Highest court ruling yet on breed-specific legislation favors it
ST. LOUIS, Missouri––A three-judge panel from the St. Louis-based, conservative-leaning U.S. Court of Appeals for the Eighth Circuit on November 10, 2022 unanimously delivered the strongest judicial affirmation yet of the constitutionality of breed-specific dog legislation, including outright bans on the possession and sale of pit bulls.
The Eighth Circuit U.S. Court of Appeals is the highest branch of the judiciary short of the U.S. Supreme Court in the states of Minnesota, Iowa, North Dakota, South Dakota, Nebraska, Missouri, and Arkansas.
Consistent with lower court rulings
The Eighth Circuit Court of Appeals ruling, favoring the city of Council Bluffs, Iowa, is consistent with the February 19, 2008 decision of the U.S. Supreme Court, issued without comment, to refuse to hear an appeal of Toledo vs. Tellings.
In that case, plaintiff Paul Tellings sought to challenge the constitutionality of an ordinance limiting possession of pit bulls to one per person, and requiring that pit bulls be muzzled when off their home property.
The Ohio Supreme Court in August 2007 found in the Tellings case 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.”
Tellings then appealed unsuccessfully to the U.S. Supreme Court.
Eleven state top courts have upheld BSL
The Arkansas Supreme Court previously upheld breed-specific legislation on similar grounds in Holt vs. Mamuelle (1991).
Similar state Supreme Court and appellate court rulings upholding breed-specific legislation followed in Colorado, Florida, Iowa, Kansas, Kentucky, Maryland, New Mexico, Utah, Washington, and Wisconsin.
The April 2007 Maryland Court of Appeals ruling in Tracey v. Solesky held that, “When an attack involves pit bulls, it is no longer necessary to prove that the particular pit bull or pit bulls are dangerous,” as a requirement of establishing negligence and therefore economic responsibility on the part of the pit bull keeper, since the risk that pit bulls might kill or injure people is widely known.
Tracey v. Solesky, however, did not directly pertain to community pit bull bans, and was undone in April 2014 by an act of the Maryland House of Delegates.
The November 10, 2022 ruling by the U.S. Court of Appeals for the Eighth Circuit is not binding on other appellate courts, including the other regional U.S. Courts of Appeals.
It is, however, the strongest precedent yet for the constitutionality of breed-specific legislation, and, if accepted for review, would appear unlikely to be overturned by the strongly conservative current U.S. Supreme Court.
Explained Rox Laird, also an editorial writer for the Des Moines Register, reporting for the Courthouse News Service, “Council Bluffs, a city of 62,000 on Iowa’s western border, passed an ordinance in 2005 that outlaws the possession or sale of pit bulls.”
The ordinance defines pit bulls as “any dog that is an American Pit Bull Terrier, American Staffordshire Terrier, Staffordshire Bull Terrier,” or “any dog with a majority of the physical traits of one or more of those breeds.”
Pit bull owners appealed
A coalition of pit bull owners eleven years later asked the Council Bluffs city government to repeal the ordinance.
The city government refused, pointing out that only 2.3 percent of the licensed dogs in Council Bluffs were pit bulls when the ordinance was adopted, but they had inflicted seven of the 29 reported dog bites in 2004. The total number of reported bites fell, after the ordinance was enacted, to just 13.
The pit bull owners then sued the city of Council Bluffs, claiming violation of their constitutional rights to due process and equal protection––the same contentions that were rejected by the Ohio Supreme Court in Toledo vs. Tellings.
“U.S. District Judge John Jarvey dismissed the suit on summary judgment, which the dog owners appealed,” summarized Rox Laird.
Representing the pit bull owners, attorney David Lopez of Husch Blackwell in Omaha, Nebraska argued before the Eighth Circuit U.S. Court of Appeals on September 21, 2022 that the Council Bluffs pit bull ban had no rational basis.
Wrote Laird, “U.S. Circuit Judge James Loken, a George H.W. Bush appointee, raised questions about separation of powers if the courts can override decisions by cities, and he posed a hypothetical of a public initiative on banning pit bull dogs.”
“Can the people say ‘We don’t want your scary pets?'”
Asked Loken, “If the question came down to whether people are afraid of pit bulls, and they voted for a ban, and the people have spoken, the question is whether the courts can overrule that. I think it’s a legitimate question. Can the people say, ‘We don’t want your scary pets in our presence?’”
Wrote U.S. Circuit Judge Duane Benton, a George W. Bush appointee, in the unanimous verdict, “The record here does not negate every conceivable basis for the ordinance’s rationality.
“The City had a conceivable basis to believe banning pit bulls would promote the health and safety of Council Bluff citizens,” Benton explained.
“After reports that a disproportionate number of dog bites were attributed to pit bulls, the city exercised its police power to regulate the ownership of dogs. The city had to decide where to draw the line on which breeds to ban. While the resulting ordinance may be an imperfect fit, this court cannot second guess or judge the fairness of legislative choices on rational basis review.”
Continued Laird, “Applying the standard of rational basis review––the lowest hurdle for assessing violations of constitutional rights––the court said the dog owners had the burden of negating every conceivable basis that might support the ordinance.”
“Behavior to some extent is heritable”
Completing the three-judge Eighth Circuit Court of Appeals panel was Judge Jonathan Kobes, a Donald Trump appointee.
“The appeals court said the dog owners’ evidence regarding the relationship between a dog’s breed or physical characteristics and its behavior actually supports some connection between the two,” Laird continued. “And the dog owners admit that behavior — to some extent — is heritable.”
Council Bluffs assistant city attorney Sara Bauer argued successfully, Laird finished, that “the city’s evidence and the science of dog breeds may not be precise, but that is not the standard under rational basis review. The Eighth Circuit agreed.”
Thanks for the post, Merritt/Beth.
Just wondering why you had to classify the judges’ according to the Presidents that appointed them. Does this affect their impartial diligence or professional deliverables?
Beth, I am still trying to understand why, the last image, you dressed the pit bull there like a Native American.
Merritt Clifton says
There tend to be significant differences in the judicial philosophies of judges appointed by Republican presidents vs. those appointed by Democrats. Conservative judges, in general, favor traditional “law and order” over “individual freedoms.” Most importantly, though, relative to dog attacks, is that appellate court verdicts rendered by conservative judges are much less likely to be reversed by the conservative majorities on the higher benches.
We have published Beth’s illustration showing the pit bull wearing Native American feathers several times in connection with coverage of dog attacks on Native American reservations believed to have been committed by dogs dumped on reservations by non-reservation residents, including previous coverage of the fatal attack on Chaille Simone Morgan.
Jamaka Petzak says
I’m not real comfortable with that illustration either, @Shamsudeen. I did read the explanation, Merritt and Beth.
Applauding the intelligent and logical decision of the Court, and sharing with gratitude.
Merritt Clifton says
Jamaka, please note that Sitting Bull is frowning at the pit bull, who has not been made “Native American” by someone putting a feathered headress on him.
Susan C. McDonough says
I wish that they would completely ban the breed. Not because I don’t like pit bulls, it’s because I don’t like many of the people who come to own them. Too many times, I’ve seen pit bulls literally being tortured by their owners. It is a part of certain cultures to own a pit bull and treat the creature horrifically. I would say the same thing about golden retrievers if they suffered the same fate.