Municipal Lawyer

Why Pit BullsAre MoreDangerous andBreed-SpecificLegislationis Justified

n April 2005, the latest litigationover breed-specific legislation(BSL) concluded in Denver, Colo-rado. The state Legislature had previ-ously passed H.B. 04-1279, which pro-hibited local governments from regulat-ing dangerous dogs by specific breeds.

The City and County of Denver filed acivil action

seeking a ruling that theState Constitution’s provisions for mu-nicipal home rule authority

allowedDenver’s pit bull ban ordinance

to su-percede H.B. 04-1279. In late 2004,Denver District Court Judge MartinEgelhoff, ruling on cross-motions forsummary judgment, held that the regu-lation of dangerous dogs was a matter of purely local concern, and that, pursu-ant to the Colorado Constitution,Denver’s home rule authority super-ceded H.B. 04-1279.

However, thecourt allowed the State’s affirmativedefense

to continue to trial, allowingthe Colorado Attorney General’s Officeto argue that the ordinance no longerhad a rational relationship to its legiti-mate government interest in publicsafety, and asking the trial court to re-verse the Colorado Supreme Court’s

One City’s

Why Pit BullsAre MoreDangerous andBreed-SpecificLegislationis Justified

Experience

— by Kory A. Nelson —

1991 ruling in

Colorado Dog Fanciers,Inc. v. City and County of Denver.

OnApril 7, 2005, Judge Egelhoff issued anoral ruling from the bench on the State’saffirmative defense, finding that theState failed to provide any new evidenceto undermine the original findings in

Colorado Dog Fan-ciers

; that the city hadprovided new evidence to provide ad-ditional support for Judge Rothenberg’sfindings; and upholding the ordinanceas constitutional.

This article will pro-vide a review of the developments inthe field of ethology—the study of ani-mal behavior—in relation to pit bulldogs, review the 1990 factual findingsof the trial court in

Colorado Dog Fanci-ers

, and outline the evidence relied onby the city in the most recent case.

Colorado Dog Fanciers

Between 1984 and 1989, pit bulls at-tacked and seriously injured more than20 people in Colorado. The victims in-cluded three-year-old Fernando Salazar,fatally mauled in 1986, and 58-year-old Reverend Wilber Billingsley, at-tacked by a pit bull in the alley behindhis home.

As a result, the local com-munity called for increased regulationsand bans on pit bulls.

Accordingly, in1989, the Denver City Council enactedan ordinance making it unlawful to own,possess, keep, exercise control over,maintain, harbor, transport, or sell anypit bull within the city.

Several orga-nizations and individual dog ownersimmediately filed suit challenging theordinance as unconstitutional.

Thelitigation concluded in 1991 with theColorado Supreme Court’s decision in

Colorado Dog Fanciers

, upholding thetrial court’s ruling that Denver’s ordi-nance was constitutional.

Whilethe decision followed prior decisionsby other state courts reviewing similarordinances,

the decision focused onprocedural issues and glossed over thenoteworthy and extensive factual find-ings made by the trial court as to thedifferences between pit bulls and otherdogs, which provided a rational rela-tionship between the differential treat-

July/August 2005 Vol. 46, No. 6continued on page 14

ment of pit bulls and the legitimateinterest of protecting public safety.

Not Like Other Dogs

To fully appreciate pit bulls as being dif-ferent than other breeds, one must ex-amine the history and purposes of theintentional selective breeding of dogsand why the unique pit bull breedwas developed. The phenotypes of dogs that share the common definitionof “pit bull” derive their heritagefrom “the Butcher’s Dog”

developedthrough the sport of bull-baiting inEngland.

These dogs were intention-ally bred to result in better, stronger,and bolder dogs, more inclined to en-gage in the dangerous behaviors likelyto win in the ring. By 1835, bull-baiting was banned. Rather than giveup their gambling and dog-fightingexploits, the owners took theirdog fighting underground—literally.The coal-mining communities inStaffordshire County, England, broughttheir dogs to coal pits to fight. The breedwas manipulated to be better at fight-ing other dogs than bulls; the dogsneeded to be quicker and more agile,and not signal their intentions throughtheir body posture, as most dogs do.

This eventually resulted in smaller, te-nacious terriers—the similar pheno-types known as the American Pit BullTerrier, the American Staffordshire Ter-rier, and the Staffordshire Bull Terrier.

