IN THE JAWS OF A DILEMMA

Almost anyone old enough to be a municipal official in Illinois can remember seeing the television antics of Alfalfa, Buckwheat and the four other kids who composed Our Gang. Their constant companion and friend was a lovable dog with a circle around his left eye named Petey. At the time that those episodes were filmed, Petey's breeding was probably of little or no consequence to anyone around him. However, today, the mere mention of Petey's breed evokes controversy, horrific stories, parental fears and a problem for municipal officials. Petey was a pit bull terrier. Depending on whose version of a description of pit bulls you believe, they have "a ridiculously amiable disposition;" or, they are "the closest thing to a wild animal there is in a domesticated dog;" or any of a dozen other descriptions heralding the breed as a killer or just another dog.

The current interest in and controversy surrounding pit bulls has been sparked by an ever increasing frequency of reports of seemingly unprovoked attacks by the dogs. Tragically, many of these attacks have resulted in the deaths of small children. But the fury of certain pit bull terriers has not been limited to children. According to a recent article in The Wall Street Journal (July 6, 1987, p. 1), in the past four years twenty-eight people have been killed by dogs. In twenty of those cases the attacking dog was a pit bull. Newspaper articles, magazine features and television news reports have set forth in grisly detail the vicious propensity of pit bulls. The increased notoriety of the animal as a fighter and its abilities as an attack dog has inspired alleged gang members and drug dealers to obtain the dogs and train them as four-legged weapons. Additionally, the increased publicity has brought increasing notice to the alleged "sport" of dog fighting. All of this notoriety, publicity and tragedy has placed municipal officials across the United States squarely into the middle of a moral, political and legal dilemma.

Municipalities as diverse as Cincinnati, Ohio and Liberty, Missouri have recognized the need to attempt to control both the owners of the dogs and the dogs themselves. In numerous communities around the United States, the response to attacks by the animals is characterized by a recent editorial in The Cincinnati Inquirer. In its April 9,1987 edition, an editorial entitled "The Pit Bull Problem" began by saying "The horrifying death of a sixty-seven year old Dayton man after a dog attack Monday raises state-wide, and even nationally, a problem Cincinnati has grappled with: How to stop vicious attacks on humans by pit bull dogs?"

MUNICIPAL CODE REVISION In 1983 the Local Government Section Council of the Illinois State Bar Association, which was then chaired by Thomas W. Kelty, Chief Counsel to the League, began the process of revising certain articles of the Illinois Municipal Code (Ch. 24, III. Rev. Stat). That effort has culminated in a red raft of Article III of the Code, now being finally prepared for presentation to the Illinois General Assembly. It is the desire of the Cities and Villages Committee of the House of Representatives to conduct public hearings on the proposed revisions to Article III. The Committee seeks input regarding the draft as well as changes which other persons may wish to propose. The Committee has created a sub-Committee which will conduct a public hearing on the proposed revisions in conjunction with the League Annual Conference, Friday, October 16,1987. The public hearing will beheld immediately following the Legislative Committee meeting in the Waldorf Room, third floor north, Hilton Hotel, Chicago.

September 1987 / Illinois Municipal Review / Page 13

After discussing the problems, the options and the proposed solutions, the editorial concluded that "as long as pit bulls are causing a disproportionate danger, communities need the power to create special protections — not instead of holding dog owners generally responsible for their pets' behavior, but in addition." No municipality, in any state, wants to hear their community's name mentioned in the same breath as a pit bull victim's death. Communities confronted with this problem have attempted to act swiftly and decisively, but all too often, after the death of a citizen of their community. While an entire article could be devoted to the arguments, pro and con, for regulating or not regulating pit bull dogs, the decision is ultimately and finally one that must be made by each community. The balance of this article will be dedicated to discussing the various approaches that other communities have adopted and the results that have been achieved in those communities.

Historically, the law has recognized that a dog which causes an injury may subject the owner to liability for damages. The broad rule in torts is that the owner of the dog is liable if the owner is negligent in allowing the injury to occur or if the animal has known vicious propensities. THE RULE IS NOT AND NEVER HAS BEEN THAT "EVERY DOG IS ENTITLED TO ONE BITE." This misunderstanding of the law has evolved from the "known vicious propensities" part of the liability rule. An owner may be charged with notice of the vicious propensities of a dog if the actions of the dog are such to lead the owner to believe that the dog, if given the opportunity, would attack a human being. Growling at the mailman, straining at the end of a leash to get to a nearby person or even jumping up on visitors in a friendly manner may provide notice to an owner that a dog has vicious propensities. An owner with a dog displaying such tendencies could be held liable for the injuries that are later caused by the animal. However, the tendency of a pit bull to attack without warning and without prior displays of "vicious propensities" points out the inadequacies of the application of typical liability standards to pit bulls. Additionally, damages for the vicious character of injuries that are generally inflicted by a pit bull are often inadequate compensation to the victims and, all too often, the survivors. These inadequacies have led municipalities to adopt ordinances which, in varying degrees, either severely limit or prohibit the possession, ownership or breeding of pit bulls.

