Maryland Pit Bull Advocates Will Take on Tracey v. Solesky Once Again in Coming General Assembly Session

By Editor
In Breed-Specific Legislation
Dec 6th, 2013
7 Comments
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The 2012 Maryland Court of Appeals ruling in Tracey v. Solesky was a perfect example of why it’s not always a good idea for the judiciary to be involved in matters of legislation.  In fact, poor rulings which change existing laws or even create new laws are what have come to be derisively known as “legislating from the bench.”

Members of the Maryland General Assembly have attempted in three separate sessions to negate the ruling in Tracey, and each time the measure has been killed, including even a compromise bill in the 2013 session.  Nevertheless, animal advocates are undeterred and are again gearing up to fight the unfair labeling of so-called “pit bulls” as inherently vicious based on the ridiculous ruling in Tracey v. Solesky in the coming session. 

For those who don’t know or don’t remember, the court in Tracey ruled that,

Upon a plaintiff’s sufficient proof that a dog involved in an attack is a pit bull or a pit bull cross, and that the owner, or other person(s) who has the right to control the pit bull’s presence on the subject premises (including a landlord who has a right to prohibit such dogs on leased premises) knows, or has reason to know, that the dog is a pit bull or cross-bred pit bull, that person is liable for the damages caused to a plaintiff who is attacked by the dog on or from the owner’s or lessor’s premises. In that case a plaintiff has established a prima facie case of negligence. When an attack involves pit bulls, it is no longer necessary to prove that the particular pit bull or pit bulls are dangerous.

The suppositions that 1) “pit bulls” are inherently dangerous with no proof, and 2) that a landlord, etc. should somehow know what a “pit bull” is, though definitions of “pit bulls” vary widely and greatly, are ridiculous notions. 

In no way did Tracey v. Solesky prove that so-called “pit bulls” are dangerous, because science hasn’t proven that any one breed of dog is inherently vicious.  Nor was it fair to put the onus on landlords for being experts in breed determinations when even cities like Denver can’t discern what is and is not a “pit bull” as defined by their own ordinance

Speaking of Denver, it wasn’t surprising that the decision in Tracey excerpted part of the ruling from the Colorado Supreme Court which upheld Denver’s “pit bull” ban.  It read:

Since section 8-55 allows the determination that a dog is a pit bull based on nonscientific evidence, the dog owners assert that they are denied substantive due process. The city, however, is not required to meet its burden of proof with mathematical certainty of scientific evidence. Therefore, even though section 8-55 permits a finding of pit bull status to be based on expert opinion or on nonscientific evidence, such a procedure does not violate the dog owner’s due process rights.

Not only did Denver not meet the burden of proof with “mathematical certainty” in breed determinations, Denver’s Animal Control Officers repeatedly could not tell the difference between what their own ordinance defined as a “pit bull” and a Boxer, meaning they were confusing entirely different breeds with one another.  That qualifies as a substantive due process violation and then some.  Still, the Maryland Court of Appeals found “pit bull” advocates’ claims of constitutional violations as pertains to BSL “unpersuasive”?  Really?? 

Perhaps most telling from Tracey, however, was that the court itself referred to “pit bulls” as if they were an actual breed.  Yet their use of the term “pit bull” implied that they themselves didn’t know what a “pit bull” was since they listed several actual breeds but used the term “pit bull” as if it too were a breed, though never actually defining what exactly they thought a “pit bull” was.  On page 1 of the ruling, the court refers to Bull Terriers as “pit bulls.”  On page 4 in the footnotes, a “pit bull” is described as an American Pit Bull Terrier.  On page 6 of the ruling, a “pit bull” is described as an American Staffordshire Terrier.  In other words, the Tracey ruling didn’t even know or define what a “pit bull” is even as they were holding landlords liable for knowing what a “pit bull” is!

The decision uses the term “scienter,” a Latin word meaning “knowingly,” to explain why a landlord can be held liable for the damage incurred by a “pit bull” owned by his tenant:

If it is a pit bull the danger is inherent in that particular breed of dog and the knowledge element of scienter is met by knowledge that the dog is of that breed (p. 14).

Scienter in its legal definition means “a degree of knowledge that makes a person legally responsible for the consequences of his or her act or omission.” 

