The Common Law of Pit Bulls: Maryland�s Highest Court Imposes Strict Liability Without a Statute

Faced with a gruesome attack and lacking a strict liability statute to apply to the landlord, whose tenants� dogs were responsible for the attack, the highest court in Maryland determined that the matter could be dealt with by changing the common law.  Thus, there is now common law specific to pit bulls. 

In Tracey v. Solesky, 2012 WL 1432263 (Md. 2012), the Maryland Court of Appeals held, three justices dissenting, that harboring a pit bull was an inherently dangerous activity for which the landlord (Tracey) could be held strictly liable.  The Court noted that pit bull cases have a long history in Maryland and entered into a discussion of that history in order to support its conclusion that strict liability could be imposed as a change in the common law of the state, without a legislative mandate. The problem has become particularly great in the last 13 years when courts have had to deal with �seven instances of serious mauling by pit bulls upon Maryland residents resulting in either serious injuries or death � including the two boys attacked by the pit bull in the present case.�  In a number of cases landlords have been held liable for injuries caused by the pit bulls of tenants. 

Since this is a change in the common law, the law made by judges, it is likely that other high courts in the U.S. will seriously consider arguments that, even where there is no anti-pit bull statute, strict liability may be imposed as to pit bull attacks. 

Pit Bull Attacks in Maryland Courts

As far back as 1916, in Bachman v. Clark, 128 Md. 245, 97 A. 440, a pit bull terrier crossed the street and attacked a ten-year-old boy, seriously injuring him.  A witness picked up a piece of timber and killed the dog with it. 

In Shields v. Wagman, 350 Md. 666, 714 A.2d 881 (1998), a pit bull owned by the operator of an automobile repair business attacked a customer in the shopping center where the repair business was located.  The dog, named Trouble, also attacked another tenant.  Both attacks resulted in serious injuries, the second after the victim had climbed onto the roof of a car in an attempt to escape the pit bull.  The Court of Appeals held the landlord had actual knowledge that Trouble was dangerous and had the right to cause the removal of the pit bull from the premises but failed to do so, and in not so doing, had negligently allowed the attacks to occur. 

Just two months later, in Matthews v. Ameberwood Associates Ltd. LP, Inc., 351 Md. 544, 719 A.2d 119 (1998), a pit bull named Rampage attacked and killed a child in an apartment building.  The Court of Appeals found that because the landlord�s employees had reported Rampage�s aggressiveness and viciousness on prior occasions to management personnel, that knowledge was imputed to the landlord, and because the landlord had the right not to renew the lease or remove the pit bull under a no-pets provision in the lease, he could be held liable. 

In reaching its decision in Matthews, the Court considered the adequacy of a pit bull�s pen and cited a New Mexico case, Garcia v. Village of Tijeras, 108 N.M. 116, 767 P.2d 355, which had determined that �extraordinary measures are required for confining American Pit Bull Terriers, such as a six foot chain link fence with an overhanging ledge to keep the dogs from jumping out....�

In Moore v. Myers, 161 Md.App. 349, 868 A.2d 954 (2005), a pit bull chased a twelve-year-old girl into a street where she was run over by an automobile and suffered two broken arms, a broken leg, and a fractured jaw.  Prince Georges County, where the event occurred, had a statute requiring owners of pit bulls to keep them in enclosures or leashed at all times.  The owner�s son, according to the evidence, had sicced the dog on three girls, one of whom was the victim.   

In Ward v. Hartley, 168 Md.App. 209, 895 A.2d 111 (2006), the landlord was sued after the following occurred:

�[A] taxi driver was dispatched to pick up a passenger for transportation to the Kennedy Kreiger Institute. When he knocked on the door to the leased premises, he heard someone tell children not to open the door. He stepped back and at the same time a child opened the door and a pit bull came charging out as he heard someone yell �Get the dog.� He hit the pit bull with rolled-up paper he had in his hand and the pit bull grabbed his foot. He then ran to his cab with the pit bull still holding onto his foot and, with the pit bull still attached, climbed on top of the car. A police car appeared on the scene, and as it did, two boys ran out of the house laughing and pulled the dog off of the cabdriver's foot. The cab driver's foot was severely injured and required surgery�. There was no evidence in the case that the landlord knew that a pit bull was being kept on the premises until he heard about the incident with the cab driver. The Court of Special Appeals, in holding for the landlord, opined: �Keeping a pit bull did not violate any covenant of the lease, nor did it violate any law or ordinance. No provision of the lease gave the landlord control over any portion of the rental premises. Thus, appellees had no duty to inspect the premises.��

Although the landlord avoided liability here, it is unlikely the pit bull owner could have.  It seems he needed some training for his children as well as for his dog. 

