On April 4, 2013, an Order was entered in the New York Supreme Court, Appellate Division, in the matter of The People of the State of New York v. Diana Shanks. Just to clarify, the Appellate Division hears appeals from the New York Supreme Court, which is the state’s general trial court.

On appeal was an order entered on February 17, 2012 by the Otsego County court, affirming the judgment of the lower court in The Town of Oneonta v. Shanks, in which Ms. Shanks’ dog, Ghost, an American pit bull terrier, was found to be a “dangerous dog” within the meaning of Agriculture and Markets Law, Section 123.

The case stems from an incident that occurred in November 2011, when Ms. Shanks was walking Ghost, who was collared, harnessed and leashed, in the town of Oneonta. A German shepherd named Ranger owned by Oneonta resident, Ana-Maria Blasetti, was tethered to a porch in the front yard of the Blasetti residence. As Ms. Shanks and Ghost passed the yard, Ranger broke his tether and ran at Ghost, and a fight ensued. Ghost remained leashed the entire time.

Both dogs were injured, and Ms. Blasetti filed a complaint against Ms. Shanks. The Town Court deemed Ghost a “dangerous dog,” and found Ms. Shanks was 65% culpable for the incident, and responsible for that percentage of the vet bills. Ghost was ordered to be muzzled and kept on a short leash whenever on public premises.

Shanks appealed the Town Court’s ruling to the County Court, which affirmed the lower court’s ruling. Ms. Shanks then appealed to the Supreme Court Appellate Division.

In its Memorandum and Order dated April 4, 2013, the Supreme Court found there was insufficient evidence to sustain a finding that Ghost was a dangerous dog within the meaning of the Agriculture and Markets law:

A [d]angerous dog is defined as a dog that “without justification” attacks a person, companion animal … or domestic animal … and causes physical injury or death” or “behaves in a manner which a reasonable person would believe poses a serious and unjustified imminent threat of serious physical injury or death to one or more … companion animals. Notably, a dog shall not be declared to be dangerous if its conduct “was justified because the dog was responding to pain or injury, or was protecting itself [or] its owner…” At a hearing held pursuant to Agriculture and Markets Law Section 123, the petitioner bears the burden of establishing, by clear and convincing evidence, that the was at issue is dangerous.

The Court noted that no dispute existed that Ranger had broken free of his leash and that Ghost remained leashed and did not at any time pull free of his owner. Further, no testimony was presented to contradict Ms. Shank’s account that Ranger attacked Ghost first, and the Town Court acknowledged this fact, as well. Given the undisputed evidence presented, the Supreme Court found that Ghost acted in defense of himself and his owner, thus his actions were justified and did not meet the meaning of “dangerous dog” as defined by the statute.

Moreover, Blasetti specifically argued that Ghost was dangerous because he was a “pit bull,” and she asserted that pit bulls are a breed that courts can take judicial notice as having a history of being violent. The lower court apparently concurred with Ms. Blasetti, and even described Ghost as an “aggressive, powerful and vicious pit bull,’ while failing to identify Ranger’s breed, although German shepherds “are regularly characterized as an aggressive breed of dog.”

The Supreme Court cited the case of Roupp v. Conrad in its Memorandum, specifically noting:

The condemnation of an individual dog in the context of a dangerous dog proceeding solely by virtue of its breed is without any legal basis. We have repeatedly held that “‘there is no persuasive authority for the proposition that a court should take judicial notice of the ferocity of any particular type or breed of domestic animal.'” (Emphasis added.)

The Supreme Court found that “absolutely no evidence” was submitted that Ghost had on any prior occasion attacked another person or dog, or that he exhibited any aggressive behavior toward the people attempting to the end the fight between he and Ranger. Rather, attacked by another dog with his owner at close range, Ghost’s protective and defensive instincts were entirely understandable and expected.

The Supreme Court reversed the ruling and dismissed Blasetti’s complaint against Shanks.