KC DOG BLOG

Dogfighting Videos and First Amendment battle it out in the Surpeme Court

I'm going to be honest up front here. I'm not sure I have a strong point of view on this. I certainly am not going to condemn someone for theirs.  This is a hot-button topic and a lot of people have an interest in what is going on -- and there are an interesting two sides to the equation.

There is a major Supreme Court case will take place next Tuesday (Oct 6) -- and dogs -- specifically dog fighting videos -- is creating an interesting debate at the U.S. Supreme Court.

The case centers around a man named Robert Stevens. Stevens is a small-time film producer that was indicted, and convicted (earning himself a 37 month prsion sentence) of selling videos depicting dog-fighting - -an apparently violation of the 1999 federal law that bans trafficking videos with "depictions of animal cruelty".

It should be noted that the last time an entire category of  "expression" was deemed so vile that it was outlawed and denied protection under the first amendment was in 1982 and the subject was child pornography.

So this doesn't happen a lot.

And while it seems like, as a lover of animals, and as someone who despises animal cruelty on any level, and dog fighting in particular, I should be strongly in favor of the ruling against Stevens, it isn't as cut and dry as that.

And make no mistake, I know nothing about Mr. Stevens. I don't know if he really is an "educator" as he says he is, or a piece of crap scumbag like I imagine him to be.  This isn't about him personally at all. It's about what is best for the animals.

So let's look at issues.

There are a lot of reasons to root for Stevens to be found guilty, and videos of cruel actions against animals are found to not be protected by the Constitution.  If the videos are found to be legal, there would be no recourse for the sale of vivid videos of major animal cruelty. While the cruel acts themselves would still be illegal (which  would prevent it from being a free-for-all), it still would not prevent people from filming these acts in foreign countries (where the acts are not yet illegal) and distributing the videos here.

Forbidding the videos in total would prevent these horrendous acts from being visually available in the US (or at least making it criminal to distribute them).

While that all sounds great, there is a downside to this too.

The 1999 law applies to all video recordingsof "conduct in which a living animal is intentionally maimed, mutilated, tortured, wounded or killed" -- as long as the act was illegal wherever the video was sold.  There is also an exception in the law about materials with "serious religious, political, scientific, educational, journalistic, historical or artistic value."  Hmm, now we've gotten into some vagueness.

The reality is that videos showing horrible acts to animals have been proven to be used a lot over the years by the people who love and support animals. HSUS for YEARS has used video footage of dog fighting to bring education and awareness to this serious issue. The ASPCA and many other animal welfare groups would have similar footage used for similar reasons.

Meanwhile, this footage exists at nearly every  TV news station in the country -- as they all seemed to show the footage when a certain NFL player was convicted of dog fighting two years ago. The "serious" value of some of this footage  could be very much disputed. 

This could also extend to many other areas of videos that exist -- like video that shows factory farming, pharmaceutical testing, circuses and the slaughter of baby seals.  And often it is the "shock value" of this cruelty that sparks citizens to action.  Which is a good thing. While large organizations would likely be well protected by the ruling, individuals who are using footage in their own areas to try to bring an issue to light might be highly succeptable to imprisonment.

In all, I think I'd rather the videos themselves just go away...but I certainly understand the flip side of the coin.  Would love to hear your thoughts on the subject -- maybe it will help me sort through mine.

For more info:

Great article from the NY Times.

Another interesting look from the First Amendment Center.

Denver considers possible repeal of Pit Bull Ban

For several years now, Denver's controversial ban on 'pit bulls' has been under attack. The ordinance was originally adopted in the ban in the late 1989. However, after several legal challenges, the ban stood dormant until 2005 when it was re-enacted.

The city has endured several court cases on the ban -- and is in the midst of yet another legal case that was revived back in May. The city has also endured advertising campaigns against the city's breed ban by groups like Roverlution, as well as an entire website  entitled denverkillsdogs.com

Through all of that, authorities in Denver have stubbornly stood beside their ban - -and have done so without any evidence that the ban has actually improved public safety. In fact, the city admitted as much last November in an article by the Colorado Springs Gazette:

As director of Denver's Animal Care and Control, which has euthanized nearly 2,000 pit bulls in three years, Doug Kelley has to play the bad guy in the pit bull debate. But even he is not a strong advocate for the pit bull ban.

