Here's How One Family Pet Beat A Town's Pit Bull Ban
This little princess is Mazzy, a pit bull mix who was ordered out of a Louisiana town about a year ago due to nothing more than the results of a genetic test.
In 2013, the town of New Llano instated a ban on pit bulls and dogs who look like pits. Christine and Victor Nelson moved to New Llano with Mazzy later that year, when Victor -- a staff sergeant in the Army -- was transferred to a nearby base.
The Nelsons brought a lawsuit challenging the constitutionality of the pit bull ban, after being told -- contrary to prior statements made by town officials, including the mayor, they say -- that their dog couldn't stay with them in the rental home.
They argued that New Llano's breed ban had two conflicting definitions of which dogs are considered pit bulls under the law. They also argued that the town was wrong to rely on a DNA test when the test's instructions specifically said it shouldn't be used in the enforcement of breed bans, and that it was a violation of due process for the town not to offer an opportunity to contest the determination that Mazzy meets the ordinance's definition of a banned dog.
Because the genetic testing found Mazzy to be 50 percent American Staffordshire terrier, she has spent some nine months in exile, boarded at an out-of-town facility away from her family. But last week, Judge Patricia Minaldi of the U.S. District Court for the Western District of Louisiana issued a very welcome pre-Independence Day preliminary injunction saying Mazzy could come on home.
The Nelsons, the judge found, "proved a substantial likelihood of success on the merits, a substantial threat of irreparable harm if the injunction is not granted; that the threat of injury outweighs any harm the injunction would cause and that the injunction will not disturb public interest." Under the judge's ruling, Mazzy must still wear a muzzle in public, and her owners have to carry extra insurance as well as put up signs on their property saying they've got a "partial pit bull" -- the court's words -- on the property.
Minaldi “made a very intelligent and fair ruling to both sides,” the Nelsons' lawyer, Fred Kray, told The American Press. “She was careful in letting the dog go home, and the town’s interest in public safety was served.”
Kray spoke with HuffPost about the significance of the court's decision and what comes next for this pretty partial pittie, who has been catching up on her naps in the comfort of home.
The Huffington Post: What led to Mazzy being taken away by the town authorities? Had she done anything wrong?
Fred Kray: She did nothing wrong. Mrs. Nelson had been told her dog was not a problem by her realtor, because she was a mixed breed. When she went to get her water turned on, she was asked what kind of dog she had. She told them a terrier mix. The next she knew the fire chief was at her house to look at her dog. At that point Mazzy was not home.
Fred Kray: She did nothing wrong. Mrs. Nelson had been told her dog was not a problem by her realtor, because she was a mixed breed. When she went to get her water turned on, she was asked what kind of dog she had. She told them a terrier mix. The next she knew the fire chief was at her house to look at her dog. At that point Mazzy was not home.
The fire chief at that point told her about the pit bull ban and gave her a copy of it. At that point she had already rented the house. The town filed an affidavit that alleged that Mrs. Nelson admitted to the water employee she had a pit bull. Mrs. Nelson denies that.
In any case, there was no evidence presented by the town that Mazzy had ever been aggressive or had bitten anyone. Mrs. Nelson went to the mayor to see if she could take care of situation, and according to her, the mayor agreed to grandfather Mazzy in if Mazzy would take a DNA test, regardless of what the test showed. The test showed Mazzy was 50 percent American Staffordshire terrier, and the town told her she could not live within the town limits. Thus Mazzy has been boarded out of town.
What did the pit bull regulation say, and what did you argue was wrong with it?
The pit bull ban defined three breeds as banned, and the definition section required the dog to be predominantly of that breed. There was no hearing to defend the classification by the town that was done by the fire chief and/or the police.
The pit bull ban defined three breeds as banned, and the definition section required the dog to be predominantly of that breed. There was no hearing to defend the classification by the town that was done by the fire chief and/or the police.
The only way you were allowed to contest was to give your dog a DNA test. The town charged $200 for the DNA test. In the DNA test section, it stated if your dog was "of any" pit bull breed it was banned.
We argued the law lacked due process because there was no way to defend the classification, the the definition was vague, because in one section it said predominant and the other "of any" and finally that charging $200 violated due process because 1) if you had no money your dog was automatically banned and 2) you should not have to pay anything in a first tier fact finding hearing in a criminal case.
The ordinance was criminal, jail for 60 days and fine up to $500.
Any time someone interferes with the ownership of your dog you are entitled to a hearing. The government must come forward and prove they have a case against you for the violations they allege. You have the right to defend the allegations.
Pit bull bans don't work to lower all dogs bites; the vast majority of animal welfare groups, including the American Bar Association, The National Animal Control Association and the American Veterinarian Association are against breed bans.
Breed is not a factor in why dogs bite, and the statistics proving that have existed for the last 20 years. A complete analysis of the predictive factors is contained in therecently released peer reviewed article published in the Journal of the American Veterinary Medical Association, in which the authors looked at 256 dog bites over nine year period.
