N.Y. v. Shanks - Pit Bull Found Not Dangerous & Judge Refuses to Apply Breed to Dangerous Dog Statute
- Category: Breaking News
- Published on Sunday, 07 April 2013 17:51
- Written by Fred M. Kray
New York v. Shanks
Appellate Court Reverses
A Dangerous Dog Case Where "Dangerousness" of Pit Bull Breed Used for
Classification in Trial Court
In November of 2011, the owner of Ghost took him for a walk. Ghost was collared, leashed, and harnessed. During their walk, they passed by a house with a German Shepherd tied to a porch railing. Ranger, the German Shepard, managed to escape his leash and property, and ran at Ghost. A fight ensued and while both dogs were injured, Ranger got the worst of it. Ranger's owner subsequently filed a complaint against Ghost.
A classification hearing was held to determine if Ghost was a dangerous dog. During the hearing, the prosecutor admitted that Ranger had picked a fight he couldn't win, but argued that because of Ghost's breed, the court could take judicial notice that pit bulls are a violent breed, and that Ghost was an aggressive, powerful, and vicious pit bull. The Court declared Ghost dangerous and his owners appealed.
The New York Appellate Court for the Third Department reversed. In a strongly worded opinion, the court held that:
The condemnation of an individual dog in the contest of a dangerous dog proceeding solely by virtue of its breed is without any legal basis. We have repeatedly held that there is no persuasive authority of the proposition that a court should take judicial notice of the ferocity of any particular type or breed of domestic animal.
The court went on to acknowledge that there was no evidence that Ghost had ever attacked another dog or person, or that he exhibited any aggressive behavior towards the people trying to end the fight. Ghost's protective and defensive instincts were entirely understandable and to be expected. The court reversed Ghost's dangerous dog classification.
Dangerous dog hearings should always be focused on the actions of the dog in question, not their breed. While some dangerous dog statutes do classify pit bulls and other dogs as dangerous, the statute in this case is not one of them. Thus, there was no legal basis for considering breed, as the court stated.
The court was also correct in not taking judicial notice of the pit bull breed. Judicial notice is reserved for matters that are without controversy, like what time high tide was on a particular day, or what phase the moon was in. It is not appropriate for consideration of breed traits.
Looking at the facts, it would seem clear that Ghost should never have been prosecuted. While prejudice against pit bulls could be an issue, looking at footnote 2 of the decision gives us an indication of why the case went forward. The owner of Ghost was pregnant and miscarried after the incident. The trial court made a statement that taking such a dog for a walk while pregnant showed a lack of judgment. The appellate court held that this statement, along with the trial judge's general opinions about dogs, showed judicial bias that would have required reversal in any case.
Kudos to the appellate court for seeing the case for what it was, and properly finding that Ghost was not a dangerous dog.