The most significant point aboutthe justification for bans or restrictionsof pit bulls is that these are not depen-dent upon a claim that every pit bullhas a higher than average propensity forattacking humans. The justification isbased on the clear evidence that,

as a group,

pit bulls, compared to otherbreeds, generally have a higher propen-sity to exhibit unique behavioral traitsduring an attack. These behaviors havea higher likelihood of causing more se-vere injuries or death. The

ColoradoDog Fanciers

trial court made this clear,stating that, while it could not beproven that pit bulls bite more thanother dogs, there was “credible evidencethat Pit Bull dog attacks are more se-vere and more likely to result in fatali-ties.”

The court, in great detail, notedfourteen separate areas of differences,including:

•

Strength.

Pit bulls are extremely mus-cular and unusually strong for theirsize, generally stronger than manyother dogs.•

Manageability and temperament.

While pit bulls are one of many ag-gressive types of dogs, their tempera-ment varies in the same manner asother dogs and they can make gentlepets. Proper handling, including earlysocialization to humans, is very im-portant. Even their most ardent ad-mirers, however, agree that thesedogs are not for everyone and theyrequire special attention and disci-pline. The court cited one studywhich reported that over thirteenpercent of pit bulls attacked theirowners, as compared with just overtwo percent of other dogs.

•

Unpredictability of Aggression.

Pitbull dogs, unlike other dogs, oftengive no warning signals before theyattack.•

Tenacity.

Pit bulls trained for fight-ing are valued for “gameness”—thetenacious refusal to give up a fight.The court found that pit bulls trainedfor fighting had this attribute, andthat credible testimony also provedthat, when a pit bull began to fight,it would often not retreat.•

Pain tolerance.

Although there wasno scientific evidence that pit bullshad a greater tolerance of pain thanother dogs, the evidence showedthat, when a pit bull attacked,it would not retreat, even when con-siderable pain was inflicted onthe dog.•

Manner of attack.

The city provedthat pit bulls inflicted more seriouswounds than other breeds becausethey tend to attack the deep muscles,to hold on, to shake, and to cause rip-ping of tissues. Pit bull attacks werecompared to shark attacks.

Recent Developmentsin Ethology

Since 1990, there have been few devel-opments in ethology that directly relateto the behavior of pit bulls and the jus-tification for BSL, but one updated studyand one new article published by a rec-ognized expert in the field were thor-oughly discussed before Judge Egelhoff in the most recent case.A study published in 2000 by Sacks,Sinclair, Gilchrist, Golab, and Lock-wood involved a statistical review of dogbites resulting in fatalities (DBRF), bro-ken down by the breed reported to havebeen involved.

(A previous version of the study was introduced into evidencebefore the

Colorado Dog Fanciers

trialcourt; the updated 2000 study providedan additional ten years of data.) TheState of Colorado thought this study wassignificant because, during the last sixyears studied, there were more DBRFinvolving dogs reported to be Rottweil-ers than involving dogs reported to bepit bulls. The State argued that becausepit bulls were no longer the nationalleader in DBRF, there was no longer arational basis for Denver’s pit bull ban. Judge Egelhoff disagreed and acceptedthe city’s argument on this issue—namely, that the

Colorado Dog Fanciers

decision was clearly not based on a

Kory A. Nelson

is a Senior Assistant City Attorney in the Prose-cution Section for the City & County of Denver, Colorado. He hasprosecuted a variety of cases in Denver County Court for over15 years. He is an instructor with the Denver Sheriff’s TrainingAcademy and various municipal inspection agencies. He is a graduateof Arizona State University’s College of Law, has a B.S. in CriminalJustice from A.S.U., and is a U.S. Army veteran. He is the owner ofHeidi, a German Shepherd.

The justification is based on the clear evidence that, asa group, pit bulls, compared toother breeds, generally havea higher propensity to exhibitunique behavioral traitsduring an attack.

Municipal Lawyer

determination that pit bulls were morelikely to bite or attack than other breeds,so the ten years of additional data didnot undermine the original findings.

In fact, Judge Egelhoff specificallyfound problems with the use of theDBRF statistics, similar to those notedby the original trial court.

These in-cluded that: (a) the accuracy of the “re-ported breed” of dog involved was un-known; (b) the study included only re-ported cases resulting in fatalities, butnot injury short of death; (c) the im-possibility of determining a bite/attackratio for each breed because the num-ber of dogs in the U.S. as a total andper breed was unknown; and (d) thelast six years was too short and toospeculative a time frame on which tobase a conclusion.

However, over theentire 20 years of the study, pit bullswere still involved in 67 percent of theDBRF, while Rottweilers accountedfor only 16 percent.

The second development is anarticle by Randall Lockwood.

