed without regard for the owner's knowledge of his dog's viciousness. (52)

IV. CONSTITUTIONALITY OF PIT BULL DOG LAWS

The pit bull dog ordinances enacted in Florida, New Mexico, and Ohio are similar in many ways to other canine control measures.  The Hollywood ordinance, for example, requires owners to register their dogs, (53) and the Cincinnati ordinance prohibits running at large. (54)  The Florida and Ohio ordinances contain sections that require owners to control "vicious dogs"; these sections are clearly legitimate police power enactments.  (55) It is the provisions in the ordinances that require only pit bull dog owners to take certain precautions that raise constitutional questions.

By singling out one breed of dog for more stringent control, the new pit bull dog laws raise two  constitutional problems: first, because many breeds of  dog can cause harm to people, an ordinance that classifies only one breed as vicious appears to be underinclusive and therefore, violative of the dog owner's equal protection rights. (56) Second, because it is impossible to identify a breed of a dog with the certainty required to impose criminal sanctions on the dog's owner, it appears that the ordinances are unconstitutionally vague, and therefore violative of procedural due process. (57)  Another potential constitutional problem raised by the ordinances, but easily disposed of , is whether the ordinances violate substantive due process. (58)

A.  Substantive Due  Process
With respect to the substantive due process requirement, and the application of the reasonableness test, the crisis atmosphere present when the recent pit bull dog laws were enacted appears to support the reasonableness of singling out one breed of dog as a legislative response to a public problem.  The perception that pit bull dogs are dangerous is based upon the increasing number of reported attacks on people, (59) the physical characteristics of the dog, (60) and the historical use of the dogs as fighters. (61)  While it may be argued that the media attention focused on pit bull dogs created the perception of danger, the response by the legislators to the perceived threat of danger was not clearly unreasonable and, therefore, probably not violative of substantive due process.

B.  Equal Protection
Under an analysis of the ordinances in view of the fourteenth amendment equal protection clause, the pit bull dog laws appear to be unconstitutional because the classification of one breed as inherently more dangerous than others is arbitrary and underinclusive.  While a deadly assault is tragic, it is  unduly oppressive  to classify pit bull dogs as uniquely dangerous.  Many breeds are capable of and responsible for fatal attacks on  people.  A 1982 report found that sixteen different breeds were responsible for seventy-three fatal attacks on people. (62)  Pit bull dogs were responsible for six fatalities, the same number as Great Danes. (63)  Statistics on dog bites also demonstrate that pit bull dogs are not uniquely dangerous.  In the first ten months of 1983, the Cincinnati Health Department investigated 478 dog bites, involving thirty different breeds. (64)  This investigation found that pit bull dogs were responsible for only about seven percent of the injuries to people (65)

Statistics on fatalities and injuries caused by dogs cannot be used to document  the dangerousness of  one breed as compared to another because it is impossible to know how many dogs of a certain breed are in the general canine population at any given time. (66)  It is possible, however, to quantify the ratio of injuries caused by  one breed to the total number of reported injuries.  These statistics do not support the conclusion that pit bull dogs pose a greater threat to the community than any other breed. Therefore, regardless of the media attention focused on pit bull dog attacks, it appears that it is arbitrary to classify only one breed as inherently vicious.  Requiring pit bull dog owners to take special precautions therefore appears to be violative of the equal protection clause of the fourteenth amendment. (67)

C.  Procedural Due Process
In addition to violating the dog owners' fourteenth amendment rights to equal protection, it appears that the pit bull ordinances are unconstitutionally vague, and therefore violative of procedural due process.  Because the ordinances are structured to apply only to certain breeds, the laws imply that there is some method of determining a dog's breed.  In fact, however, no objective standard or test for identifying a dog's breed exists. (68)  Under the procedural aspect of the due process clause of the fourteenth amendment such a determination is necessary for citizens, who must have notice of the reach of the law, and for the police, who must selectively enforce the law. (69)

If a dog is registered, the  owner has no difficulty knowing whether he must  comply with an ordinance applicable to a particular breed. (70)  The term "pit bull," however, identifies no specific breed of dog recognized by either the American Kennel Club or the United Kennel Club, the two largest American registries. (71) Therefore, it is difficult to determine exactly which registered breeds a pit bull dog ordinance encompasses.  The American Kennel Club, for example, registers three breeds that are mixtures of bulldog and terrier:  the American Staffordshire Terrier, the Staffordshire Bull Terrier, and the Bull Terrier. (72)  The United Kennel Club registers the American Pit Bull Terrier. (73)  Even if an ordinance named all of these breeds, however, the enforcement and notice problems created by the pit bull dog laws would not be resolved because the vast majority of dogs are unregistered. (74)