Municipalities desiring to enact these ordinances typically face two issues which present great difficulty; the extent to which regulation is necessary and defining the animals regulated by the ordinance.

The general approach of municipalities enacting ordinances to regulate pit bulls have imposed similar categories of restrictions. These categories are:

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1. Registration of ownership.
2. Confinement in a secure area, a leash and muzzle required when unconfined.
3. Signs posted giving notice of a pit bull on the premises.
4. Identification, photographs, registration and reporting.
5. Prohibition of sale or transfer of ownership.
6. Removal of offspring of a registered pit bull from the municipality.

Although each of the categories above can be defined with some certainty, nearly all municipalities have encountered some difficulty in defining a pit bull. There does not seem to be complete agreement, even among kennel associations and breeding associations, of how to identify a pit bull. From the ordinances and subsequent litigation from various municipalities it appears that the most generally accepted definition consists of six components. These components are:

(a) The bull terrier breed of dog.
(b) Staffordshire bull terrier breed of dog.
(c) The American pit bull terrier breed of dog.
(d) The American Staffordshire terrier breed of dog.
(e) Dogs of mixed breed or other breeds which are known as pit bulls, pit bulldogs or pit bull terriers.
(f) Any dog which has the appearance and characteristics of being predominantly of the breeds of (a) through (e) above.

In at least one case, Broward County, Florida, a definition of pit bull which was less certain and did not include all six of the standards set forth above was found to be unconstitutionally vague because an ordinary person was unable to definitively ascertain what dogs were prohibited by the definition. Therefore, in order to sustain an ordinance regulating pit bulls, it is imperative that the dogs regulated be clearly and accurately defined.

After overcoming the difficulties of defining a pit bull, the substantive regulatory provisions of the ordinance can create constitutional difficulties for the municipality. For example, a provision requiring a pit bull owner to maintain one million dollars in liability insurance coverage was found to be unworkable because of the unavailability of the coverage. A subsequent amendment of the ordinance lowering the threshold to one hundred thousand dollars was undermined by the obtaining of a preliminary injunction by a group of dog

September 1987 / Illinois Municipal Review / Page 15

owners in a state court. As discussed below, each regulatory standard must be sufficiently defined to allow those persons governed by the ordinance to understand clearly its meaning and exact effect upon them individually.

Regulatory ordinances that have been challenged or analyzed have had three questions discussed in analyzing their constitutionality. First, do ordinances severely restricting or prohibiting ownership of pit bull dogs exceed the police powers of the State in that the ordinance bears no substantial relation to the public health, safety or welfare? Second, do ordinances which prohibit ownership or future ownership of offspring amount to the taking of property without just compensation under the Fourth Amendment to the United States Constitution? And, finally, are the ordinances sufficiently vague and uncertain so as to prevent a person of ordinary intelligence from understanding their effect upon the individual owner? A variety of other legal issues have been raised relating to various ordinances in different communities around the United States. However, the three issues listed above are the most commonly occurring issues and challenges to similar ordinances. The adjudication of these issues has resulted in varying results. Some cities have successfully defended their ordinances, while Broward County Florida, had two injunctions entered against differing versions of a regulatory ordinance.

As with any subject of regulation, the group effected by the regulation feels that they are being unfairly singled out. Undoubtedly it is true that not all pit bulls are dangerous animals which should be eliminated from communities. And, as it has been asserted by pit bull owners, it may be true that the character and temperament of the owner along with the training of the dog may have an impact upon the dog's disposition and propensity for vicious behavior. However, this does not appear to be a case of "one bad apple spoiling the barrel." The pit bull population in America represents less than one percent of the total number of dogs in the country. Yet that one percent resulted in over seventy percent of the dog caused deaths since 1983. That single fact makes the issue of pit bull regulation worthy of consideration by municipal officials in Illinois and across the United States.

It appears that the subject of regulation of pit bulls is beginning to gain some notice in Illinois when judged by the number of inquiries received by the League regarding the subject. In light of this interest in the subject, I am preparing a proposed model ordinance that could be implemented by Illinois municipalities which will attempt to address the legal concerns raised in various jurisdictions around the United States. It is contemplated that the ordinance will be prepared and that copies will be available to interested municipal officials during the upcoming IML Conference in Chicago. Additionally, I am preparing a more detailed presentation on the community responses and legal issues surrounding the subject to be presented at the Conference. For those municipal officials and attorneys who are unable to attend the Conference, copies of this information will be available upon request after the Conference. •

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