Stacy Wolf, Esq., ASPCA, Director of New York State Government Affairs and Public Policy
Note: This bill is less a “model” bill than a proposed revision to New York State’s dangerous dog law which is flawed in many respects, particularly with regard to the standard of proof for finding a dog “dangerous”, and with regard to the remedies available should a dog be found “dangerous”. Existing New York law permits a finding of dangerousness based on wholly subjective and potentially innocuous behaviors, thereby creating a real risk that friendly dogs will be found dangerous. And, by permitting only euthanasia and permanent confinement upon a finding of dangerousness, the law is plainly unduly harsh and does not permit the court to fashion a remedy to fit the “crime”. Finally, New York law presently provides no due process protections to a dog owner faced with a dangerous dog charge. This proposed bill fills this gap by providing for a clear right to appeal and a stay of a euthanasia order pending the outcome of the appeal.
AN ACT to amend the agriculture and markets law, in relation to dangerous dogs and the regulation thereof:
The People of the State of New York, represented in Senate and Assembly do enact as follows:
Section 1. Subdivision 24 of section 108 of the agriculture and markets law is amended to read as follows:
24. “Dangerous Dog” means any dog which (a) without justification, attacks a person, companion animal or farm animal and causes physical injury or death, or (b) 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 persons, companion animals or farm animals.
“Dangerous dog” does not include a police work dog, as defined in subdivision 18 of this section, which acts in the manner described in this paragraph while the police work dog is being used to assist one or more law enforcement officers in the performance of their official duties.
Section 108 of the agriculture and markets law is amended by adding subdivisions 25 and 26 to read as follows:
25.”Physical Injury” means impairment of physical condition or substantial pain.
26. “Serious Physical Injury” means physical injury which creates a substantial risk of death, or which causes death or serious or protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.
Section 2. Subdivisions 1 and 2 of section 121 of the agriculture and markets law are REPEALED.
Subdivisions 3, 4 and 5 of section 121 of the agriculture and markets law are renumbered and amended to read as follows:
1.  Any person who witnesses an attack or threatened attack may make a complaint of an attack or threatened attack upon a person, companion animal or farm animal as defined in subdivision 24 of section 108 of the agriculture and markets law, to an [dog] animal control officer or police officer of the appropriate municipality. Such officer shall immediately inform the complainant of his right to commence a proceeding as provided in subdivision four of this section and, if there is reason to believe the dog is a dangerous dog, the officer shall forthwith commence such proceeding himself.
2.  Any person who witnesses an attack or threatened attack may, and any [dog] animal control officer or police officer as provided in subdivision [three] one hereof shall, make a complaint under oath or affirmation to any municipal judge or justice of such attack [, chasing or worrying] or threatened attack. Thereupon, the judge or justice shall immediately determine if there is probable cause to believe the dog is a dangerous dog and, if so, shall issue an order to any [dog] animal control officer, peace officer, acting pursuant to his special duties, or police officer directing such officer to immediately seize such dog and hold the same pending judicial determination as herein provided. Whether or not the judge or justice finds there is probable cause for such seizure, he shall, within five days and upon written notice of not less two days to the owner of the dog, hold a hearing on the complaint.
The petitioner shall have the burden at such hearing, to prove the dog is a “dangerous dog” by clear and convincing evidence.
If satisfied that the dog is a dangerous dog, the judge or justice shall [then order any dog control officer, peace officer, acting pursuant to his special duties, or police officer to cause the dog to be euthanized immediately, or shall order the owner to confine securely such dog permanently except as provided in subdivision six of this section. The owner shall confine the dog indoors or in an enclosed and locked pen or structure as provided in the order. Such pen or enclosure shall have a secure top and sides and shall be designed to prevent an unauthorized entry of a person, the escape of the dog and to provide protection from the elements. If the owner fails to confine the dog as required by such order, any dog control officer, peace officer, acting pursuant to his special duties, or police officer shall destroy such dog on or off the premises of the owner]. then order one or more of the following as deemed appropriate under the circumstances and as deemed necessary for the protection of the public:
(a) evaluation of the dog by a certified applied behaviorist, a board certified veterinary behaviorist, or another recognized expert in the field and completion of training or other treatment as deemed appropriate by such expert. The owner of the dog shall be responsible for all costs associated with evaluations and training ordered under this section;
(b) secure, humane confinement of the dog for a period of time and in a manner deemed appropriate by the court but in all instances in a manner designed to: (1) prevent escape of the dog, (2) protect the public from unauthorized contact with the dog, and (3) to protect the dog from the elements;
(c) direct supervision by an adult 18 years of age or older whenever the dog is on public premises;
(d) restraint of the dog on a leash whenever the dog is on public premises;
(e) muzzling the dog whenever it is on public premises in a manner that will prevent it from biting any person or animal, but that shall not injure the dog or interfere with its vision or respiration;
(f) neutering or spaying the dog, or
(g) maintenance of a liability insurance policy in an amount determined by the court, but in no event in excess of $100,000 for personal injury or death resulting from an attack by such dangerous dog.
