The Tracey case is problematic on many levels, from the case law it provides to back its conclusions to the conclusions themselves. Shirking precedent with no compelling reason to do so, the Tracey court engaged in some pretty abrasive judicial activism. With a nod to 5th grade social studies class, I will remind everyone that it is the legislative branch that is the “law making” government branch; the judicial branch is technically limited to interpreting the laws. Courts often decline to create new law, particularly in areas where the regulation typically is statutory. That certainly is the case with strict liability in dog bite cases, as the common law analysis involves a negligence analysis. The Tracey decision is especially odd because the issues in the case were essentially factual – needing interpretation within the established dog-bite-liability framework. The court transformed the factual dispute at bar into a dispute about the relevant law, opting to make a broad law change instead of a narrow, fact-based holding. It is not clear why the court made the decision it made, but, looking at the cases and evidence cited – and comparing it to the cases and evidence it chose to ignore – it is clear that “neutral decision-maker” is not a term we can accurately apply to the judges who authored the majority opinion.
Maryland Case Law Cites
The following cases are cited to by the court as other instances of “pit bull attacks” in Maryland case law.[1] These cases were all cited to prove that “pit bulls” are inherently (by their very nature) vicious. What I see is a lot of owner misconduct and mistreatment. It is beyond me how a court can fairly say that these dogs were raised properly in loving homes and that it was their instinctive inclination for aggression that caused these incidents, yet that is why the court offers these cases.
1. Shields v. Wagman, 350 Md. 666 (1998): (1) pit bull was kept on commercial premises (auto repair shop) permanently as a junk yard dog (2) the dog was kept either in an outdoor pen or chained up (3) more than one time, the dog was found running free, illegally, in the public parking lot of the strip mall where the repair shop was located (4) the bite victim had come to the shop for auto repairs (5) the dog saw her through the door, and started barking (6) the door was not properly closed; the dog pushed the door open (7) the dog bit the victim on the calf (8) remarkably, the owner allowed a second incident to happen where (9) unrestrained in the parking lot, yet again, the dog chased and bit a customer
2. Matthews v. Amberwood Associates Ltd. Partnership, Inc., 351 Md. 544 (1998): (1) dog was illegally on the premises (2) dog was often chained and left unattended outside the apartment building (3) dog was friendly when owner was present, unfriendly when owner was not present (4) the owner knew this (5) the owner invited a friend over; the friend brought her 5-year-old and her 16-month-old with her (6) knowing how the dog behaved, the owner left her friend alone in the apartment with the dog (7) the dog attacked the younger child, who died from his injuries
3. Moore v. Myers, 161 Md.App. 349 (2005): (1) three girls were walking by the home where the dog lived (2) owner’s 15-year-old son threatened to “sic” the dog in the girls (3) the son then encouraged the dog to go after the girls (4) one of the girls, Monica, became afraid and started running (5) she ran into oncoming traffic and was hit by a car (6) the dog never bit her.
4. Ward v. Hartley, 168 Md.App. 209 (2006): (1) this dog was actually a mixed breed dog (2) the victim was a stranger (cab driver) who had come to the house to pick up one of the daughters for an appointment (the daughter was 11) (3) the child answered the door, letting the dog slip out (4) the dog approached the cab driver (5) the cab driver hit the dog in the face (6) then the dog bit him on the foot
Over 14 years, “pit bulls” were involved in a mere three dog bite cases. If, in 14 years, there were three car accidents causing injury to humans, or three fatal shootings, or three slip-and-fall accidents, we’d be living in a nearly injury-free society.
Outside Case Law Cited
The following cases from other jurisdictions were used to support the notion that “pit bulls” are vicious:
1. Bachman v. Clark, 128 Md. 245 (1916)
a. Used to indicate a long history of “pit bull attacks”
b. This case involved a dog identified as a bull terrier – and the court offers no proof that “bull terrier” meant a dog that could be identified as a pit bull today
c. The dog was running loose and left its property
d. The opinion conveniently fails to discuss these earlier bite cases: Buck v. Brady, 110 Md. 568 (1909)(Collie); Twigg v. Ryland, 62 Md. 380 (1894) (unnamed breed); or Goode v. Martin, 57 Md. 606 (1882)(Newfoundland and a “small terrier”). The reality is, dogs have been biting us since we’ve been owning them, including animals from all breeds and sizes. Suggesting that “pit bulls” are the only dogs that have been biting us for over 100 years is ridiculous. In fact, prior to 1916, zero cases named a “pit bull” or “bull terrier” as the offending dog’s breed.