The Attack on Dominic Solesky

In the case before the Court of Appeals, Clifford �escaped twice from an obviously inadequate small pen and attacked at least two boys at different times on the same day.�  The second boy was Dominic Solesky, who sustained life-threatening injuries and underwent five hours of surgery at Johns Hopkins Hospital to repair his femoral artery.  He spent 17 days in the hospital and underwent additional surgeries, and was in rehabilitation therapy for a year after his release. 

The Court, as mentioned above, established �a strict liability standard in respect to the owning, harboring or control of pit bulls and cross-bred pit bulls in lieu of the traditional common law liability principles that were previously applicable to attacks by such dogs.�  The Court acknowledged that it was imposing �breed-specific liability standards,� elaborating as follows:

�We are modifying the Maryland common law of liability as it relates to attacks by pit bull and cross-bred pit bull dogs against humans. With the standard we establish today (which is to be applied in this case on remand), when an owner or a landlord is proven to have knowledge of the presence of a pit bull or cross-bred pit bull (as both the owner and landlord did in this case) or should have had such knowledge, a prima facie case is established. It is not necessary that the landlord (or the pit bull's owner) have actual knowledge that the specific pit bull involved is dangerous. Because of its aggressive and vicious nature and its capability to inflict serious and sometimes fatal injuries, pit bulls and cross-bred pit bulls are inherently dangerous.�

Old Common Law

Since the Court determined to modify prior common law, it entered into a discussion of what law it was changing.  Citing an 1882 case, Goode v. Martin, 57 Md. 606 (1882), the Court had there stated that �to render the owner liable in damages to any one bitten by his dog, it must be proved not only that the dog was fierce, but that the owner had knowledge that he was fierce.�  A presumption that the dogs in the case were fierce and dangerous arose, however, from the fact the defendant kept them tied up during the day, a presumption that made sense in an era long before leash laws.

Looking at Harper, James, and Gray on Torts (3^rd ed. 2007), the Maryland Court of Appeals found the following statement in the treatise persuasive:

�It thus appears that one keeps dangerous animals at one�s peril, that is, at strict liability, but otherwise as to animals �not dangerous.�  As to the former class, it is no defense that the keeper employed reasonable care, or even a high degree of diligence to prevent their escape.  Liability is independent of any fault on the part of the owner. �

The Court of Appeals discussed its own ability to change the common law, noting that in a case from 1821, State v. Buchanan, 5 H.&J. 317, it had referred to the inherent dynamism of the common law which made it subject to judicial modification in the light of modern circumstances or increased knowledge. 

Common Law of Pit Bulls

The Court of Appeals noted that it had discussed the difference between pit bulls and other breeds in Matthews, where it had stated:

�[T]he foreseeability of harm in the present case was clear. The extreme dangerousness of this breed, as it has evolved today, is well recognized. �Pit bulls as a breed are known to be extremely aggressive and have been bred as attack animals.� Giaculli v. Bright, 584 So.2d 187, 189 (Fla.App.1991). Indeed, it has been judicially noted that pit bull dogs �bite to kill without signal� (Starkey v. Township of Chester, 628 F.Supp. 196, 197 (E.D.Pa.1986)), are selectively bred to have powerful jaws, high insensitivity to pain, extreme aggressiveness, a natural tendency to refuse to terminate an attack, and a greater propensity to bite humans than other breeds. The �Pit Bull's massive canine jaws can crush a victim with up to two thousand pounds (2,000) of pressure per square inch�three times that of a German Sheppard or Doberman Pinscher.� State v. Peters, 534 So.2d 760, 764 (Fla.App.1988) review denied, 542 So.2d 1334 (Fla.1989).�

The Court noted that after its decision in Matthews, the Journal of the American Veterinary Medical Association published a �special report� stating that:

�From 1979 through 1996, dog attacks resulted in more than 300 dog-bite related fatalities in the United States. Most victims were children. Studies indicate ... that pit bull-type dogs were involved in approximately a third of human ... [fatalities] during the 12 year period from 1981 through 1992 ....�

The same report indicated that, in the 12-year period ending in 1992, almost half of fatalities were caused by Rottweilers, but that in more recent years pit bulls have caused more fatalities than Rottweilers. From 1979 to 1996, pit bulls and Rottweilers accounted for 67% of human dog bite related fatalities.  The AVMA referred to this as indicating a �breed-specific problem with fatalities.� (A 2009 study, Kaye et al., not cited by the court, found in a survey of cases at the Children's Hospital in Philadelphia that over 50% of dog bite attacks on children over a recent five-year period were caused by pit bulls.)