"You'll never see a more controversial ordinance," Kelley said.

He said the ban has lessened the number of attacks by pit bulls, certainly, but he has no evidence that the ban has decreased the total number of dog bites or attacks in the city. He also said the ban gives people "a false sense of security."

In spite of the lack of success of the ordinance in improving public safety and in spite of growing financial burdens of defending their breed ban in court, the city has stubbornly stood by its failed ordinance.  They have done so in spite of other embarrassing and costly situations -- including killing over 2,000 pit bulls over the past 3 years-- many of which were family pets,  holding down a former military officer at gunpoint while they confiscated her dog, a child killed by a non-pit bull type dog, andthe highly publicized incident where a dog named Forrest was confiscated from his owner, deemed not aggressive, but the breed ban prevented the dog from going back to his owner and thus he had to be shipped out of state.

But that might be changing.

For the past few months, Councilwoman Carla Madison has been working on a proposal that would end the city's ban on pit bulls. Apparently the city is looking to save some money -- in efforts to close its $120 million shortfall.  The city apparently is looking to repeal the ban, in part, because they are looking for a compromise to help squash the legal costs associated with defending their law and stop the mounting legal fees. A cost calculator put together by Best Friends Animal Society puts the cost of enforcing the city's BSL at about $803,170 annually....and I can gurantee their litigation costs that they have figured in don't even come close to covering Denver's bill.  It appears as if Madison at least may have the support of the mayor as well.

The idea of repealing the city's breen ban is certainly great news. It is way past time the city drops its draconian, and ineffective policy that is doing little besides wasting animal control resources killing people's pets for no reason other than what those dogs look like.

However, the way the current proposal looks, it isn't much better. While it would allow people the possibility to own pit bulls in the city, the current working proposal still has very tight restrictions on 'pit bulls' including:

1) Mandatory purchase of an annual $50 pit bull permit

2) Mandatory passing of the AKC's Canine Good Citizen Test or American Temperament Test Society's Temperament Test

3) $100,000 Liability Insurance Policy

4) Mandatory Spay/Neuter

5) Mandatory Microchipping

6) Mandatory Home Inspection

7) Limit of no more than two pit bulls

8) Mandatory Obedience or Responsible Dog Ownership Class

9) Adequate Fencing (which is pretty vague)

10) No one under the age of 21 allowed to own or walk the dog off the owner's property

11) Mandatory background check for criminal record.

Yikes.

On January 1 of this year, the city of Omaha, NE began enforcing their ordinance that is somewhat similar to this proposal. In the first four months of this year, Omaha saw an 81% increase in dog bites.  See, the problem in Omaha is that the ordinance forced all of the people who were good, responsible dog owners in the first place, to jump through a series of hoops and expenses in order for them to be able to keep their dogs. However, these people were not a problem in the first place. So instead of spending time on the owners whose dogs WERE problems, they spent time and resources on dogs and dog owners that weren't.

That doesn't makes sense.  And is essentially the failure of all breed-specific legislation.

The dogs are not the problem. The owners are. Most of the major dog and dog bite problems come from a small percentage of irresponsible dog owners.  And laws should be designed to focus on these problem owners and these owners only. By focusing laws on dogs that aren't problems and have never shown signs of problems, we dilute animal control resources by having them spend time on non-problem dogs and dog owners.  Which makes the laws ineffective.

Congrats to Denver for at least taking the first step of admitting that their breed ban has been a failure and an extremely expensive use of taxpayer dollars. However, I really hope they really reach out and listen to listen to the expert groups in their community to come up with a less stringent proposal that really focuses the limited resources where they need to be focused...and not on good dog owners who should be left alone.

For more information:

Past KC Dog Blog articles about Denver

National Canine Research Council Overview of Denver.

