“Man’s Best Friend?” Breed-Specific and Other Local Regulation of Dangerous Dogs
by Margaret W. Baumgartner and Rebecca L. Katz
Margaret W. Baumgartner and Rebecca L. Katz are deputy city attorneys with the San Francisco City Attorney’s Office.
About Legal Notes
This column is provided as general information and not as legal advice. The law is constantly evolving, and attorneys can and do disagree about what the law requires. Local agencies interested in determining how the law applies in a particular situation should consult their local agency attorneys.
Dogs and humans have lived in close proximity for millennia. Although historically humans have thought of dogs as “man’s best friend,” sometimes a dog will unexpectedly kill or severely injure its owner or another person. Most dog owners, however, do not realize their pet is capable of killing someone before it happens.1
San Francisco experienced two tragic dog mauling deaths in recent years. These tragedies, particularly the fatal mauling of 12-year-old Nicholas Faibish by his family’s unaltered pit bulls, in part prompted the California Legislature to amend state law, effective January 2006. State law now allows local governments to regulate spaying, neutering and breeding of specific breeds of dogs. This change creates a valuable opportunity for local governments to consider breed-specific regulation and to review and update other dog-related regulations.
Breeds and Breeding
After Nicholas Fabish’s death, San Francisco Mayor Gavin Newsom formed a task force to examine best practices regarding dog regulations throughout the country. The task force found that nearly 60 percent of San Francisco’s approximately 150 annual vicious and dangerous dog hearings involved pit bulls. Nationally, pit bulls kill more people than any other breed, causing 66 deaths from 1978 to 1998. Additionally, unneutered male dogs bite more often than other dogs. Based on these and other findings, the task force recommended that San Francisco adopt laws regulating pit bulls. But the city could not follow the task force’s primary recommendations because California law prohibited local jurisdictions from adopting breed-specific legislation.2
At the request of San Francisco leaders, state Senator Jackie Speier (D-San Francisco/San Mateo) introduced SB 861 to amend the law prohibiting breed-specific regulations. The Legislature examined public safety concerns and animal welfare issues related to specific breeds. It found that uncontrolled and irresponsible breeding of particular breeds contributes to pet overpopulation and mass euthanasia. In San Francisco, for example, pit bulls account for approximately 65 percent of dogs coming into the local shelter. Of the dogs available for adoption in San Francisco, pit bulls are the only breed that remains unadopted in large numbers. Most are euthanized. The Legislature also heard testimony, however, about lovable, well-mannered pit bulls with caring owners. Ultimately, the Legislature amended its ban on breed-specific legislation to allow local governments to regulate spaying, neutering and breeding of specific dog breeds.3
Anticipating passage of SB 861, San Francisco adopted a comprehensive program to regulate spaying, neutering and breeding of pit bulls.4 This law requires that pit bull owners in the City and County of San Francisco spay or neuter their dogs unless one of certain exceptions apply, and obtain a permit before breeding a pit bull or whelping pit bull puppies. Penalties for violating the regulations include seizure of the dog and criminal sanctions. This local ordinance became effective Jan. 19, 2006.
San Francisco Animal Care and Control reports that in the month following the law’s enactment, as many as 100 pit bull owners committed either verbally or in writing to spay or neuter their dogs. San Francisco hopes these regulations will prevent any future tragedies like the death of 12-year-old Faibish and reduce the number of pit bulls that must be euthanized.
As a result of the change in state law, local governments may now examine their particular public safety and animal welfare concerns to determine if breed-specific regulations could address those issues. Because the breed of dog statistically most likely to bite or kill may change over time, local governments may wish to consider ensuring flexibility so that legislation will continue to be useful if the popularity of particular breeds changes.5
Other Dog Regulations
In addition to breed-specific legislation, other legislative options exist for controlling potentially dangerous dogs:
Broadly define “potentially dangerous” dog. Some local laws narrowly define a vicious dog, which can lead to arguments that a dog is entitled to “one free bite.” California law does not define potentially dangerous dogs so narrowly.6 Some local governments, including San Francisco, regulate dogs that approach people on the street “in a terrorizing manner.” This definition allows action to control potentially dangerous dogs before they bite.
Create accessible complaint procedures. An accessible and well-advertised complaint procedure, with prompt follow-up on complaints, can encourage residents to identify and report dogs that may be dangerous before they bite.