The Court stated that the AVMA�s statistics �may reflect the increasing popularity of pit bulls, i.e. more pit bulls�more attacks.  Other issues such as training, use by persons in the illegal drug trade, etc., may be causative factors.�  The Court cited a website, Animal People, for an estimate that pit bulls now make up about 5% of the total dog population of the United States.  Of dogs in animal shelters, 23% in a survey of 5,236 dogs were pit bulls, suggesting that pit bulls end up in animal shelters at a much larger ratio than any other breed, presumably in part from instances of aggression.    

A recent study of patients with dog bite injuries (Bini et al. 2011) found that not only were pit bull attacks more common than attacks by other breeds of dogs, but also those bitten by pit bulls were injured more severely, were more likely to be admitted to a hospital, more likely to have higher charges once admitted, and more likely to die.  The authors of the study concluded that �strict regulation of pit bulls may substantially reduce the U.S. mortality rates related to dog bites.� 

Other Jurisdictions

The Maryland Court of Appeals cited a case, City of Toledo v. Tellings, 114 Ohio St.3d 278, 871 N.E.2d 1152 (2007), in which the Ohio Supreme Court had upheld most of Toledo�s breed-specific regulations that classified pit bulls as �vicious dogs.�  The Ohio Court stated:

�The trial court cited the substantial evidence supporting its conclusion that pit bulls, compared to other breeds, cause a disproportionate amount of danger to people. The chief dog warden of Lucas County testified that (1) when pit bulls attack, they are more likely to inflict severe damage to their victim than other breeds of dogs, (2) pit bulls have killed more Ohioans than any other breed of dog, (3) Toledo police officers fire their weapons in the line of duty at pit bulls more often than they fire weapons at people and other breeds of dogs combined, (4) pit bulls are frequently shot during drug raids because pit bulls are encountered more frequently in drug raids than any other dog breed. The trial court also found that pit bulls are �found largely in urban settings where there are crowded living conditions and a large number of children present,� which increases the risk of injury caused by pit bulls.�

As discussed in a prior blog, the danger of a pit bull in a police raid is not just to the police, since an officer may feel the need to eliminate the risk from the pit bull by shooting it.

In 2006, a Kentucky appellate court approved a trial court�s determination that pit bull terriers have �inherently vicious and dangerous propensities.�  Bess v. Bracken County Fiscal Court, 210 S.W.3d 177 (Ct. App. 2006). 

In two Florida cases consolidated on appeal, The Florida Bar v. Pape and The Florida Bar v. Chandler, 918 So.2d 240 (2005), two Florida attorneys were disciplined under the Rules of Professional Conduct for using advertisements analogizing themselves as pit bulls. The court said that the analogy ignored the darker side of the qualities often associated with pit bulls: malevolence, viciousness, and unpredictability.  Of course, the lawyers were reflecting what their clients want.  At an initial interview where a client was asking what he wanted in his trial counsel, I remember the answer: �I want a pit bull.�  Even Sarah Palin found common ground between pit bulls and soccer moms. One wonders if the lawyers would have been disciplined had they compared themselves to Rottweilers or standard poodles.  I'm considering adding 'The Labradoodle of Lawyers' to my business card.

In a District of Columbia case, McNeely v. U.S., 874 A.2d 371 (Ct. App. 2005), two dogs attacked a woman as she put garbage in the trash can behind her house.  She tried to climb over a fence but one of the dogs pulled her off it and both dogs began to maul her.  �During the ensuing attack, skin, muscle, and nerve tissues were bitten off from various parts of her body, including her leg and both arms; one of her toes was nearly bitten off, and she lost a large amount of blood. The attack finally ended when Avery's son, Jerrel Bryant, and two other men successfully chased the dogs off by beating them with an ax and baseball bat.�  The appellate court upheld the conviction and stated that all that had to be shown under the District�s Pit Bull and Rottweiler Dangerous Dog Designation Emergency Act of 1996 was that the pit bulls had attacked without provocation and that the owner knew the dogs he owned were pit bulls. 

