OEDEL: Profiling pets and people

March 24, 2013 

A week after two pit bull dogs severely injured a Macon man in a wheelchair, another pit bull ripped up a 5-year-old Macon boy. The evidence remains spotty about which dogs are most likely to tear people up, though pit-bull types are routinely near the top of most lists. In part because some owners, after acquiring them because of that reputation, then cultivate those tendencies.

Property insurance companies with money at risk see hard evidence that dogs of some general types, including pit bulls, are more likely to produce claims.

Statistical evidence, usually in tandem with notorious cases of serious attack, has led some communities to adopt “breed-specific legislation” outlawing ownership of certain types of dogs.

There’s not much chance of such a law being passed in more libertarian-minded Georgia, but it’s still worth considering the general legal problems with pet profiling.

One issue is vagueness. Could we define a pit bull clearly enough to provide sufficient guidance to citizens and officers about what such a ban would mean in practice? Is it just dogs labeled Pit Bull Terriers? How about Staffordshire Terriers and Staffordshire Bull Terriers? What is a breed, anyway?

Another legal problem would be over-inclusiveness. Assuming we can agree that pit bulls are a distinguishable type, we’ll likely find many individual examples to be even tempered, not a threat to anyone.

Then there would be the problem of under-inclusiveness. Assuming we could stop all pit-bull-type attacks, we’d still leave people vulnerable to attacks from other dogs. Even dogs of the sweetest-tempered breeds can attack.

All that being said, problems with legal inelegance don’t fully explain why we don’t try breed-specific bans to save people from predictable future attacks. Many other things get outlawed in the interests of public safety despite difficulties with vagueness, under-inclusiveness and over-inclusiveness, e.g., “bombs,” “exploding devices,” “military weapons,” “fireworks,” “celebratory shooting,” “exotic animals,” “wild animals,” “zoo animals” and more.

To better understand the general American reluctance to endorse pet “profiling” by breed resulting in categorical bans, you have to jump the animal/people divide and consider the American reluctance to profile people by type.

That reluctance wasn’t always the case. Writing for the U.S. Supreme Court in the 1927 case of Buck v. Bell, endorsing the forced sterilization of a woman described as “feeble-minded,” Justice Oliver Wendell Holmes Jr. defended the act’s constitutionality by writing, “Three generations of imbeciles is enough.”

Only 15 years later in the 1942 case of Skinner v. Oklahoma, the court reversed field and outlawed forced sterilization of a repeatedly offending petty chicken thief.

What happened in the meantime? Adolf Hitler became disturbingly over-enthusiastic about eugenics, the “science” of weeding out “undesirable” strains from the gene pool.

Hitler and Germany’s Nazis provided an immensely tragic case study in the dangers of enshrining in the law guesses about genetic “types” like “Aryans” and “Jews.”

We experience the effects of profiling abhorrence today when we suffer through lifetimes of time lost waiting in search lines at airports and public places.

Ironically, the Israelis today have more efficient and at-least-as-effective search protocols. Why? Because the Israelis are willing to profile people, some of whom are more likely to be threats than others. The Israelis get that you don’t have to treat all threat risks the same just because the Nazis made a colossal mistake 70 to 80 years ago.

If American citizens can’t bring themselves to profile one another, though, it’s hardly surprising that they won’t profile their best friends either.

Does that mean we’re doomed to suffer more attacks by dangerous dogs? Not if a new dog law is enforced vigorously.

Georgia’s 2012 Responsible Dog Ownership Law provides a simple way to identify “dangerous” dogs, regardless of breed, once they either bite or aggressively attack in a manner causing imminent threat of serious injury. The dog control officer must investigate any complaint about such dogs. Subsequent determination of “dangerous” status warrants special containment and posting obligations that should alert the public to danger.

People aware of dangerous dogs should call animal control before tragedy strikes.

David Oedel teaches law at Mercer and owns two rescue dogs.

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