Coalition for Living Safely with Dogs (Co)  Dog Bite Study Key Findings in Colorado Dog Bite Study

 

Apparently the Constitution no longer matters

Two stories came out today that, honestly, scare the crap out of me.

The first is out of Avon Lake, OH, who has gone back to the drawing board on their dangerous dog law.  Here's the 2nd paragraph of the article:

"Officials are in the process of updating ordinances that would provide due process to owners of vicious dogs, excluding pit bulls, to appeal to the courts before any action is taken on their animals."

Apparently, according to Law Director Bill Kerner, the rules are in compliance with an Ohio Supreme Court decision that granted due process to owners of vicious dogs, excluding pit bulls.

However, this appears to be a blatant disregard to the 5th Amendment of the US Constitution:

No person shall be held to answer for any capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

So unless pit bulls are now responsible for war crimes, seems like due process should apply to pit bull owners too.

Meanwhile, YesBiscuit! has some info on a story about 240 animals that wer taken from an Indiana puppy mill that are now up for adoption.  However, here's the kicker:

    "No criminal charges have been filed, and the Garwoods were not arrested."

Um. Ok? Hey, I'm all for catching the bad guys here. If the animals were kept in inhumane conditions, let's press charges. Let's have a very speedy trial. Let's convict them, and get the animals safely into new homes.

But if we can't press charges, the animals should not, legally, be confiscated from the property - and certainly shouldn't be adopted out until after they have had their day in court.

The folks in Indiana may be guilty. We may never know since there likely will be no trial. But I have to more than express my concern over animals being confiscated from people without any due process of law -- or heck, in the Ohio case, WRITTEN admittence that there is no due process for pit bull owners.

Whether people like it or not, people who own pit bulls, and people who run puppy mills, are protected under the same US Constitution as everyone else in this country. Let's get the bad guys. But let's do it the right way: with proper due process, proper trials, charges being filed, and cases handled. I think violating the Constitution is a pretty serious habit to be getting into.

(Note: a wise reader sent me the link to the Ohio Attorney General Decision that says that pit bull owners are denied due process.  I'm not sure how that possibly got written, but here it is)

Denver Court Case Revived

An Appellate Court Judge has allowed a lawsuit against the city of Denver's breed ban to be allowed to move forward to court.   They can proceed with arguments that the Denver ban is irrational.

This case was dismissed by the court back in March of 2008.  After reading through the case, it appeared that the court dismissed the case for the following three reasons:

1) The plaintiffs did not have standing on the allegations of due process since none of the plantiffs had actually had their due process rights taken away.

2) None of the plaintiffs suffered harms from the law -- since all had moved from the offending juristiction.

3) The courts felt like they didn't provide enough evidence that the law was unconstitutionally vague.

Now, from reading the news clips, it doesn't appear that they will be able to appeal based on due process or vagueness claims (which is unfortunately a huge missed opportunity). However, they should be able to pursue this based on the irrational basis of the law.

However, the rational basis claim should be interesting. Denver's head of animal control Doug Kelly has even admitted that there is no evidence that the city's breed ban has improved overall public safety for the citizens of Denver.

From the Colorado Springs Gazette - November, 2008:

As director of Denver's Animal Care and Control, which has euthanized nearly 2,000 pit bulls in three years, Doug Kelley has to play the bad guy in the pit bull debate. But even he is not a strong advocate for the pit bull ban.

"You'll never see a more controversial ordinance," Kelley said.

He said the ban has lessened the number of attacks by pit bulls, certainly, but he has no evidence that the ban has decreased the total number of dog bites or attacks in the city. He also said the ban gives people "a false sense of security."

So, the ban hasn't shown to decrease the number of bites or attacks, and the head of animal control says it has given people a false sense of security, so the 'rational' nature of the law sure seems to be open to debate. The courts in this country have been pretty lenient with cities on what can be declared rational for the protection of citizens, so this type of case has not been super-effective in the past. However, a lot of the new evidence that came out in the Tellings case, plus the fact that this lawsuit is taking place so long after Denver started enforcing that ban so there is a significant track record of no success could work in our favor on this one.