In The Colorado Dog Fanciers, Inc. v. The City of Denver, 820 P.2d 644 (1991), the Supreme Court of Colorado upheld anti-pit bull legislation, rejecting the argument that the statute should be overturned because it �allows the determination that a dog is a pit bull based on nonscientific evidence.�  Thus, a dog with the physical characteristics of a pit bull could be banned based on its appearance, even if it were, say, a cross between a bull dog and a Labrador.  �Since ample evidence exists to establish a rational relationship between the city's classification of certain dogs as pit bulls, and since there is a legitimate governmental purpose in protecting the health and safety of the city's residents and dogs, the trial court correctly concluded that the ordinance did not violate the dog owner's right to equal protection of the laws.�

The Maryland Court of Appeals cited Harper, James, and Gray on Torts as finding that negligence could be established under a strict liability statute regarding certain dogs in Arizona, Florida, Illinois, Iowa, New Jersey, Nebraska, Oklahoma, Connecticut, Wisconsin, and Ohio.  Local and other laws also impose strict liability in California, South Carolina, and the District of Columbia. 

Summary Statement by the Court

Concluding all these strands, the Maryland Court of Appeals summarized its holding by stating that �upon a plaintiff�s sufficient proof that a dog involved in an attack is a pit bull or a pit bull mix, and that the owner, or other person(s) who has the right to control the pit bull�s presence on the subject premises (including a landlord who has the right and/or opportunity to prohibit such dogs on leased premises as in this case) knows, or has reason to know, that the dog is a pit bill or cross-bred pit bull mix, that person is strictly liable for the damages caused to a plaintiff who is attacked by the dog on or from the owner�s or lessor�s premises.� 

Dissent

Three justices dissented, criticizing the majority for holding that a �trace of pit bull ancestry� would be enough to impose strict liability. The dissenters saw this as a case where bad facts led �inevitably to the development of bad law.�  They stated that �in accordance with the well-settled common law standard of strict liability, the breed of the dog, standing alone, has never been considered a sufficient substitute for proof that a particular dog was dangerous or had a violent nature.�  Also:

�Under the new rule announced today, however, the only corrective action an owner, keeper, or landlord could possibly take to avoid liability for the harm caused to another by a pit bull or mixed-breed pit bull is not to possess or allow possession of this specific breed of dog on the premises. Conversely, any other breed of dog in the possession of the owner or on premises controlled by the landlord, no matter how violent, apparently, would be judged by a different standard. As a result of the majority opinion, it is unclear as to what standard should be applied prospectively to owners and landlords for the liability of other breeds of dogs kept on the premises.� 

Of course, encouraging landlords not to rent to tenants with pit bulls will be an inevitable result of this case, and even pit bull service dogs will undoubtedly encounter resistance.The dissenters cited the 2006 article by Hussain as saying that more than 25 breeds of dogs are commonly mistaken for pit bulls. 

�[S]ome experts indicate that the term 'pit bull' does not describe any one particular breed of dog; instead, it is a generic category encompassing the American Staffordshire Terrier, the Staffordshire Bull Terrier, and the American Pit Bull Terrier�. Neither the American Kennel Club nor the United Kennel Club recognizes all three breeds, and the breed descriptions and standards provided by the two organizations differ�. It is difficult for courts, therefore, both to determine whether a particular dog should be categorized as a pit bull and to differentiate between pit bulls and other breeds.�

As Voith (2009) has noted, there is a discrepancy between breed determination based on physical attributes and scientific determinations. 

Breed-specific liability may provide a �superficial sense of security because many factors completely unrelated to the breed or appearance of dogs affect their tendency toward aggression, including early experience, socialization, training, size, sex, and reproductive status.� The dissenters argued that the courts should leave breed-specific rules to the legislatures, not attempt to change the common law as was done here. 

Conclusion

I have disagreed with breed-specific legislation before, and disagree with this modification of the common law.  Nevertheless, I can understand the frustration of a court when faced with serious attacks by dogs whose owners have not trained them and do not know how to control them, and often do not know how to control their children. 

The largest weakness of the decision is that pit bulls are not the only dangerous dogs, and people who want large aggressive dogs may easily shift their preferences to other breeds and mixed breeds. Great Danes could come into fashion among the drug crowd, ending the successful marketing of the dog as a gentle breed and bringing back the image of their ferocity they once had. 