2. This quote from Toledo v. Tellings[2]:
The chief dog warden of Lucas County testified that (1) when pit bulls attack, they are more likely to inflict severe damage to their victim than other breeds of dogs, (2) pit bulls have killed more Ohioans than any other breed of dog, (3) Toledo police officers fire their weapons in the line of duty at pit bulls more often than they fire weapons at people and other breeds of dogs combined, (4) pit bulls are frequently shot during drug raids because pit bulls are encountered more frequently in drug raids than any other dog breed. The trial court also found that pit bulls are ‘found largely in urban settings where there are crowded living conditions and a large number of children present,’ which increases the risk of injury caused by pit bulls
a. The chief dog warden is not an expert in dog bite damage analysis
b. Where is the proof that dogs, correctly identified as “pit bulls” have killed more Ohioans?
c. (3) tells us nothing about the breed’s viciousness as it does not tell us why the weapons were fired
d. (4) – so what? What does this say about viciousness?
e. The trial court’s statements are clearly race-motivated. Additionally, it is now the dog’s fault that the dog lives in a “crowded environment.”
a. This was a case about attorneys using the image of a “pit bull” in their advertising campaign. The attorneys were alleged to have violated their code of ethics
b. The court held that the ad was manipulative and misleading, and made statements about the attorneys’ character, in violation of the ethics code
c. This case had nothing to do with “pit bull” bites or attacks
d. The court makes this observation, which it took issue with: “The dog, which is wearing a spiked collar, directly faces the viewer and is shown alone, with no indication that it is fulfilling its traditional role as “man's best friend.”” – this has nothing to do with breed.
e. The court in dicta, then briefly discusses “pit bull” attacks, offering little support for this unwarranted discussion.
f. The court also discusses the breed’s reputation for loyalty, which the Maryland court conveniently leaves out
a. Used to “prove” that BDL is constitutional, and the court’s ruling justified. However, this case discussed BDL, not the appropriateness of the court to make up laws on its own. Distinguishable, easily.
5. Campbell v. Noble, 962 A.2d 264 (D.C. 2008)
a. The Maryland court cites this case to discuss the “magnitude of injuries” pit bulls can cause.
b. The dogs in the Campbell case were outdoor dogs who lived at a tattoo parlor. Multiple complaints had been received about the dogs’ behavior. A boy, unknown to them, was left alone in their pen, hired to clean up their waste. The boy was hearing and speech impaired. The dogs started attacking the boy after the owner returned inside to make a phone call.
c. Again, we see rampantly irresponsible owner conduct
6. McNeely v. U.S., 874 A.2d 371 (D.C. 2005)
a. This case is also used to discuss the “magnitude of injuries” pit bulls can cause
b. The incident happened at night; the victim was carrying a garbage bag full of food; the dogs were running at large illegally; the dogs were outdoor dogs, confined in kennels or in the yard
7. Giaculli v. Bright, 584 So.2d 187 (1991)
a. Cited by the Maryland Court to back evidence that “pit bulls” are more dangerous than other dogs
b. Chained dog belonging to next door neighbor, child was climbing a tree that bordered the two yards, dog jumped up and bit the child
c. The court in this case entirely relies on evidence put forth in a different case, State v. Peters (see below)
i. Pit bulls are bred to be “extremely aggressive”
ii. Pit bulls are more likely to bite people than other breeds
iii. Pit bulls are bred to attack other animals
8. Starkey v. Chester Tp., 628 F.Supp. 196 (E.D.Pa.,1986)
a. Cited by the Maryland Court to back evidence that “pit bulls” are more dangerous than other dogs
b. “the Pit Bull bites to kill without signal.” A statement made by the Township’s Health Officer, whoever that is. Certainly, the health officer is not an expert on canine behavior. Statement is backed by absolutely no discernable facts.