Develop informal and resident-friendly hearing procedures. California Food and Agriculture Code section 31621 provides a default procedure for hearings on vicious dogs that requires a petition filed in Superior Court. But local governments may adopt their own procedures.7 Both local governments and residents may be more likely to use less formal local hearing procedures. San Francisco, which conducts approximately 150 vicious dog hearings a year, adopted hearing procedures that allow residents, witnesses and dog owners to tell their story directly to a city employee acting as a hearing officer.8 Usually lawyers are not present. The hearing officer generally prohibits or greatly limits cross-examination, reducing the anxiety of victims, complainants and witnesses.
Expand the range of penalties for vicious dogs. In creating its hearing procedures, a local government should consider the administrative remedies the hearing officer may impose on the owner of a vicious dog. In San Francisco, the remedies include ordering a dog destroyed, registering the dog, spaying or neutering, posting a warning sign at the residence, and muzzling. In addition, in 2005 San Francisco adopted legislation allowing its dog hearing officer to prohibit owners of dogs declared vicious and dangerous from owning any dogs for a period of up to three years.9
Adopt a “bite and run” law that requires exchange of personal information when a dog attacks another dog or a person. Many local governments require their residents to report dog bites to the local animal welfare organization. But few laws require dog owners to provide information to the victim at the scene. In 2005, San Francisco adopted a “bite and run” law, which requires dog owners to provide information about themselves and their dog to the victim of a dog bite while at the scene, similar to the requirements of a vehicle accident.10 The San Francisco Police Department recently used this law to track down and arrest a dog owner who fled after his dog severely injured the victim. The district attorney charged the dog owner with a “bite and run” in addition to a felony under California Penal Code section 399.
Although local governments have many options for regulating dogs, only effective enforcement will promote public safety and animal welfare. Agencies responsible for enforcing dog regulations, including animal welfare agencies, police departments, public health departments and district attorneys, must coordinate enforcement priorities. Local governments should consider cross-department responsibilities when evaluating possible legislation.
Local governments have many alternatives available to protect the public and promote animal welfare without unduly restricting responsible dog owners. Through the regulatory process, local governments can take steps to ensure that dogs continue to be “man’s best friend.”
 In the fatal maulings of Diane Whipple and Nicholas Faibish, the District Attorney brought criminal charges against the dog owners based partially on the grounds that the owners should have known of the dangerous propensities of their pets.
 The facts from San Francisco's task force report are available in the legislative history at Task Force notes: http://www.leginfo.ca.gov/pub/bill/sen/ sb0851-900/sb_861_cfa_20050830_154906_sen_floor.html. Prior to SB 861, some jurisdictions, such as the City of Los Angeles and Stanislaus County, addressed concerns regarding unaltered dogs consistent with the prohibition on breed-specific legislation by enacting broad ordinances related to the spaying/neutering and breeding of dogs generally. See Los Angeles Municipal Code § 53.15.2 and Stanislaus County Code Chapter 7.54.
 See California Food & Agriculture Code § 31683, as amended 2005.
 See San Francisco Health Code §§43 and 44.
 For an interesting view on breed "profiling," see Gladwell, Troublemakers, What pit bulls can teach us about profiling, The New Yorker pg. 33 (Feb. 6, 2006).
 California Food & Agriculture Code § 31602 includes within the definition of a potentially dangerous dog one that either bites, or twice within a 36-month period "engages in any behavior that requires a defensive action by any person to prevent bodily injury when the person and the dog are off the property of the owner or custodian of the dog." San Francisco Health Code § 42 defines a vicious and dangerous dog as a dog that bites "or in a vicious or terrorizing manner, approaches any person in apparent attitude of attack upon the streets, sidewalks, or any public grounds or places." Additionally, California Civil Code § 3342.5 allows any person, including a district or city attorney, to file a court action if a dog twice bites a human.
 California Food & Agriculture Code § 31621 provides that "A city or county may establish an administrative hearing procedure to hear and dispose of petitions filed pursuant to this chapter."
 See San Francisco Health Code §42.3.
 See San Francisco Health Code § 42.3(c)(ii); see also California Food & Agriculture Code § 31646.
 See San Francisco Health Code § 39.