Court Says Killing of Dog Can’t Be Based on Breed

(CN) – A pit bull terrier will not be destroyed for injuring an 8-year-old boy after the West Virginia Supreme Court reversed a circuit court decision that was based on the “inherent viciousness” of the dog’s breed.
     The dog’s owners were found not guilty of knowingly harboring a vicious dog after two hearings on the case in Wayne County Circuit Court, but the circuit court ordered the dog’s destruction anyway, based on the presumption that pit bull breeds are inherently vicious and unpredictable.
     The circuit court’s decision relied solely upon a breed-specific presumption that is not upheld as a matter of law, the Supreme Court ruled, and thus the higher court reversed the decision.
     Tinkerbell, a 2 year old pit bull terrier, is “very high energy,” but had never shown any signs of aggressive behavior with her original foster family, her current owners or any visiting children, according to court documents.
     Tinkerbell was confined to the house and the fenced-in front yard on March 31, 2014, when her owners Michael and Kim Blatt were playing host to some neighborhood children at a cook out.
     The fence was accidentally left open, and Tinkerbell ran into the yard where the children were playing, found a ball and began burying it. One of the neighbors, eight-year-old L.L., was on the ground and grabbed the ball out of Tinkerbell’s mouth.
     Tinkerbell jumped on the boy’s shoulders and tried to grab the ball back with her teeth, according to testimony by the Blatts’ eldest son, but accidentally bit L.L. across the mouth, slicing his upper and lower lip.
     When L.L. grabbed his face and began crying, Tinkerbell immediately ran into the house and hid under a stool, Michael Blatt testified.
     Michael Blatt contacted the boy’s parents, and the child was taken to a hospital where he received five stitches on his upper lip and nine stitches on his bottom lip.
     Hospital records described the degree of pain and bleeding associated with the injury as minimal.
     Tinkerbell was seized by Animal Control, but at no time after the incident, even when she was seized, did she show any aggression, according to testimony from both the family and the animal control officer.
     In a June 16 ruling, Justice Brent D. Benjamin held that the circuit court erred as a matter of law in its determination that Tinkerbell was automatically vicious based on her breed, and that the single incident hardly qualified as proof that she is.
     ” There is a presumption that pit-pull terrier breeds are dangerous, aggressive, a public health hazard and are unpredictable in nature,” the circuit court order directing Tinkerbell’s destruction stated.
     West Virginia statute does not contain a breed-specific presumption, Benjamin wrote, and therefore the circuit court can only consider a dog’s past behavior when determining whether the dog poses a future risk of harm. When the dog’s behavior does not constitute a risk of future harm, Benjamin said the court may not exercise its authority to have the dog euthanized.
     The incident in which Tinkerbell bit L.L. happened during a time both the child and the dog perceived to be play time, Benjamin said, and since the dog did not demonstrate any aggressive behavior before or after the bite, the circuit court’s conclusion that Tinkerbell is dangerous is not supported by the facts.
     “Surely, the Legislature … did not intend to deem every dog as dangerous for engaging in behavior that is a part of its inherent nature: biting,” Benjamin said.
     The Justice concluded the circuit court did not violate double jeopardy standards by holding the destruction hearing after finding the Blatts not guilty of a crime — an argument the Blatts raised — but the court nonetheless erred in its final decision, Benjamin said.
     “While this incident clearly illustrates that Tinkerbell – or any dog – can cause harm, we do not believe that the facts in the record establish the likelihood that Tinkerbell poses such a risk of future harm to the public that the risk would warrant her destruction,” the justice wrote.

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