Also, what is a pit bull?  Is genetic testing to be used when breeding records indicate that a dog that looks like a pit bull is in fact a cross between a bull dog and a Weimeraner?  If a dog that does not look like a pit bull, but without any prior history of aggression, attacks a child fatally, will the parents be able to test the dog�s DNA for the presence of some pit bull markers?  If there is a common law of pit bulls, that common law will have to be interpreted by lower courts in Maryland in countless possible situations.  The decision ignores the inherent plasticity of the canine phenotype.

I sometimes think that owners of large dogs with large jaws should be given an IQ test before being allowed to have a potentially dangerous animal. They should probably be given an IQ test before being allowed to have children as well.  These laws are, in reality, laws against the kinds of people who obtain dogs for defensive and aggressive purposes, often based on lifestyle choices.  In the end I am afraid such laws are unenforceable. 

Additional Sources:

1. Beaver B. V., et al. (2001). A Community Approach to Dog Bite Prevention, Journal of the American Veterinary Medical Association, 218, 1732.
2. Bini, J.K., et al. (2011). Mortality, Mauling, and Maiming by Vicious Dogs.  Annals of Surgery, 253, 791.
3. Collier, S. (2006). Breed�Specific Legislation and the Pit Bull Terrier: Are the Laws Justified? Journal of Veterinary Behavior, 1, 17.
4. Grey, K. (2003). Comment: Breed�Specific Legislation Revisited: Canine Racism or the Answer to Florida's Dog Control Problems? 27 Nova Law Review 27, 415-432.
5. Hussain, S.G. (2006). Note: Attacking the Dog Bite Epidemic: Why Breed�Specific Legislation Won't Solve the Dangerous�Dog Dilemma, Fordham Law Review, 74, 2847.
6. Kaye, A.E., Betz., J.M., and Kirschner, R.E. (2009). Pediatric Dog Bite Injuries: A 5-Year Review of the Experience at Children�s Hospital of Philadelphia. Plastic Reconstruction Surgery, 124(4), 551-8 (Five hundred fifty-one patients aged 5 months to 18 years were treated in the emergency department after suffering dog bite injuries during the study period. The majority of injuries (62.8 percent) were sustained by male children. Dog bite injuries were most prevalent during the months of June and July (24.1 percent). Grade school-aged children (6 to 12 years) constituted the majority of victims (51 percent), followed by preschoolers (2 to 5 years; 24.0 percent), teenagers (13 to 18 years; 20.5 percent), and infants (birth to 1 year; 4.5 percent). Injuries sustained by infants and preschoolers often involved the face (53.5 percent), whereas older children sustained injuries to the extremities (60.7 percent). More than 30 different offending breeds were documented in the medical records. The most common breeds included pit bull terriers (50.9 percent), Rottweilers (8.9 percent), and mixed breeds of the two aforementioned breeds (6 percent).)
7. Medlin, J. (2007). Comment: Pit Bull Bans and the Human Factors Affecting Canine Behavior. DePaul Law Review, 56, 1285.
8. Ready, L. (April 28, 2011). Pit�Bull Terrier Therapy Dogs Provide Great Service to Their Community, Best Friends Animal Society Pit Bull Terrier Initiatives.
9. Sacks, J.J., et al. (2000). Breeds of Dogs Involved in Fatal Human Attacks in the United States Between 1979 and 1998. Journal of the American Veterinary Medical Association, 217, 836.
10. Voith, V.L. (July 11, 2009). Shelter Medicine: A Comparison of Visual and DNA Identification of Breeds of Dogs. Proceedings of Annual AVMA Convention.
11. Wisch, R.F. (2006). Quick Overview of Dog Bite Strict Liability Statutes. Michigan State University College of Law Animal Legal & Historical Center (May 2006, updated 2010).

Thanks to L.E. Papet for comments and additional sources.

Some Bills before Congress Will Help Dogs, Some Will Help National Security, but Some Seem Designed to Help Special Interests

One should periodically review what Congress is up to with regard to one�s interests, and even though many proposals regarding dogs are going nowhere, either because it is an election year or because some ideas are poorly conceived or drafted, certain trends can be detected.  The strongest trend evident in current proposals regarding dogs is a willingness of Congress to hand over responsibility for canine issues to private contractors and organizations.  Sometimes this is evident on the face of the legislation, but sometimes one must consider where the Senator or Congressman is from, and what constituents in his or her jurisdiction would benefit.  Other times it is not inappropriate to speculate about who may have assisted a legislator�s staff in drafting a proposal. 

