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Robin a Sschafer (al court)
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Date Posted: 07:14:24 02/04/12 Sat
In reply to:
WAF
's message, "Alabama Supreme Court / Pit Bulls/Genetics 2002" on 15:13:44 10/13/02 Sun
>This is a link to an article on the Alabama Supreme
>Court
>case:http://www.ourdogs.co.uk/News/September2002/News06
>0902/bsl.htm
>
>The Supreme Court affirmed the Trial Court's ruling.
>
>Two issues were raised, Huntsville claimed Pit Bulls
>are genetically dangerous and there was no right to
>adopt the Pit Bulls.
>
>The Alabama state dangerous dog law was an issue,
>however with affidavits from Veterinarians supporting
>Hunstville's claim that all Pit Bulls are genetically
>dangerous, the state law was at serious question. WAF
>brought in genetic proof that no breed of dog is
>genetically dangerous.
>
>Refer to Amicus Brief by WAF submitted to the Alabama
>Supreme Court.
>
>First Draft/first 6 pages Amicus/
>INTRODUCTION:
>
>Now unto this Honorable Court comes Cynthia McCammon,
>CEO of the national Seattle based Washington Animal
>Foundation, hereinafter referred to as (WAF), to file
>a brief amicus curiae. The amicus curiae in this case
>is a non-profit organization that advocates for
>responsible dog ownership. WAF assists with
>legislation and education. In 2001 WAF assisted the
>state of Louisiana in revising their dangerous dog
>law. WAF assisted seven cities in passing "dangerous
>dog laws" including Walla Walla, Washington , WAF
>worked with State Senators and Representatives in
>California, Florida, Washington, Washington DC,New
>Hampshire, Oregon, Maryland, and in Europe, Denmark.
>In 2002 we drafted dangerous dog laws for the U.S.
>Government for use on military installations in place
>of breed specific legislation. WAF endorsed SB6635 in
>Washington, which prohibits declaring a dog dangerous
>by breed.
>
>Our organization has a strong interest in this case,
>re: breed bias policy of City Appellant and the City
>of Huntsville's intense resistance to citizens
>availing themselves of the courts to question its
>illegal policies.
>
>In Sentell v. New Orleans & Carrollton RR., 166 U.S.
>(1897) the United States Supreme Court found that dogs
>are subject to the full force of the police power and
>may be destroyed, or otherwise regulated in whatever
>manner the legislature deems reasonable for the
>protection of citizens. While most dogs are deemed
>harmless, the court approved the principle that that
>legislatures have broad police powers to control all
>dogs, in order for protection against the public
>nuisance posed by a dog that has been declared visious
>and endangers people and property with due process of
>the law.
>
>
> STATEMENT OF THE CASE
>
>In question are four young Pit Bulls that were ordered
>by the 23rd State Circuit Court if Madison County to
>be released and adopted to Sheila Tack, Kay Nagel and
>Loyce Fichser because the were not deemed to be
>dangerous. According to testimony on November 13,
>2001 in the 23rd Circuit Court transcript Vol1: 5,
>Judge Battle cited the Alabama State Code 3.1.29
>Section (e) as one of the reasons to allow the women
>to intervene. The four young Pit Bulls is question
>have not been trained to fight and from all the
>testimony in the 23rd Judicial Circuit court of
>Alabama transcript dated November 13, 2001 it is clear
>they show no signs of viciousness, and have received
>minimal, but adequate socialization from shelter
>employees. The transcript proves, R Vol. 1: 38-39 in
>response to questions asked by Kay Nagael to Dr.
>Jackson that the four young Pit Pulls have shown no
>signs of aggressive behavior, and have not reached
>full maturity. The lack of viciousness, in
>conjunction with the offer of good homes seeking their
>adoption, clearly proves these four young Pit Bulls
>have a useful purpose, and that the Circuit Court's
>rulings, of November 13,2001 and December 17, 2001
>were correct. The lower Court ruled the release of
>the puppies to the intervenors. The City sought a
>stay. The City appealed to this Honorable Court and
>requested a stay, claiming the "dogs are vicious" this
>Honorable Court granted the City its stay based on
>that representation. On April 1, 2002 WAF filed a
>Petition seeking to file Amicus Curiae Brief. On
>april 10, 2002 this Court gainted WAF's petition for
>permission to file amicus curiae brief. On april 18,
>2002 this Court granted WAF's petition for permission
>to file an amicus curiae brief. On april 16, 2002 WAF
>filed its brief.