But if the Tracey decision couldn’t even define what a “pit bull” is, then how is a landlord or anyone else supposed to know what a “pit bull” is??? (The dissenting opinion by Judge Greene, which Judges Harrell and Barbera joined, likewise questioned the criteria by which one can know a dog is a “pit bull” and by what standard one can determine if a landlord, et al, had knowledge that a dog was a “pit bull,” and therefore knowledge, according to the court, that the “pit bull” was vicious.  On page 2 of the dissenting opinion they asked “What expert testimony or factual predicate is contained within this record to support a factual finding that “pit bulls” and mixed-breed “pit bulls” are inherently dangerous?”)

The court did not know what a “pit bull” was, nor did the judges define what they meant by the term “pit bull,” and yet they cited a statistic in their decision that has been widely discredited precisely because “pit bull” is not a breed:

” . . . Rottweilers and pit bull type dogs accounted for 67% of human DBRF [‘dog bite related fatalities’] in the United States between 1979 and 1996″ (p. 16). 

I think this statistic is referring to the CDC study that the CDC themselves discredited which was actually from the years 1979-1998. 

The CDC wrote of what they themselves admitted were skewed findings that,

” . . . to the extent that attacks by 1 breed are more newsworthy than those by other breeds, our methods may have resulted in differential ascertainment of fatalities by breed.” (JAVMA, Vol 217, No. 6, September 15, 2000, p. 838). 

In other words, the stats were based on mere media accounts and were dubious as to breed. 

The CDC also noted that the study did not take into account mitigating factors in attacks — like whether the dogs were spayed or neutered, whether the dogs were abused, or whether they were trained to be aggressive — nor was the CDC able to ascertain population data for so-called “pit bulls” because the CDC itself could not define what a “pit bull” was (hence the term “pit bull-type dog” which can describe countless breeds of dog, their mixes, and lookalikes).  Yet this information appears to have been ignored or, for the most part, overlooked by the court.

Likewise, while the court acknowledged that the victim in question, Dominic Solesky, was mauled by a dog who was clearly abused, being described in the decision as having “escaped twice from an obviously inadequate small pen” (p. 4), they astoundingly did not consider the dog’s abuse as a mitigating factor.  Nor did they consider that the dogs they call “pit bull” are among the most abused, if not the most abused, dogs in the world.

It’s interesting too that while the Tracey decision mentions England’s handling of breed-specific legislation (p. 11) as a supposed success story, they failed to note that the U.K.’s BSL, which has been instituted since 1991, has been an utter failure as there has been a huge rise in banned dog breeds, particularly with the number of banned dogs used for fighting, then abandoned, soaring.

It was unbelievable that this kind of disinformation was being propounded in a court of law, but as I read on in the decision the disinformation was not so surprising considering that at least some of it had its source from Merritt Clifton and his sketchy “publication” Animal People.  It was then that animal advocates knew what they were dealing with, a radical animal rightist who, like others of his ilk, is hell-bent on ending domestic animal ownership and pushes breed-specific legislation (BSL) in order to do so.  The question is, were the judges aware that they played right into the hands of a radical animal rightist agenda, or were they really just that clueless?

Regardless, because the majority of the judges believed or gave in to Clifton’s, and possibly others’, disinformation, the ruling sickeningly gave credence to long debunked “pit bull” mythology including the lies that “pit bulls” are insensitive to pain; bite or attack without warning; and have strong, powerful jaws with a 2,000 pound pounds per square inch bite force (pp. 14-15).  The Maryland Appeals Court should be embarrassed for itself for believing such blatant lies when you can do a mere Google search and find out none of these claims is true. 

If these judges were so foolish as to believe the kind of hysteria that would liken a so-called “pit bull” (to which they gave the anthropomorphized attribute of “malevolence”) to the mythological hell hound, then maybe they aren’t fit to sit on the bench.  Why?  Because prejudice, the kind that separates one group of anything from a group of something else, never leads anywhere good, and usually, not so surprisingly, ends with death.  In this case, these judges gave legitimacy to the disinformation of radicals whose very end-goal is the extermination of the dogs they call “pit bulls.”  Judges so foolish are the last kinds of people who should be deciding matters of justice.

 

 

7 Responses to “Maryland Pit Bull Advocates Will Take on Tracey v. Solesky Once Again in Coming General Assembly Session”

  1. Tony Solesky says:

    I along with others will also be down in Annapolis. Since the general Assemble first took up the issue there have been 43 people killed by dogs identified by Police reports with death ceertificates as Pit Bulls 27 of which have happened this thelast general session. I do not believe it will help to describe a position that pit bull is not a breed when it is in fact a breed group just like a retrivier is and covers all of the various retriviers from lab to golden so does Pit bull. More important however is you will be asked if the court cannot prove what a Pit bull is how are you proving that the dogs you defend are Pit bulls? If you do not show scientific evidence that it does exist and how the shelter and everyone in the country declares they are filled with Pit bulls that you say cannot be proven to exist. It is these types of arguements with their obstructionist nature the the legislature frowns on.