Concomitant with the preference of certain members of Congress to privatize canine functions may be a tendency to assume that the welfare of working animals will be adequately protected by the private sector and non-federal agencies.  Legislation dealing with retired military working dogs, while admirable, will often not apply to contract working dogs owned by independent companies in the business of supplying dogs and handlers for military and security purposes.  While some organizations make appropriate provision for retiring dogs, I believe that there are cases where dogs are not being placed or appropriately protected at the end of their careers.  This too should be of concern to Congress, yet no such concern is reflected in current legislative initiatives.    

So here�s a brief snapshot of what�s now on the Congressional plate with regard to dogs.

Military and Security Proposals

H.R. 1900, the Surface Transportation and Mass Transit Security Act of 2011, provides that the Assistant Secretary of Homeland Security, consulting with the Under Secretary for Science and Technology, may conduct a demonstration project in a passenger rail system to test technologies that would strengthen security of passenger rail systems.  This could include the use of dogs to detect improvised explosive devices. 

Also, and most important, the number of canine teams certified by the Transportation Security Administration is to be increased by 200, with $75,000 to be provided for each canine team deployed, requiring an appropriation of $15 million.  Specifically, the bill would require expanding �the use of canine teams trained to detect vapor wave trails in passenger rail and public transportation security environments�.�

The Comptroller General is to submit a report to Congress on �the capacity of the national explosive detection canine team program as a whole.� The bill was introduced by Democratic Representative Sheila Lee of Texas, who also introduced House Resolution 28 (January 7, 2011), which encourages TSA to �continue development of the National Explosives Detection Team Program, which has proven to be an effective tool in securing against explosives threats to our Nation�s rail and mass transit systems, with particular attention to the application of its training standards and the establishment of a reliable source of domestically bred canines.� 

This may in part be a reference to the fact that the most popular breed at the moment for bomb dog work is the Belgian Malinois, and some agencies prefer to get them from European breeders. This is largely driven by economics because many imported dogs have already undergone significant training, which can include basic obedience, tracking, apprehension and attack work, and even detection training.  Starting with this level of training often saves the training companies a great deal of expense.  The intent of the legislation is appropriate, but at least in the short term it is likely to result in additional expense for some acquiring agencies. 

H.R. 1299, the Secure Border Act of 2011, would require the Secretary of Homeland Security to report to Congress the �number of canine and agricultural officers assigned� to each port of entry.  Within six months of enactment, the Secretary of Homeland Security would be required to �develop metrics to measure the effectiveness of security at ports of entry, which shall consider � [t]he required number of � Canine Enforcement Officers necessary to achieve operational control at such ports of entry.�  The bill was introduced by Republican Representative Candice Miller of Michigan, whose district abuts Canada.

H.R. 3011, the Transportation Security Administration Authorization Act of 2011, has provisions regarding explosive detection canine teams for aviation and air cargo security.  The bill provides that the Assistant Secretary of Homeland Security �shall ensure that by the end of 2013 at least 100 explosives detection canine teams are used for passenger screening purposes at large airports in the United States�.�  The dogs can be used �to resolve screening anomalies,� such as something suspicious detected during a full-body scan. The bill authorizes the appropriation of $25 million for this purpose. 

In providing for air cargo security, the bill specifically provides for leveraging �third-party explosives detection canine assets � for screening air cargo that can be used by air carriers, foreign air carriers, freight forwarders, and shippers and that meet certification standards of the Administration, as determined by the Assistant Secretary.�  A third-part explosives detection canine asset is �any explosives detection canine or handler that is not owned or employed by the Administration.� 

For mass transit systems, the number of canine teams certified by TSA is to be increased by �not less than 200 canine teams,� with $75,000 in assistance to be provided for each team.  The bill specifies that TSA must �expand the use of canine teams trained to detect explosives based on methods other than traditional explosives detection training techniques.� It is not clear whether this is a reference to vapor wake detection, but it is to be noted that the bill was introduced by Republican Representative Mike D. Waters of Alabama, whose district includes Auburn University, where vapor wake detection research is a priority and a source of revenue.   

Research is also contemplated and $1 million is appropriated for two years so that �the Assistant Secretary, in coordination with the Under Secretary of Homeland Security for Science and Technology, shall develop and implement a basic research and applied research and development program for the purpose of advancing the scientific understanding and applicability of canine explosives detection assets in the transportation environment.�  Auburn would have to be regarded as a good candidate for such a grant, but there are others. 