Al-though the article should be read byanyone interested in this issue, givenLockwood’s connection to the HumaneSociety of the United States, many of his conclusions appear to be softened,as the implications of his findings couldbe written in much more straightforwardconclusions. For example, in his terms,Lockwood affirms that fighting dogshave a more exaggerated “decrease inthe latency to show intra-specific ag-gression,” a much higher tolerance of pain, suppressed or eliminated accuratecommunication of aggressive motiva-tion or intent through postural and fa-cial signals, and reduced termination orwithdrawal from combat upon eitherthe opponent’s withdrawal or display of submissive behavior.

This can be moreclearly summarized as: A pit bull will bemore likely not to display its aggressiveintent, be more likely to initiate an at-tack, and continue on with a furiousattack with its great strength, regardlessof what behavior the victim exhibits,and despite having great levels of painor injury inflicted on it. Moreover, itcan’t be predicted which individual pitbull will engage in this behavior. Toquote Lockwood:part of the problem with the ‘PitBull’ controversy is that the lin-eages of fighting and non-fight-ing animals [within] the fight-ing breeds have been separatedfor many generations, but haveshown relatively little physicaldivergence. As a result, anAmerican Pit Bull terrier fromrecent fighting stock may bephysically indistinguishablefrom an American or EnglishStaffordshire (bull) terrier 50generations removed from thefighting pits, yet the two animalscould be behaviorally verydifferent.

Expert Testimony

During the 2004 trial, the City of Den-ver presented the expert testimony of Dr. Peter L. Borchelt, a certified appliedanimal behaviorist,

who testified on anumber of relevant subtopics, summa-rized here.

Aggressiveness Towards Humans:

Dr.Borchelt rebutted the oft-cited argu-ment that pit bulls were bred to not beaggressive to humans. While breedingto suppress the behavioral tendencies for“diverted aggression” towards humansmay have occurred in the distant past,the increased demand for the breedmeans some breeders no longer have theincentive to cull “human-aggressive”dogs. Such dogs may, instead, be sold tothe unwary public and bred, further di-luting the suppression of this behavior.

Shifted Higher Frequency DistributionPatterns of Dangerous Behavior.

Fight-ing dog breeders artificially selected andbred towards dangerous behaviors inorder to intensify the frequency of thebehavior. This caused these breeds tohave the frequency of these dangerousbehavioral traits still represented statis-tically in a distribution pattern similarto the traditional bell curve, but

shifted

towards higher levels of the dangerousbehavior, compared to other breeds.Moreover, these behavioral traits can-not be artificially shifted back to lower,normal frequency distribution patternlevels. Although the actual tendenciesof an individual dog of these fightingbreeds could be anywhere along thefrequency distribution curve, the prob-lem is that any specific dog’s locationon the curve cannot be determinedmerely by looking at it, since it sharesthe same phenotype or physical char-acteristics as other, more dangerous pitbulls. However, as the entire breed’sselective breeding has caused its fre-quency distribution curve to be shiftedhigher, creating a reliable higher prob-ability of higher frequencies of such dan-gerous behavior (such as the bite, hold,and shake behavior despite the inflic-tion of greater levels of injury and pain),Dr. Borchelt testified there is a ration-al basis to differentiate pit bulls fromother breeds of dogs.

Effect of Multiple Pit Bulls.

Dr. Borchelthas unique qualifications on this issue,having co-authored the only expertpaper on “pack attacks” on humansand having conducted several reviewsof individual cases of multiple dogmaulings resulting in death and near-fatal injuries.

This included meetingwith crime-scene investigators dealingwith the gruesome death, from a sus-tained mauling by three pit bulls, of 30-year-old Jennifer Brooke.

On the ef-fect of increasing the number of pitbulls involved in an attack upon ahuman and the likelihood of serious in-juries or death, Dr. Borchelt testifiedthat, rather than a simple multiplyingeffect (i.e., the mathematical pattern of x, x + x = 2x, 2x + x = 3x) present withother breeds, the effect would be closerto an exponential effect (i.e., 1 = x

, 2= x

, 3 = x

Judge Egelhoff’s Ruling

At the conclusion of the evidence, Judge Egelhoff, in an oral ruling, foundthat the State had failed to providenew evidence to undermine JudgeRothenberg’s original 1990 findings re-garding the differences between pit bullsand other dogs; moreover, he ruled thecity had shown additional evidence insupport of Judge Rothenberg’s findings.Since Judge Rothenberg’s 1990 decisionwas not based upon the claim that pitbulls had a higher propensity to bite orattack humans, the new Sacks study andLockwood article were not relevant onthe narrow issues presented in that de-cision. The State had failed to establish

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