>
>Alabama Animal Fighting Code 3-1-29
>"Any dog used to fight other dogs in violation of
>subsection (a) of this section, shall be confiscated
>as contraband by the sheriff or other law enforcement
>officers and shall not be returned to the owner,
>trainer or possessor said dog. The court shall award
>the animals to the humane society or other agency
>handling stray animals shall humanely dispatch or of
>any confiscated dog."
>
>Sheila Tack, Kay Nagel, and Loyce Fischer filed the
>peoper notion to intervene. Cowanv. Tipton IF, R, D.
>694 (ED Tenn 1941). The Judge did not abuse his
>discretion for allowiang intervention. In the
>transcript in R Vol, 4-15 ; it clarifies why the
>Judge allowed intervention from the three women. These
>dogs were found not to be vicisious only that there
>parents seized in a dog fighting case.
>
>The city has taken issue with the term, PUPPY. These
>young dogs are still puppies, Dr. Ann Theissen DVM,
>who is an expert, best defines the definition of a
>puppy. She has been involved with scientific resarch
>involving growth development of these dogs.
>
>1.Behavior components of a dog are not fully developed
>until 24 months or more.
>
>2.Social maturity of 13 months or more.
>
>3.Height 13 months Width up to 3 yers or more.
>
>4.Testing for displastic hips 2 years or older.
>
>'The four young Pit Bulls involved in this case are
>still
>growing and have not fully matured. From the evidence
>presented and the offer the three women made the city
>of Huntsville (far more than required by Alabama Law).
>
>1. Insurance bonds on all the dogs.
>
>2. Spayed and neutered
>
>3. Residing outside the city limits in a fenced
>spacious area
>
>4. Under the care of a licensed veterinarian.
>
>The Washington Animal Foundation finds these three
>women(Sheila Tack a registered, ER nurse whose hobby
>is raising and caring for animals, Kay Nagel, whose
>husband is a Lieutenant Colonel in the US Army and who
>owns a Pit Bull, and Loyce Fischer who rescues dogs
>and works for the Missiles and Rocket project in
>Huntsville, Alabama) to be extremely responsible and
>excellent candidates to adopt these dogs.
>
>WAF reviewed all documentation on this case. The city
>of Huntsville cited Dr. Jackson several times. In
>reviewing her testimony WAF finds no proof she is an
>expert on genetics. In fact the WAF found her
>testimony concerning Dr. McCurdy, Mary Vereen and Jeff
>Abernathy that would raise serious questions about
>their knowledge on genetics and Pit Bulls. WAF also
>concluded from the testimony that these four Pit Bulls
>have received minimal, but adequate socialization from
>shelter employees.
>
>The city of Huntsville, by its proclaimed policy has
>declared a dog dangerous by its breed. Eleven states,
>Florida, California, New York, Pennsylvania,
>Washington, New Jersey, Minnesota, Texas, Maine,
>Virginia and Oklahoma all have state laws that
>prohibits declaring a dog dangerous by breed, and the
>current legislation is learning toward this theory in
>other states. Breed specific legislation does nothing
>to stop illegal activities involving dogs or reduced
>dog bites. It has cost cities, like Cincinnati,
>millions of dollars in enforcement, law suits, and
>failed to address the real issue, which is a
>responsible ownership.
>
>There is no scientific proof that Pit Bulls, or any
>other breed of dog is dangerous. The Foundation's
>collective experience and research has found the
>American Pit Bull Terrier is a "terrier" All terriers
>have animal prey drive, this does not make them
>dangerous or vicious. The breed has to be trained to
>fight. Although in some cases the Pit Bull is known to
>be a fighting dog. It was not bred for fighting. The
>breed comes from Europe and evolved from the 25lb
>Staffordshire Bull Terrier, it was originally bred for
>bull baiting. English and Irish immigrants imported
>the dogs. Unfortunately, it was discovered in the late
>1800's that if trained, the dogs could be used in the
>inhumane sport of dog fighting. Due to federal laws
>passed in the 1970's prohibiting dog fighting fewer
>dogs are now trained for the illegal sport.
