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 plaintiffs 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 bulls 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 owners or lessors 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 owners 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.