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Last updateFri, 04 Jul 2014 5pm

BSL Litigation

Maryland Attorney General -Governor Has No Power To Stay

Maryland Attorney General Opinion
Governor Has No Power To Stay
Solesky v. Tracey

Motion for Reconsideration Stays Effect

In an opinion dated July 10, 2012, the Maryland Attorney General announced that "It is my view that no action of the Executive or Legislative Branch short of enactment  of legislation can change the effect of this decision."  The full opinion letter can be read here.

There had been some question of whether lobbying the Governor for some kind of executive order would delay the Solesky decision.  The AG opinion seems to put that question to rest. However, the consensus in Maryland seemed to be that the Governor would not touch this issue with the proverbial ten foot pole.

The letter was written before the Motion for Reconsideration was granted and an opinion issued.  The AG stated that is was her opinion that a Motion for Reconsideration would stay the effect of the decision.  Now that the Motion for Reconsideration has been granted, the question is whether it is immediately in effect.  The lawyer defending the case told me that it would not be effective until the mandate issues, which is usually thirty days.  However, I was also told, that a mandate issued the day the reconsideration opinion was issued. I will follow up on this on Monday and report what I find.

Solesky Motion For Reconsideration Granted In Part As to Mixed Breeds

Maryland Court Grants Motion to Reconsider
As To Cross Breeds and Mixed Breeds

In what I consider a shocking move, the Maryland Appeals Court has granted Tracey's Motion for Reconsideration.  The full opinion can be read here.

I will need more time to digest this decision, but it appears from a brief review (a skin really) that the court has taken out of it's decision any reference to mixed or cross breed pit bulls.

Thus, it appears these cases will now turn on whether the dog involved in the case is identifiable as a "pit bull."  And I suppose, it will further depend on whether the landlord knew it was a pit bull.  This will create a problem with enforcement on several levels. First visual breed identification has no scientific basis, second is 100% pure breed now required, and third pit bull is not a breed.

It seems then, that since the vast majority pit bulls are mixed or cross breeds, that the decision will have a very limited application.  If owners and landlords require proof that a dog is a purebred, there will be very little application of this holding. This is a good thing for owners of mixed and cross breed pit bulls.

What will the legislature do next? 

Tune in for more on tonight's show.

 

Solesky Motion For Reconsideration Filed

Tracey Attorneys File
Motion for Reconsideration 

The defendant in the Solesky case has filed a Motion for Reconsideration, which can be read in its entirety here.  At the same time, the Maryland legislature has appointed a Task force to review the opinion and the effects it will have on Maryland dog owners.

I will be discussing in more detail the 19 page motion on Tuesday night's radio show.  In a nutshell, the motion criticizes the Solesky decision for 1) failing to follow precedent; 2) based on unsound science; 3) exceeding judicial authority by relying on legislative facts from other jurisdicitions; 4) ignoring science conflicting with that the court relied upon; 5) making a decision without any record below of the science or evidence relied upon; 6) pit bulls are not a breed and the term cross breed pit bull is "inherently quixotic initiative that will spark litigation and uncertainty; 7) BSL is best left to the legislature; 8) application to Tracey of a new standard of care retroactively is unfair and unconstitutional.  In the alternative, the motion asks that the court delay any further decision pending the special legislative session scheduled.

Tune in Tuesday night at 8:00 pm EST to hear all the details!

Maryland Highest Court Creates Strict Liability for Pit Bulls

Close 4-3 Decision Creates Strict Liability
For Pit Bulls and Pit Bull mixes

Dogsbites.org and ASPCA file Amicus Briefs

Maryland's highest court decided in a very close decision that owners of pit bulls and pit bull mixes are strictly liable for injuries caused by dogbites.  Landlords who rent to pit bull or pit bull mixes, know the tenant has a pit bull or pit bull mix, and fail to take action, will also be liable for bites by the tenant's dog. The full opinion can be read here. Other news analysis of the decision can be read here, here, and here.

I will be discussing the case in depth on Tuesday's radio show. The case only affects Maryland.  The majority of states, including Florida, already have strict liability for damage done by dogs regardless of breed. There are a lot of issues not decided in the case, that will require further litigation. Having said that, Maryland Pit Bulls will probably not be able to be adopted out, and owners will have a much more difficult time finding rentals with their dogs.

If you want your blood to boil, take a look at the Amicus Brief filed by Dogsbite.org, here. Thankfully, the court did get to see both sides, since the ASPCA filed an amicus on the other side. 

Tune in Tuesday to hear what the lawyer defending the case had to say about it. We will also be talking with attorney Jennifer Edwards who is handling the Denver Pit Bull Service Dog litigation.

Federal Court Enters Preliminary Injunction Against Town Of New Llano Pit Bull Ban

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.

Read more: Federal Court Enters Preliminary Injunction Against Town Of New Llano Pit Bull Ban