Either way, the question that comes to my mind is, why is Denver wasting tens of thousands of taxpayer dollars defending a law in court that they even admit is not working?

UPDATE: So I just got a chance to read through the judge's ruling.

The judge in this case is giving them the "ok" to pursue the case on "rational basis". While the judge concedes that the city does have a significant government interest in animal control, the judge does conclude that it is subject to debate that banning 'pit bulls' is not a rational way to improve public safety.

"Pit bull bans sustained twenty years ago may have been justified by the then-existing body of knowledge, the state of science in 2009 is such that the bans ar no longer rational."

Specifically, the judge points out that the AKC and UKC standards for the 'pit bull' breeds -- which the city of Denver declares as accurate and uses to define visually what a 'pit bull' is -- state that the dogs are indeed friendly.

According to the UKC breed standard:

"The American Pit Bull Terrier are an 'extremely friendly' breed 'even with strangers. Aggressive behavior toward humans is uncharacteristic of the breed..."

While the AKC breed standard for the Staffordshire Bull Terrier:

"with its affection for its friends, and children in particular, its off-duty quietness and trustworthy stability, the Staffordshire Bull Terrier is formost an all-purpose dog."

It's interesting that the very source that Denver is using to defend the claims against vagueness is the source that may catch them up on the rational basis argument.

Update #2: Over at the Animal Law Coalition you can download a copy of the judge's ruling for yourself (the file is at the bottom of the page).

Miami Dade-County judge rules 'pit bull' ban "too vague"

This week, a Miami Dade County judge ruled that the county's 20 year old ban on 'pit bulls'  is too vague to be enforceable.

The county's law - -which is similar to most breed specific laws - sets up a set of criteria based on 15 body parts (such as head, neck, lips, chest, eyes, tail, hind legs, etc) that allows animal control to determine if a dog is a 'pit bull' or not. In Miami, if 3 or more characteristics "conform" to the standard, the dog can be declared a pit bull (most places use about half).

Dahlia Canes, the executive director of the Miami Coalistion Against Breed Specific Legislation (MCABSL) testified that animal control is "constantly" mis-identifying breeds of dogs. Canes mentioned a recent case where a dog had been declared a pit bull mix and ordered to be euthanized, but after further evalution was determined to be a Mastiff mix.

More from the press release here.

Breed identification is a major problem when it comes to breed bans. Many people who don't even realize they have a dog that could even be mistaken for a 'pit bull' find their dog confiscated. Pretty much any dog that is mixed with short-haired breed of dog ends up 'looking like a pit bull". Boxer mixes, mastiff mixes, American Bulldogs, Shar Pei mixes, Beagle mixes (there is one shown in the picture to the left that was put down in Independence, MO for looking too much like a 'pit bull'), greyhound mixes (particularly if they have brendel coloring), etc -- they all end up with the same general size and shape of most pit bull type dogs (this also, incidentally why so many dog bites get labeled as being from 'pit bulls' -- when they should really be from mixed breed dogs).

I have a whole host of examples of breed mis-identification from over the years (and this is just a partial list -- there are many more like Brutus, Fleas, Roscoe and Nikko).  It is truly impossible to fairly and accurately enforce a ban on dogs based on their shape.  These aren't just dogs (as if that isn't bad enough), they're people's pets. They're messing with people's family members. Not because their dog is aggressive - but because of how it looks.

Seems more than a  bit silly.  I've spent a lot of times around dogs -- and it's not uncommon for me to look at a mixed breed dog and have no idea whether it contains 'pit bull' or not -- but I've never once been unsure about whether or not a dog seemed aggressive or not.  This is why I have no idea why more cities just don't go to behavior-based ordinances -- which happen to work by the way.

Good for the judge in Miami Dade County. Breed bans are impossible to enforce uniformly. They aren't effective legislation. They aren't based on scientific evidence.

It's only been 20 years, but I believe people are beginning to notice.

