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Woof, woof—watch out, that dog has a vicious and aggressive nature. The American Staffordshire Terrier, also called the pit bull, once known as “America’s breed,” has now been ruled a threat.
On April 26, Maryland’s highest court decided in Tracey v. Solesky that this dog, and any mix containing pit bull genes, is “inherently dangerous” as a matter of law. The breed alone is evidence that an individual animal is violent, subjecting owners to what the courts call “strict liability.” The Court of Appeals declared, “When an attack involves pit bulls, it is no longer necessary to prove that the particular pit bull or pit bulls are dangerous.”
How can you tell when a dog is a pit bull mix? One way would be to do genetic testing. But that would require first that we have a genetic definition of the pit bull, which we don’t, and probably won’t any time soon. Testing any dog accused of being a pit bull mix would also be costly and almost certainly won’t happen. In his dissent, Judge Clayton Greene recognized the absurdity of the majority opinion’s “unworkable rule.” “How much ‘pit bull’ must there be in a dog to bring it within the strict liability edict?” he asked. “How will that be determined? What rationale exists for any particular percentage of the genetic code to trigger strict liability?”
In the absence of a viable genetic test, so-called experts will instead tell courts that an individual dog either is or is not a pit bull mix, based on nothing more than the shape of its head, or its stance, or its way of looking at you.
Those experts often come from the American Society for the Prevention of Cruelty to Animals (ASPCA) or the Humane Society of the United States, organizations well known for their focused and fierce opposition to pit bulls. Recent cases in which they have been involved led directly to the destruction, for no cause except alleged genetic propensity to violence, of an entire line of pit bulls in Louisiana. With the help of the ASPCA and the Humane Society, a Virginia man was nearly imprisoned for making and distributing educational films about the breed.
In both of these cases, determined defendants, tough lawyers, and lots of time and energy were able to save the humans involved. But the dogs in the first case—all 57 of them, including a mother about to give birth and at least twenty puppies—were killed by the Louisiana SPCA, which is distinct from the ASPCA. Categorized as fighting dogs, the pit bulls were assumed to be inherently dangerous, too aggressive to live, no matter their friendliness and vigor and regardless of the absence of proof of actual fighting.
From now on, any pit bull is a danger to humans. The judgment precedes the proof.
Hopefully in Maryland the dogs will fare better. Aileen Gabbey, the executive director of the Maryland SPCA, which is also independent, assured Baltimore Sun columnist Dan Rodricks that she disagreed with the ruling, since breed has little to do with a dog’s violence. The pit bulls she sees are “victims—abused, forced to fight, given up.” Even the Humane Society has taken a stand against the ruling. Chief Program & Policy Officer Michael Markarian explained, “This sweeping decision is a case of canine profiling. It may force law-abiding citizens to face a painful and life-changing decision—move out of Maryland or give up their beloved dogs.”
Quite apart from the obvious difficulty, even impossibility, of defining a pit bull in genetic terms, the Maryland ruling is a bad one. It is a bad ruling, first, for logical reasons. Pit bulls are not inherently dangerous. They are not tigers, which you have to be careful of every second. They are dogs, and like other dogs they can become dangerous in certain situations. (Humans can become dangerous, too. Humans kill far more humans than dogs do every year in this country.) Pit bulls have no special characteristic that makes them dangerous. There is no pit bull gene for danger.
Second, in terms of law and society, we have to worry about where this will end. The implications of condemning an entire breed in this way are fearful. Soon insurance companies will stop covering places where a pit bull is around. Soon pit bulls and any dogs with a single pit bull gene (however defined) will be banned from recreational areas, from walking public streets, from entering dog parks or getting on planes.
If this dog is so dangerous that it cannot mix with humans on streets or in parks or on planes—not because of anything that it has actually done—maybe it should not be allowed to mix with humans at all?
All this is just Maryland, of course. Or is it? Other states will follow Maryland’s lead. And then pit bulls everywhere will, like tigers, be held to a strict liability standard. To own a pit bull is to live at risk. Liability has nothing to do with any fault on the part of the owner. From now on, any pit bull is a danger to humans. The judgment precedes the proof.
And then, quite naturally and logically, the courts and the cruelty preventers will take away all the pit bulls and mixes that have even a single pit bull gene and exterminate them.
Do you remember the one-drop rule?
Colin Dayan is Robert Penn Warren Professor in the Humanities and Professor of Law at Vanderbilt University. Her books include The Law Is a White Dog: How Legal Rituals Make and Unmake Persons, The Story of Cruel and Unusual, and Haiti, History, and the Gods. She has just published With Dogs at the Edge of Life, a fierce personal enquiry into canine profiling, preemptive justice, and extermination.
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