- Category: New Llano Louisiana
- Published on Tuesday, 08 July 2014 17:44
- Written by Fred Kray
Judge Patricia Minaldi entered a preliminary injunction against the Town of New Llano's pit bull ban on Tuesday, which prevents enforcement of the ordinance until the case reaches resolution. The judge also ruled the dog at the center of the dispute, Mazzy, could go home with some restrictions after being kenneled out of town. The lawsuit was filed in the United States District Court for the Western District of Louisiana, Lake Charles Division by Christine and Victor Nelson, who challenged the constitutionality of New Llano's pit bull ban.
The hearing took place in Judge Minaldi's courtroom, and the case was argued by both sides for over an hour. Fred M. Kray, arguing for plaintiffs, started out his argument by pointing out that Louisiana's state dangerous dog law requires a municipal court filing, notice of hearing, hearing, rules of evidence and appeal. This process is mandated for dogs that have bitten or acted aggressively. The New Llano ordinance allows none of these protections for dogs that have done no wrong except to look like a pit bull to the New Llano fire chief. Kray also moved to strike citation to statistics cited by the Town in there brief from dogsbite.org. He questioned how cutting and pasting from a website on the internet could be used as precedent without peer review, data or any way to know the accuracy of such statistics. He pointed the court to the peer reviewed article Co-occurence of potentially preventable factors in 256 dog-bite related fatalities in the United States (2000-2009) as a more complete and accurate picture of the reasons dogs bite—breed not being one of them.
The ordinance was also vague, Kray argued, because it gave two different definitions of pit bull, which conflicted and would not allow a person of ordinary intelligence to know that they owned a banned dog. It was pointed out that under the "predominant" definition, Mazzy would not be a banned dog under the ordinance.
Finally, it was pointed out that the requirement of paying $200 for a DNA test violated due process, because people who could not afford the test would end up with their dog banned, even if it was not a pit bull as defined under the ordinance.
The Town argued that the ban was needed and had rational basis to public safety. A small town should not be held to the standard of visual identification in Miami (where Cardelle was decided), which has more resources. The Town did not dispute that the Nelsons were suffering irreparable harm. They argued that since the payment of $200 for the DNA test was refundable, it was not unconstitutional.
The Town asserted that they could ban pit bulls even if there were no evidence of pit bull bites. The Town asked the rhetorical question, why should we have to wait for there to be a mauling before we ban pit bulls? We want to be proactive. The Town had difficulty explaining how the definition which included the term "predominant" would ban Mazzy, since she was only 50% pit bull based on the DNA test. They also had difficulty explaining how the term "any" pit bull was applied in the ordinance.
This is a thumbnail sketch of the hearing, and when the transcript becomes available, we will post it so the entire argument can be revealed.
At the end of the hearing, the judge ruled from the bench granting Plaintiffs' Motion for Preliminary Injunction. What this does is prevent the town from enforcing the ban during the pendency of the litigation. She allowed Mazzy to go home, under the condition she be held as a pit bull that had been grandfathered in under the ordinance.
Kray, one of the two attorneys representing the Nelsons, was extremely happy with the ruling. "It's extremely difficult to prevail on a Motion for Preliminary Injunction. This ruling allows Mazzy to finally go home with her family and ensures that other dogs will not be put in a position where they are wrongfully banned and their owners have no way to defend the pit bull classification."
"Although this is a temporary ruling until the case can be fully adjudicated, I am so happy that Mazzy can be at home during the rest of the litigation," said Stacy Palowsky, who also represents the Nelsons. Most pleased were the Nelsons, who now can bring their dog home after nine months of boarding.