A Call for an End to Kentucky Breed-Specific Legislation

By: Lucy Falkner and Merit Harris

While many states continue to address and enact legislation promoting equality for domesticated animals, Kentucky stands strong in their allowance of breed-specific legislation (hereinafter “BSL”). BSL are laws designed to protect against breeds of dogs that are stereotypically malicious or dangerous, such as pit bull terriers, American Staffordshire terriers, and Staffordshire bull terriers.[1] This type of legislation began in the early 1980’s following a series of fatalities and injuries caused by certain breeds, including pit bulls.[2] By enacting BSL, the government’s goal is to “limit public exposure to well-documented dog breeds by regulating ownership of them.”[3] However, many owners find issue with the enactment of BSL because instead of regulating a dog for exhibiting dangerous behavior, BSL regulates the dog on the presumed potential for that breed to behave dangerously. In turn, many owners face the detrimental aspects of BSL ranging from giving up their beloved pet to a shelter in order to comply with their state’s BSL, being forced to move to a non-discriminatory area, or euthanizing the dog. Other owners argue that BSL discriminates against responsible dog owners of these breeds instead of truly confronting irresponsible dog owners of other breeds who permit their dog’s dangerous behavior.[4] In concurrence with the validity of arguments against BSL, 24 states have enacted state-wide legislation preempting local governments from enacting breed-specific ordinances.[5] However, Kentucky has not enacted a state-wide prohibition of BSL, and as a result 36 of the 120 counties within Kentucky have enacted restrictive ordinances.[6]

Both state appellate courts and federal courts have upheld the constitutionality of BSL, including the Court of Appeals of Kentucky in Bess v. Bracken County.[7] In this case, the Court first recognizes that regulation of dogs falls under the police power of the state, rather than under federal law.[8] Further, the Court upheld the Bracken County ordinance which required the forfeiture and euthanasia of pit bull terriers subsequent to a hearing before the Bracken District Court and notice to the owner.[9] Kentucky legislation surrounding breed-specific decisions follows the reasoning that local government officials are the most well-suited to “determine their own animal control and public safety policies.”[10] A recent example of BSL occurred in a neighborhood in Lexington, Kentucky, where the neighborhood developer sent letters to its residents notifying them of a ban on eleven breeds of dogs, including Pit Bulls, German Shepherds, Huskies, and Great Danes.[11] The neighborhood association was not given a chance to vote on this new restriction, and families who already owned a dog which would now be considered restricted were required to forfeit their dog.[12]

In contrast to Kentucky, states such as Nevada have enacted legislation that strictly prohibits BSL. Nevada became the 14th state to enact a state-wide prohibition of BSL when Nevada Governor Brian Sandoval signed Assembly Bill 110 into law. The law, which became effective officially on October 1, 2013, prohibits dogs from being declared as vicious or dangerous “based solely on the breed of the dog.”[13] However, Nevada successfully being able to prohibit BSL began with the citizens it affected. The Best Friends Animal Society, a national animal welfare organization, worked hand in hand with Nevada Assemblyman and bill sponsor, James Ohrenschall, to pass a law fighting breed discrimination.[14] Nevada legislative attorney, Ledy Vankavage, stated that the ultimate goal of this law was to ensure safety and humanity in their communities while acknowledging that targeting a dog’s breed and not the specific dog’s actions is “bad public policy.”[15]

Since 2012, Kentucky has continuously struck down bills that call for state-wide preemption of BSL.[16] However, Senate Bill 82 was introduced in 2021 and seeks to “enable local governments to legislate enforcement action for dog and welfare safety,” as long as the regulation or ordinance is not “based on its breed or perceived breed.”[17] This bill, which is similar to the Nevada law, still recognizes that there is a need for protection against the dangerous behavior of dogs, but focuses on measurable actions of all breeds, rather than only the actions of specific breeds. The American Kennel Club has continuously played an active role in stopping BSL nationwide.[18] The AKC recognizes a number of policy concerns surrounding BSL that further support the enactment of Senate Bill 82, including the idea that responsible dog owners can be punished for owning a well-trained dog of a banned breed, while an irresponsible owner can circumvent the law by choosing a dog that is not of a banned breed and raising it to be dangerous.[19] Additionally, the idea that animal control officers are forced to focus on the appearance of a dog, rather than their behavior, and such officers must become dog breed experts in order to determine whether a certain dog is banned.[20] Lastly, there is increased cost to the community as dog owners are forced to turn their dog into the shelter or move out of the area if their dog is added to the list of banned breeds.[21] For these reasons, Kentucky should follow the lead of Nevada and other states in order to preempt breed-specific legislation.

[1]Breed-specific legislation FAQ, DogsBite.org, https://www.dogsbite.org/

legislating-dangerous-dogs-bsl-faq.php#whatisbsl(last visited Nov. 6, 2021)

[2]Linda Weiss, Breed-Specific Legislation in the United States, Animal Legal and Historical Center (2021), https://www.animallaw.info/article/breed-specific-legislation-united-states#n1

[3]Breed-specific legislation FAQ, supra note 1.

[4]See generally, Why Breed-specific Legislation Is not the Answer, AVMA, https://www.avma.org/ resources/pet-owners/why-breed-specific-legislation-not-answer(last visited Nov. 6, 2021).

[5]Breed-specific Prohibited or Restricted Ordinances, AMVA Division of State Advocacy (Mar. 2021), https://www.avma.org/advocacy/state-local-issues/breed-specific-prohibited-or-restricted-ordinances.

[6]Haley Pannell Stahl, Protecting Man’s Best Friend: Why Pit Bull Terrier Breed Bans Are Outdated, Detrimental Laws, N. Ky. Law Rev. (Mar. 23, 2021), https://northernkentuckylawreview.com/ blog/protecting-mans-best-friend-why-pit-bull-terrier-breed-bans-are-outdated-detrimental-laws

[7]Bess v. Bracken Cty. Fiscal Court, 210 S.W.3d 177 (Ky. App. 2006).

[8]Id. at 180

[9]Id. at 182

[10]State Preemption Map, DogsBite.org, https://www.dogsbite.org/legislating-dangerous-dogs-state-preemption-map.php(last visited Nov. 6, 2021).

[11]Brandy Arnold, Kentucky Community Bans 11 Different Dog Breeds, DogingtonPost.com (Apr. 10, 2018), https://www.dogingtonpost.com/kentucky-bans-11-different-dog-breeds/.

[12]Id.

[13]Nev. Rev. Stat. § 202.500 (Oct. 2013)

[14]Best Friends Animal Society Celebrates Passage of Nevada Assembly Bill 110, Banning Dog Breed Discrimination, Best Friends Animal Society, (May 28, 2013), https://bestfriends.org/about/media/ best-friends-animal-society-celebrates-passage-signing-nevada-assembly-bill-110-banning.

[15]Id.

[16]State Preemption Map, supranote 10.

[17]ANACT relating to animal ownership., S. 82, Reg. Sess. (Ky. 2021).

[18]AKC Staff, Issue Analysis: Why Breed-Specific Legislation Doesn’t Work, American Kennel Club(Apr. 7, 2015), https://www.akc.org/expert-advice/news/issue-analysis-breed-specific-legislation/.

[19]Id.

[20]Id.

[21]Id.

JAEL JournalApril 18, 2022