More on the Miami case at the Animal Law Coalition, and MCABSL.

Donations to great causes

The folks at Banned Aid, in Ontario, are scraping together their loose change. After a long legal battle with the provence over its breed ban, the court ruled in favor of the province.  The group is looking to take the case to the Canadian Supreme Court - this is not a cheep endeavor.  So they're taking donations, big and small, to be used to pay off some debt over their first court case and to provide funding for the next one.   And we're talking a lot of money that they need.   Here's why this is important, even if you don't own a dog.  From Caveat's blog:

The latest decision from the Ontario Court of Appeal states that if even a tiny
risk exists, it is the responsibility of government to regulate it by whatever
means possible - even if this means exterminating it.

In restoring the law to its original form, the Justices told all Canadians that
despite credible research and evidence proving otherwise, the mythology
surrounding the "pit bull" is taken at face value by our courts.

In other words, uneducated opinions, gossip and hearsay from any source (such as news reports) can be used to prove anything - and worse, such flimsy evidence can influence our rights and freedoms in all aspects of our lives.

"According to the Court of Appeal, so long as the government puts forth some
evidence in support of its legislative decision, regardless of its credibility,
reliability or value, it cannot lose. And it's not just about dogs anymore.
This ruling, if left unchallenged, will become case law and as such can be
applied to anything, from dogs to donkeys."

If every person who subscribes to this blog donates $20, we would be able to add nearly $2000 to their cougher.  If every daily reader gives $20, then we coud add around $8000 to their tally.  That would help a lot. All the details on how to donate are here.

Meanwhile, closer to home,a Kansas man was recently arrested on 96 counts of animal crueltyafter the dogs were found chained, starved, and barely surviving. The city, and many local rescuers are working hard to keep these animals alive and get them better fed. But in these small towns, this large number of dogs is quite a burden for them. If you can spare any loose change for food and shelter for these dogs, any amount would be appreciated. You can get more information on how to donate by contacting Cindy at cjadogs AT yahoo DOT com.

Aurora Judge Upholds Pit Bull Ban

An Aurora Judge upheld the city's pit bull ban in a ruling released earlier this week.  Caveat has the details.

I wish I could say I'm surprised by the ruling. I'm not. For reasons that I haven't quite grasped yet, the courts have failed to see the arbitrary nature of these laws. 

Meanwhile, the city of Aurora continues to hold onto a law that targets a type of dog that was responsible for less than 20% of the overall bites in the community prior to the ordinance with a ban, whose enforcement has taken resources away from the other 80%+ of dog bites in the community.  The net result has been a 46% increase in bites by non-restricted breeds -- and a 26% increase in total dog bites in the community since they passed the ordinance.  It seems impossible to me that they could consider this as responsible legislation given these results.  Regardless of whether or not the ban is legal, the city should get rid of the law immediately for the safety of its residents from ALL dog bites...not just some of them.

Colorado BSL News

The lawsuit challenging Aurora, CO's ban on 'pit bulls' goes to trial today. The lawsuit in Aurora challenges the ban as being unconstitutionally vague and unnecessary. According to this report, 'pit bulls' made up only 2 percent of the injuries in the city in the 3 years prior to the ban taking place.  According to the Aurora 2 year report, which you can find here, the total of dog bites in Aurora has gone up 26% from 110 to 157 in the two years following the passing of the ordinance.  Amazingly, in spite of these statistics and the pending lawsuit, Aurora decided to continue on with their ban last spring.

Meanwhile, there was a very good story in the Colorado Springs Gazette yesterday regarding 'pit bulls'.  The story has an interview with Doug Kelly of Denver.  Denver has long been seen by supporters of pit bull bans of the "shining example" of pit bull bans -- however, they never really base their point of view on actual statistics, only the fact that they have one.  Here's a clip from the news story:

As director of Denver's Animal Care and Control, which has euthanized nearly 2,000 pit bulls in three years, Doug Kelley has to play the bad guy in the pit bull debate. But even he is not a strong advocate for the pit bull ban.

