Badly Written and Misinterpreted Laws: Part of the Problem

A lot of dog bite laws have been written so badly or interpreted by courts so illogically as to defeat their purpose. Consider this one from the Codified Laws of the State of South Dakota:

40-1-23. Potentially dangerous animal–Enclosure–Accompaniment by owner or caretaker–Restraint–Violation as misdemeanor.
The owner or caretaker of a potentially dangerous animal shall keep such animal in a proper enclosure. If a potentially dangerous animal is not in a proper enclosure, it shall be directly accompanied by its owner or caretaker and confined or restrained in such a manner that, after investigation by the board, any peace officer, or any officer or agent of a humane society, it is not a dangerous animal. The ownership or possession of a dangerous animal in violation of this section is a Class 1 misdemeanor.

 

If you did not understand it, welcome to the club. The second sentence probably was intended to say that the “potentially dangerous animal” has to be confined in a certain manner until the proper authorities decide it is not a “dangerous animal.” There are two problems with this. First, at least two words are missing; the sentence should end by saying “determines that it is not a dangerous animal.” Second, the statute is illogical because it begins by talking about a “potentially dangerous animal” and then changes the subject to a “dangerous animal.” Potentially dangerous is entirely different than dangerous in dog bite law. While potentially dangerous dogs have to be confined in a certain manner, dangerous dogs are euthanized. So the law makes no sense.

In the case of State v. Alexander (2022 S. D. 31), the Supreme Court of South Dakota reversed the conviction of a defendant accused of violating the statute. 

The court based its opinion on due process grounds, saying a companion statute (SDCL 40-1-1(5)) made a policeman the sole decider as to whether the defendant’s dogs were “dangerous.” We have three branches of government in the USA and have decided that lawmakers (the legislative branch) cannot deprive a defendant of his right to defend himself in court (the judicial branch) by giving police (the executive branch) the right to determine guilt. To that extent, I agree with the court. Unfortunately, however, the justices passed up an opportunity to declare the statute unconstitutional on a different ground, namely the ground of vagueness.

That’s a big problem with the dog bite laws. They mix up terms, combine concepts, and too often confuse the issue. Vague criminal laws cannot be enforced. Ambiguous civil laws lead to illogical court interpretations and injustice for all.

Consider another example from the State of Georgia, Georgia Code Ann. sec. 51-2-7:

A person who owns or keeps a vicious or dangerous animal of any kind and who, by careless management or by allowing the animal to go at liberty, causes injury to another person who does not provoke the injury by his own act may be liable in damages to the person so injured. In proving vicious propensity, it shall be sufficient to show that the animal was required to be at heel or on a leash by an ordinance of a city, county, or consolidated government, and the said animal was at the time of the occurrence not at heel or on a leash. The foregoing sentence shall not apply to domesticated fowl including roosters with spurs. The foregoing sentence shall not apply to domesticated livestock.

The Georgia dog bite statute requires the victim to prove not one ground for liability but two. The first sentence of the statute requires proof that the animal was vicious or dangerous, plus proof of either negligence or allowing it to run free. Under the one bite doctrine, a victim simply has to prove that the animal was vicious or dangerous. Let’s not even talk about the last two sentences of this statute; each of them refers to “the foregoing sentence” which makes the second of these two sentences ambiguous, but even worse, the second sentence makes it seem as though the lawmakers believed there to be no difference between fowl and livestock. No other state has such a convoluted animal liability statute.

But no matter how well-drafted a law might be, judges often misunderstand them. For example, in County of Los Angeles v. Superior Court (Faten) 209 Cal.App.4th 543 (2012), it was held that a county ordinance stating that the director of animal control “shall” confiscate any dog constituting a sufficient hazard did not establish a mandatory duty to take custody of the pit bulls that attacked a child. The ordinance in question should have stated clearly that “shall” was mandatory.

Similarly, consider the dog bite statute of Hawaii, section 663-9 (Liability of animal owners):

(a) The owner or harborer of an animal, if the animal proximately causes either personal or property damage to any person, shall be liable in damages to the person injured regardless of the animal owner’s or harborer’s lack of scienter of the vicious or dangerous propensities of the animal.

What can be clearer than that? And yet in Hubbell v Iseke, 727 P2d 1131, 6 Haw. App. 485 (Haw.App. 1986), the Hawaii Court of Appeals held that section 663-9 did not establish strict liability for canine-inflicted injuries, but merely clarifies that a victim who bases his case on negligence does not have to prove scienter (i.e., knowledge of the dangerousness or viciousness of a dog). It’s an absurd conclusion and yet since 1986 the legislature has not seen fit to clarify the law.

The solution to these problems is probably threefold.

  • Lawmakers have to write statutes and ordinances that are clear and concise. Take a look at the Model Dog Bite Laws by Attorney Kenneth M Phillips. Mr. Phillips has drafted animal liability laws that were enacted at the state level on down, and has also testified in favor of such laws at legislative hearings, such as the hearing at the Judiciary Committee of the Tennessee State Legislature
  • Our representatives also have to amend the badly drafted laws and the ones that have been misinterpreted by the courts, as in the examples from Hawaii and California, above. 
  • Lawyers who appeal dog bite cases need a fuller understanding of dog bite law so they can properly educate the appellate courts and avoid illogical decisions.