  2. So on the one hand, Mr. Solesky, you acknowledge that “pit bull” is a conglomeration of breeds, not one actual breed, and yet on the other hand you cannot understand that therefore statistics on so-called pit bulls would necessarily have to be skewed? Dog bite statistics aren’t listed under a general category for retrievers; dog bites are parsed out for retrievers like Labradors and Goldens. If you did consider the entirety of retrievers as if they were one breed, their dog bite statistics would be skewed too. So you’ve set out to prove the anti-pit bull point but you’ve actually proven my point that pit bull is not a breed.

    As for the rest of your argument, I’m sorry it’s not discernible and therefore I cannot really respond to it. I will say this though, I can’t prove what a pit bull is because I don’t know either; the definition is too variable. And as I wrote in my post, the decision in Tracey v. Solesky was a disgrace. The judges never defined what a pit bull was and yet they are requiring landlords to know what a pit bull is. It’s ridiculous and so was the “evidence” offered, which as I noted in my post had a radical animal rightist agenda behind it.

    Are you aware, Mr. Solesky, of the radical animal rightist agenda to end domestic animal ownership, including agricultural animals we use for food? Are you aware that you’re part of that agenda when you push for breed-specific legislation? And why is it, Mr. Solesky, that you and the Dogsbite.org crowd crusade for breed-specific legislation when you know full well that it doesn’t work; i.e. it doesn’t keep people, and particularly not children, including Dominic, any safer?

  3. Karen Batchelor says:

    There really isn’t a whole lot of point in trying to reason with people like Tony Solesky, Merritt Clifton, Colleen Lynn, Kory Nelson, Don Bauermeister et al as they have a mindset in concrete.

    The sort of people who want to control our quality of life according to their ideologies – such as those trying to wipe out the domestic pet (PETA, HSUS etc) – are dangerous people and should be watched very closely. Fortunately many more people are aware of the agenda of these organisations and their support base is shrinking. Especially after HSUS took Dog fighter and abuser Michael Vick under their wing.

    It is only a matter of time until BSL and it’s proponents are exposed and the outrageous basis for findings such as the Tracey v. Solesky case are publicly revealed.

  4. I couldn’t agree more Ms. Batchelor. I try to be fair, certainly more fair than the Dogsbite.org disciples who won’t even let the dog lobby post on their site, but they come on here, and they’re typically hysterical, disrespectful, and/or employ double-speak in an attempt to misdirect the debate, which really just means they haven’t got an argument; just misdirection and one-sided manipulations, with which not so surprisingly Tracey v. Solesky was rife.

    I also find it interesting that every time I post something that is a little too full of truth, someone tries to hack my blog. This has happened more than once in the last several months. So they employ these shady tactics, but claim virtue? I don’t think so.

    But then again, Tracey v. Solesky was full of one-sided information — stats and claims taken out of context to “prove” that “pit bulls,” whatever those are, are supposedly vicious; claims for which I went one-by-one in this post and debunked. I mean, the 2,000 pounds per square inch claim? Are you kidding me? A Great White Shark bites with 1,000 pounds per square inch bite pressure. How are they and the judges not embarrassed for themselves?

    Ultimately Mr. Solesky did not address my questions. He didn’t address my question about whether he knew BSL was part of the radical animal rightist agenda to end domestic animal ownership, which I assume means he knows full well that’s the agenda behind BSL and is actively taking part. So no longer will he be allowed to wag his finger, or wag the dog, in my face.

    Nor did Mr. Solesky address my question about why he is defending BSL when he knows full well, or should, that BSL doesn’t work. You’d think he’d want to make communities safer by pushing legislation, like a dangerous dog (owner) law, that has proven efficacy.

    It’s also odd that I talk about Dominic Solesky, the dog mauling victim, and mention his name more than Tony Solesky or Rose Solesky did. It’s odd that I talk about community safety more than they do.

    Often BSL crusaders push BSL because they’re so upset over a loved one’s mauling that they don’t take the time to research the facts about the inefficacy of breed bans and breed-specific restrictions and just knee-jerk. They often talk repeatedly about their child and how they never want something like that to happen to theirs or someone else’s child, to which I usually tell them dangerous dog (owner) laws are better in that regard because they treat all dogs and all dog owners the same.