"You'll never see a more controversial ordinance," Kelley said.

He said the ban has lessened the number of attacks by pit bulls, certainly, but he has no evidence that the ban has decreased the total number of dog bites or attacks in the city. He also said the ban gives people "a false sense of security."

"Pit bulls aren't bred to be aggressive toward humans," he said. "There are a lot of other dangerous dogs out there that aren't prohibited and are trained to be aggressive toward people, so that needs to be addressed."

Emphasis was mine.  Read the rest of the story here. 

Just a couple of months ago, Denver had a 'pit bull' in captivity that they allowed to leave the community because it was deemed not-aggressive.  The idea of non-aggressive dogs being confiscated from their owners because of how they look continues to seem absurd to me.

Is the tide turning in Colorado?  Let's hope.

Thanks to reader Emily for sending over the Denver story.

Ontario denies appeal against their breed ban

The folks in Ontario were denied in their appeal against their breed ban.  Once again personal rights and freedoms were denied instead with states having the right to take them away with no evidence that what they are doing is justified or necessary. All in the name of public safety right? Don't look at the "dog people" for support when we end up dealing with wire tapping issues and other personal privacy issues in the name of public safety. Just sayin'.

I haven't gotten the chance to read the entire decision, but Caveat has, and has build a strong opinion over at her place.

While I've always maintained the BSL has several elements that are directly counter to the US Constitution, I've quit getting my hopes up that the courts will side with us.  Instead, I keep thinking that our strongest ally will be the court of public opinion -- which I think is beginning to see that this legislation is not effective, expensive, impossible to enforce and founded on bad data.

This is what is happening in Ottawa, Ontario -- as they have announced that they are no longer going to actively enforce Ontario's ban because it is unenforceable and a waste of their law enforcement officer's time.

Like I've always said, I know more about dogs than the average person and will frequently see dogs that I don't know whether or not they are a "pit bull" breed or not -- but I've never once seen a dog and questioned whether or not I thought it was aggressive. Seems like behavior is a much simpler and more reliable way of enforcing a dangerous dog ordinance to me...and I think the court of public opinion, unlike the "real" courts, is starting to get on board.

Floyd Boudreaux is aquitted

After three days of hearing testimony, Floyd Boudreaux and his son Guy were acquitted on 48 counts of dogfighting after a state prosecutor failed to provide enough evidence that the men were guilty of dog fighting.

I don't know if the decision was the right one or not. I don't know the Boudreaux's -- we hardly run in the same circles.  I don't know if he is indeed involved in dogfighting or not.  I'm not here to support Boudreaux.  And I am in no way supporting people who are out there fighting dogs and breeding dogs for fighting.

However, I do support the U.S. Constitution, and the right for people to have a fair trial.  I do believe people are innocent until proven guilty....not the other way around.

In this case, police raided the Boudreaux's property, and seized 57 'pit bulls' that were believed to be used for dog fighting. Within 24 hours of the raid, all 57 dogs were euthanized by the Louisiana SPCA.

Whether or not you agree with what the Boudreaux's were doing, that's pretty messed up. 57 dogs dead -- because they belonged to someone who was found guilty of nothing.  States just should not be able to confiscate and destroy someone's property before they are found guilty of a crime. That's not how our Constitution is written (and thankfully so).

We had a similar case in Kansas City, KS last year. A woman had three dogs, and 19 puppies. KCK officials confiscated the dogs and euthanized all but one of them for being "pit bulls" (which are banned in KCK). After the court hearing, the parent dogs of the puppies were declared via DNA tests to indeed NOT be pit bulls. Yet the woman's dogs were already dead. And the city had to foot the bill for her losses.

Boudreaux will likely be well compensated for his losses.

The U.S. Constitution was designed that the country's constituents would be innocent until proven guilty. It is time we start abiding by it. EVERYONE is entitled this right: even people who own 'pit bulls', even Floyd Boudreaux.

For more on this, I highly recommending reading Donna's take over at the Bad Rap blog.