Dangerous animal ban is vague as applied to Pinky the dog, Iowa appeals court says
https://tinyurl.com/ycwfa6z6 (from the ABA site)
[Note: all emphasis added by PD…because we have read many different dog laws and some are better than others..note that this case most probably involved a dog that appeared to be a pitbull mixed dog; we will find more data on it, but ANY mixed breed dog cannot be determined accurately by DNA unless it is one of the known breeds that groups such as AKC have DNA on, for many, many years–and those are NOT mixed breed dogs. For example American Staffordshire Terriers which are allowed by the AKC, have been DNA tested for fun by owners, and the results often are way way off base. DNA testing for animals like dogs, is not considered forensically reliable in most cases unless there is an exception. Unlike human DNA testing (which is nearly infallible)–the canine testing is certainly not there.]
This is pic shown on another website which says it is “Pinky” who clearly appears to be a bully dog, however, regardless of breed, if the language of the law in that jurisdiction does not specify more clearly whether the harm must be done as explained in the lawsuit, then yes, the vague doctrine can apply. As opposed to say, Denver, where APBT and mixes have been completely banned regardless, attempts have been made for over 10 years to change that law. Even with the ABA section of “animal law” which is guided by AR attorneys, in CA anyway, we already know that AR attorneys will take the side of the APBT dogs; however, they have not managed to break down that Denver CO breed ban yet.]
the Pinky dog…
The Iowa Court of Appeals has granted a reprieve to Pinky the dog in a 3-2 decision finding Des Moines’ dangerous animal ordinance was unconstitutionally vague as applied to the mixed-breed canine.
The statute failed because it was unclear whether Pinky satisfied the definition of a “dangerous animal” that could not be kept in Des Moines, the court ruled.
Pinky had lived peacefully until March 2016 when a friend visiting Pinky’s owner let the dog into the yard unsupervised. The neighbor’s cat, Rebel, ended up in Pinky’s mouth, but Pinky dropped the cat when her owner ran outside. Rebel survived the episode, but needed three dozen staples for her wounds.
Pinky was impounded and the city’s humane officer declared Pinky a dangerous animal under the city ordinance. The owner appealed and sold his interest in Pinky to Dianna Helmers, the owner of an animal rescue center who continued the appeal. She has offered to house Pinky at her shelter, but the city is holding the dog at the Animal Rescue League of Iowa.
The Des Moines ordinance bans the keeping of “dangerous animals” and defines the term. The portion applied to Pinky bans any animal “that has exhibited vicious propensities in present or past conduct, including such that the animal … has bitten another animal or human that causes a fracture, muscle tear, disfiguring lacerations or injury requiring corrective or cosmetic surgery.” (The full definition is at page 5 of the opinion.)
Writing for the majority, Judge Mary Tabor said the city ordinance left too much discretion to city officials to determine when an animal was dangerous.
Tabor saw many problems with the statute’s clarity. It’s unclear whether the exhibiting of vicious propensities is satisfied by proof of the disfiguring bite, or if such a bite is suggestive but not determinative. It’s unclear whether evidence of gentleness could be enough to overcome any kind of presumption in favor of viciousness. It’s unclear what is meant by “corrective surgery.”
“It is difficult to imagine how any Des Moines pet owner would know whether an altercation between their pet and another animal would spur the humane officer to declare their pet dangerous,” Tabor wrote. “An outdoor cat that snares an unlucky bird and breaks its wing could be declared a dangerous animal under [the relevant section of the ordinance]. But would the humane officer pursue such a case?
If instead of Rebel, an aggressive opossum had been waiting for Pinky in the backyard and Pinky’s defensive bite caused the wild animal a muscle tear, would the humane officer have decided Pinky exhibited vicious propensities’? The ordinance does not delineate clear boundaries between what conduct by an animal is tolerated within the city limits of Des Moines and what marks an animal as having ‘vicious propensities.’ ”
A concurring judge, Richard Doyle, said Helmers had offered to remove Pinky from Des Moines, but the city did not accept her offer. “Although I have no dog in the fight, I feel compelled to ask: Why can’t this dispute be settled?” he asked.
LOL the real question is that the city doesn’t like APBT type animals and that the cat lover people must dislike the dog. and the city itself, by not having crafted a more specific law, is at fault for not having done so.