>
>The American Pit Bull Terrier is rated as one of the
>top 5 breeds in this country. It is shown exclusively
>in the American and United Kennel Clubs in the
>Conformation and obedience ring. According to the
>American Temperament Test Society (POBox 4093, St
>Louis, and MO 63136 Phone 314-869-6103, in the 24
>years of testing over 185breeds of dog, the Pit Bull
>rates at 83.1%. This is higher than the national
>average for all other breeds of dog. This means the
>Pit Bull has the best over all temperament. The ATTS
>tests dogs everywhere in the country, and is
>recognized by the AKC and UKC. The Pit Bull is used
>for Search and Rescue and Therapy. Our Foundation uses
>them along with other breeds for bite prevention and
>responsible ownership classes in the Washington School
>Districts. Two US Presidents owned Pit Bulls and
>countless famous people own them. In our country more
>families own the Pit Bull than any other dog breed in
>existence.
>
> Dr. Cornelia Wagner DVM an expert on genetics from
>the University of Wisconsin States:
>
>"Aggressive behavior in dogs is a species-specific
>trait which is firmly established genetically, because
>it has been highly influenced by natural selection
>during evolution as well as by artificial selection
>through man. However, the fact itself that the
>aggression level of members of certain breeds may be
>increased (or decreased) through artificial selection
>does not prove that aggressiveness itself is a highly
>hereditary trait. In most cases, dogs that are
>selected for higher levels of aggression are raised in
>a very aggression-stimulating environment, which then
>in turn imposes the wrong impression of a genetically
>based hyper-aggression. (Stur,2000) Zur Frageder
>besounderen Gefahrlichkeit von Hunden auf Grund der
>Zugehorhrigkeit zu bestimmten Rassen.
>http://www.hund-und-lter.de/arbeitspapiere/arbeitspapie
>re-uebersicht.html. In these situations environmental
>factors are ignored and blame for aggressiveness is
>placed on the genetic make-up of the dog. Blaming the
>genetic make-up of the dog is wrong.
>(Fedderson-Peterson, D.U.(2001) Zur Biologie des
>aggression des Hundes, Disch Tierarzil, Wschr 108
>(3),94-101, environmental and learning effects are
>always stronger than genetic influence. Although
>certain dog breeds such as the Rottweiler and American
>Pit Bull Terrier have the reputartion of having
>stronger jaws than other breeds, valuable scientific
>studies showing significant differences in jaw
>strength among breeds does not exist. In summary, the
>classification of dog breeds with respect to their
>relative danger to humans makes no sense, as both the
>complex antecedent conditions in which aggressive
>behavior occurs, and its ramifying consequences in the
>individual dog ecological and social environment are
>not considered.
>
>There is no scientific proof that genetics cause a
>breed of dog to be aggressive, vicious or dangerous.
>Irresponsible owners are to blame for the behavior of
>dogs that are aggressive, vicious or dangerous. To
>have these four Pit Bulls destroyed would be an
>injustice and genocide to a specific breed of dog. The
>Washington Animal Foundation finds the American Pit
>Bull Terrier not to be a dangerous dog.
>
>ARGUMENT
>
>City, appelent in their brief seeks to respond to
>Appelee's sstatement of facts. Their claim is that
>the statement of facts by the Appelees is incorrect.
>The city in their brief is attempting to confuse the
>honorable court between the 28 allegedly trained
>fighting dogs already put to death, and the puppies
>born in captivity. These four puppies have had no
>training for fighting. The city seeks through osmosis
>of genetics of the young Pit Bulls still in its
>possession are dangerous. The Appellant offers no
>credible evidence that these four remaining puppies
>are dangerous or vicious.
>
>THE RULING BY THE TRIAL COURT ON THE ISSUE VELNON OF
>DANGEROUSNESS OF THE PUPPIES IS IN FACT AN ORE TENUS
>RULING.
>
>Appellant is wrong in their claim that the ore tenus
>rule does not apply to this case. The Circuit courts
>ruling, that the four puppies were not dangerous or
>vicious, is an ore tenus and is established absent
>abuse of discretion or plain error. Consequently, the
>issue of question of whether the four puppies are
>dangerous has been determined by the court in its ore
>temus ruling and should stand. If these puppies are
>not dangerous/vicious they may not be killed for being
>vicious. The court correctly ruled that Alabama Code
>section 3-1-29(e) is not applicable to the four dogs
>in question. The Circuit Court's ruling on that
>factual issue is also ore temus. Alternatively, 3-1-8
>does not apply, as the have not been abandoned, they
>were ostensibly taken and retained under section
>3-1-29 of the Alabama Code.. Because the puppies have
>been determined not to be vicious, and that they have
>a useful purposes, having not been trained for
>fighting, Section 3-1-29 did not apply. this fact was
>established by the hearing in that issue on November
>13 2001 as the court's stated in it's order og
>december 17, 2001. If as the court ruled section3-1-29
>is not applicable to these puppies, then they must be
>treated like any other impounded animal pursuant to
>3-2-22, which mandates sale to the public of animals
>taken.