3. Upon a finding that a dog is dangerous, the judge or justice may order humane euthanasia or permanent confinement of the dog if one of the following aggravating circumstances is established at the judicial hearing held pursuant to subdivision 2 of this section:
(a) the dog, without justification, attacked a person causing serious physical injury or death; or
(b) the dog has a known vicious propensity as evidenced by a previous unjustified attack on a person, which caused serious physical injury or death.
An order of humane euthanasia shall not be carried out until expiration of the thirty-day period provided for in subdivision (6) of this section for filing a notice of appeal. Upon filing of a notice of appeal, the order shall be automatically stayed pending the outcome of the appeal.
4. (5) A dog shall not be declared dangerous if the court determines the conduct of the dog (a) was justified because the threat, injury or death was sustained by a person who at the time was committing a crime or offense upon the owner or custodian of the dog, or upon the property of the owner or custodian of the dog or, (b) was justified because the injured, threatened or killed person was tormenting, abusing, [or] assaulting or physically threatening the dog or its offspring, or has in the past tormented, abused, [or] assaulted or physically threatened the dog or its offspring, or (c)was justified because the injured, threatened or killed companion animal or farm animal was attacking or threatening to attack the dog or its offspring; or (d) [c] was justified because the dog was responding to pain or injury, or was protecting itself, its owner, custodian, or a member of its household, its kennel or its offspring.
Testimony of a certified applied behaviorist, a board certified veterinary behaviorist, or another recognized expert shall be relevant to the court’s determination as to whether the dog’s behavior was justified pursuant to the provisions of this subdivision.
Subdivision 6 of section 121 of the agriculture and markets law is REPEALED and a new subdivision 6 is added to read as follows:
(a) The owner of a dog found to be a “dangerous dog” pursuant to this section may appeal such determination, and/or the court’s order concerning disposition of the dog to the court having jurisdiction to hear civil appeals in the county where the “dangerous dog” finding was made. The owner shall commence such appeal by filing a notice of appeal with the appropriate court within 30 days of the final order pursuant to this section. Court rules governing civil appeals in the appropriate jurisdiction shall govern the appeal of a determination under this section.
(b) Stay Pending Appeal
Upon filing a notice of appeal from an order of humane euthanasia pursuant to this section, such order shall be automatically stayed pending final determination of any appeal. In all other circumstances, the owner of the dog may make application to the court to issue a stay of disposition pending determination of the appeal.
The agriculture and markets law is amended by adding a new section 121(a) to read as follows:
Exemption from Civil Liability
1. If any dog shall, without justification, attack a person,
or behave in manner which a reasonable person would believe poses a serious and unjustified imminent threat of serious physical injury to a person, when such person is peaceably conducting himself in a place where he may lawfully be, such person or any other person witnessing the attack or threatened attack, may destroy such dog while so attacking, and no liability in damages or otherwise shall be incurred on account of such destruction.
2. If any dog shall, without justification, attack a companion animal or farm animal, or shall behave in a manner which a reasonable person would believe poses a serious and unjustified imminent threat of serious physical injury or death to a companion animal or farm animal, where such animal is in any place where it may lawfully be, the owner or caretaker of such animal, or any other person witnessing the attack, may destroy such dog, and no liability in damages or otherwise shall be incurred on account of such destruction.
424 East 92nd St.
New York, NY 10128-6804