H.R. 4103, the Canine Members of the Armed Forces Act, would provide that the Secretary of Defense is to classify military working dogs as canine members of the armed forces, and not as equipment.  If a dog reaches the age of retirement and it has not been adopted, it is to be transferred to the 341^st Training Squadron.  Veterinary care is to be provided to retired military working dogs.  The bill was introduced by Republican Representative Walter B. Jones of North Carolina.  S. 2134 is the Senate version of this proposal.

This is a good idea, though it only has 12 sponsors at the moment.  Also, it does not protect contract working dogs on retirement. Rumors I have been unable to substantiate suggest the possibility that some current contractors are making little or no effort to redeploy older dogs or those that fail certifications, or allow them to enjoy any retirement whatsoever.

S. 722, introduced by Senator Lieberman of Connecticut, the Secure Facilities Act of 2011, provides that the Director of the Federal Protective Service is to increase by up to 15 canine teams the number of infrastructure security canine teams.  This increase could be achieved by one of three possible means:

�(A) partnering with the Customs and Border Protection Canine Enforcement Program and the Canine Training Center Front Royal, the Transportation Security Administration's National Explosives Detection Canine Team Training Center, or other offices or agencies within the Department with established canine training programs;

(B) partnering with agencies, State or local government agencies, nonprofit organizations, universities, or the private sector to increase the training capacity for canine detection teams; or

(C) procuring explosives detection canines trained by nonprofit organizations, universities, or the private sector, if the canines are trained in a manner consistent with the standards and requirements developed under subsection (b) or other criteria developed by the Secretary.�

Criteria for infrastructure security canine teams may involve standards set by private sector programs.  Unlike some other proposals, this one does not try to avoid use of federal training facilities. 

Proposals Regarding Veterans

H.R. 943, the K-9 Companion Corps Act, would provide funds to non-profit organizations for �planning, designing, establishing, and operating programs to provide assistance dogs to covered members and veterans.�  The proposal contemplates that assistance dogs would be provided to veterans suffering from:

(A) Blindness or visual impairment.

(B) Loss of use of a limb, paralysis, or other significant mobility issues.

(C) Loss of hearing.

(D) Traumatic brain injury.

(E) Post-traumatic stress disorder.

(F) Any other disability that the Secretary of Defense and the Secretary of Veterans Affairs consider appropriate.

Organizations applying for grant money would have be required to have �recognized expertise� in breeding and training assistance dogs, and would have to describe their experience in �working with military medical treatment facilities or medical facilities of the Department of Veterans Affairs.�  An assistance dog is defined as �a dog specially trained to perform physical tasks to mitigate the effects of� one of the disabilities listed above.  The dogs would be provided to active members of the military receiving �medical treatment, recuperation, or therapy,� and to veterans receiving treatment.  Up to $5 million would be authorized for this program.  The bill was introduced by Democratic Congresswoman Mazie Keio Hirono of Hawaii. 

The Congresswoman may have been influenced by some organizations whose philosophy is that service animals should perform tasks and cannot qualify as such if they only �do work,� as accepted in Department of Justice regulations defining �service animal.�  On the other hand, the language in the proposal may only be designed to preclude the use of funds for emotional support animals.  The bill has attracted 23 cosponsors, indicating some traction, though probably not enough to advance in the current session. 

H.R. 1540, the National Defense Authorization Act for Fiscal Year 2012 (PL 112-81), which has become law, contains a provision that allows the Defense Department to make available to a deceased handler�s family the military working dog which he had handled.  The dog may be given to a parent, child, spouse, or sibling of the deceased handler.  MWDs may also be given to their wounded handlers if the Department determines to do so, but if the handler is alive, the dog may not be given to a family member.  

H.R. 2074, the Veterans Sexual Assault Prevention and Health Care Enhancement Act, would require the Secretary of Veterans Affairs to implement a three-year pilot program to assess the effectiveness of using dog training activities as a component of integrated post-deployment mental health and PTSD rehabilitation programs offered by the VA. 

The Secretary is to select a VA medical center for this program, which cannot be in the VA Palo Alto health care system. In designing the program, recommendations published by Assistance Dogs International, the International Guide Dog Federation, �or comparably recognized experts in the art and science of basic dog training with regard to space, equipments, and methodologies.�  Partnerships are to be established with these two programs, as well as �academic affiliates, or organizations with equivalent credentials with experience in teaching others to train service dogs�.� It is not clear who will determine what experts are �comparably recognized� or what organizations have �equivalent credentials.�  Since the VA is looking to the external organizations for guidance, it would presumably be up to those organizations to acknowledge who belongs in their class.  One wonders if anyone not directly affiliated would be found to be so.  Temperament criteria for dogs are to be taken from ADI and IGDF.  The legislation was introduced by Republican Representative Ann Marie Buerkle of New York.  The Senate version of this proposal is S. 1838.