9. State v. Peters, 534 So.2d 760 (Fla.App. 3 Dist.,1988)
a. “Pit Bull's massive canine jaws can crush a victim with up to two thousand pounds (2,000) of pressure per square inch—three times that of a German Sheppard or Doberman Pinscher.” If you can’t spell “shepherd” correctly, you are obviously not an authority on dogs. Additionally, research has absolutely not corroborated this ridiculous statistic; it is false.
b. “Pit Bulls are selectively bred to have powerful jaws, high insensitivity to pain, extreme aggressiveness, a natural tendency to refuse to terminate an attack, and a greater propensity to bite humans than other breeds.” Where is the proof?
i. No study has shown that “pit bull” temperament indicates a greater propensity to bite, and bite statistics, even if reports could confirm the breed of dog involved (which they don’t), are useless without knowing the base population (which we don’t know)
10. Hearn v. City of Overland Park, 244 Kan. 638 (1989)
a. ‘pit bull dogs represent a unique health hazard ... [possessing] both the capacity for extraordinarily savage behavior ... [a] capacity for uniquely vicious attacks ... coupled with an unpredictable nature”... and that “of the 32 known human deaths in the United States due to dog attacks ... [in the period between July 1983 and April 1989], 23 were caused by attacks by pit bull dogs.”
i. No mention of how breed identification was confirmed in these attacks
ii. No reliable research indicates that pit bulls can inflict worse harm than done by other dogs
iii. Pit bull type dogs do well in temperament tests and have not been found to be more “aggressive” toward humans than other types of dogs
11. People v. Garraway, 187 A.D.2d 761 (1992)
a. Pit bulls have been considered as weapons. As have other breeds of dogs. In fact, courts have held that dogs in general may be considered weapons, in the context in which the dog was used. This has nothing – absolutely nothing – to do with the breed of the dog, and no court has ever held that it does.
b. This is a shameful misrepresentation of a legal tenet that non-legal minds may not be able to decipher on their own. It is up to the court to make proper distinctions, not cheat the public.
I’d like to pause a moment to compare, briefly, injuries sustained in attacks by other dogs:
1. Coballes v. Spokane County, 2012 WL 1448220 – dog bit a child several times on the face and head, two people needed to restrain the dog
3. People v. Knoller, 41 Cal.4th 139 (2007) – dogs repeatedly bit and fatally wounded victim
4. Thompson ex rel. Thompson v. Owensby, 704 N.E.2d 134 – dog repeatedly bit victim, ripped off her ear, wounds to thigh and arms
5. Durbin v. Board of Selectmen of Kingston, 62 Mass.App.Ct. 1 – two dogs attacked child and inflicted multiple puncture wounds to his face, child found covered in blood
There is no logic to the argument that “pit bulls” are able to inflict injuries on humans that are more severe than injuries inflicted by other dogs. Making such an argument required the court to ignore case law to the contrary – pages and pages of such case law. As a person who works every day with judges, I can tell you that it is not the tradition to ignore other persuasive case law. No case cited in this section is binding on a Maryland court – it is persuasive at best, and the court offers no explanation why it chose to completely disregard the considerable number of cases that refute its conclusions. This, in and of itself, is an unusual omission.
Facts and Research Cited
The following other information was used as factual support for the notion that “pit bulls” are vicious”
1. 217 Journal of the American Veterinary Medical Association, no. 6, September 15, 2000
a. This publication specifically states that none of the information provided should be used to draw any conclusions about breed inclinations
b. Further, the study’s authors included disclaimers with their research, particularly (1) that they collected the data from communities that were not instructed on a consistent method of evaluating dogs involved in incidents nor in recording data, and (2) that it is impossible to extrapolate breed-specific incidence without knowing both the total number of incidents and the size of the entire population of the breed in question.
c. It also specifically directs that its information should not be used to pass breed specific laws of any kind
d. American Veterinary Medical Association (AVMA), also said this: “Dog bite statistics are not really statistics, and they do not give an accurate picture of dogs that bite.”[3] But the MD court didn’t see fit to use this information in its analysis
2. The Court relies on Animal People (Merritt Clifton’s publication) estimates of “pit bull” population as being no more than 5% of total dog population
a. Merritt Clifton also published the incredibly unscientific and inaccurate “study,” which is available here. This study has no explanation of methods, terms used (including the term “attack” or the term “pit bull,” uses a biased sample [media reports], and includes in the figures incidents where injuries were clearly not caused by a dog bite.
