OLYMPIA, Washington––Testifying before the Washington House Judiciary in support of her own bill to ban breed-specific legislation, HB 1018, state representative Sherry Appleton (D-Poulsbo) on February 11, 2015 misrepresented 95 years of relevant jurisprudence from the Supreme Court of the United States so completely as to invert the entire meaning of it.
Washington news media failed to notice the inversion, but it did not elude Dogsbite.org founder Colleen Lynn, a former Seattle resident who sought unsuccessfully to win an ordinance restricting pit bull possession before relocating to Austin, Texas.
Appleton, 72, a member of the Washington House of Representatives since 2004, chairs the House Committee on Community Development, Housing & Tribal Affairs. Appleton also serves on the House State Government and Public Safety Committees, the Washington State Council on Aging, the board of the Office of Public Defense, and the Commission on Judicial Conduct.
Wants to decriminalize hard drugs
Appleton may be best known for her repeated efforts to decriminalize possession of small amounts of addictive and otherwise dangerous drugs obtained for personal use. Her draft decriminalization bills would reduce from a felony to a misdemeanor the penalty for possession of substances such as methamphetamines, cocaine, heroin, and LSD, if not possessed in large amounts or for sale.
The legislation is opposed by the Washington Association of Prosecuting Attorneys, the Washington Association of Sheriffs & Police Chiefs, and the Association of Washington Cities, in part because the felony charges are often plea-bargained down to misdemeanors anyway in cases where small amounts of drugs are involved.
Appleton also unsuccessfully pushed a bill in 2012-2013 which would have required people to retreat from potentially dangerous confrontations with suspected criminals if he or she “knows or should know” that retreating would afford the potential victim “complete safety.”
Misstated Nicchia V. People of NY
Opening her February 11, 2015 testimony by asserting that pit bulls are “gentle, loyal, and great with kids,” Appleton went on to assert that “In 1920, the Supreme Court of the United States found that it was unconstitutional to have breed-specific ordinances and that cite was Nicchia V. People of the state of New York 254 US 228 (1920).”
Responded Lynn, whose perspective was affirmed by several attorneys with expertise in dog attack law, “Appleton’s reasoning is like saying Brown v. Board of Education supports separate schools for black and white students. Part of the primary basis of the Nicchia v. New York decision relies upon the U.S. Supreme Court decision in Sentell v. New Orleans & Carrollton R. Co. – 166 U.S. 698 (1897), which determined that the ‘property in dogs is of an imperfect or qualified nature’ and that government officials could shoot and kill loose dogs who pose a danger to the community. The combination of citing Nicchia and Sentell by appellate courts pertaining to upholding well-written breed-specific ordinances was done as recently as 2007 (American Canine Foundation v. Sun, Dist. Court, ND California 2007). These two SCOTUS decisions are used to support breed-specific laws, which is in direct opposition to Representative Appleton’s analysis.
“It is very easy to do a search on Google Scholar,” Lynn continued, “to see the number of times pit bull owners and breed advocates have tried and failed in federal and state appellate courts to advance similar ‘unconstitutional’ and ‘property rights’ arguments pertaining to breed-specific pit bull ordinances. The search terms are ‘Sentell,’ ‘pit bull’ and ‘property.’”
Toledo vs. Tellings
As well as American Canine Foundation v. Sun, Lynn cited Bess v. Bracken County Fiscal Court, 210 SW 3d 177 – Ky: Court of Appeals 2006.
But Lynn overlooked an even more recent affirmation by the U.S. Supreme Court of the constitutionality of breed-specific dangerous dog legislation.
On February 19, 2008 the U.S. Supreme Court upheld the constitutionality of breed-specific dog regulation without revisiting past jurisprudence by refusing to hear an appeal of Toledo vs. Tellings, a challenge to the former Toledo ordinance limiting possession of pit bull terriers to one per person, and requiring that pit bulls be muzzled when off their home property. The ordinance was repealed in October 2010 after a long campaign led by Toledo Blade publisher and pit bull owner John Robinson Block.