H.R. 198, the Veterans Dog Training Therapy Act, was discussed in a prior blog.  The bill has acquired 98 sponsors but has been stuck in the Committee of Veterans Affairs for over a year. 

General Proposals

S. 707, the Puppy Uniform Protection and Safety Act, provides that the Secretary of Agriculture is to promulgate standards for dealers �that include requirements for the exercise of dogs at facilities owned or operated by a dealer.�  The rules would apply to all dogs at least 12 weeks old, and is not to include �forced activity (other than a forced activity used for veterinary treatment) or other physical activity that is repetitive, restrictive of other activities, solitary, and goal-oriented.�  The area provided for such exercise is to be �separate from the primary enclosure if the primary enclosure does not provide sufficient space to achieve a running stride,� and is to be sufficiently large for dogs to get exercise, i.e., to run around a bit. Certain kinds of flooring that would be unsafe for dogs are to be prohibited.  State laws that provide additional or greater protections for dogs are not preempted.  The bill was introduced by Republican Representative Jim Gerlach of Pennsylvania. 

H.R. 2256, the Pet Safety and Protection Act of 2011, is designed �to ensure that all dogs and cats used by research facilities are obtained legally.�  Dogs and cats used in research must be obtained from a dealer, a pound or shelter, a person who bred and raised the animal or owned it for at least a year, and certain research facilities. This would apparently preclude people from rounding up their neighbors� pets and donating them to research facilities, though if someone claimed to have had the animal for more than a year, it is not certain how the lie would be determined.  It appears to be well intended.  The bill was introduced by Republican Representative Michael F. Doyle of Pennsylvania.     

H.R. 1878, which would give public transportation access to trainers of service dogs, was discussed in a prior blog. 

Conclusion

Big winners, if legislative proposals before Congress were enacted, would be Auburn University�s trademarked vapor wake detection system (H.R. 1900, probably H.R. 3011, though the latter may be beneficial to a broader range of private institutions), and Assistance Dogs International and the International Guide Dog Federation (H.R. 943, H.R. 2074, S. 1838).  

I should note that I have the greatest respect for the latter two organizations, but delegating governmental responsibilities to umbrella organizations is too easy a way for government to avoid responsibilities altogether.  Also, with respect to non-guide service dogs, the Army, VA, and now Representative Buerkle, seem not to want to see that the umbrella is not broad enough to cover those with a great need for service animals.  

I also have great respect for Auburn University�s canine research, but like my father (who was an agricultural scientist) and my uncle (who spent most of his life in the Agronomy Department at Auburn), I am suspicious of the commercialization of research results.  Since it can bias the research, there should be an independent evaluation of the research and the validity of its commercial application.  That evaluation should not merely be a summary of field reports from handlers whose claims are necessarily biased by the fact that their employment depends on the success of an approach. 

Big losers, if some of the Bills become law, would be canine training programs already developed by the military and active-duty Army personnel and veterans who cannot get access to assistance dogs through channels approved by the military and the VA.  Dogs in general would benefit from exercise requirements placed on dealers, and limitations on the sources of animals for research, but a question that would remain open some time will be the level of enforcement that can be implemented by the Department of Agriculture, something discussed previously. 

H.R. 1540, allowing wounded handlers or the families of deceased handlers to obtain the military working dogs is now law (10 U.S.C. 2583).  Time will tell how many handlers and families are able to get dogs, since the military must approve a transfer.  Certainly dogs nearing the end of their useful lives should not present issues for the military, and giving a dog to a family that has lost a member will be some comfort that should not be denied. A similar requirement should be considered for contract working dogs.   

Overall, the proposed legislation, most of which will go nowhere in this election year, shows a trend towards privatizing canine responsibilities and activities.  Although this may be cost-effective, it comes with the price that neither the government nor the public will necessarily know very much about the implementation of a program, and Congress will effectively delegate oversight, at least until some flaw in a program blows up in a public manner.    

Thanks to L.E. Papet and Debbie Kandoll for thoughts on a draft of this blog.