There is no scientific peer reviewed evidence that shows that pit bulls are more dangerous than other dogs.
How can Mazzy be 50 percent Staffordshire terrier, and not necessarily be considered a pit bull under this or any other ordinance?
Because the definition in most ordinances uses the term "the majority of traits" or "predominantly" which in legal parlance means in excess of 50 percent.
What's changed now, with this ruling?
The town cannot enforce the law from this point forward, until the case is finally decided. Thus pit bulls at this point cannot be banned from the town.
What's changed now, with this ruling?
The town cannot enforce the law from this point forward, until the case is finally decided. Thus pit bulls at this point cannot be banned from the town.
The judge will be the final arbiter of the same issues we brought up at the preliminary hearing when we move for summary judgment. So, it is unlikely the town will continue to try to defend this ordinance. They will rewrite a new one that meets the requirements that the court found lacking.
Will this case have implications for other families and jurisdictions?
Certainly the lawmakers in [other] jurisdictions will see 1) that they can be taken to court for laws that do not meet due process requirements and 2) will be more likely to be willing to change their laws if a citizen makes an issue of the constitutionality of the law.
Is it possible to have a pit bull ban that isn't unconstitutional, do you think? What would that look like, or what's a better alternative?
It is actually pretty easy to have a constitutional breed ban. The police power of the government is very broad, and gives them the power to regulate dogs. The vast majority of cases challenging pit bulls bans have been lost.
Will this case have implications for other families and jurisdictions?
Certainly the lawmakers in [other] jurisdictions will see 1) that they can be taken to court for laws that do not meet due process requirements and 2) will be more likely to be willing to change their laws if a citizen makes an issue of the constitutionality of the law.
Is it possible to have a pit bull ban that isn't unconstitutional, do you think? What would that look like, or what's a better alternative?
It is actually pretty easy to have a constitutional breed ban. The police power of the government is very broad, and gives them the power to regulate dogs. The vast majority of cases challenging pit bulls bans have been lost.
Most bans allow you to challenge the pit bull designation before a hearing officer or in court. That provides due process. Most bans only have one definition of pit bull: a dog that meets the majority of physical traits or predominance. Even a ban that defines a pit bull as a dog with any element of the named breed has been upheld.
The issue of visual identification is problematic, and there is a case out of Miami that says animal control officers are not qualified to visually identify a pit bull. Visual identification is inherent in all pit bull bans.
The best laws are breed neutral and tackle all animal welfare issues in one law: chaining, feeding, housing and enforcing breed neutral dangerous dog laws. The best example of this is the law passed recently in South Bend, Indiana.
So you are saying that any jurisdiction that wants to ban pit bulls has to: Have a good definition of pit bull, a way of telling which dogs are pit bulls, and they must give the family an opportunity to argue that their dog isn't a pit bull under the relevant definition?
Yes, and very many don't do that. I also don't think you can charge for a hearing. Can you imagine going for a traffic ticket and being told you had to pay $200 to contest the ticket or you would be found guilty?
Will you bring more challenges to breed restrictions?
Yes. We are looking at a number of jurisdictions where their breed bans are clearly unconstitutional.
Yes. We are looking at a number of jurisdictions where their breed bans are clearly unconstitutional.
Will other families get their dogs back in New Llano now?
I am not aware of any dogs that have been classified that are out of town. Those that are in town legally have been grandfathered in when they passed the law in 2013. If a pit bull comes to New Llano between the date of the ruling and the date they pass a new law, that dog would be eligible to be grandfathered in under the new law.
I am not aware of any dogs that have been classified that are out of town. Those that are in town legally have been grandfathered in when they passed the law in 2013. If a pit bull comes to New Llano between the date of the ruling and the date they pass a new law, that dog would be eligible to be grandfathered in under the new law.
This was a preliminary injunction. Do you think there's any chance that the judge will later find that Mazzy can't live at home, in the end?
No chance. In this case, getting a preliminary injunction is really really hard. You are asking the judge to rule before the case is tried.
What would happen next is we would move for summary judgment on exactly the same issues. They are issues of law for the judge, not jury issues. There is no new evidence. The statute says what it says. The law is the law.
Is Mazzy happy to be back home?
Yes, Mazzy is super happy to be home, as are Christina and Victor. We were all worried that Mazzy would become a problem dog due to kennel stress after nine months.
Yes, Mazzy is super happy to be home, as are Christina and Victor. We were all worried that Mazzy would become a problem dog due to kennel stress after nine months.
At this point, we will either continue the litigation to have the law permanently ruled unconstitutional, or the town will rewrite its law. We can't know what the town's ordinance will look like, but Mazzy would likely be grandfathered in under whatever ordinance is enacted.
This interview has been slightly edited for length and clarity.
Fred Kray hosts a weekly podcast about pit bulls and the law, which you can listen to here. Get in touch with us about pit bulls and the law at arin.greenwood@huffingtonpost.com!