In 1982, the Everglades Pit Bull Dog Club challenged Florida's pit bull law on the grounds that it was vague, arbitrary, and unfair in violation of due process. (75) The Brownard County Court found for the challengers and struck down the ordinance as an unconstitutional infringement of pit bull dog owners' fourteenth amendment rights. (76)  The court found it was impossible to identify the breed of an unregistered dog. (77)  Because the ordinance only applied to the owners of an American Pit Bull, Pit Bull Terrier or Staffordshire Terrier the court found notice problems for citizens and enforcement problems for the police. (78)  Owners of mixed breed or unregistered dogs had no means of knowing whether their dog was one of the types listed and whether they were required to comply with the statute. (79)  Additionally, the police had no means for determining a dog's breed and no standard for deciding whether an owner was in compliance or in violation of the law. (80)  The court believed this situation would lead to arbitrary, unequal and unfair enforcement of the law, a situation clearly in violation of due process. (81)

The ordinance enacted in Cincinnati, Ohio, attempted to overcome the notice and enforcement problems created by  unregistered and mixed-breed dogs.  The ordinance applied to any mixed-Breed dog that a veterinarian identified as being partially of the American Staffordshire Terrier or Staffordshire Bull Terrier breed. (82) Ohio veterinarians claimed, however, that they could not identify a dog's breed using any test known to science; any evaluation can only be based on subjective visual  "speculation," and according to the Ohio Veterinary Medical Association, giving an opinion not based on scientific fact is "totally inappropriate" for a veterinary  physician. (83)  Thus, despite its best attempt to overcome the identification problem, the Cincinnati ordinance still leaves pet owners and law enforcement officers without a workable, objective standard that provides the certainty necessary for the imposition of criminal liability.

V.  RECOMMENDATIONS AND CONCLUSION
 

While breed-specific ordinances are invalid police power exercises because they unconstitutionally infringe upon the due process and equal protection rights of dog owners, municipal lawmakers can respond effectively to citizen pressure for action following a pit bull incident.  First, lawmakers can enact strict vicious dog laws that penalize the owners of all dogs causing harm, regardless of the dog's breed. These laws can impose strict liability, regardless of the owner's previous notice of the dog's viciousness. (84)  Second, lawmakers can promote more effective enforcement of all existing canine control laws, especially those prohibiting unleashed dogs in public areas. Third, elected officials can support the efforts of Humane Society  officials and others trying to enforce the laws against dog fighting.  The widespread increase in dog fighting is a major cause of the current pit bull dog problem. (85)  As long as owning a vicious dog is economically profitable, as it can be for even back-alley dog fighters, banning one breed will not resolve the problem of injuries to people. People who profit from abusing animals can easily replace one breed of dog for another.

Laws that impose strict liability on the owner of a vicious dog, that require all pet owners to reasonably restrict their animal's activities, and that severely penalize those involved in dog fighting, have been widely upheld as constitutional exercises of police power. (86)  In addition to being constitutionally valid, laws of this type approach the protection of the public welfare and safety with the degree of precision that characterizes effective legislation. These recommendations recognize the current problem with  pit bull dogs accurately as a problem of vicious dogs, not a vicious breed.

Finally, these recommendations also recognize the current problem of vicious dogs at its source:  the individual dog's owner.  Dogs are the products of their past and present masters.  Man has domesticated dogs to the point where they serve as companions, workers, and even objects of beauty.  Dogs will protect man, see for him, hunt for him, play for him, even, fight to the death for him.  One breed is not inherently good or evil, vicious or docile, harmful or helpful. Individual dogs can be selectively in-bred and trained to be aggressive, and , currently, it appears many pit bull dogs are being abused in the in this way.  Attempts to legislate the breed out of existence, however, fail to understand that a vicious pit bull dog is not the only threat to a community.  People determine whether dogs will be useful inhabitants of a community or nuisances.  It is the people who breed and foster viciousness in dogs whom legislators also must control.

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