The Ohio Supreme Court had ruled in favor of Toledo in August 2007. The Ohio Supreme Court verdict followed other court decisions upholding breed-specific legislation in Arkansas, Colorado, Florida, Iowa, Kansas, Kentucky, Maryland, New Mexico, Utah, Washington, and Wisconsin. The breed-specific laws that occasioned several of the verdicts were later weakened or repealed by legislative rather than judicial action.
The Ohio Supreme Court rejected plaintiff Paul Tellings’ claim that he was denied due legal process because Tellings was notified about the requirements of the Toledo bylaw, and did receive the chance to be heard when he contested the charges brought against him for violating the bylaw.
The Ohio Supreme Court found that Toledo had legitimate reason to try to protect humans from attacks by pit bulls, because pit bulls, compared to other breeds, “cause a disproportionate amount of danger to people.”
Arkansas & West Virginia
The Arkansas Supreme Court upheld breed-specific legislation on similar grounds in Holt vs. Mamuelle (1991). An entity called Responsible Owners of Arkansas Dogs in December 2007 filed a case against the pit bull ordinances in effect in the cities of Jacksonville, Lonoke, North Little Rock and Beebe, citing claims parallel to those of Tellings’ attempt to overturn the Toledo ordinance.
In the most recent test of the constitutionality of breed-specific legislation, the West Virginia Supreme Court on January 14, 2013 upheld an ordinance prohibiting keeping pit bulls within the Town of Ceredo, and affirmed the November 2009 convictions of pit bull keepers Steve Hardwick, Sharon Nalley, and Glenna Pelfrey, who were each fined $162 plus court costs.
The West Virginia Supreme Court endorsed the finding of Wayne County Circuit Court Judge Darrell Pratt “That each Defendant’s dogs are of the breed that is typically referred to generically as pit bull dogs, which are aggressive by nature, known as attack animals with strong massive heads and jaws, and found to represent a public health hazard,” and that the Ceredo ordinance “is legitimate, specific, rationally related to…the constitutional powers of the municipality to impose safety regulations to insure the health, protection and welfare of the citizens.”
While appellate and federal courts have yet to strike down any breed-specific legislation, Pawtucket Superior Court Judge Brian Van Couyghen on November 18, 2014 ruled that the city of Pawtucket is constitutionally obliged to obey a law passed in 2013 by the state general assembly which prohibited breed-specific legislation, thereby overturning the Pawtucket ordinance against possessing pit bulls.
Nineteen other states have passed laws similar to that of Rhode Island and the Washington bill introduced by Appleton, but judges ruled in November 2004 and April 2005 that the Colorado law overstepped the home rule provisions in the state constitution. This allowed the ordinances against possession of pit bulls in Denver, Aurora, and several other Colorado cities to remain in effect.
Efforts to pass state legislation prohibiting breed-specific ordinances have been led by the Best Friends Animal Society, the Humane Society of the U.S., and the Animal Farm Foundation, a pit bull advocacy organization based in upstate New York.
Appleton misrepresented safety data, too
Beyond demonstrating either a weak grasp of U.S. constitutional law or disregard of it, Appleton also demonstrated a failing understanding of the hard data pertaining to pit bull behavior.
Far from being “gentle, loyal, and great with kids,” pit bulls have killed or disfigured more than 1,460 children in the U.S. and Canada since September 1982, accounting for more than 60% of all fatal and disfiguring dog attacks on children. Pit bulls during the same years have also accounted for more than 75% of all fatal and disfiguring dog attacks on adults.
Of the 46 U.S. victims of fatal dog attacks in 2014, 18 of the 23 child victims were killed by pit bulls, along with 18 of the adult victims.
As chair of the Washington state House Committee on Community Development, Housing & Tribal Affairs, Appleton might also have been expected to be aware that residents of Native American reservations are more than twice as likely to be killed by dogs as other Americans, and that 18 pit bulls have been involved in fatal attacks on reservations just since 2012.
In addition, as a member of the Washington State Council on Aging, Appleton might have been concerned that 12 of the 18 adults killed by pit bulls in 2014 were 57 years of age or older.