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Expert discusses breed-specific legislation after WV Supreme Court case

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West Virginia Supreme Court justices recently ruled city officials did not violate two residents' due process rights when imposing a fine for violating a town ordinance that prohibited them from owning pit bulls — putting breed-specific legislation back in the legal spotlight.

Ceredo residents Steve Hardwick and Sharon Nalley filed the action in Wayne County Circuit Court against the Town of Ceredo after they were convicted in municipal court and fined $162 each,for violating the town ordinance.

Both residents appealed their convictions to circuit court, but the court upheld their convictions.

The lower court found that each defendant owned a pit bull, "which are aggressive by nature, have been known as attack animals with strong massive heads and jaws, and have been found to represent a public health hazard."

The order also held that the municipality could pass an ordinance to promote the safety of its residents.

The circuit judge said the ordinance is not "unconstitutionally vague and does not violate due process" because residents are subject to the city's exercise of police powers by living in city limits.

Nalley and Hardwick appealed the decision to the state Supreme Court, arguing the circuit court should have found the ordinance unconstitutional.

They also argued the ordinance "assumes the dog to be vicious based merely upon its breed without further evidence of viciousness."

City officials, meanwhile, argued that state law grants them the right to police powers to protect residents against the dangers of the dogs and thus the ordinance is constitutional because it is "rationally related to that legitimate interest," court documents state.

In their January memorandum decision, state Supreme Court justices upheld the lower court's order.

One pit bull expert said breed-specific legislation, such as the one in Ceredo, is not too common in West Virginia.

Jo Angle Staats is a member of the FOHO-West Virginia Legislative Board, a co-founder of Pit Bulletin Legal News Network and has worked nationally with law firms that focus on animal law

"West Virginia has been very fortunate that common sense has been applied when laws have been adopted," she said, noting that most of the towns that do have breed specific legislation are along the Ohio-West Virginia border.  

She said breed-specific legislation started coming about all across the nation in the 1980s.

"People didn't know. It was a knee jerk reaction to ban these dogs. … BSL does not stop dog attacks. It does not make a community safer," she said.

Staats said in many actions challenging these ordinances, people should seek to have the city to prove that the dog is indeed a pit bull.

"There are studies now that verify that visual identification is not scientific," she said.

The definition of a pit bull terrier can be tricky, Staats explained. She said 40 years ago, American terriers were commonly referred to as pit bulls.

And certain qualifying characteristics can confuse a mixed-breed for a pit bull, she explained. The definition of a true pit bull under certain laws has been muddled, affecting any dog with short hair, a broad chest, flat back, nose of a certain length, jaw of a certain width and tail shaped in a certain way, she said.

 "Anything that physically molds to that physical description, they call a pit bull," she said. "A gentleman in Colorado had a service dog that was a lab but it looked like a pit bull. That case cleared up, but you do have things like that, which would open any dog owner's eyes."

In the Ceredo case, Staats said the first thing she would have done is had a DNA test proving that the dogs were indeed pit bulls. She said for the most part, it is up to the city to prove that residents own pit bulls.

"People miss the mark on breed-specific legislation, especially in legal cases," she said. "This case was not really about breed-specific legislation. They tried to make it that but missed their mark. This was more about the home rule law."

"This is not about BSL but about are you violating my constitutional rights to my property," she later added. "By state law, yes, they do have that right. The argument should have been what is your proof that these dogs are dangerous  or pit bulls? They should have put that back on Ceredo but failed to do so."