    What these understandably distraught parents don’t do, however, is use their own child as a sacrificial lamb for their crusade.

    • Karen Batchelor says:

      That pattern is the same around the world where we see parents who have had the misfortune of having a child attacked or worse, but fail to understand the very important factors surrounding such incidents and the part that they, as parents, and likewise owners play in bringing about the ‘perfect storm’.

      It is never about breed despite the hysteria from those who would demonise breeds rather than accept responsibility for their own actions or in-actions.

      It seems to me that no amount of qualified opinion, good science or sound research will make any difference to members of the Flat Earth Society, or those incapable of taking personal responsibility.

      Our job is to reach those who can think for themselves with an open mind, and who can discern a reliable source from an agenda. Those are the people who don’t like Pit Bulls because they think they shouldn’t like Pit Bulls only because of hype.

      We are making much progress as you know. Here in New Zealand I meet many more people today who are savvy about this situation than those who are not. That is because we’ve had more than 30k genuine pedigree American Pit Bull Terriers brought into and bred into this country over more than 30 years, who knows how many mixes, and not one death.

      All of those dogs have lived with someone’s family, children, grandchildren, next door to someone and all of those people now know better.

      You may be aware that NZ has had just 6 DBRFs: the first a farmer killed by his working dog, the next a hunter with pig dogs, a mentally unwell woman killed by her very stressed Mastiff, then a woman trying to break up a dog fight between Malamutes, a woman who got too close to a serious dog fight and the Staffy mixes re-directed on her and the latest a young woman mauled by man-trained Rottweilers (she was a visitor to the property which is a common theme).

      No amount of propaganda will succeed in calling so many breeds ‘Pit Bulls’ and eventually the tactic of lumping so many breeds under the ‘Pit Bull type’ umbrella will be fully busted.

      I hope you are reading this Mr Solesky. I doubt it will change anything for you but know that breedism will go and the truth will see the light of day.

  5. Here’s what I also noticed while reading the Tracey v. Solesky decision: The decision mentions the Colorado Supreme Court and the Ohio Supreme Court which both upheld Denver’s and Toledo’s breed-specific legislation, and which were both described by myself or others as being corrupt (i.e. kangaroo courts) — Denver because they keep negating dog owners’ due process rights, and Ohio where there were accusations of evidence tampering at trial. The Maryland Court of Appeals also appears to be a kangaroo court with many of the absurdities of the decision even being called out in the dissenting opinion.

    Yet still the doggy killers have the audacity to ask why pit bull advocates are so staunchly opposed to the Tracey v. Solesky decision? It’s because it’s rubbish! The Maryland Court of Appeals doesn’t even know, nor can it define, what a so-called pit bull is, and yet they hold landlords liable, with strict liability no less, for not knowing their tenants may be harboring a pit bull? That kind of ill logic is either stupidity or corruption. Either way, it’s yet another kangaroo court decision.

  6. Karen Batchelor says:

    It was certainly a kangaroo court so publicly exposed in the Chivers v. Gold Coast Council case in Australia.

    Kylie Chivers and John Mokomoko owned an Amstaff called Tango who escaped his yard and got picked up by the local dog catcher. Tango had to be sent out of state and was kenneled for 5 years while Kylie and John fought through the courts to keep their not-Pit Bull.

    At the end of the day the council blew around $100k of tapayer’s money (God knows what it cost Kylie and John) trying to kill Tango and their expert witness, Debra Pomeroy, had to admit on the stand that she had no qualifications or formal training that entitled her to put together the dog-catcher’s checklist that she used to call Tango a Pit Bull. Tango was eventually cleared and allowed to go home, otherwise this would have been another ‘death by tape measure’.

    The same outcome was not to be for Jimbo, an unsupervised Amstaff on a poorly fenced property who killed the neighbour’s rabbit here in NZ. Again, the dog was caged by the council for years as in the Lennox case in Northern Ireland, around $100k in taxpayer’s funds wasted in legal fees and a lot of obscene high-fiving among the dog-catchers when Jimbo was eventually killed. For behaving like a dog.

    That is the mentality we’re up against. We have our own Soleskys and Colleen Lynn’s in NZ too, but as is happening around the world their hysteria and obsession is exposed by science and reason, and in the likes of Solesky and Borchardt’s cases the exposure of unsound judgements by the judiciary, parents and dog owners.

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