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N.Y. v. Shanks - Pit Bull Found Not Dangerous & Judge Refuses to Apply Breed to Dangerous Dog Statute

New York v. Shanks

Appellate Court Reverses

A Dangerous Dog Case Where "Dangerousness" of Pit Bull Breed Used for 
Classification in Trial Court

New York v. Shanks would have been a garden variety dangerous dog case, except that Ghost, a American Pit Bull Terrier, was involved. The full case can be read here.

The Facts

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.

The Trial

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 Appeal

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.

Legal Analysis

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.

 

 

Pit Bulletin Legal News Sends Freedom Of Information Act Request to Boston Animal Control

foia

Oral Request Goes Unanswered

PBLN has been trying to obtain the records that Boston Animal Control provided to the Boston city council and Massachusetts state legislators to justify their proposal for pit bull regulation. Met with silence, PBLN sent out a Freedom Of Information Act request, which can be viewed in its entirety here.

It will be interesting to see the response, and if you want some tips on how to draft your own FOIA, read the article on Pit Bulletin Legal News Network, here.

Dogs Deserve Better - Trial Transcript on Jada's Seizure

Judge Looks At Photos and Decides Case

It's really old news, but Tamira Thayne went to trial and got back the one dog seized by Animal Control. PBLN has gotten the trial transcript, so what actually happened at the trial can be reviewed.  The trial transcript from the court  hearing is here. It appears from the transcript that the state has a witness who made a complaint about the dogs being crated for long hours and maced.  That witness moved to North Carolina and was not available for the hearing. There is a lot of legal argument about whether the State can ask for a continuance, but the judge decides he must move forward with the trial because the statute is mandatory that the trial must occur within 10 days of seizure.

The animal control officer who seized the dog really had no independent evidence to justify seizure. There is some "Halt" in the house, but nobody can say it was used on Jada. Thayne and a veterinarian testified that dogs were well cared for, and presented pictures of Jada when she was taken in scarred and beat up, and the day she was seized.  The judge dismisses the State's case, saying "A picture is worth a thousand words." Is there, in his pronouncement, a question as to the merits of bringing the case?

Read for yourself and you decide.

Thayne's criminal trial is currently scheduled for March 5, 2013.

Jo Staats Leaves Pit Bulletin Legal News

Jo Staats has left Pit Bulletin Legal News. Jo accomplished a lot during her tenure. She helped develop the radio show as well as PBLNN. She also worked hard behind the scenes gathering news, updating StopBSL and talking to guests.  She will be missed.  We appreciate her efforts in taking PBLN and PBLNN to the next level. Rumor has it she is already working on a new project: a documentary film.  We wish her luck and success in all her future endeavors.