3. Mortality, Mauling, and Maiming by Vicious Dogs
a. A critique of the study is here
b. I also passed this study by my sister, a research graduate student at Princeton, who said the study cannot be used to generalize any conclusions to the rest of the US; she noted multiple other issues with the methods and statistical calculations in the study.
c. The study’s objective is to ban pit bulls, not to conduct an objective, unbiased experiment.
d. This study should never be cited by a court to support breed discriminatory treatment
4. The Center for Disease Control, in at least one of its “ Morbidity and Mortality ” Weekly Reports (MMWR) has noted that: “From 1979 through 1994, attacks by dogs resulted in 279 deaths of humans in the United States ... (1, 2) Such attacks have prompted widespread review of existing local and state dangerous-dog laws, including proposals for adoption of breed-specific restrictions to prevent such episodes (3)” The court goes on to say THIS: “Although the Center for Disease Control did not recommend breed-specific regulation it did state: ‘... laws for regulating dangerous or vicious dogs should be promulgated and enforced vigorously.’”
a. I’m sorry, but is this a joke? How can a panel of lawyers possibly reach the conclusion that, the CDC is recommending BDL when it clearly does not recommend BDL?
b. The CDC clearly is stating that breed-neutral dangerous or vicious dog laws should be promulgated and enforced. If it meant BDL should be promulgated and enforced, it would have said so.
c. The quoting of a passage that mentions BDL is clearly meant to misleadingly suggest that the CDC supports it; the CDC is merely mentioning a fact – that jurisdictions have considered BDL.
Consideration of Opposing Arguments
Very little consideration was given to the briefs submitted in opposition to this court’s conclusion; court’s consideration of these briefs is almost entirely contained in a single footnote. The Maryland Court actually states that its opinion is in line with what pit bull advocates desire because it puts responsibility squarely on the owner. First, this statement grossly misinterprets advocates’ actual stance on the issue: irresponsible ownership should be severely penalized and irresponsible owners should be held accountable for the behaviors of their dogs. Strict liability is a no-fault regime that does not consider owner conduct, merely the fact that ownership exists. Second, the Court fails to offer a reason why landlords should be held accountable for actions of dog owners. It is not typical for jurisdictions with strict liability statutes to also hold landlords liable without proof of additional knowledge or conduct on the landlord’s part (even then, courts show a disfavor for landlord liability).
The Dissent
The dissent in this case is dead on. No facts are found in the record to support the conclusions of the court, on an issue that should have been one of fact, not law; the opinion improperly makes a legal analysis where a factual analysis was required; and judicial notice should not be taken of facts that are in dispute (such as dog bite statistics). The dissent offers a similar critique to my own of the reports and studies cited by the majority in its opinion.
The dissent goes on to criticize the lack of procedure established by this new rule – and rightfully so. When courts do display judicial activism, they generally try to thoroughly determine a workable rule for future litigation. Here, there are no elements to the rule and thus, no guidance. There are no limitations on the rule’s scope. There is no discussion of the rule within the scope of traditional landowner legal concepts such as duty. There is simply a determination that the new law will be that pit bull owners and landlords are strictly liable in the case of a bite. As the dissent points out, the opinion does not establish a method for determining which dogs qualify as “pit bulls” under the ruling; thus, it allows for dogs with even trace amounts of “pit bull” to be subjugated. The bulk of the case focuses on how violent and awful these dogs supposedly are. It’s a very uncomfortably strange diversion and not consistent with typical judicial behaviors.
Finally, the Dissent correctly states that, in this case, there was sufficient evidence that the dog owner knew about his dog’s vicious propensities – and would have been held liable for the dog’s conduct under the established Maryland law; that is, there was nothing wrong or dysfunctional with the law as it stood! Where precedent is firmly and consistently established and followed, the “right” or “just” result will be reached under the analysis, and no significant shift in legal or cultural or factual context support a precedent reversal, Courts do not reverse precedent. But this court did.
Conclusions
This opinion could have been written by the agitators at dogsbite.org; in fact, it probably was, in large degree. The opinion relies on (1) old cases with incorrect factual bases (2) inaccurate “research” and “facts” (3) random cases with no real relevance to any issue in this case (4) nonsensical legal extrapolations based on both of the prior. It is clear that this court had an agenda going in to its ruling. It spends a disproportionate amount of space demonizing pit bull dogs and almost no space discussing the ruling itself. Instead of evaluating the facts and making an appropriate ruling as designated by established law, the court engages in a stunningly crooked display of judicial activism that overturns over 100 years of precedent for no viable reason. As a person who spends 8 hours a day reading and breaking down court decisions, I can tell you something is very wrong with this court’s decision.
