SB 861 -- Why is it bad?
by Dawn Capp, Attorney at Law
SB 861 allows communities to require that specific breeds be subject to mandatory spay/neuter requirements. What is so bad about that? Isn't spaying and neutering good? Shouldn't folks support that kind of a bill?
No. Here is why. Below, I analyze the very troubling aspects of SB 861 and explain the effect such a bill will likely have on dog owners and rescuers within California. This is an opinion piece that shows why this bill is poorly drafted and how the bill may be interpreted and applied, in addition to the effect this bill will likely have on Californians. My comments are underlined. The text of the bill is in blue (either plain text or bolded portions for emphasis).
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 31683 of the Food and Agricultural Code is amended to read:31683. Nothing in this chapter shall be construed to prevent a city or county from adopting or enforcing its own program for the control of potentially dangerous or vicious dogs that may incorporate all, part, or none of this chapter, or that may punish a violation of this chapter as a misdemeanor or may impose a more restrictive program to control potentially dangerous or vicious dogs. Except as provided in Section
122330122331 of the Health and Safety Code, no program regulating any dog shall be specific as to breed.The very first paragraph of SB 861 states that communities may impose breed specific restrictions to control "potentially dangerous or vicious dogs." Hence, any community that decides to take advantage of this law will, by default, be doing so to control potentially dangerous or vicious dogs. Even if the community itself (per the language below) does NOT label a breed potentially dangerous or vicious, that doesn't matter because the STATE law does it for them. The STATE law that gives communities the authority to enact breed specific legislation expressly states communities may do so only to control "potentially dangerous or vicious dogs." Any breed regulated by communities under the authority of this STATE law will be considered "potentially dangerous of vicious" because the STATE law says so! Additionally, the way the word "program" is used throughout this first paragraph solidifies this interpretation (i.e., communities may adopt PROGRAMS to control potentially dangerous or vicious dogs, and no program can be breed specific EXCEPT as provided in the Health and Safety code).
SEC. 2. Chapter 7 (commencing with Section 122330) is added to Part 6 of Division 105 of the Health and Safety Code, to read:
CHAPTER 7. SPAY/NEUTER AND BREEDING PROGRAMS FOR ANIMALS
122330. The Legislature finds and declares all of the following:
(a) Uncontrolled and irresponsible breeding of animals contributes to pet overpopulation, inhumane treatment of animals, mass euthanasia at local shelters, and escalating costs for animal care and control; this irresponsible breeding also contributes to the production of defective animals that present a public safety risk.
Again, the bill expressly states that some breeds (due to irresponsible breeding) present a public safety risk. Hence, some breeds are potentially dangerous or vicious.(b) Though no specific breed of dog is inherently dangerous or vicious, the growing pet overpopulation and lack of regulation of animal breeding practices necessitates a repeal of the ban on breed-specific solutions and a more immediate alternative to existing laws. (c) It is therefore the intent of the Legislature in enacting this chapter to permit cities and counties to take appropriate action aimed at eliminating uncontrolled and irresponsible breeding of animals
Here, the bill tries to say that no breed is inherently dangerous of vicious (thereby attempting to alleviate fears of the bill's critics), but this language directly contradicts the language above that states communities may enact breed specific legislation only to control potentially dangerous or vicious dogs. Furthermore, this portion of the bill makes it clear (for those who may be confused) that this bill allows breed specific legislation in California. Breed-specific legislation necessarily sets apart certain breeds as "different." In this case, the bill expressly targets "potentially dangerous or vicious dogs." Any breed regulated under this law will be considered "different" because it is "potentially dangerous or vicious." Incidentally, there is an obvious distinction between a breed that is INHERENTLY dangerous and one that is POTENTIALLY dangerous. In fact, the use of a different word here (in statutory construction) generally implies a different intent. This law promotes certain breeds being declared "potentially dangerous or vicious," even if they are not INHERENTLY dangerous or vicious. Insurance companies will NOT cover dogs that are labeled potentially dangerous or vicious (and therein set apart from other breeds that are not subject to special restrictions).
122331. (a) Cities and counties may enact dog breed-specific ordinances pertaining only to mandatory spay or neuter programs and breeding requirements, provided that no specific dog breed, or mixed dog breed, shall be declared potentially dangerous or vicious under those ordinances. (b) Jurisdictions that implement programs described in subdivision (a) shall measure the effect of those programs by compiling statistical information on dog bites. The information shall, at a minimum, identify dog bites by severity, the breed of the dog involved, whether the dog was altered, and whether the breed of dog was subject to a program established pursuant to subdivision (a). These statistics shall be submitted quarterly to the State Public Health Veterinarian.
Yet again, this portion of the bill makes it very clear that communities are given authority to discriminate against certain breeds, setting those targeted breeds apart from the rest of the canine species. It doesn't matter whether the local ordinances actually call the targeted breeds "potentially dangerous or vicious." In fact, under this section, communities CANNOT label any breed potentially dangerous or vicious when drafting local ordinances. HOWEVER, these communities need not do so because the targeted breeds WILL be considered potentially dangerous or vicious by virtue of the language that expressly exists in the very first paragraph of the Food and Agricultural Code (31683). Communities that enact Breed Specific Legislation do so UNDER THE AUTHORITY granted by the Food and Agricultural Code, and that Code is very clear -- ANY COMMUNITY THAT ENACTS BREED SPECIFIC LEGISLATION does so to control POTENTIALLY DANGEROUS OR VICIOUS DOGS. In other words, if a breed is NOT potentially dangerous or vicious, then the communities would NOT be able to enact specific laws to target that breed.Insurance companies (and courts) reading this language will likely draw the very same conclusions about this law. Insurance companies will NOT cover any breeds targeted. That means a blacklist on breeds. If you own a restricted breed (even if that breed is just subject to mandatory spay and neuter requirements), no insurance company will cover you. If you own a house, you'll have to choose between your home and your dog. If you rent, expect your landlord will tell you that you need to get rid of your dog. In fact, in both Sacramento and San Francisco, Pit Bull owners have already been given such notices (and the bill has not even passed yet!).