>
>In the case of Zuniga v. San Matero Department of
>Health Services 218 Cal. App. 3d 1521,267 Cal. Rptr.
>755 (Cal. App. 1 Dist. 1990), the city of San Mateo's
>counsel uned the identical argument for a
>"dangerousness" finding. In the courts rejection of
>the city's theory of "inherent nature" or congenitally
>"dangerous animals", the court stated @id.,page 762
>"[1]t is some how ironic the respondent [city] who
>controlled all but one of the above factors having
>some impact on the maturing puppies' nature now seeks
>to declare them dangerous. A more realistic
>assumption is that in order to discount its own
>contribution to the lack of socialization and training
>of the caged puppies, respondent of necessity, must
>advance the theoretical argument that these puppies
>were congenitally "dangerous animals". a position for
>which no competent evidence was offered or received."
>
> In the present case, there is absolutely no
>competent evidence that these Young Pit Bulls are
>vicious. The evidence offered in Dr. Jackson's
>testimont demonstrates she has no expertise on
>genetics. The record shows her factual history and
>credentials are inadequate (see R. vol. 1, 53; 9-11).
>She repeatedly admitted her own and the city bias
>against ALL Pit Bull Terriers in her subjective
>determination the the Pit Bull is a "bad breed". (See
>R. Vol. 1, 44: 10-21, 49:16-25,50: 1-12, 51:1-16). Her
>admissions proved sher own bias and that of the City.
>The Veterinary Medical Association has stated, that
>for a veterinarian physician to testify giving an
>opinion not based on scientific facts is "totally
>inappropriate". The Association's position did not
>prevent Dr. Jackson fromespousing her opinion as
>scientific fact. Dr. Jackson's testimony proves the
>city has an agenda that all Pit Bull Terriers acquired
>by the city would be put to death irrespective of
>viciousness. The policy of not adopting out any "Pit
>Bulls", and killing all of that perceived breed was
>confirmed when the court itself asked the question
>"any other than the pit bulls" Jackson: "The pit
>bulls are the only ones that we have a firm policy
>about not adopting out" Unfortunately, that means
>that no Pit Bulls are allowed to live if taken up by
>the city. Targeting a breed is illegal and the city's
>admitted policy is a violation of Alabama State Law
>section 3-2-22. This violation results from the clear
>statement that these dogs are never offered for sale.
>Without representation they are systematically killed.
> These innocent Pit Bulls are routinely eithanized
>irrespective of a viciousness determination simply as
>a result of a genetically biased policy.
>
> The city of Huntsville has adopted an illegal
>practice without any authority. It never offers any of
>these animals a chance of adoption and a good home.
>Would be owners are arbitrarily discriminated against
>with out any hering or any simulance of due process.
>The city has accomplished this without authority of
>law.
>
>
> While police power is broad it is not boundless, for
>the fourteenth amendment of the United States
>Consitution limits the power of the legislature to act
>with respect to private property. In particular,
>pertinent sections of the fourteenth amendment provide
>that no state shall deprive any person of property
>with out due process of law,or deny any person equal
>protection of the law. If an ordinance encourages
>arbinance encourages arbitrary and erratic law
>enforcement, or if it places unlimited discretion in
>the hands of the police, the law will be
>unconstitutionally vague and violative due process.
>(Papachrista v. Jacksonville, 405 U.S. 156, 168
>(1972). In this case the City argues that it simply
>has the power, without any statutory authority, to
>pick a breed for termination. It then denies the
>public the statutory right to buy an animal, a Pit
>Bull Dog, simply by the cities subjective
>classification of its breed. While there may be
>liability if a dog bites someone without provocation,
>Code of Ala. 1975 3-6-1 et, seq, Under Alabama State
>dangerous dog law a dog had to bite to be considered
>dangerous, even a biting dog is allowed due process
>and the owner is entitled to mitigation 3-6-3.
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