Insurance companies that black list breeds do NOT exempt service dogs. That means that disabled persons that have service dogs that happen to be one of the restricted breeds will face the impossible choice of giving up their service dog or becoming homeless. Blind persons with Guide Dogs of the "wrong" breed will be seriously harmed by this bill. Wheelchair-bound persons that use Pit Bulls or Rottweilers or other breeds that end up restricted will be put in a similar position of having a hard time finding a place to live. Because service dogs take thousands of dollars and years to train, it is not practical for a person with a disability to simply give up a service dog and get another one. Additionally, persons with disabilities form very strong emotional bonds with their service dogs (as do the service dogs with the handlers) and asking a disabled person to part with his or her service dog is, in many aspects, similar to asking a parent to give up a child.
In addition, people that foster Pit Bulls or rescue Pit Bulls, will not only lose any insurance they might now have, but they will be subject to increased liability.
Take this hypothetical scenario:
You place a Pit Bull that you believed to be a sweet, stable dog. You have the new owner sign a contract releasing you from all liability and indemnifying you if the dog causes any harm. You think you're safe. That dog, years later, is involved in some kind of incident (I'm not saying what because the facts need not be proven to cause you significant financial harm). The plaintiff's lawyer, who is the NEIGHBOR of the adoptive owner, sues both the owner and YOU as the rescue/foster person that placed the dog. Why are you being sued? You're not the dog's owner. You made the owner sign a contract saying you have no legal liability if the dog causes harm.
Your contract, if it is valid at all, binds ONLY those people that SIGN the contract. The neighbor didn't sign the contract. The neighbor's lawyer is going to sue all potentially liable parties (hoping one of them will have money and pay). The legal theory against you will be, in part, that you placed a dog that was of a restricted breed. You were put on notice that the dog posed a special danger or risk EVEN IF THE DOG NEVER EXHIBITED AGGRESSIVE BEHAVIOR. You are going to be deemed to be put on such notice because the law TELLS you that this breed is "different." Your community regulated the breed pursuant to the Food and Agricultural Code (and you are presumed to have knowledge of the law) that allows communities to enact breed specific laws only to control POTENTIALLY DANGEROUS OR VICIOUS DOGS.
You knowingly placed a potentially dangerous or vicious dog, and that dog caused injury to someone. You are liable.
Even if the dog didn't actually bite anyone, a lawsuit (especially when you're not covered by an insurance company for the incident) will cause you to pay thousands of dollars in legal costs and attorney's fees defending yourself! (In California, parties generally pay their own attorney's fees).
How many insurance companies will cover such rescues or foster homes? None.
How many rescuers or foster people will want to live with such liability looming over their heads? Few to none.
How many shelters will adopt out restricted breeds knowing this type of legal argument could drag them into court? None.
Another problem with SB 861, as written, is that it does NOT mandate that communities create exceptions for show, working, or service dogs, nor are there any health exemptions. Some male service dogs must remain intact until after physical maturity (so they develop proper musculature to allow them to pull wheelchairs, etc.) In addition, some breeds, such as Rottweilers, have a significantly higher risk of certain cancers when sterilized too young (Purdue study, 65% higher risk of osteosarcoma in young, castrated males). Communities will be able to create blanket (no exception) spay/neuter laws targeting certain breeds in an attempt to drive those breeds to extinction within the community.
Finally, Breed Specific Legislation FAILS to target the problem of irresponsible owners and unethical breeders. In every community that has implemented breed specific legislation, that legislation has been proven ultimately ineffective at dealing with the root of the problem. In fact, Prince George County implemented breed specific legislation that it actually found the funds to enforce and, after all that time, money, and effort, found its shelters beginning to fill up with another breed that was NOT on the list! (That breed was the Presa Canario, which was virtually unheard of at the time. Thanks to BSL, the Presa Canario, a 130+ lb dog used in South America as a guard dog, is now fairly widely known.)
Communities that do not find the funds to enforce breed specific laws inadvertently promote litters from backyard breeders who do not comply with the laws and don't get caught. Such communities eliminate responsible, law-abiding breeders. Hence, poorly enforced breed specific legislation actually leads to an increase in the percentage of bad dogs in the targeted breed!
If SB 861 passes, it could likely have one or all the following effects:
1) Insurance companies will blacklist breeds.
2) Dog owners will be forced to choose between their homes and their pets (this includes service dogs).
3) Many of those who currently engage in canine rescue will have to stop rescue or face huge potential liability.
4) Many shelters (even those that currently adopt out Pit Bulls) will euthanize all restricted breeds rather than put the dogs up for adoption and face increased liability.
5) Unethical breeders will either NOT comply with the laws (and go unpunished) OR move on to mass-produce other powerful breeds.
6) Some communities will elect to implement blanket, mandatory spay and neuter laws, requiring even health-tested, champion show dogs to be sterilized. Responsible owners will lose their ability to show their dogs in AKC-sanctioned conformation shows. Furthermore, these communities could use mandatory spay and neuter laws to attempt to drive certain breeds to virtual extinction within the community.
Want to read another opinion on SB 861? Click here.